David v. KUKA Systems North America, LLC
Filing
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MEMORANDUM AND ORDER DENYING PLAINTIFF'S MOTION TO ALTER OR AMEND THE JUDGMENT [DOC. 16]. Signed by District Judge Avern Cohn. (MVer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KENNETH DAVID,
Plaintiff,
v.
Case No. 18-10277
KUKA SYSTEMS NORTH
AMERICA, LLC,
HON. AVERN COHN
Defendant.
________________________________/
MEMORANDUM AND ORDER
DENYING PLAINTIFF’S MOTION TO ALTER OR AMEND THE JUDGMENT (Doc. 16)
I.
This is a case under the Family Medical Leave Act, 29 U.S.C. § 2601 (FMLA).
Plaintiff Kenneth David (David) sued defendant KUKA Systems North America, LLC
(KUKA) claiming interference with his rights under the FMLA and retaliating against him
in violation of the FMLA by terminating his employment. KUKA filed a motion for
summary judgment, contending that David could not prevail on his FMLA interference
and retaliation claims because (1) he was not employed for the requisite 12 months to
make him an “eligible employee” to invoke the protections of the FMLA and (2) there is
no genuine dispute that David’s termination was due to a reduction in force. The Court
agreed and granted KUKA’s motion. (Doc. 15).
Before the Court is David’s motion to alter or amend the judgment. (Doc. For the
reasons that follow, the motion will be denied.
II.
David seeks relief under Fed. R. Civ. P. 59(e).1 “Under Rule 59, a court may
alter the judgment based on: (1) a clear error of law; (2) newly discovered evidence; (3)
an intervening change in controlling law; or (4) a need to prevent manifest injustice.”
Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010)
(internal quotations omitted). “A motion under Rule 59(e) is not an opportunity to
re-argue a case.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367,
374 (6th Cir. 1998). And a party cannot use Rule 59(e) to “raise new legal arguments
that could have been raised before a judgment was issued.” Roger Miller Music, Inc. v.
Sony/ATV Publ'g, LLC, 477 F.3d 383, 395 (6th Cir. 2007).
III.
David first contends that because he was employed for 52 partial weeks, he
meets the 12 month FMLA eligibility requirement. Putting aside that David made this
argument only in a passing footnote in opposing KUKA’s summary judgment motion, he
cannot prevail. David cites 29 C.F.R. 825.110(b)(3), which provides:
(b) The 12 months an employee must have been employed by the employer
need not be consecutive months, provided… (3) If an employee is maintained on
the payroll for any part of a week, including periods of paid or unpaid leave (sick,
vacation) during which other benefits or compensation are provided by the
employer (e.g., workers’ compensation, group health plan benefits, etc.), the
week counts as a week of employment. For purposes of determining whether
intermittent/occasional/casual employment qualifies as at least 12 months, 52
weeks is deemed to be equal to 12 months. (emphasis in original.)
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As KUKA points out, David is seeking reconsideration of the Court’s summary
judgment order. Motions for reconsideration must be filed within fourteen days. See
E.D. Mich. LR 7.1(h). David’s motion was filed twenty-eight days after the Court
granted summary judgment. Although untimely, the Court will consider the motion on
the merits.
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Here, David was not engaged in intermittent, occasional, or casual employment,
and was therefore required to work for 12 months, not 52 partial weeks, before he
became FMLA-eligible. See 29 C.F.R. 825.110(a). David does not provide any
authority for the argument that 29 C.F.R. 825.110(b)(3), which specifically refers to
intermittent/occasional/casual employment, applies to continuous full-time employees.
As KUKA points out, the limited case law does not support David’s position. In Gurley
v. Ameriwood Indus., Inc., 232 F. Supp. 2d 969, 973 (E.D. Mo. 2002) and Walker v.
Elmore County Bd. of Educ., 223 F. Supp. 2d 1255, 1258 (M.D. Ala. 2002), both district
courts held that the regulation only applies to intermittent, occasional, or casual
employees, not continuous employees.
David also argues that KUKA and Direct Staff, the recruiting agency KUKA used
and through which it obtained David, are joint employers. David says that his start date
should be October 24, 2014, when David accepted KUKA’s offer which was
communicated through Direct Staff. This argument also does not carry the day. First,
David did not raise this argument in opposing summary judgment and is therefore
precluded from doing so now. Second, the record does not establish that KUKA and
Direct Staff had a joint employer relationship. Rather, the record shows that KUKA paid
a referral fee to Direct Staff when KUKA employed David. In exchange for the referral
fee, Direct Staff, Inc. “relinquish[ed] all employment responsibilities and employment
rights to the candidate…” (Doc. 10-1, PageID 143.). Thus, Direct Staff did not retain
any control over David much less retain sufficient control to demonstrate that it acted as
a joint employer. See Russell v. Bronson Heating & Cooling, 345 F. Supp. 2d 761, 771
(E.D. Mich. 2004) (considering factors such as “authority to hire, fire and discipline
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employees, promulgation of work rules and conditions of employment, issuance of work
assignments and instructions, and supervision of employees' day- to-day activities”).
David cites Mackey v. Unity Health System, 03-CV-6049T(F) (W.D. N.Y. May 10,
2004) in support. Mackey is inapposite. In Mackey, the plaintiff worked for a staffing
agency on assignment at Unity Health System prior to being hired as a permanent
employee. The district court found that plaintiff’s period of assignment prior to being
hired by Unity Health System must be counted for FMLA eligibility purposes. Here, by
contrast, Direct Staff is not a temporary staffing agency and David was never employed
by Direct Staff on any assignment at KUKA. From November 3, 2014 (the date he
showed up for work) to October 30, 2015 (the date of his termination), David was
employed directly by KUKA. Direct Staff was simply acting as a recruiter, who
voluntarily relinquished all control over David. In short, there is no evidence to support
the idea that KUKA was a joint employer with its recruiting agency.
Finally David challenges the Court’s finding that even assuming he was FMLA
eligible, KUKA had a legitimate business reason for his termination. David makes the
same argument which is not proper on the Rule 59(e) motion. Regardless, KUKA
presented evidence that its Aerospace Division underwent a reduction in force, which
shifted the burden to David to show pretext. Again, David makes the same argument
he made in his opposition brief – that he saw other controls project engineers working
on projects to which he was assigned prior to this medical leave. The Court already
rejected this argument, stating “[e]ven if true, that does not rebut or cast doubt on
KUKA’s articulated business reason for David’s termination – a lack of work in the
division and a failure to obtain bids.” (Doc. 14, PageID 400).
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IV.
For the reasons stated above, David’s motion is DENIED.
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: 5/20/2019
Detroit, Michigan
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