Edwards v. Aldi, Inc.

Filing 42

ORDER Denying 39 Motion for Reconsideration. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JENNIFER EDWARDS,
Plaintiff,

Case No. 17-cv-10648

v.

Honorable Thomas L. Ludington

ALDI, INC., a foreign Corporation,
Defendant.
__________________________________________/
ORDER DENYING MOTION FOR RECONSIDERATION
On March 1, 2017, Plaintiff Jennifer Edwards filed a complaint against Defendant ALDI,
Inc., alleging various violations of the Family Medical Leave Act (FMLA). Compl., ECF No. 1.
Plaintiff alleges Defendant interfered with the exercise of her right to take leave under the
FMLA, and retaliated against her for doing so by terminating her employment. Id. Plaintiff also
alleges she was terminated for refusing to be complicit in fraudulent activity, in violation of
public policy, and that she was discriminated against based on her disability. Id. After eight
months of discovery, Defendant moved for summary judgment on February 19, 2018. ECF No.
27. Plaintiff responded on March 12, and Defendant replied on March 26. ECF Nos. 31, 32. On
May 9, 2018, the Court entered an order granting Defendant’s motion for summary judgment,
and dismissing the complaint in its entirety. ECF No. 37. On May 23, Plaintiff filed a timely
motion for reconsideration. ECF No. 39. A full factual summary was provided in the Court’s
May 9 order granting Defendant’s motion for summary judgment. See id.
I.
Pursuant to Eastern District of Michigan Local Rule 7.1(h), a party can file a motion for
reconsideration of a previous order, but must do so within fourteen days. A motion for

reconsideration will be granted if the moving party shows: “(1) a palpable defect, (2) the defect
misled the court and the parties, and (3) that correcting the defect will result in a different
disposition of the case.” Michigan Dept. of Treasury v. Michalec, 181 F. Supp. 2d 731, 733-34
(E.D. Mich. 2002) (quoting E.D. Mich. LR 7.1(g)(3)). A “palpable defect” is “obvious, clear,
unmistakable, manifest, or plain.” Id. at 734 (citing Marketing Displays, Inc. v. Traffix Devices,
Inc., 971 F. Supp. 2d 262, 278 (E.D. Mich. 1997). “[T]he Court will not grant motions for
rehearing or reconsideration that merely present the same issues ruled upon by the Court, either
expressly or by reasonable implication.” E.D. Mich. L.R. 7.1(h)(3). See also Bowens v. Terris,
2015 WL 3441531, at *1 (E.D. Mich. May 28, 2015).
II.
Plaintiff’s motion for reconsideration contends that the analysis in the Court’s Order
contains three palpable defects:
First, this Court erred in failing to find that Plaintiff suffered from a “serious
health condition” as defined by the Act . . . . Second and as a result of the first
error, this Court erred in failing to find Plaintiff engaged in protected activity,
which was based upon its prior improper reasoning that Plaintiff did not suffer a
serious health condition. Lastly, this Court erred in failing to find a factual
question regarding the issue of pretext.
Mot. at 1–2.
A.
i.
“For purposes of FMLA, a serious health condition entitling an employee to FMLA leave
means an illness, injury, impairment or physical or mental condition that involves inpatient care
as defined in § 825.114 or continuing treatment by a health care provider as defined in §
825.115.” 29 C.F.R. § 825.113. Inpatient care, in turn, “means an overnight stay in a hospital,
hospice, or residential medical care facility, including any period of incapacity as defined in §
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825.113(b), or any subsequent treatment in connection with such inpatient care.” 29 C.F.R. §
825.114. “Continuing treatment by a health care provider” includes, among other things,
(c) Chronic Conditions. Any period of incapacity or treatment for such
incapacity due to a chronic serious health condition. A chronic serious
health condition is one which:
(1) Requires periodic visits (defined as at least twice a year) for
treatment by a health care provider, or by a nurse under direct
supervision of a health care provider;
(2) Continues over an extended period of time (including recurring
episodes of a single underlying condition); and
(3) May cause episodic rather than a continuing period of
incapacity (e.g., asthma, diabetes, epilepsy, etc.)
29 C.F.R. § 825.115(c) (emphasis added).
The term incapacity means “inability to work, attend school or perform other regular
daily activities due to the serious health condition, treatment therefore, or recovery therefrom.”
29 C.F.R. § 825.113(b).
ii.
In the May 9 Order, the Court found that Defendant had carried its burden to point to
evidence in the record demonstrating that Plaintiff was not incapacitated:
As Defendant notes, there is no evidence in the record that a medical provider
ever determined that Plaintiff could not work because of her ear condition.
Plaintiff testified that her condition did not prevent her from performing her job.
36:22-37:1; 47:6-13. When asked if her ear condition impacted her daily life
activities, Plaintiff responded “no, I just did them” and later responded that she
“pushed through, pain or no pain.” Edwards Dep. at, 36:22-37:1; 46:16-25. No
medical provider imposed any work restrictions on Plaintiff because of her ear
condition. 42:2-8, 58:17-20, 116:16-19.
Order at 13-14. The Court noted that Plaintiff did not attempt to rebut this evidence with any
factual or legal analysis. Id. Rather, Plaintiff simply recited the definition of a chronic serious
health condition under 29 C.F.R. § 825.115(c) and concluded that her condition met that
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definition. Plaintiff asserted that her condition “required period visits” and “caused episodic
periods of incapacity.” Id. However, Plaintiff offered no citation to the factual record nor did she
indicate which periodic visits or episodic periods of incapacity she was referring to. Rather,
Plaintiff referred the Court to “the record evidence summarized above.” Id.
The Court found that this fell well short of Plaintiff’s obligation at the summary judgment
stage to identify a material issue of fact for trial, and the Court declined to comb through the
factual record and attempt to piece together an FMLA interference claim on the Plaintiff’s
behalf. Id. (citing McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation,
are deemed waived. It is not sufficient for a party to mention a possible argument in the most
skeletal way, leaving the court to ... put flesh on its bones.”) (emphasis added).
In her motion for reconsideration, Plaintiff provides a lengthy overview of the
amendments to the FMLA regulations and the case law interpreting those regulations,
specifically in relation to the “incapacity” requirement. Mot. at 3–7. The main point of this
discussion is that, according to Plaintiff, Defendant relied upon outdated and inapplicable case
law to support “the proposition that to show incapacity, one must present evidence that a health
care provider has determined the employee cannot work or could not have worked because of the
illness.” Id. at 4. Plaintiff contends that no such requirement exists. This discussion is nonresponsive to the fact that Plaintiff herself testified that her condition did not prevent her from
performing her job or performing her daily life activities. The Court found that this testimony (in
addition to the lack of any medical evidence suggesting an inability to work), established the lack
of any dispute of material fact as to whether she suffered a period of incapacity, and thus whether
she suffered from a serious medical condition. Order at 13-14. Because Plaintiff does not address

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this testimony, or why the Court’s reliance on it was erroneous, Plaintiff has not identified a
palpable error in the Court’s reasoning.
B.
Next, Plaintiff argues that the Court erred in finding that Plaintiff did not engage in
protected activity. This argument is predicated on Plaintiff’s initial argument that the Court erred
in finding she did not suffer from a serious medical condition, which was rejected above. Thus,
Plaintiff has not established a palpable error in the Court’s determination that she did not engage
in protected activity.1
C.
Next, Plaintiff argues that the Court erred in finding that there was no question of fact as
to pretext. Because Plaintiff did not engage in protected activity, however, she did not establish
her prima facie case of FMLA retaliation, and a showing of pretext alone could not establish her
retaliation claim. See In re Rodriguez, 487 F.3d 1001, 1008 (6th Cir. 2007). Nevertheless, the
Court discussed Plaintiff’s arguments concerning pretext as an alternative basis to sustain the
Court’s decision to grant Defendant summary judgment on the retaliation claim. The Court
concluded that Plaintiff’s explanation for the transaction giving rise to her termination (that it
was authorized by Ms. VanNatta) was immaterial because that explanation was not shared with
the decision maker, Ms. Snider, and was therefore not taken into consideration when Ms. Snider
made her decision. Order. at 21. That analysis still stands.

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The Court also discussed the approach adopted by the court in Johnson, in which the court concluded that a
retaliation claim “does not require proof that the plaintiff actually suffered a ‘serious health condition,’ only that the
plaintiff gave adequate and timely notice to the employer that he or she needed leave for a condition that the plaintiff
believed, in good faith, might be covered by the FMLA.” Order at 16, ECF No. 37 (quoting Johnson v. Dollar Gen.,
880 F. Supp. 2d 967, 992 (N.D. Iowa 2012), aff’d, 508 F. App’x 587 (8th Cir. 2013). This Court concluded that,
even under this alternative approach, Plaintiff still had not engaged in protected activity. Plaintiff does not identify
any error in the Court’s reasoning with respect to that analysis.

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Plaintiff now argues that “the factual dispute (regarding whether Ms. VanNatta
authorized the transaction) was and is material because the cat’s paw theory of liability imputes
Ms. VanNatta’s discriminatory or retaliatory intent to Ms. Snider.” Mot. at 11. Plaintiff argues
that she should survive summary judgment “if there is a genuine issue of material fact as to
whether Ms. VanNatta influenced Ms. Snider’s decision to terminate Plaintiff.” Mot. at 13.
Plaintiff also identifies testimony which purportedly demonstrates that Ms. Snider’s decision was
based in part on information provided to her by Ms. VanNatta. Id. at 13–14. Notably, however,
the cat’s paw theory of liability was never briefed or even raised by Plaintiff in response to the
motion for summary judgment.2 Rather, in her response brief, Plaintiff argued as follows:
Plaintiff may establish a factual question whether Defendant’s proffered reason is
pretextual as there is a factual dispute regarding whether Plaintiff violated any
policy. First, Plaintiff's testimony creates a factual question of whether Ms.
VanNatta authorized Plaintiff to complete the transaction, i.e. paying a vendor for
services with gift certificates. Plaintiff testified that it was actually Ms. VanNatta
that came up with the idea of paying the vendor with gift certificates. Second,
Defendant’s Cash Policy provides that Plaintiff may pay vendors without
approval for up to $100. In this case, the services rendered by the vendor was
under $100 and, therefore, within Plaintiff’s authority to issue the payment. This
factual dispute goes to the very basis of Defendant taking action. If a fact finder
believed Plaintiff’s testimony on this point, Defendant would then have
terminated Plaintiff for actions of Plaintiff that had been approved by Defendant.
This alone should give rise to a factual question on the issue of pretext, especially
in light of Defendant’s failure to follow its Cash Policy.
Resp. at 17, ECF No. 37. Although Plaintiff’s response brief addressed the factual dispute as to
whether Ms. VanNatta authorized the transaction, the response brief made no attempt to bridge
the gap between that factual dispute and Ms. Snider’s decision to terminate Plaintiff. Pursuant to

2

Interestingly, Plaintiff did question Ms. Snider about the cat’s paw theory during her deposition:
Q: You rely on your district managers to give you as the director of operations accurate information; right?
A: I do expect to receive accurate information.
Q: Did you ever hear or read the Aesop’s Fable about the monkey and the cat and the chestnut?
A: No, I’m unfamiliar.
Q: It’s called the Cat’s Paw. Have you ever heard of that?
A: No.

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the honest belief rule, Ms. Snider was entitled to reasonably rely on the set of facts she had
before her when she made the decision to terminate Plaintiff’s employment. In her response
brief, Plaintiff offered no evidence that Ms. Snider was ever informed by Plaintiff or anyone else
that Ms. VanNatta allegedly approved the transaction. To the contrary, Ms Snider’s testimony
reflected that she had no such knowledge. Order at 21 (citing Snider Dep. at 34). In her motion
for reconsideration, Plaintiff now attempts to identify evidence to the contrary in order to support
Plaintiff’s newly developed cat’s paw theory. This theory will not be entertained for the first time
on a motion for reconsideration. See Bingham v. Bank of Am., 2010 WL 3952272, at *1 (E.D.
Mich. Oct. 8, 2010) (quoting Scottsdale Insur. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir.2008)
(“We have found issues to be waived when they are raised for the first time in motions for
reconsideration.”); Hamilton v. Gansheimer, 536 F.Supp.2d 825, 842 (N.D. Ohio 2008 (“Courts
should not reconsider prior decision where the motion for reconsideration either renews
arguments already considered or proffers new arguments that could, with due diligence, have
been discovered and offered during the initial consideration of the issue.”)). For the foregoing
reasons, the motion for reconsideration will be denied.
III.
Accordingly, it is ORDERED that Plaintiff’s motion for reconsideration, ECF No. 39, is
DENIED.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: June 21, 2018

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on June 21, 2018.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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