Pearson v. Ford Motor Company
Filing
101
OPINION AND ORDER denying 65 Defendant's Renewed Motion for Summary Judgment; denying 71 Motion to Strike All or Portions of the Affidavit of Robert Howard; denying 72 Motion to Strike All or Portions of the Affidavits of Gary Bowling, Aaron Cook and Timothy Vinegar. The Court further sets a final pretrial conference for 1/4/2012 at 2:00 PM and the three-day jury trial to commence on 2/21/2012. Signed by Judge S Arthur Spiegel on 11/22/2011. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TIMOTHY PEARSON,
Plaintiff,
v.
FORD MOTOR COMPANY,
Defendant.
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NO. 1:08-CV-00881
OPINION AND ORDER
This matter is before the Court on Defendant’s Renewed
Motion for Summary Judgment (doc. 65), Plaintiff’s Response in
Opposition (doc. 68), Defendant’s Reply (doc. 74), Plaintiff’s
Supplemental Memorandum (doc. 86), and Defendant’s Supplemental
Memorandum (doc. 88). Also before the Court are Defendant’s Motion
to Strike All or Portions of the Affidavit of Robert Howard (doc.
71), Defendant’s Motion to Strike All or Portions of the Affidavits
of Gary Bowling, Aaron Cook, and Timothy Vinegar (doc. 72),
Plaintiff’s Response in Opposition (doc. 77), and Defendant’s
Replies (docs. 80, 81).
Finally the Court notes Plaintiff filed a
Notice of Correction (doc. 97).
For the reasons indicated herein,
the Court DENIES Defendant’s motions.
I.
Background
The Court already issued an Order on Defendant’s motion
for summary judgment (doc. 40) in which
it denied summary judgment
as to Plaintiff’s Family and Medical Leave Act and Title VII
claims.
The Court incorporates by reference the background
information of this case from such Order.
Essentially, this case is about a long-term employee of
Defendant, who shortly after taking leave, was fired.
Plaintiff
contends he was wrongfully terminated in retaliation for having
filed three discrimination complaints, and after he took FMLA
leave.
Defendant
contends
it
fired
Plaintiff
rather
for
expressing homicidal thoughts to a company-retained doctor, to the
effect that he had felt like taking a gun to work and shooting some
one.
Defendant claims to have a “zero-tolerance” policy for
workplace violence or threats of such violence, and Plaintiff’s
termination was based on such policy.
Defendant now signals to the Court that witnesses whose
affidavit testimony the Court relied on in rendering its decision
have recanted their testimony.
Specifically, the witnesses now
deny having seen incidences of threats or violence described in
their affidavits.
Because the Court viewed such testimony as
creating a genuine issue of material fact as to whether there
really was a zero tolerance policy regarding violence, Defendant
contends the Court should revisit its earlier decision, find no
genuine issue of material fact, and grant it summary judgment.
Defendant further contends it has proferred evidence of other
employees that were fired for making threats of workplace violence
similarly to Plaintiff, and Plaintiff’s argument based on John Doe,
an employee who made threats in 2005 but was not fired should be
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rejected as the situation was distinguishable (doc. 88).
Finally
Defendant contends the Court should strike all the affidavits
Plaintiff used to withstand summary judgment as well as the more
recently-proffered affidavit of Robert Howard (docs. 71, 72)).
Plaintiff contends that Defendant is merely reiterating
arguments the Court already rejected once (doc. 68).
Moreover, in
Plaintiff’s view, Defendant’s motions to strike should all be
rejected, as he is not relying on the attacked portions of the
affidavits to withstand summary judgment (doc. 77).
II.
Discussion
To
obtain
judicial
reconsideration
of
a
judicial
decision, a disappointed litigant must do more than simply claim
the Court erred.
Considerations of finality require that a motion
for reconsideration may only be granted when the litigant has shown
1)
new
evidence
that
was
not
previously
available,
2)
an
intervening change in controlling law, or 3) a decision by the
court that is so “clearly erroneous” as to “work a manifest
injustice.”
Petition of the United States Steel Corp., 479 F.2d
489, 494 (6th Cir.), cert. denied, 414 U.S. 589 (1973).
The Court
does not find that Defendant has met any of these requirements.
Although arguably the new affidavits could be considered new
evidence, the testimony therein was previously available.
There
has been no change in controlling law, and allowing Plaintiff his
day in court–-the practical outcome of the Court’s decision–works
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no “manifest injustice.”
Clearly, the Court’s previous Order relied on more than
statements now rejected by the affiants in this matter regarding
threats of workplace violence.
The Court examined the alleged
“zero tolerance” policy and found that on its face “the policy is
more akin to a laundry list of ‘do’s and don’ts, like don’t smoke,
don’t run in the hallway. . .make sure you punch your time clock,
don’t fight, be nice to your fellow employee.’” The Court found
well-taken Plaintiff’s position that a jury could find the policy
was not a zero tolerance policy because, “at the heading of the
policy it says that anyone who violates any one of these dictates
is subject to discipline which may include discharge.”
The Court
noted that a reasonable jury might very well find Defendant’s
invocation of a “zero tolerance” policy questionable when on the
face of such policy discharge is in reality one option among
others.
Moreover,
Plaintiff
now
proffers
evidence
from
yet
another employee, John Doe, who allegedly made verbal threats but
who was not terminated for having done so.
contends
John
Doe’s
situation
is
Although Defendant
distinguishable
because
Doe
allegedly made the verbal threats with a secret agenda to get
inpatient care, the fact of the matter is Doe was not fired, but
given a chance to explain himself. Plaintiff was not accorded such
treatment.
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The Court has further reviewed the new affidavits by the
employees who now say they did not read the affidavits before
signing them, and that had they done so, they would not have signed
them.
The Court finds suspect recantations by employees who very
well could be changing their stories so as to protect their
employment.
The Court has already stated in its previous Order
that credibility determinations are in the province of a jury. The
jury can determine which statements are true in assessing each of
the
witnesses’
examination.
testimony,
which
shall
be
subject
to
cross-
Defendant can also renew its motions at trial as
liminal motions, should it become evident that hearsay testimony is
entering into the case.
convinced
that
statements.
As it stands now, the Court is simply not
Plaintiff’s
case
is
premised
on
any
improper
There is plenty of evidence that a fact-finder could
review so as to conclude that the “zero tolerance” policy did not
really exist.
As the Court already stated, “this case does not involve
a face-to-face threat in the workplace, nor does it involve an
employee actually brandishing a weapon in the workplace.” Further,
“a jury might find Ford’s reaction unjustified, especially when the
letter it relied upon recommended time off for Plaintiff,
when
Plaintiff was on disability leave for mental stress due to alleged
discrimination, and when Plaintiff was a decades-long employee on
the cusp of gaining valuable retirement benefits.”
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This basic
analysis is untouched by Defendant’s instant motions.
Accordingly, the Court DENIES Defendant’s Renewed Motion
for Summary Judgment (doc. 65), DENIES Defendant’s Motion to Strike
All or Portions of the Affidavit of Robert Howard (doc. 71), and
DENIES
Defendant’s
Motion
to
Strike
All
or
Portions
of
the
Affidavits of Gary Bowling, Aaron Cook, and Timothy Vinegar (doc.
72).
The Court FURTHER SETS a final pretrial conference in this
matter for January 4, 2012, and the three-day jury trial to
commence on February 21, 2012.
SO ORDERED.
Dated: November 22, 2011
/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
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