Sanderson v. Farmington Hills, City of

Filing 14

MEMORANDUM and ORDER Denying 13 Motion for Reconsideration. Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

NICOLE SANDERSON,
Plaintiff,
v.

Case No. 13-10094

CITY OF FARMINGTON HILLS,

HON. AVERN COHN

Defendant.
_______________________________________/

MEMORANDUM AND ORDER DENYING DEFENDANT’S
MOTION FOR RECONSIDERATION (Doc. 13)
I. INTRODUCTION
This is an action under the Uniformed Services Employment and Reemployment
Rights Act (USERRA), 38 U.S.C. § 4301, et seq. On September 17, 2013, the Court
denied Defendant City of Farmington Hills’ motion for summary judgment. See Sanderson
v. City of Farmington Hills, No. 13-11094, 2013 WL 5231989 (E.D. Mich. Sept. 17, 2013).
Now before the Court is Defendant’s motion for reconsideration on the sole basis that the
Court erred in concluding that Plaintiff Nicole Sanderson is not required to show
discrimination based on military service to prove her claim (Doc. 13). For the reasons that
follow, the motion is DENIED.
II. LEGAL STANDARD
The Local Rules of the Eastern District of Michigan provide that “[a] motion for
rehearing or reconsideration must be filed within 14 days after entry of the judgment or
order.” E.D. Mich. LR 7.1(h)(1). Defendants’ motion is timely.

No response or oral argument is allowed on a motion for reconsideration unless the
court orders otherwise. E.D. Mich. LR 7.1(h)(2).
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.” E.D. Mich. LR 7.1(h)(3). To obtain reconsideration of a court order, “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.” Id. A palpable defect
“is a defect which is obvious, clear, unmistakable, manifest, or plain.” Ososki v. St. Paul
Surplus Lines Ins. Co., 162 F. Supp. 2d 714, 718 (E.D. Mich. 2001).
III. DISCUSSION
Defendant argues that the Court erred in relying on Petty v. Metropolitan
Government of Nashville-Davidson County, 538 F.3d 431 (6th Cir. 2008) (Petty I) in
concluding that Sanderson was not required to show discrimination based on her military
service to bring her reemployment claim under section 4312 of the USERRA. In support
of this argument, Defendant relies on Curby v. Archon, 216 F.3d 549 (6th Cir. 2000).
However, the Court explained in the memorandum and order that the Sixth Circuit in Petty
I, while recognizing the Curby decision, made clear that “[s]ection 4311 [requiring
discrimination] applies after reemployment has occurred. . . .” Sanderson, 2013 WL
5231989, at *6 (citation and internal quotation marks omitted). Here, Sanderson was not
reemployed.

Thus, as the Court concluded, “the requirement that a plaintiff show

discrimination based on military service under section 4311, which applies after
reemployment, was not triggered.” Id. (emphasis in original).
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Defendant has not pointed to a palpable defect in the Court’s memorandum and
order. Defendant attempts to rehash the same arguments it made in support of its motion
for summary judgment. In so doing, Defendant argues that Petty I was incorrectly decided.
(Doc. 13 at 14, Def’s. Mot. for Recons.). To the extent that Curby and Petty I conflict, the
Court, as is clear in the memorandum and order, relies on Petty I, the most recent
published decision of the Sixth Circuit to explicitly address the issue.
SO ORDERED.
s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: October 3, 2013

I hereby certify that a copy of the foregoing document was mailed to the attorneys of record
on this date, October 3, 2013, by electronic and/or ordinary mail.

S/Sakne Chami
Case Manager, [phone]

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