Vaughn v. Dawn Foods International, Inc., transacting business as Dawn, Inc.
Filing
40
ORDER Denying 38 Motion for Reconsideration. Signed by District Judge Terrence G. Berg. (HMon)
Case 2:18-cv-11491-TGB-APP ECF No. 40, PageID.1034 Filed 11/17/20 Page 1 of 8
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JUANITA VAUGHN,
2:18-CV-11491-TGB
Plaintiff,
vs.
ORDER DENYING MOTION
FOR RECONSIDERATION
DAWN FOOD PRODUCTS, INC.,
Defendant.
This matter is before the Court on Plaintiff Juanita Vaughn’s
September 8, 2020 motion for reconsideration (ECF No. 38) of the
Court's August 25, 2020 Order (ECF No. 36) granting Defendant
Dawn Food Products, Inc.’s motion for summary judgment (ECF
No. 27). For the reasons set forth below, it is ordered that Plaintiff's
motion is DENIED.
I.
Analysis
The Court may grant a motion for reconsideration if the
movant satisfactorily shows that: (1) a palpable defect misled the
parties and the Court; and (2) correcting the defect would result in
a different disposition of the case. E.D. Mich. L.R. 7.1(h)(3). A defect
is palpable if it is “obvious, clear, unmistakable, manifest, or plain.”
Olson v. Home Depot, 321 F. Supp. 2d 872, 874 (E.D. Mich. 2004).
“[A] motion for reconsideration is not properly used as a vehicle to
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re-hash old arguments or to advance positions that could have been
argued earlier but were not.” Smith v. ex rel. Smith v. Mount
Pleasant Pub. Sch., 298 F. Supp. 2d 636, 637 (E.D. Mich. 2003).
Plaintiff seeks reconsideration of only a part of the Court’s
Order: she argues that the Court’s findings regarding her race
discrimination and hostile work environment claims under Title
VII and the Michigan Elliott-Larsen Civil Rights Act (“ELCRA”)
were defective. First, she says the Court incorrectly found that she
failed to exhaust her administrative remedies. Second, she points
out that ELCRA does not require exhaustion, and therefore it was
palpable error to dismiss her ELCRA race discrimination and
hostile work environment claims even if her Title VII claims were
not exhausted. The Court will address each topical set of claims
separately.
a. Race discrimination
A prima facie case of race discrimination under Title VII
requires showing that Plaintiff (1) was a member of a protected
class, (2) was qualified for the position, (3) suffered an adverse
employment action, and was (4) “treated differently than similarly
situated non-protected employees.” Newman v. Fed. Express Corp.,
266 F.3d 401, 406 (6th Cir. 2001). The analysis under ELCRA is the
same. See, e.g., In re Rodriguez, 487 F.3d 1001, 1007 (6th Cir. 2007).
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The Court addressed Plaintiff’s race discrimination claim on
the merits, finding that she could not establish element four
because she could not identify a “similarly situated employee who
was given more favorable treatment.” ECF No. 36, PageID.977. She
therefore failed to make a prima facie case of race discrimination.
Even if she had, the Court found that she did not present any
rebuttal
evidence
to
counter
Defendant’s
proffered
nondiscriminatory reasons for its actions. Id. Additionally,
Defendant did not raise an exhaustion defense regarding Plaintiff’s
race discrimination claims. Therefore, the Court’s findings on this
claim under both Title VII and ELCRA had nothing to do with
exhaustion. Plaintiff has not identified any other “palpable defect”
in the Court’s analysis. Summary judgment on these claims will not
be reconsidered.
b. Hostile work environment
To bring a claim under Title VII for a hostile work
environment,
a
plaintiff
must
first
exhaust
all
available
administrative remedies. Randolph v. Ohio Dep't of Youth Servs.,
453 F.3d 724, 731 (6th Cir. 2006). Then, she must demonstrate that
“(1) [she] is a member of a protected class; (2) was subjected to
unwelcome harassment; (3) the harassment was based on plaintiff's
protected status; (4) the harassment was sufficiently severe or
pervasive to affect a term, condition, or privilege of employment;
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and (5) the employer knew or should have known about the
harassing conduct but failed to take corrective or preventative
actions.” Fullen v. City of Columbus, 514 Fed. App’x 601, 606–07
(6th Cir. 2013). If she makes out a prima facie case of
discrimination, under the McDonnell–Douglas framework the
burden
then
shifts
to
the
defendant
to
articulate
a
nondiscriminatory reason for its actions. Chen v. Dow Chemical Co.,
580 F.3d 394, 400 (6th Cir. 2009). Once Defendant does so, the
burden returns to Plaintiff to establish that Defendant’s proffered
reason(s) for its adverse employment decision(s) were pretextual.
Id. Again, the analysis under ELCRA on the merits of the claim is
the same. See, e.g., In re Rodriguez, 487 F.3d at 1007-08. Plaintiff
acknowledges this in her brief. ECF No. 38, PageID.1010. ELCRA
does not have an exhaustion requirement, but instead has a threeyear statute of limitations on filing a claim. Womack Scott v. Dep't
of Corr., 630 N.W.2d 650, 653-55 (Mich. Ct. App. 2001).
Plaintiff says it was palpable error not to find that she had, in
fact, exhausted her administrative remedies with regards to her
Title VII hostile work environment claim. She then points to her
March 25, 2019 EEOC claim, one of three that she filed against her
employer, as evidence that she did raise a hostile work environment
claim sufficient to satisfy exhaustion. ECF No. 38, PageID.998-
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1008.1 However, what Plaintiff says next is that this claim raised
an issue of “retaliation,” and that she therefore “fulfilled her duty
to exhaust administrative remedies relative to her retaliation
claim.” ECF No. 38, PageID.999. But the Court thoroughly
considered her retaliation claim elsewhere in its order, and
Defendants did not challenge retaliation on exhaustion grounds.
ECF No. 36, PageID.991-92. Given the introduction of Plaintiff’s
motion, Plaintiff does not even seem to be seeking reconsideration
of the Court’s finding related to retaliation. ECF No. 38,
PageID.996. The question here is whether she sufficiently
exhausted a hostile work environment claim. The Court’s finding
on that issue involved a thorough analysis of her February 7, 2018
EEOC claim, which the Court found to not have sufficiently alleged
a hostile work environment. ECF No. 36, PageID.980. Raising the
March 25 retaliation EEOC claim does not present evidence that
the Court’s analysis of the February 7 EEOC claim was palpably
incorrect.
If Plaintiff somehow means to say that the March 25, 2019
EEOC claim should have been considered as alleging a hostile work
Plaintiff writes that this EEOC claim is from “March 14, 2019.”
ECF No. 38, PageID.999. But the cited reference and all other references to this document indicate the date of filing was March 25.
The Court assumes this was a typographical mistake and that
there is no March 14 claim.
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environment in addition to retaliation, such that it meets the
administrative exhaustion requirements, the time for this
argument has passed. Plaintiff failed to discuss exhaustion at all in
her Response to the motion for summary judgment, even though
Defendant had raised it as an affirmative defense in their motion.
Resp. to Mot. for Summ. J., ECF No. 30. By attaching the March
25, 2019 EEOC complaint for the first time now, and asking the
Court to review its language, Plaintiff attempts to “advance
positions that could have been argued earlier but were not,” which
is not permitted in a motion for reconsideration. Smith, F.Supp.2d
at 637. This argument is therefore not properly before the Court
and cannot be considered.
Plaintiff further argues that ELCRA does not have an
exhaustion requirement, and that therefore it was palpable error to
dismiss the ELCRA hostile work environment claim on exhaustion
grounds. Plaintiff is correct that ELCRA does not have an
exhaustion requirement. Rogers v. Bd. of Educ. of Buena Vista Sch.,
2 F.3d 163, 168 (6th Cir. 1993). However, to succeed on this motion,
Plaintiff must not only show a defect, but also that said defect
“would result in a different disposition of the case.” E.D. Mich. L.R.
7.1(h)(3). Assuming Plaintiff could articulate a prima facie hostile
work environment claim, Defendant’s articulated legitimate nondiscriminatory reasons for their actions towards Plaintiff were
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nevertheless carefully considered by the Court. ECF No. 36,
PageID.977-79. The Court concluded that Plaintiff did not offer any
rebuttal evidence as required under McDonnell-Douglas to allow
the Court to find discriminatory intent. Id. Even if the Court were
to reconsider the ELCRA hostile work environment claim, it would
come to the same conclusion: Plaintiff did not show that
Defendant’s reasons for transferring her to a new position, and then
eventually eliminating that position, were a pretext for any kind of
discrimination. Therefore, this argument also fails.
Lastly, Plaintiff says it was palpable error to consider the
exhaustion argument at all because it was not raised in a 12(b)(6)
motion. ECF No. 38, PageID.1008-10. Certainly, the “[f]ailure to
plead an affirmative defense in the first responsive pleading to a
complaint generally results in a waiver of that defense.” Horton v.
Potter, 369 F.3d 906, 911 (6th Cir. 2004) But Defendants raised this
affirmative defense in their Answer, which was their first
responsive pleading. ECF No. 26, PageID.199. They then relied
upon it in their motion for summary judgment. ECF No. 27,
PageID.226. Courts may properly evaluate the affirmative defense
of failure to exhaust at the summary judgment stage. See, e.g.,
Wrobbel v. Int'l Bhd. of Elec. Workers, Local 17, 638 F. Supp. 2d
780, 793 (E.D. Mich. 2009); Burnett v. Transit Auth. of LexingtonFayette Urban Cty. Gov't, 981 F. Supp. 2d 630, 633 (E.D. Ky. 2013);
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Flagg v. Staples the Office Superstore E., Inc., 138 F. Supp. 3d 908,
914 (N.D. Ohio 2015). There is no requirement that an affirmative
defense must be put forward in a 12(b)(6) motion before it is
considered in a summary judgment motion, and none of the cases
that Plaintiff cites support that proposition. ECF No. 38,
PageID.1008-09.
II.
Conclusion
Plaintiff has not demonstrated any palpable defect in the
Court’s evaluation of her race discrimination claims under Title VII
and ELCRA. She raises new arguments in support of her Title VII
hostile work environment claim that may not be considered at this
stage. Finally, she does not demonstrate any error in evaluating her
ELCRA hostile work environment claim that would lead to a
different outcome. For these reasons, Plaintiff’s Motion for
Reconsideration is DENIED.
IT IS SO ORDERED.
Date: November 17, 2020 s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
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