Grabowski v. QBE Americas, Inc.

Filing 59

ORDER signed by District Judge Denise Page Hood denying 49 Motion for Reconsideration. (Grimes, K.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CYNTHIA GRABOWSKI,
Plaintiff,

CASE NO. 15-12318
HON. DENISE PAGE HOOD

v.
Proof of Service

QBE AMERICAS, INC., and
QBE HOLDINGS, INC. REGULAR
OR LIMITED TERM MEMBERS
GROUP MEMBER BASIC LIFE
INSURANCE PLAN,

The undersigned certifies that a copy of this Order was
served on the attorneys and parties of record herein by
electronic means or U.S. Mail on August 11, 2017.
s/Kim Grimes
Acting in the Absence of
LaShawn Saulsberry, Case Manager

Defendants.
/
ORDER DENYING DEFENDANT QBE’S MOTION FOR
RECONSIDERATION [#49]
I.

BACKGROUND
This matter is now before the Court on Defendant QBE Americas, Inc.’s

(“QBE”) Motion for Reconsideration filed on April 5, 2017. (Doc # 49) On March
22, 2017, the Court entered an Order Granting in Part and Denying in Part
Defendants’ Motion to Dismiss or in the Alternative Motion for Summary Judgment.
(Doc # 44) For the reasons set forth below, the Court denies QBE’s Motion for
Reconsideration.

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II.

ANALYSIS
A.

Standard of Review

The Local Rules of the Eastern District of Michigan provide that any motion
for reconsideration must be filed within 14 days after entry of the judgment or order.
E.D. Mich. LR 7.1(h)(1). No response to the motion and no oral argument thereon
are permitted unless the Court orders otherwise. Id. at 7.1(h)(2). QBE’s Motion is
timely filed.
Local Rule 7.1 further states:
(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.
Id. at 7.1(h)(3).

“A ‘palpable defect’ is a defect which is obvious, clear,

unmistakable, manifest, or plain.” Fleck v. Titan Tire Corp., 177 F. Supp. 2d 605,
624 (E.D. Mich. 2001). A motion for reconsideration is not a vehicle to re-hash old
arguments, or to proffer new arguments or evidence that the movant could have
brought up earlier. Sault Ste. Marie Tribe v. Engler, 146 F.3d 367, 374 (6th Cir.
1998) (motions under Fed. R. Civ. P. 59(e) “are aimed at re consideration, not initial
consideration”) (citing FDIC v. World Universal Inc., 978 F.2d 10, 16 (1st Cir.
1992)).
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B.

Discovery

QBE argues that the Court made a palpable error in its March 22, 2017 Order
because the Court incorrectly stated that discovery had closed.
The Court finds that QBE has not met its burden on a motion for
reconsideration, as it has not demonstrated a palpable defect by which the Court has
been misled. QBE asserts that the Court stated discovery had closed, specifically
citing Pg ID 1093. A review of the record, shows that the Court made no such
statement on Pg ID 1093. The only place where discovery is mentioned in the
Court’s March 22, 2017 Order is on Pg ID 1115, as part of the Court’s discussion of
the wrongful refusal to pay life insurance under ERISA claim:
[Cynthia Grabowski] relies on evidence outside of the administrative
record and, although discovery closed on January 9, 2017 (Doc # 37,
Pg ID 712), argues that she is entitled to additional discovery.
Defendants disagree.
Grabowski’s after-the-fact procedural argument regarding a lack of
notice fails, and the Court must limit itself to the administrative record
and will not grant additional discovery. Grabowski never made this
lack of notice argument in support of her claim during the
administrative process.
(Doc # 44, Pg ID 1115) Although the Court incorrectly stated that discovery had
closed where discovery had been stayed, the Court did not grant Grabowski
additional discovery on this claim because it found that it had to limit itself to the
administrative record. The Court dismissed this claim, an outcome favorable to
QBE. In any event, the Court thereafter entered a Stipulated Order Amending the
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Scheduling Order extending the discovery cut-off date to July 13, 2017. (Doc # 56)
QBE is not precluded from conducting discovery or filing a dispositive motion on
the remaining ADA claim.
C.

Judicial Estoppel

QBE argues that the Court made a palpable error in its March 22, 2017 Order
because the Court overlooked the fact that Grabowski made inconsistent
representations to the short-term and long-term disability plan administrators and to
the Social Security Administration.
The Court finds that QBE has not met its burden on a motion for
reconsideration, as it has not demonstrated a palpable defect by which the Court has
been misled.

The Court focused its discussion on Terence Grabowski’s

representations to the EEOC because the parties focused their arguments on his
representations to the EEOC. In its Motion to Dismiss or in the Alternative Motion
for Summary Judgment, QBE did mention that the allegations in the Amended
Complaint are inconsistent with Terence Grabowski’s application for disability
benefits (Doc # 28, Pg ID 142); and in its Reply, QBE did mention that “Grabowski
was approved for disability benefits based on representations that ‘he became
disabled on 9/13/14.’ (Ex. 6)” (Doc # 42, Pg ID 874). As the Court discussed in its
March 22, 2017 Order, “[u]nder the doctrine of judicial estoppel, a party who has
successfully and unequivocally asserted a position in a prior proceeding is estopped
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from asserting an inconsistent position in a subsequent proceeding.” Morales v.
State Farm Mut. Auto. Ins. Co., 279 Mich. App. 720, 736-37 (2008) (internal
quotations and citations omitted) (emphasis added). As the Court noted in its prior
Order, the Social Security Administration denied Terence Grabowski’s request, so
there is no indication that Terence Grabowski successfully asserted a position before
the Social Security Administration that is inconsistent with the allegations in the
Amended Complaint. As to any representations to the short-term and long-term
disability plan administrators, there is no indication that Terence Grabowski
unequivocally asserted that he was unable to perform his job duties with or without
reasonable accommodation or that he never requested an accommodation such that
Grabowski’s ADA claim should be precluded. QBE pointed only to Exhibit 6,
which merely shows notes made by plan administrators in their computer system
after Terence Grabowski’s death. See Doc # 29-3, Pg ID 338. Accordingly, the
Court did not err in denying QBE’s Motion to Dismiss or in the Alternative Motion
for Summary Judgment on the basis of judicial estoppel.
D.

Prima Facie Case Under the ADA

QBE argues that the Court made a palpable error in its March 22, 2017 Order
because the Court conflated the burdens under Rule 12 and Rule 56 of the Federal
Rules of Civil Procedures. To the extent that any language in the Order was
confusing, the Court clarifies that the Court found that Grabowski has at this stage
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sufficiently pled the elements of her prima facie case under the ADA, and
accordingly, the Court denied QBE’s Motion as to the ADA claim. Again, QBE is
not precluded from conducting discovery or filing a dispositive motion on the
remaining ADA claim.
1.

Disabled Within the Meaning of the ADA

QBE argues that the Court made a palpable error in its March 22, 2017 Order
in finding that Grabowski had sufficiently alleged that Terence Grabowski was
disabled within the meaning of the ADA because Grabowski did not allege that
Terence Grabowski suffered from any specific disability at any time during his
employment; that Terence Grabowski had a diagnosis at any time during his
employment; or that any impairment substantially limited Terence Grabowski in any
major life activity.
The Court finds that QBE has not met its burden on a motion for
reconsideration because QBE merely re-hashes the same arguments it has made
before. A motion for reconsideration is not a vehicle to re-hash old arguments. Sault
Ste. Marie Tribe, 146 F.3d at 374. The Court already considered and rejected these
arguments and concluded that Grabowski has sufficiently alleged at this stage that
Terence Grabowski was disabled within the meaning of the ADA.

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2.

Otherwise Qualified to Perform Essential Functions of the
Job

QBE argues that the Court made a palpable error in its March 22, 2017 Order
in finding that Grabowski had sufficiently alleged that Terence Grabowski was
otherwise qualified to perform the essential functions of his job because QBE
provided Terence Grabowski with the only accommodations that his physician
indicated would enable him to perform his essential job functions. QBE again notes
that Terence Grabowski’s physician never supported the need for leave as a
reasonable accommodation. QBE again asserts that Terence Grabowski is not able
to explain any inconsistent statements because he is now deceased.
The Court finds that QBE has not met its burden on a motion for
reconsideration because QBE again merely re-hashes the same arguments it has
made before. The Court already considered and rejected these arguments and
concluded that Grabowski has sufficiently alleged at this stage that Terence
Grabowski was otherwise qualified to perform the essential functions of his job.
3.

Adverse Employment Action Because of a Disability

QBE argues that the Court made a palpable error in its March 22, 2017 Order
in finding that Grabowski had sufficiently alleged that Terence Grabowski suffered
an adverse employment action because of his disability because he had not been
diagnosed with any specific condition. QBE again argues that neither Terence

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Grabowski, nor his doctor, nor QBE knew what was causing Terence Grabowski’s
symptoms.
The Court finds that QBE has not met its burden on a motion for
reconsideration because QBE again merely re-hashes the same arguments it has
made before. The Court already considered and rejected these arguments and
concluded that Grabowski has sufficiently alleged at this stage that Terence
Grabowski suffered an adverse employment action because of his disability.
E.

Pretext Under the ADA

QBE argues that the Court made a palpable error in its March 22, 2017 Order
in finding that, viewing the evidence in the light most favorable to Grabowski, she
has put forth enough evidence to create a genuine issue of material fact regarding
whether Terence Grabowski’s performance issues were sufficient to warrant his
termination. QBE makes new arguments relying on the deposition transcript of
Shannon Grunst, Terence Grabowski’s supervisor, taken on January 18, 2017 (after
briefing on Defendants’ Motion to Dismiss or in the Alternative Motion for
Summary Judgment had already been completed).
A motion for reconsideration is not a vehicle to proffer new arguments. See
Sault Ste. Marie Tribe, 146 F.3d at 374. Given that the parties had not completed
discovery at the time of this Court’s prior Order, and given that QBE has not had the
opportunity to present all relevant facts and evidence outside the pleadings, QBE is
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not precluded from conducting discovery or filing a dispositive motion on the
remaining ADA claim. The Court will not, however, dismiss the remaining ADA
claim for the reasons set forth in its prior Order. The Court finds that construing the
Amended Complaint in the light most favorable to the Grabowski, accepting its
allegations as true, and drawing all reasonable inferences in favor of Grabowski, she
has set forth sufficient factual allegations to support that Terence Grabowski’s
performance issues were insufficient to warrant the termination.
F.

Request for Reasonable Accommodation

QBE argues that the Court made a palpable error in its March 22, 2017 Order
because Grabowski cannot establish that Terence Grabowski requested leave as a
reasonable accommodation. QBE again argues that Terence Grabowski could have
submitted medical documentation supporting the need for leave, but he did not, and
his doctor failed to identify leave as a reasonable accommodation.
The Court finds that QBE has not met its burden on a motion for
reconsideration because QBE merely re-hashes the same arguments it has made
before. The Court already considered and rejected these arguments. QBE also cites
cases it could have cited earlier. The Court properly considered the Amended
Complaint, documentation properly incorporated as part of the pleadings, and
matters of public record. Drawing all reasonable inferences in favor of Grabowski,
she has sufficiently pled that Terence Grabowski requested leave as a reasonable
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accommodation, which was denied. Accordingly, the Court will not dismiss the
remaining ADA claim.
G.

Recoverable Damages

Lastly, QBE asserts that the Court “did not address the argument that . . .
Plaintiff is precluded from recovering life insurance benefits as damages under her
ADA claim.” QBE has not raised this argument before, and in support of its
argument, QBE cites two cases it has not cited before. The Court declines to address
this new argument on a motion for reconsideration. QBE is free to raise it in a future
dispositive motion.
III.

CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendant QBE Americas, Inc.’s Motion for

Reconsideration (Doc # 49) is DENIED.
IT IS FURTHER ORDERED that the parties may conduct further discovery
and file dispositive motions on the remaining ADA claim in accordance with the
Stipulated Order entered on June 2, 2017.

s/Denise Page Hood
DENISE PAGE HOOD
Chief Judge

DATED: August 11, 2017

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