Jackson v. Detroit Entertainment, LLC

Filing 30

ORDER Denying 27 Motion for Reconsideration re 24 Order on Motion for Summary Judgment filed by Detroit Entertainment, LLC. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Michaele Jackson,
Plaintiff,
v.

Case No. 12-12844

Motorcity, an assumed name of
Detroit Entertainment, L.L.C.,
a Michigan limited liability company,

Sean F. Cox
United States District Court Judge

Defendant.
______________________________/
ORDER DENYING
DEFENDANT’S MOTION FOR RECONSIDERATION
Plaintiff filed this action against his current employer, alleging that it has discriminated
and retaliated against him, in violation of the Family Medical Leave Act (“FMLA”) for his
having exercised his rights under the act. The matter came before the Court on Defendant’s
Motion for Summary Judgment. In an Opinion & Order issued on October 9, 2013, this Court
granted the motion in part and denied it in part. (Docket Entry No. 24). This Court granted the
motion to the extent that the Court dismissed, as time-barred, Plaintiff’s retaliation claims based
upon Plaintiff’s April 5, 2009 suspension from the cell phone incident and Plaintiff’s April 10,
2009 suspension for abandoning his post. The Court denied the motion in all other respects.
Accordingly, Plaintiff’s retaliation claims based upon his July 2, 2009 termination, and having
been assigned to colder-climate posts for more than 70 days straight in the wintertime, shall
proceed to trial.
On October 28, 2013, Defendant filed a Motion for Reconsideration, wherein it asks this

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Court to reconsider its October 9, 2013 Opinion & Order.
Local Rule 7.1 of the Local Rules of the Eastern District of Michigan governs motions
for reconsideration and provides:
(3) Grounds. Generally, and without restricting the court’s discretion, the 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. The movant must not only demonstrate a palpable defect by which
the court and the parties and other persons entitled to be heard on the motion have
been misled but also show that correcting the defect will result in a different
disposition of the case.
Eastern District of Michigan, Local Criminal Rule 7.1(h)(3).
The Rule also provides that “a motion for rehearing or reconsideration must be filed
within 14 days after entry” of the order at issue. Eastern District of Michigan, Local Criminal
Rule 7.1(h)(1). Accordingly, as a threshold matter, Defendant’s October 28, 2013 motion
seeking reconsideration of this Court’s October 9, 2013 Opinion & Order is untimely.
Moreover, having reviewed the substance of the motion, this Court would deny the
motion even if it had been timely filed. Defendant’s Motion for Reconsideration raises two
arguments, both of which the Court finds without merit.
First, Defendant argues that the Court erred in concluding that the issue of whether
Plaintiff can establish a willful violation with respect to his discharge in July 2009 is an issue for
the trier of fact. Defendant’s motion repeats it arguments already presented to, and rejected by,
the Court. Having reviewed Defendant’s renewed arguments, the Court declines to reconsider
its ruling.
Second, Defendant argues that this Court erred in not dismissing Plaintiff’s FMLA claim
based upon being assigned to colder-climate positions for more than 70 days straight during the

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wintertime. (See Opinion & Order at 23, the “Court concludes that Jackson has created an issue
of fact as to whether being posted to colder-climate positions for more than 70 days straight
during the wintertime would be perceived as materially adverse by a reasonable person.”). In
challenging that ruling, Defendant asserts that the “court’s opinion did not address Defendant’s
claim (raised at page 21 of its Brief in support, [in foot]note 4) that even if Plaintiff’s work
assignments were adverse employment actions, he could not recover for those assignments
because he had not lost any wages or benefits as a result.” (Def.’s Mot. for Reconsid. at 2).
This so-called “challenge” raised by Defendant was not included in the issues presented
in Defendant’s brief (see Docket Entry No. 19 at 5-6), nor was it contained in the body of the
brief. Rather, Defendant included the following in a footnote:
It is worth noting that recovery under the FMLA is limited to wages, salary,
employment benefits or other compensation denied or lost to the employee as a
result of the claimed FMLA violation, or if no wages have been lost, any actual
monetary loss suffered by the employee as a direct result of the claimed violation.
29 U.S.C. § 2617(a)(1)(A)(i)(I), (II). Emotional distress damages are not
provided for in the statute. Thus, even if he were able to succeed with his claims,
Plaintiff could only recover for those adverse employment actions that resulted in
lost compensation.
(Def.’s Br., Docket Entry No. 19 at 21 n.4).
But the statute provides that an employer who violates the FMLA “shall be liable to any
eligible employee affected”: 1) for monetary damages (29 U.S.C. § 2617(a)(1)(A)); and 2) “for
such equitable relief as may be appropriate” (29 U.S.C. § 2617(a)(1)(B)).
In his Response Brief, Plaintiff responded to Defendant’s footnote, in the following
footnote contained on page 15 of his brief wherein he asserts that he can pursue equitable relief:
Plaintiff understands that he is limited to equitable relief for being posted outside,
but he is still entitled to injunctive relief on this issue.
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(Pl.’s Br., Docket Entry No. 22 at 21 n.1).
In Defendant’s Reply Brief, once again in a footnote, Defendant states “In his Response
at fn. 1, Plaintiff seemingly requests an injunction regarding his work assignments. Even if this
Court were inclined to assume that role at MotorCity, equitable relief is not available under the
FMLA unless the employee is prejudiced by the alleged violation.” (Def.’s Reply Br., Docket
Entry No. 23, at n.5). In support of that assertion, Defendant directs the Court to an Eighth
Circuit decision – without any further analysis or explanation.
This Court does not believe it erred in not ruling upon Defendant’s assertion that Plaintiff
cannot obtain equitable relief where that argument was made in a footnote in a reply brief and
was still undeveloped even then.
Accordingly, IT IS ORDERED that Defendant’s Motion for Reconsideration (Docket
Entry No. 27) is DENIED.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: November 12, 2013
I hereby certify that a copy of the foregoing document was served upon counsel of record on
November 12, 2013, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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