Knighten, Jr. v. McHugh et al

Filing 75

ORDER denying 70 plaintiff's Motion for relief from Order granting defendants' motions for summary judgment 68 Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FRANK E. KNIGHTEN, JR.,
Plaintiff,
Case No. 14-CV-12351
vs.
HON. GEORGE CARAM STEEH
JOHN M. McHUGH, et al,
Defendants.
_____________________________/
ORDER DENYING PLAINTIFF’S MOTION FOR RELIEF FROM ORDER
GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
PURSUANT TO FED. R. CIV. P. 60(B)(1) AND (6) (DOC. 70)
This matter is before the court on Plaintiff’s motion for relief from the order
entered by this court on May 6, 2016 granting Defendants’, John M. McHugh (McHugh)
and Unified Business Technologies, Inc., motions for summary judgment. Plaintiff,
Frank E. Knighten, Jr., brings the present motion pursuant to Federal Rule of Civil
Procedure 60(b)(1) and (6) arguing that he is entitled to relief from this court’s judgment.
Federal Rule of Civil Procedure 60(b) allows a party relief from judgment, order or other
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence, that, with reasonable diligence,
could have been discovered in time to move for a new trial under
Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation,
or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
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Fed. R. Civ. P. 60(b). As an initial matter, Knighten’s reliance on subsection (b)(6) is not
persuasive. Subsection (b)(6) may only be used in extraordinary circumstances which
are not addressed by the first five subsections of Rule 60(b). Ford Motor Co. v.
Mustangs Unlimited, Inc., 487 F. 3d 465, 468 (6th Cir. 2007). The Sixth Circuit has
Court of Appeals stated that courts “must apply subsection (b)(6) only as a means to
achieve substantial justice when something more than one of the grounds contained in
Rule 60(b)’s first five clauses is present. The something more . . . must include unusual
and extreme situations where principles of equity mandate relief.” Id. (internal citations
and quotations omitted). Knighten’s does not argue that an unusual or extreme situation
exists that warrants relief from judgment. For that reason, the court will limit its
consideration to subsection (b)(1).
As applicable here, subsection (b)(1) offers relief when the movant establishes
clear and convincing evidence of a mistake. Info-Hold, Inc. v. Sound Merch., Inc., 538
F.3d 448, 454 (6th Cir. 2008). This is a high bar that is
intended to provide relief to a party in only two instances: (1) when the
party has made an excusable litigation mistake or an attorney in the
litigation has acted without authority; or (2) when the judge has made a
substantive mistake of law or fact in the final judgment or order.
Cacevic v. City of Hazel Park, 226 F.3d 483, 490 (6th Cir. 2000) (quoting Yapp v. Excel
Corp., 186 F.3d 1222, 1231 (10th Cir.1999)).
In arguing this motion, Knighten claims that the court erred by finding 1) that
Knighten knew or should have known of the Army’s adverse employment decision on
February 26, 2013, 2) that Defendants did not waive their timeliness defense, and 3)
that equitable tolling is inappropriate here. As to the first argument, Knighten alleges
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that the question of when Knighten “reasonably should have been aware” of the Army’s
decision is a question of fact for a jury to decide. Knighten claims that he was not
informed of the Army’s decision not to hire him until March 28, 2013. The EEO used
March 28, 2013 in two letters to reference the date on which Knighten learned of the
Army’s decision. (Doc. 70-8, Pg ID 1593; Doc. 70-13, Pg ID 1609). Knighten insists that
these letters are evidence that the EEO admitted this as being the correct date. The
EEO, however, was merely reciting Knighten’s allegations, not finding that date to be
the correct date on which Knighten knew of the decision. (See Doc. 70-8, Pg ID 1593).
The court accurately found that Knighten knew or should have known of the
Army’s employment decision when he spoke with Roy Riggleman on January 26, 2013.
According to Knighten’s deposition testimony, Riggleman “explain[ed] to [Knighten] that
he had all the names and positions filled.” (Doc. 62-3, Pg ID 1461). Given that Knighten
knew there were no positions available, he “reasonably should have been aware” that
the Army was not going to hire him. Lord v. Holder, 568 F. App'x 435, 437 (6th Cir.
2014) (citing EEOC v. United Parcel Serv., Inc., 249 F.3d 557, 562 (6th Cir. 2001)). At
that point, the 45-day clock began running, for Knighten to contact the EEO. Knighten
did not contact the EEO, and he, therefore, did not exhaust his administrative remedies.
Knighten next argues that Defendants waived their timeliness defense by not
raising it before this case was filed. This argument is unpersuasive. The 6th Circuit has
held that a timeliness defense is only waived if the administrative agency has previously
reached a final decision in the matter.
[W]hen an agency accepts and investigates a complaint of discrimination,
as the Postal Service did in this case, it does not thereby waive a defense
that the complaint was untimely. Rather, waiver occurs when the agency
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decides the complaint on the merits without addressing the untimeliness
defense.
Horton v. Potter, 369 F.3d 906, 911 (6th Cir. 2004) (internal citations omitted). Here, it is
uncontested that the EEO did not reach a final decision before Knighten filed this case.
(Doc. 74, Pg ID 1674). Knighten, nevertheless, argues that the court should hold that
Defendants waived this defense because the EEO was delayed in issuing its final
decision. The fact remains, however, that no final decision was made. This argument,
therefore, fails.
Finally, Knighten argues that the court erred in determining that equitable tolling
was not appropriate here. In granting Defendants’ motions for summary judgment, the
court held that Knighten made
no attempt to establish facts that support the proposition that he was
unaware of the time limit or was prevented from contacting the EEO
despite due diligence and due to circumstances beyond his control.
Additionally, as described above, it is clear that plaintiff was aware that the
discriminatory matter or personnel action occurred on February 26, 2013
after his phone call with Roy Riggleman. So, tolling is not proper here.
(Doc. 68, Pg ID 1521). The Sixth Circuit Court of Appeals has established that “Rule
60(b) does not allow a defeated litigant a second chance to convince the court the court
to rule in his or her favor by presenting new explanations, legal theories, or proof.” Jinks
v. Allied Signal, Inc., 250 F.3d 381, 385 (6th Cir. 2001). Inasmuch as Knighten did not
advance this equitable tolling argument in his response brief to Defendants’ motions for
summary judgment, Knighten is not permitted to maintain the argument here.
Furthermore, without knowing the basis for Knighten’s equitable tolling argument before
issuing its order, the court could not have made a “mistake” sufficient to provide relief
under Rule 60(b)(1).
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IT IS ORDERED that Plaintiff’s motion for relief from the order granting
Defendants’ motions for summary judgment pursuant to the Federal Rules of Civil
Procedure 60(b)(1) and (6) is DENIED.
IT IS SO ORDERED.
Dated: August 24, 2016
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
August 24, 2016, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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