Williams v. AK STEEL CORP.
Filing
30
ORDER Denying Plaintiff's Motion for Reconsideration 29 . Signed by District Judge Denise Page Hood. (LSau)
Case 2:18-cv-11485-DPH-EAS ECF No. 30, PageID.754 Filed 12/21/22 Page 1 of 9
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ERIC WILLIAMS,
Plaintiff,
Civil Action No. 18-11485
v.
HON. DENISE PAGE HOOD
AK STEEL CORPORATION,
Defendant.
______________________________/
ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION [#29]
I.
INTRODUCTION
On May 31, 2020, the Court granted Defendant AK Steel Corporation’s Motion
for Summary Judgment and dismissed Plaintiff Eric Williams’ 10-count Complaint.
[ECF No. 27] On June 29, 2020, Plaintiff filed a Motion for Reconsideration. [ECF
No. 29] For the reasons that follow, the Court denies the Motion for Reconsideration.
II.
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
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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
(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).
III.
ANALYSIS
A.
No Misstatement of Fact, Nor an Affect on the Court’s Entire Analysis
Plaintiff contends that, when discussing the Equal Employment Opportunity
Commission’s (“EEOC”) 300-day statute of limitations applicable to Plaintiff’s Title
VII claims, the Court did not state the date that Plaintiff allegedly went to the EEOC.
ECF No. 29, PageID.689. In its Order, however, the Court stated: “Plaintiff also filed
a Charge of Discrimination with the Equal Employment Opportunity Commission
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(“EEOC”) on April 11, 2017 in which he alleged race discrimination and retaliation.
Dkt. No. 1, Ex. A.” ECF No. 27, PageID.660 (emphasis added). Plaintiff suggests that
an earlier date controls (specifically, the date the intake questionnaire was submitted
to the EEOC), but he does not identify any such earlier date in his Motion for
Reconsideration. The Court concludes that Plaintiff has not established an earlier date
from which the 300-day period that the Court’s analysis in the Order should have
commenced. Plaintiff has not demonstrated that the Court should have taken into
account the June 10, 2016 or May 25, 2016 incidents of which he complains.
B.
No Clear Errors of Law
Plaintiff argues that the Court erred when finding that numerous statements
allegedly attributable to David Klein were inadmissible hearsay. Plaintiff cites
“Michigan” Rule of Evidence 801(d)(2) in support of his contention that Klein’s
statements would be party admissions. The Court agrees that Federal Rule of
Evidence 801(d)(2) (which applies in this federal case) allows party admissions as
admissible hearsay and that statements of Klein could be party admissions. Except
for Plaintiff’s contention that Klein said “n - - - - -” when speaking to Plaintiff on June
10, 2016, the source of each of the other statements attributable to Klein has not
testified at deposition or submitted an affidavit that Klein said what has been alleged.
Rather, each such statement has been claimed by one person (usually Plaintiff) who
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states that a second person told Plaintiff that Klein uttered the statement. Plaintiff,
however, failed to submit evidence to the Court that addresses the second level of
hearsay that exists with respect to each of those alleged statements by Klein and that
is why the statements are inadmissible. Plaintiff has not rectified that deficiency in
his Motion for Reconsideration.
C.
Reasonable Inferences in Plaintiff’s Favor
Plaintiff contends that the Court should have taken into consideration that the
video of his activities on the night of March 16-17, 2017 skipped when conducting its
pretext analysis, rather than “d[rawing] a conclusion that made it seem as if Defendant
and its agents had ever reviewed a copy that did not skip.” ECF No. 29, PageID.693
(citing ECF No. 27, PageID.658). Plaintiff states that “even Defendant was concerned
about the skipping in the video given Plaintiff’s claims.” Id. Plaintiff’s argument is
not supported by the language of the Order, wherein the Court noted that virtually
everyone who was identified in the Order had watched the video that skipped (i.e.,
there were periods of seconds or more that were no longer visible). The persons who
claimed to have watched a non-skipping video (before the video was converted to
DVD) were Mark Godau and Donald Fowler, but the Court also noted that Fowler’s
March 27, 2017 email reflects that he watched a video that “jump[ed] several seconds
at a time.” ECF No. 27, PageID.658 (citing ECF No. 24, Ex. I). The Court’s
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consideration of the video took into account that it skipped and not every second was
visible, but the Court also noted that there were relevant periods on the video during
which no skipping occurred. The Court concludes that Plaintiff has not established
that there was any palpable defect in the Court’s analysis with respect to the video.
D.
No Viable Title VII Retaliation Claim
Plaintiff states, without support, that “[t]here is dueling testimony as to whether
Plaintiff reported the racial aggression of David Klein to management.” ECF No. 29,
PageID.693. Plaintiff did not: (1) in his response to the motion for summary
judgment; or (2) in his motion for reconsideration, direct the Court to any instance
when he complained to any manager or human resources or other authoritative figure
(other than allegedly to Klein himself) that Klein was racist or treated Plaintiff
differently because of Plaintiff’s race.
There is only evidence that Klein
communicated to other persons who worked for Defendant that Plaintiff accused Klein
of being racist. The “Declaration” of Peter Gumm (a person who was not even
mentioned in Plaintiff’s response to the motion for summary judgment but who has
since become a client of Plaintiff’s counsel), upon which Plaintiff relies lacks any
specificity, most notably with respect to Plaintiff. Peter Gumm does not say to whom
Plaintiff allegedly stated that Klein treated black employees worse than white
employees. See ECF No. 29-2, PageID.718 (¶¶ 3 and 4 state: “3. I was aware of
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multiple employees that worked under David Klein had interactions with David Klein
that they thought that he was racist and reported this conduct to their supervisors.” and
“4. For example, Eric Williams who made the allegation that David Klein treated
black employees worse than white employees.”). The Court finds that Plaintiff still
has not established a Title VII retaliation claim.
E.
No Viable Title VII Race Discrimination Claim
Plaintiff’s first argues that the Court applied the wrong statute of limitations
with respect to his Title VII race discrimination claim; as discussed above, the correct
statute of limitations has been applied for purposes of a Title VII race discrimination
claim. Even if Plaintiff is correct that the Court needs to consider Klein calling
Plaintiff the “n-word, among other things,” the single utterance of that word does not
establish a race discrimination claim. See, e.g., Nicholson v. City of Clarksville, 530
F. App’x 434, 444-46 (6th Cir. 2013) (four instances of racial slurs over the course of
two years one of which was directed at the plaintiff, was not sufficient to establish a
viable race discrimination on a failure to promote claim). See also Ercegovich v.
Goodyear Tire & Rubber Co., 154 F.3d 344, 354 (6th Cir.1998) (“In assessing the
relevancy of a discriminatory remark, we look first at the identity of the speaker. An
isolated discriminatory remark made by one with no managerial authority over the
challenged personnel decisions is not considered indicative of ... discrimination.”).
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Plaintiff has not produced sufficient admissible evidence (as opposed to allegations
and inadmissible hearsay) to establish a viable race discrimination claim.
F.
No Pretext
Plaintiff contends that Defendant’s changing rationale for his termination is
evidence of pretext. Citing Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167
(6th Cir. 1996). Plaintiff suggests that the reason for his termination changed “by the
day.” A review of the record, however, reveals that Defendant never gave any reason
for Plaintiff’s termination other than its position that Plaintiff falsified documents in
connection with his activities on March 16-17, 2017. An internal email from one
employee suggested that Plaintiff could have been fired for attendance deficiencies,
but Defendant has never offered attendance issues as a basis for terminating Plaintiff.
Defendant’s reliance on: (a) a “shoddy” or “sham” investigation into Plaintiff’s
alleged misconduct; (b) the absence of documentation regarding the re-measurement
of the roll; (c) the absence of a video that does not skip “minutes at a time;” and (d)
Defendant’s failure to train Plaintiff as a roll grinder are not new arguments. Each of
these arguments is a reiteration of an argument made in his response to the motion for
summary judgment, and the Court need not re-weigh them in evaluating his motion
for reconsideration. See E.D. Mich. L.R. 7.1(h)(3) (“the court will not grant motions
for rehearing or reconsideration that merely present the same issues ruled upon by the
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Court, either expressly or by reasonable implication.”).
Conversely, Plaintiff cites the Declaration of Peter Gumm, a former employee
of Defendant, that was submitted to Court for the first time as an exhibit to the Motion
for Reconsideration – long after Plaintiff’s briefing and argument regarding the issue
of pretext in his response to Defendant’s motion for summary judgment. Although
Mr. Gumm may not have approached Plaintiff’s counsel regarding the information in
Mr. Gumm’s Declaration, that information was or could have been known to Plaintiff
before Plaintiff filed its response to the motion for summary judgment. Mr. Gumm’s
Declaration is untimely with respect to the motion for reconsideration and does not
constitute a palpable defect by which the parties and the Court have been misled.
And, as noted above, the Declaration of Mr. Gumm lacks any specificity, most notably
with respect to Plaintiff, that would establish pretext of race discrimination or
retaliation. See ECF No. 29-2, PageID.718 (¶¶ 3 and 4).
G.
No Triable Issues re: Hostile Work Environment and Emotional Distress
Plaintiff’s arguments in his motion for reconsideration with respect to his
hostile work environment and intentional infliction of emotional distress claims
represent a rehashing of his arguments at the summary judgment stage. As “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,” E.D.
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Mich. L.R. 7.1(h)(3), the Court finds that Plaintiff has not satisfied his burden on
either of these two claims. The Court notes that Plaintiff cites some new cases in the
motion for reconsideration. All of those cases were decided before he filed his
response in opposition to Defendant’s motion for summary judgment, however, and
could have and should have been argued in the response.
H.
Conclusion
For the reasons stated above, the Court concludes that Plaintiff has not
demonstrated that the Court made an obvious, clear, unmistakable, manifest, or plain
error, nor has he shown a palpable defect by which the Court and the parties have been
misled. Plaintiff’s Motion for Reconsideration is denied.
IV.
CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff’s Motion for Reconsideration [ECF No. 29] is
DENIED.
IT IS ORDERED.
Dated: December 21, 2022
s/Denise Page Hood
DENISE PAGE HOOD
UNITED STATES DISTRICT JUDGE
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