Johnson v. VGA Group, Incorporated et al

Filing 49

ORDER denying 48 Plaintiff's Rule 60(b) Motion. Signed by District Judge Avern Cohn. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHARLES H. JOHNSON,
Plaintiff,
v.

Case No. 08-14987

VGA GROUP, INC., JO ANN ADAMS,
DWAYNE OLMSTEAD, RONALD WHEELER,
and NATHAN LOVE,

HON. AVERN COHN

Defendants.
___________________________________/
ORDER DENYING PLAINTIFF’S RULE 60(B) MOTION
I.
This was an employment case under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA” or “Act”), 38 U.S.C. § 43101 et seq. In
2008, plaintiff Charles Johnson, proceeding pro se and in forma pauperis, sued his
former employer, VGA Group, Inc. and several individuals (collectively “VGA”), claiming
his termination was in violation of USERRA. Johnson was employed for two months as
a driver to transport veterans to the VA Hospital in Detroit. Johnson sought an order
compelling VGA to rehire him and award him back-pay with interest.
On March 19, 2009, the Court granted VGA’s motion for summary judgment and
dismissed the case. Doc. 44. Plaintiff did not appeal.
On December 2, 2011, plaintiff filed the instant motion under rule 60(b),
essentially seeking to reverse the dismissal of his case. For the reasons that follow, the
motion is DENIED.

II.
Fed. R. Civ. P. 60(b) provides in relevant part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered
Evidence; Fraud, Etc. On motion and upon such terms as are just, the
court may relieve a party or a party's legal representative from a final
judgment, order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation, or other misconduct
of an adverse party; (4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no longer equitable
that the judgment should have prospective application; or (6) any other
reason justifying relief from the operation of the judgment.
A motion under Rule 60(b) must be filed within a reasonable time and for reasons
under subsections (1), (2) and (3), “no more than one year after entry of the judgment or
order or the date of the proceedings.” Fed. R. Civ. P. 60(c).
III.
Plaintiff has not satisfied this standard for Rule 60(b) relief. As an initial matter,
plaintiff filed this motion more than two (2) years after his case was dismissed. That is
not a reasonable time and plaintiff offers no explanation for the delay. Thus, the motion
may be denied on these grounds.
Regarding the substance of the motion, as best as can be gleaned from his
papers, he asserts that a Sixth Circuit decision, Petty v. Metropolitan Govt. of NashvilleDavidson County, 538 F.3d 431 (6th Cir. 2008), which was issued before his case was
dismissed, entitles him to relief. Plaintiff is mistaken. As explained in the summary
judgment order, plaintiff cannot make out a claim for discrimination in violation of
USERRA because he was not a member of the uniformed services at the time he
applied for employment. Rather, he is a former member of the uniform services,

honorably discharged from the Air Force in 1987. There was no evidence that
Johnson’s prior membership in the United States’ Air Force 21 years before VGA hired
him was a motivating factor in VGA’s decision to discharge him. Moreover, the decision
in Perry, which pertained to a serviceman’s claim seeking reinstatement to his prior
employment after completing his military service, simply does not apply to plaintiff’s
case.1
SO ORDERED.

Dated: December 30, 2011
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to Charles H.
Johnson, 1410 Washington Blvd., Apt. 905, Detroit, MI 48226 and the attorneys of
record on this date, December 30, 2011, by electronic and/or ordinary mail.

S/Julie Owens
Case Manager, [phone]

1

Plaintiff also appears to argue that he can bring a discrimination claim under
Michigan’s Elliot Larsen civil rights act and a claim under 42 U.S.C. § 1981. Plaintiff did
not allege either of these claims in his complaint and there are no grounds to allow him
to assert new claims at this time.