McCool v. Operative Plasterers and Cement Masons International Association of the United States and Canada, AFL-CIO

Filing 62

OPINION and ORDER Denying Defendant's 61 Motion for Reconsideration. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JACK MCCOOL,
Plaintiff,

Civil Case No. 13-13614
Honorable Linda V. Parker

v.
OPERATIVE PLASTERERS
AND CEMENT MASONS
INTERNATIONAL ASSOCIATION
OF THE UNITED STATES AND
CANADA, AFL-CIO,
Defendant.
__________________________________/
OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR
RECONSIDERATION [ECF NO. 61]
On February 3, 2015, this Court issued an opinion and order dismissing all
claims except for Claim 1(a), Plaintiff’s claim that Defendant discriminated against
him on the basis of age by demoting him. Presently before the Court is Defendant’s
motion for reconsideration. For reasons that follow, the Court DENIES
Defendant’s motion.
I.
A. Standard of Review
Rule 7.1 of the Local Rules for the Eastern District of Michigan provides the
Court's standard of review:

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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.
E.D. Mich. LR 7.1(h)(3).
Palpable defects are those which are “obvious, clear, unmistakable, manifest
or plain.” Mich. Dep't of Treasury v. Michalec, 181 F.Supp.2d 731, 734
(E.D.Mich.2002). “It is an exception to the norm for the Court to grant a motion
for reconsideration.” Maiberger v. City of Livonia, 724 F.Supp.2d 759, 780
(E.D.Mich.2010). “[A] motion for reconsideration is not properly used as a vehicle
to re-hash old arguments or to advance positions that could have been argued
earlier but were not.” Smith ex rel. Smith v. Mount Pleasant Pub. Sch., 298
F.Supp.2d 636, 637 (E.D.Mich.2003) (citing Sault Ste. Marie Tribe of Chippewa
Indians v. Engler, 146 F.3d 367, 374 (6th Cir.1998)).
B. Analysis
In determining that summary judgment was not warranted as to Plaintiff’s
claim that Defendant discriminated against him on the basis of age by demoting
him, the Court relied on the 2014 Sixth Circuit decision, Brewer v. New Era, Inc.,
564 F. App'x 834 (6th Cir. 2014), in which the court held the following:
Under [Title VII and the ADEA], Plaintiffs bear the ultimate burden
of persuading the fact-finder that Defendant discriminated against
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them. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143,
120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Plaintiffs may carry the
burden for summary judgment by introducing either direct evidence
that shows Defendant was motivated by discriminatory intent in
treating Plaintiffs adversely, or by introducing indirect evidence that
supports an inference of discrimination. Logan v. Denny's, Inc., 259
F.3d 558, 566–67 (6th Cir. 2001).
“In discrimination cases, direct evidence is that evidence which, if
believed, requires the conclusion that unlawful discrimination was at
least a motivating factor in the employer's actions.” Laderach v. U–
Haul of Northwestern Ohio, 207 F.3d 825, 829 (6th Cir. 2000)
(quoting Jacklyn v. Schering–Plough Healthcare Prods. Sales Corp.,
176 F.3d 921, 926 (6th Cir. 1999)) (citations omitted). Direct evidence
does not require the fact-finder to make “any inferences or
presumptions.” Id. In this instance, that would mean evidence that, if
believed, requires a finding that Plaintiffs were laid off by Defendant
at least in part because of their race or age. See Bartlik v. U.S. Dep't of
Labor, 73 F.3d 100, 103 n. 5 (6th Cir. 1996).
We have defined direct evidence as “evidence that proves the
existence of a fact without requiring any inferences.” Rowan v.
Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004).
When a plaintiff establishes a claim of discrimination through direct
evidence, “the burden shifts to the employer to prove by a
preponderance of the evidence that it would have made the same
decision absent the impermissible motive.” DiCarlo v. Potter, 358
F.3d 408, 415 (6th Cir. 2004) (addressing national-origindiscrimination claim; quoting Weigel v. Baptist Hosp. of E. Tenn., 302
F.3d 367, 382 (6th Cir. 2002)); Manzer v. Diamond Shamrock Chems.
Co., 29 F.3d 1078, 1081 (6th Cir. 1994) (citing Price Waterhouse v.
Hopkins, 490 U.S. 228, 244–45, 109 S.Ct. 1775, 104 L.Ed.2d 268
(1989)).
Brewer v. New Era, Inc., 564 F. App'x at 838–39.
Defendant asserts that the Court committed palpable error in applying
the standard for Title VII claims to a claim of age discrimination under the

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ADEA, in light of the 2009 United States Supreme Court decision Gross v.
FBL Fin. Servs., Inc. 557 U.S. 167 (2009). Defendant’s assertion fails
because Defendant is unable to show that correcting the defect would result
in a different disposition of the case, as required by Local Rule 7.1(h)(3).
In Gross, the Supreme Court held that in any ADEA disparatetreatment action, a plaintiff “must prove, by a preponderance of the evidence
(which may be direct or circumstantial), that age was the “but-for” cause of
the challenged adverse employment action. Gross v. FBL Fin. Servs., Inc.,
557 U.S. at 178. Further, the Supreme Court held that “the burden of
persuasion does not shift to the employer to show that it would have taken
the action regardless of age, even when a plaintiff has produced some
evidence that age was one motivating factor in that decision.” Id. at 180.
If the Court would have applied the Gross holding to the instant
action, the outcome would have been the same, given that summary
judgment still would not have been warranted as to Plaintiff’s claim 1(a) – in
which Plaintiff asserts that Defendant discriminated against him on the basis
of age by demoting him.
In considering a defendant's motion for summary judgment, the court
must accept the plaintiff’s evidence as true and draw all reasonable
inferences in the plaintiff’s favor. Celotex Corp. v. Catrett, 477 U.S. 317,

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324 (1986). It is readily apparent that the evidence, construed in Plaintiff’s
favor, demonstrates that he would not have been demoted but-for his age.
Plaintiff does not assert that he suffered an adverse employment action
because of any permissible considerations, mixed motive scenarios, or any
of the theories proffered by Defendant. Rather, concerning his demotion,
Plaintiff asserts that he was told by Vice President Rauch that “it was
because of his age and that he was too old, or words to that affect” that he
was demoted. (Compl., ECF No. 1 at Pg. ID 2; EEOC Charge of
Discrimination, ECF No. 43-9 at Pg. ID 1114.)
For reasons stated in this Court’s prior opinion and order, Rauch’s
statement to Plaintiff constitutes direct evidence to establish a claim that
Defendant discriminated against Plaintiff by demoting him because of
Plaintiff’s age. (ECF No. 59 at Pg. ID 1701.)
As a correction of the purported defect would not have resulted in a
different disposition of the case, as required by Local Rule 7.1(h)(3), the
Court DENIES Defendant’s motion for reconsideration.
SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: September 16, 2015

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I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, September 16, 2015, by electronic and/or
U.S. First Class mail.
s/ Richard Loury
Case Manager

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