Bouchard v. Warren, City of

Filing 49

ORDER Denying 48 Defendant's Motion for Reconsideration, Certification for Interlocutory Appeal, and Stay of Proceedings. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KENNETH J. BOUCHARD,
Plaintiff,
v.

Case No. 14-14009
Honorable Denise Page Hood

CITY OF WARREN,
Defendant.
/
ORDER DENYING DEFENDANT’S MOTION FOR
RECONSIDERATION, CERTIFICATION FOR
INTERLOCUTORY APPEAL, AND STAY OF PROCEEDINGS [#48]
I.

INTRODUCTION
Plaintiff filed this cause of action on October 17, 2014, alleging that he was

constructively discharged in violation of the Family and Medical Leave Act
(“FMLA”), the Michigan Whistleblower Protection Act (“WPA”), and Michigan
public policy. On March 31, 2017, the Court issued and Order that denied in part and
granted in part Defendant’s Motion for Summary Judgment, ruling that a genuine
dispute of material fact existed with respect to Plaintiff’s FMLA and WPA claims.
On April 14, 2017, Defendant filed a “Motion for Reconsideration re Order on
Motion for Summary Judgment, Order on Motion to Dismiss, Order on Motion to
Compel, Or Alternatively, to Modify and Certify the Order for Interlocutory Appeal

and For a Stay of Proceedings.” Dkt. No. 48.
II.

BACKGROUND
The relevant facts regarding this case were set forth in the Court’s March 31,

2017 Order. The Court incorporates those facts by reference in this Order.
III.

ANALYSIS

A.

Legal Standard
In order to obtain reconsideration of a particular matter, the party bringing the

motion for reconsideration must: (1) demonstrate a palpable defect by which the Court
and the parties have been misled; and (2) demonstrate that “correcting the defect will
result in a different disposition of the case.” E.D. Mich. L.R. 7.1(h)(3). See also
Graham ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d 377, 385 (6th
Cir. 2004); Aetna Cas. and Sur. Co. v. Dow Chemical Co., 44 F.Supp.2d 865, 866
(E.D. Mich. 1999); Kirkpatrick v. General Electric, 969 F.Supp. 457, 459 (E.D. Mich.
1997).
A “palpable defect” is a “defect which is obvious, clear, unmistakable, manifest,
or plain.” Olson v. The Home Depot, 321 F.Supp.2d 872, 874 (E.D.Mich. 2004). The
movant must also demonstrate that the disposition of the case would be different if the
palpable defect were cured. E.D. Mich. L.R. 7.1(h)(3). Brown v. Walgreens Income
Protective Plan for Store Managers, No. 10-CV-14442, 2013 WL 1040530, at *1
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(E.D. Mich. Mar. 15, 2013). “[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).
B.

Analysis
The Court finds that Defendant fails to offer any new argument regarding the

WPA and FMLA claims. Defendant’s current arguments, like its arguments in its
Motion for Summary Judgment, focus on limited facts and generally ignore that the
facts must be viewed in a light most favorable to the non-moving party – Plaintiff.
Defendant does not identify or acknowledge many of the facts that the Court found
constituted the basis for the genuine disputes of material fact with regard to the WPA
and FMLA claims. See, e.g., Dkt. No. 46, PgID 1191-92 (events set forth at numbered
paragraphs) and 1198 (“[t]hat Defendant was requiring Plaintiff to submit to, and pass,
a ‘fitness for duty’ evaluation before returning to work constitutes evidence that
Defendant, at a minimum, was concerned that Plaintiff suffered from a serious health
condition”).

Defendant’s arguments reveal the true basis for its motion for

reconsideration – it did not like the Court’s ruling the first time and seeks to persuade
the Court to adopt Defendant’s version of the case. The threshold for relief pursuant
to Local Rule 7.1(h)(3) requires more.
Defendant also offers its perspective of what some “facts” are. Defendant
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assumes that because Plaintiff has not offered competing facts, Defendant’s
representation of the veracity of those facts must be accepted as true. The Court
concludes that some of those “facts” require a credibility determination by the fact
finder. One example of such an “undisputed” fact asserted by Defendant is that
“neither Easter nor Simlar [the persons who made Plaintiff submit to a psychological
fitness-for-duty evaluation test before returning to active employment] were aware
that [Plaintiff] had presented before the City Council or Council of the Whole,
prepared a PPP, or raised concerns about the City’s policies, rules, or procedures.”
Dkt. No. 48, PgID 1224. As Easter and Simlar were employed by Defendant, and as
Plaintiff’s supervisor Ronald Wuerth stated that the meeting before the City Council
was “infamous,” Dkt. No. 38, Ex. 1 at 55, the Court finds that a fact finder may not
deem credible Defendant’s representation that Easter and Simlar were not aware of
Plaintiff’s history as it related to those events.
The Court concludes that there is no palpable defect by which it or the parties
has been misled, and it denies Defendant’s motion for reconsideration.
C.

Motion to Modify and Certify the Order for Interlocutory Appeal
As Defendant states:
28 U.S. Code § 1292(b) empowers a district court to certify for
interlocutory appeal a ‘non-final order’ where (1) it involves a
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controlling question of law; (2) for which there is a substantial ground
for difference of opinion; and (3) that an immediate appeal from the
order may materially advance the ultimate termination of the litigation.
In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002). The Court is not persuaded
by Defendant’s argument that the Court should certify the Order under Section
1292(b).
Defendant’s argument is premised on a misinterpretation of the basis for the
Court’s ruling. Contrary to Defendant’s suggestion, the Court did not determine that
genuine issues of material fact existed – or that controlling law ensured the survival
of a constructive discharge claim based on an adverse employment action – simply
because there was silent treatment and “an issuance of a written warning and a notice
of the possibility of a one-day suspension.” See Dkt. No. 48, PgID 1231. Similarly,
the Court did not determine that Defendant had notice of Plaintiff’s intent to take
FMLA leave simply because Plaintiff wrote to Defendant that he needed to “go home
and relax.” Id. at PgID 1228. As set forth in the March 31, 2017 Order, there were
numerous events that factored into the Court’s determination that Plaintiff’s WPA and
FMLA claims should survive Defendant’s motion for summary judgment.
For those reasons, the Court concludes that there is no critical controlling issue
of law for which there is a substantial ground for difference of opinion. The Court

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denies Defendant’s motion to modify and certify the Order for interlocutory appeal.
D.

Motion for a Stay of Proceedings
Having denied Defendant’s motion for reconsideration and request to certify

an interlocutory appeal, the Court concludes that there is no basis for staying the
proceedings. Defendant’s motion for a stay of proceedings is denied.
IV.

CONCLUSION
Accordingly,
IT IS ORDERED that Defendant’s Motion for Reconsideration re Order on

Motion for Summary Judgment, Order on Motion to Dismiss, Order on Motion to
Compel, Or Alternatively, to Modify and Certify the Order for Interlocutory Appeal
and For a Stay of Proceedings [Dkt. No. 48] is DENIED.
IT IS SO ORDERED.
S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: May 22, 2017

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I hereby certify that a copy of the foregoing document was served upon counsel of
record on May 22, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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