Gomez v. Henry Ford Health System

Filing 30

ORDER denying 29 Motion for Reconsideration. Signed by District Judge Laurie J. Michelson. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AMY GOMEZ,
Plaintiff,
v.

Case No. 16-13389
Honorable Laurie J. Michelson
Magistrate Judge Elizabeth A. Stafford

HENRY FORD HEALTH SYSTEM,
Defendant.
ORDER DENYING MOTION FOR RECONSIDERATION [29]
Amy Gomez worked as a nurse in the Henry Ford Health System. She was fired. Not long
after, she sued the health system alleging her termination was the result of numerous unlawful
motives. In time, Henry Ford moved for summary judgment. The Court granted the health system’s
motion.
In granting summary judgment, the Court recognized that Gomez’s second amended
complaint included five counts. Jorgensen v. Henry Ford Health System, No. 16-13389, 2018 WL
4701707, at *5 (E.D. Mich. Sept. 30, 2018). Two counts sounded in state law, three in federal law.
(Id.) And the health system’s motion for summary judgment sought to dismiss Gomez’s “first
amended complaint in its entirety.” (ECF No. 24, PageID.178, 184, 185.) But the health system’s
motion provided no argument for why they should prevail on Gomez’s state-law claims for age
and reverse-race discrimination. Thus, the Court granted the health system’s motion only with
respect to Gomez’s federal claims. Then the Court declined to exercise supplemental jurisdiction
over the age- and reverse-discrimination claims.
Now the health system moves for reconsideration. Insisting it moved for summary
judgment on Gomez’s “Second Amended Complaint in its entirety” (ECF No. 29, PageID.650),

the health system urges the Court to go back and dismiss Gomez’s remaining state-law claims (age
and reverse-race discrimination under ELCRA).
Local Rule 7.1 permits a party to move for “rehearing or reconsideration . . . within 14 days
after entry of the judgment or order.” E.D. Mich. Local Rule 7.1(h)(1). And the moving party has
a two-part burden. First the moving party must “demonstrate a palpable defect by which the court
and the parties and other persons entitled to be heard on the motion have been misled” and then
“show that correcting the defect will result in a different disposition of the case.” E.D. Mich. Local
Rule 7.1(h)(3).
The health system says the Court’s failure to decide the merits of Gomez’s state-law claims
was a palpable defect. The health system points out that they moved to dismiss Gomez’s complaint
“in its entirety.” (ECF No. 29, PageID.655–656.) And they argued Gomez could not bring an age
or race claim under “any statute or theory” of discrimination. (ECF No. 29, PageID.656.) The
health system briefed Gomez’s Title VII claims. And, says the health system, ELCRA runs parallel
to Title VII. As the Court dismissed the Title VII claims, the parallel ELCRA claims should have
gone, too—apparently, without the need to argue them separately. So the health system invites the
Court to “correct the defect.”
True, the health system’s motion does say Gomez’s age- and race-discrimination claims
cannot proceed under any theory or any statute. Plus, the health system’s motion mentions ELCRA
three times—twice to summarize counts in Gomez’s complaint. (ECF No. 24, PageID.176–177.)
But an ELCRA reverse-discrimination claim is not on all fours with a Title VII reversediscrimination claim. See Lind v. City of Battle Creek, 681 N.W.2d 334, 334–335 (Mich. 2004)
(departing from federal law to hold that ELCRA does not require a showing of “background
circumstances” in a reverse-discrimination claim). And ELCRA—unlike Title VII—permits age

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discrimination claims. See Mich. Comp. Laws § 37.2202(1)(a). So Gomez’s Title VII claims do
not completely parallel her ELCRA claims.
Even more, the sum total of the health system’s ELCRA argument is as follows: “Plaintiff
cannot produce any evidence that HFHS’ reasons for any alleged adverse employment action were
a pretext for discrimination, interference and/or retaliation under the FMLA, the Michigan ElliottLarsen Civil Rights Act, the Michigan Persons With Disabilities Civil Rights Act, Title VII or the
Americans With Disabilities Act.” (ECF No. 24, PageID.177–178.) The health system’s motion
provides no specific factual or legal analysis of the ELCRA claims. Indeed, there is no citation to
case law applying ELCRA (i.e., to age- or reverse-discrimination claims). As the health system
had the burden of showing it was entitled to summary judgment, it was not a palpable defect for
the Court to decline to make an argument for them. See Brenay v. Schartow, 709 F. App’x 331,
336 (6th Cir. 2017) (“It is not enough for a party to mention a possible argument in the most
skeletal way and leave the court to put flesh on its bones.”) (internal quotations omitted); see also
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for
truffles buried in briefs.”).
Resisting that conclusion, the health system says the Court’s ruling on Gomez’s Title VII
claims will have preclusive effect on her ELCRA claim in the state courts. (ECF No. 29,
PageID.663–664.) So the Court should grant summary judgment on the ELCRA claims lest Gomez
find herself collaterally estopped from refiling in state court. (Id.)
The Court disagrees. The Court did not address the merits of Gomez’s ELCRA claims.
Instead, it declined to exercise supplemental jurisdiction, thus dismissing the claims without
prejudice to refiling. (ECF No. 28, PageID.647–648.) And if the health system believes a
preclusion defense will prevail in state court, they are free to make it. But the possible existence

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of one does not demonstrate a palpable defect in the Court’s grant of summary judgment (in the
health system’s favor).
In sum, the health system’s requests for reconsideration are unavailing. The Court granted
summary judgment in the health system’s favor, and it offers nothing to demonstrate a palpable
defect that, upon correction, would change that decision. So the Court DENIES the health system’s
motion for reconsideration (ECF No. 29.)
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Date: October 25, 2018

I hereby certify that a copy of the foregoing document was served upon counsel of record
on this date, October 25, 2018, using the Court’s ECF system.

s/William Barkholz
Case Manager

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