SUNKETT v. NATIONAL GYPSUM COMPANY et al
Filing
46
MEMORANDUM OPINION AND ORDER: ORDERED that Plaintiff's 38 motion for reconsideration is DENIED; and it is further ORDERED that Plaintiff's 36 motion for an extension of time is DISMISSED AS MOOT; and it is finally ORDERED that the parties may file submissions on or before 10/10/2012. Signed by Judge Renee Marie Bumb on 9/27/2012. (tf, )
NOT FOR PUBLICATION
[Dkt. Ents. 36, 38]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
BRETT A. SUNKETT,
Plaintiff,
Civil No. 09-0721 (RMB/JS)
v.
NATIONAL GYPSUM COMPANY and
JOHN DOES (I-X),
MEMORANDUM OPINION & ORDER
Defendants.
Plaintiff Brett A. Sunkett asks the Court to reconsider its
Opinion and Order granting summary judgment in favor of the defendant,
NGC Industries, LLC (improperly pled as “National Gypsum Company”;
hereinafter “Defendant” or “NGC”).
For the reasons set forth below,
this motion is DENIED.1
1
Plaintiff filed his motion for reconsideration two days after
the deadline for such motions expired under Local Rule 7.1(i)
(providing a fourteen-day period to file a motion for reconsideration
after entry of judgment). Plaintiff did, however, move for an
extension of time to file his reconsideration motion, but this motion
was also untimely. [Dkt. Ent. 36.] While a motion filed out of time
may be denied for that reason alone, the Court may relax this time
limit to prevent “surprise or injustice.” See Lite, N.J. Federal
Practice Rules, Comment 6.b to L. Civ. R. 7.1 (Gann) (collecting
cases); L. Civ. R. 83.2(b). Here, Plaintiff cited as a basis for his
request the fact that the Court had made a “manifest error of law”
by not applying the proper legal standard in its summary judgment
opinion. [Dkt. Ent. 36-1.] Plaintiff apparently abandoned this
argument, however, since his motion for reconsideration did not
1
I. BACKGROUND
Plaintiff worked as a forklift operator at NGC.
In 2002, he was
involved in an accident at work, which resulted in various orthopedic
injuries to his back, neck, and shoulders.
Although he was able to
return to work soon after the accident with some limitations, in the
years following, he regularly received treatment for these injuries.
NGC accommodated his needs, permitting him short-term leaves of
absence for days at a time to obtain medical treatment.
At
Plaintiff’s request, Defendant permitted him to work with significant
restrictions on his job responsibilities.
By March 2005, however,
Plaintiff’s injuries had intensified and he requested a medical leave
of absence on the grounds that he could not perform the job.
He
informed NGC that he did not know how long his condition would last.
Defendant permitted Plaintiff to take a one-year leave of absence,
beginning in August 2005.
Shortly before his leave was set to expire, Plaintiff sought to
return to work.
Consistent with NGC’s normal policy, Plaintiff was
required to satisfy two steps.
First, Plaintiff had to obtain and
submit documentation from his treating physician that he was able to
return to work.
Second, Plaintiff was required to undergo an
include it. Additionally, the Court notes that because Plaintiff
only filed his motion for an extension of time after the time for
reconsideration motions had already expired, he must show that he
failed to act because of “excusable neglect” under Federal Rule of
Civil Procedure 6(b). Since the Court denies his reconsideration
motion, it declines to resolve whether Plaintiff has made such a
showing. His motion for an extension of time is therefore DISMISSED
AS MOOT. [Dkt. Ent. 36.]
2
evaluation at Worknet Occupational Health, the office that handled
NGC’s post-offer and return-to-work physicals.
Dr. Lucian Introcaso
performed this evaluation for NGC and concluded that Plaintiff could
not safely return to work as a forklift operator.
He submitted his
report to NGC, which it relied on in terminating Plaintiff.
Plaintiff filed suit alleging disability discrimination under the New
Jersey Law Against Discrimination, and NGC subsequently moved for
summary judgment.
The Court granted that motion, finding that NGC
had satisfied its burden of proving that it reasonably arrived at its
decision to terminate Plaintiff.
II. STANDARD
Motions for reconsideration are not expressly recognized in the
Federal Rules of Civil Procedure.
United States v. Compaction Sys.
Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999).
Generally, a motion
for reconsideration is treated as a motion to alter or amend judgment
under Federal Rule of Civil Procedure 59(e), or as a motion for relief
from judgment under Rule 60(b).
Id.
In the District of New Jersey,
Local Civil Rule 7.1(i) governs motions for reconsideration.
Agostino v. Quest Diagnostics, Inc., Civ. No. 04-4362, 2010 WL
5392688, *5 (D.N.J. Dec. 22, 2010) (citing Bryan v. Shah, 351 F. Supp.
2d 295, 297 (D.N.J. 2005)).
Local Rule 7.1(i) creates a procedure
by which a court may reconsider its decision upon a showing that
dispositive factual matters or controlling decisions of law were
overlooked by the court in reaching its prior decision.”
3
Id. (citing
Bryan, 351 F. Supp. 2d at 297).
The “purpose of a motion for reconsideration is to correct
manifest errors of law or fact or to present newly discovered
evidence.”
Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.
1985), cert. den’d, 476 U.S. 1171 (1986) (internal citation omitted).
Reconsideration is to be granted only sparingly.
Jones, 158 F.R.D. 309, 314 (D.N.J. 1994).
United States v.
Such motions “may not be
used to relitigate old matters, or to raise arguments or present
evidence that could have been raised prior to the entry of judgment.”
NL Indus., Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513, 515-16
(D.N.J. 1996) (internal citation omitted).
appropriate if:
Reconsideration is only
(1) there has been an intervening change in the
controlling law; (2) evidence not available when the Court issued the
subject order has become available; or (3) it is necessary to correct
a clear error of law or fact to prevent manifest injustice.
Max’s
Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (internal
citations omitted).
Further, “any evidence not supported with
citation to the record and overlooked by the Court will not be grounds
for a motion for reconsideration.”
Gilbert v. Camden City, Civ. No.
04-3268, 2007 WL 1040978, *4 (D.N.J. Apr. 4, 2007).
III.
ANALYSIS
Plaintiff cites three grounds for reconsideration.
First, he argues that the Court should not have found that NGC
met its burden of proof because it did not proffer any evidence that
4
it “actually consulted” with Dr. Introcaso before deciding to
terminate him.
As an initial matter, the Court notes that Plaintiff
is foreclosed from making this argument, since he could have asserted
it - but did not – at summary judgment.
515-16.
NL Indus., 935 F. Supp. at
In any event, this argument also fails on its merits.
In Jansen v. Food Circus Supermarkets, Inc., 541 A.2d 682, 690
(N.J. 1988), the New Jersey Supreme Court explained that in “an
appropriate case,” an employer might be expected to communicate with
its medical expert about the meaning of that expert’s report before
relying on it to terminate an employee.
There, the employer
terminated the plaintiff (a meat cutter suffering from epilepsy) in
reliance on two expert reports that only mentioned general concerns
about epileptics working as meat cutters.
Id. at 685-87.
The Court
concluded that the employer should have ascertained from its experts
(1) whether another seizure was probable or just possible, and (2)
the probability that the plaintiff would cause serious harm to himself
or his coworkers if he suffered another seizure.
Id.
Since the
record did not reflect whether the employer had made such an inquiry,
the Court reversed the Appellate Division’s finding that the employer
had reasonably arrived at its decision to discharge the plaintiff.
Id.
The factors, which were dispositive in Jansen, are not at play
here.2
2
First, unlike the plaintiff in Jansen who suffered from
For a detailed analysis of Jansen and why it is distinguishable from
this case, see this Court’s prior Opinion: Sunkett v. Nat’l Gypsum
5
occasional seizures, here the Plaintiff had ongoing orthopedic
injuries, so the inquiry was slightly different.
The Court thus
considered whether Dr. Introcaso’s report conveyed the probability
that Plaintiff could perform the forklift operator job despite his
injuries without causing serious harm to himself or his coworkers.
Dr. Introcaso’s report provided NGC with precisely this information:
it advised that Plaintiff was simply unable to do the job without
endangering himself or others; in other words, that the probability
of Plaintiff harming himself or others would be 100 percent.
Dr. Introcaso’s report reflected that he had specifically
tailored his assessment to Plaintiff’s situation and the demands of
the job.
It included: (1) the results of his examination of the
Plaintiff; (2) the requirements of the forklift operator position;
(3) the fact that Plaintiff had been out of work for approximately
one year due to back, neck and shoulder pain; (4) the fact that
Plaintiff had received multiple medical treatments, including
epidural injections, chiropractic care for herniated discs and other
osteopathic injuries; (5) the fact that Plaintiff had been prescribed
the narcotic Vicoprofen for pain; and (6) the fact that Plaintiff had
applied for long-term disability benefits.
Id. at *9-10.
If this
case were truly analogous to Jansen, Dr. Introcaso’s report would have
simply advised NGC of Plaintiff’s abilities based on general
assumptions about people with orthopedic injuries working as forklift
Co., Civ. No. 09-721, 2011 WL 6719776, *11 n.12 (D.N.J. Dec. 21, 2011).
6
operators.
Since this is a far cry from Dr. Introcaso’s actual
report, the Court rejects this basis for reconsideration.
The Court notes, however, that in reviewing this motion, it
became aware of the fact that both parties proceeded at summary
judgment as though NGC had proved:
(1) that the relevant NGC
decisionmakers understood Dr. Introcaso’s handwritten report and its
findings (as set forth above); (2) that the decisionmakers reviewed
and relied on these findings as opposed to simply the report’s
conclusion; (3) that the decisionmakers relied on Plaintiff’s failure
to submit a note from his treating physician clearing him to return
to work; and (4) that that the decisionmakers reviewed Plaintiff’s
work history, which supported Dr. Introcaso’s assessment.
The
parties may have presumed that these facts were too obvious to dwell
on, and since they were not disputed, the Court did not consider them.
The Jansen opinion, however, underscores the importance of these
issues:
In arriving at its decision, the employer should review not
only the report of its medical experts, but also relevant
records such as the employee's work and medical histories.
The employer thereby can independently reach an
objectively reasonable decision about such matters as the
probability that the employee will cause harm to himself
or other employees.
Jansen, 541 A.2d 682, 690 (N.J. 1988) (internal citations omitted)
(emphasis added).
If the Court’s presumption was incorrect,
however, and these issues were in fact disputed, the parties may file
submissions addressing the matter as set forth below.
7
Second, Plaintiff argues that the Court erred by permitting NGC
to rely on medical evaluations, which occurred more than a year before
or more than a year after its decision to terminate Plaintiff.
The relevant inquiry in an employment discrimination case is the
employer’s state of mind at the time of its decision; in other words,
whether it acted with the prohibited discriminatory animus.
See,
e.g., Donahue v. Consol. Rail Corp., 224 F.3d 226, 232 (3d Cir. 2000).
Facts, which the employer became aware of only after discharging the
plaintiff, are therefore irrelevant to this analysis.
Notably, Plaintiff has not identified any medical records, which
the Court erroneously relied on in making its ruling.
Indeed, the
Court was well aware of the above rule in deciding this matter and
proceeded accordingly.
Unfortunately, however, since neither party
clarified which medical records NGC and Dr. Introcaso actually
reviewed before terminating Plaintiff, the Court was unable to
include this information in the facts section of the Opinion.
As
such, the background facts were “drawn from the parties' Rule 56.1
Statements of Material Fact and [] construed in the light most
favorable to Plaintiff.”
Sunkett, 2011 WL 6719776 at *1 n.1.
To the
extent Plaintiff seeks reconsideration of this Court’s Opinion based
on his “buyer’s remorse” about conceding certain facts at summary
judgment, the Court rejects this argument.
Id.
Third, Plaintiff complains that the Court failed to consider the
“totality” of his arguments during its burden-shifting analysis under
8
Jansen.
Plaintiff does not provide any more specifics from which the
Court may glean how he believes the Court should have addressed his
arguments.
Since his opposition brief at summary judgment failed to
conduct the relevant burden-shifting analysis, it was unclear to the
Court when Plaintiff wished to assert each of his arguments.
Despite
Plaintiff’s lack of assistance, the Court nevertheless considered all
of his arguments at each stage of the analysis.
Certain arguments,
however, the Court did not find persuasive and therefore rejected
outright.
For example, Plaintiff attempted to rely on his former
supervisor David Cotton’s testimony to demonstrate a discrepancy
between the job description relied on by Dr. Introcaso (which
reflected that Plaintiff had to “occasionally” lift 50 to 75 pounds)
and Cotton’s estimate that Plaintiff would be expected to lift “about
40 pounds” on a “consistent basis”.
Sunkett, at *10; Cotton Dep.
10:1-7, Pl.’s Ex. 2, Dkt. Ent. 30-2.
Cotton’s testimony, however,
was not inconsistent with the job description, and the Court therefore
rejected this argument.
Cotton was referring to the amount Plaintiff
was required to lift on a “consistent basis”, whereas the job
description referred to the amount Plaintiff was required to lift only
“occasionally”.
Id.
Further, Cotton’s estimate amounted to
unsupported speculation, which the Court could not credit, and in any
event, its probative value was doubtful.
For these reasons, it is hereby:
9
Sunkett at *10.
ORDERED that Plaintiff’s motion for reconsideration is DENIED;
and it is further
ORDERED that Plaintiff’s motion for an extension of time is
DISMISSED AS MOOT; and it is finally
ORDERED that the parties may file submissions, as set forth
above, on or before October 10, 2012.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: September 27, 2012
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