Evans v. United Parcel Service, Inc.
Filing
52
OPINION AND ORDER denying 49 Motion for Reconsideration of this Court's Order on Summary Judgment 45 . The Court sets this matter for a final pretrial conference on 1/17/2012 at 2:00 PM and a four-day Jury Trial on 2/14/2012. Signed by Judge S Arthur Spiegel on 12/7/2011. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ARTHUR NEIL EVANS,
Plaintiff,
v.
UNITED PARCEL SERVICE, INC.,
Defendant.
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NO. 1:09-CV-00791
OPINION AND ORDER
This matter is before the Court on Defendant’s Motion for
Reconsideration of the Court’s Summary Judgment Decision (doc. 49),
Plaintiff’s Response in Opposition (doc. 50), and Defendant’s Reply
(doc. 51).
For the reasons indicated herein, the Court DENIES
Defendant’s motion.
I.
Background
This case involves a long-term employee of Defendant, who
was terminated shortly after taking four months of Family and
Medical Leave Act (“FMLA”) leave.
Defendant claims it terminated
Plaintiff based on its view that Plaintiff failed to report an
accident, and “stole company time,” an hour and twenty minutes,
while getting a repair in the company shop.
In its Order rejecting Defendant’s motion for summary
judgment, the Court found Plaintiff had proffered adequate evidence
such that a reasonable jury could find Defendant retaliated against
him for taking FMLA leave (doc. 45).
The Court noted that
Plaintiff’s termination came only a few months after taking such
leave, and that a jury could infer that at least one decision-maker
involved in the termination decision was aware of Plaintiff’s leave
(Id.).
The Court further found that a jury could find Defendant’s
proffered legitimate justification for its action as pretext,
taking into consideration all of the other drivers who did not
report
accidents
at
consequences (Id.).
all,
and
who
suffered
much
less
severe
The Court noted the record showed Plaintiff
met performance expectations in his position, passed yearly safety
reviews, and earned every promotion available to him (Id.).
The
Court indicated a reasonable jury would certainly take pause at
Defendant’s termination of such an employee, who had worked for
nearly twenty five years, based on the “dishonesty” of “stealing
time” while getting repairs in the company shop (Id.). The Court
noted that Plaintiff did not attempt to hide the accident by
seeking
repairs
secretly
somewhere
else
(Id.).
Under
such
circumstances the Court indicated it seemed harsh and unfair to
characterize
Plaintiff’s
termination.
As the record showed other drivers completely failed
to
report
accidents,
actions
the
Court
as
dishonest
concluded
a
and
jury
meriting
could
find
Defendant’s proffered justification was not the real reason for
Plaintiff’s
termination
(Id.).
As
such,
the
Court
denied
Defendant’s motion for summary judgment as to Plaintiff’s claim for
FMLA retaliation (Id.).
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II.
Analysis:
To
Defendant’s Motion for Reconsideration
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).
Defendant
has not proferred new evidence previously unavailable, nor has
Defendant shown any change in controlling law.
Defendant has
instead attacked the Court’s reasoning as erroneous on four grounds
(doc. 49).
Defendant argues the Court 1) relied on two irrelevant
notes from Plaintiff’s doctors, which are inadmissible hearsay; 2)
failed to address that Plaintiff’s alleged misconduct broke the
causal connection between his leave and his discharge; 3) allowed
Plaintiff to compare himself to others who were not similarlysituation;
and
4)
improperly
judged
Defendant’s
discharge
of
Plaintiff as “harsh and unfair” (Id.).
As for its first argument, Defendant contends that when
deposed, Plaintiff admitted “misconduct” in that he should have
reported his accident immediately, but did not (Id.).
As such,
Defendant claims Sixth Circuit precedent prohibits Plaintiff from
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establishing causation based on temporal proximity between his
leave and termination (Id., citing Vereeke v. Huron Valley School
District, 609 F.3d 392 (6th Cir. 2010), Pharakhone v. Nissan North
America, Inc., 324 F.3d 405 (6th Cir. 2003)).
Defendant’s notion.
The Court rejects
Notwithstanding the fact that the Court finds
dubious “admissions” made in depositions, which usually amount to
statements taken out of context, and which parties can explain on
the stand for a credibility determination by a jury, the Court
simply reads Defendant’s cited authorities differently.
In both
Vereeke and Pharakhone, there was no question that the employees
had violated policies.
In Pharakhone, the employee had been
instructed not to work while on leave, but did so anyway.
405, 408.
324 F.3d
In Vereeke, an athletic coordinator at a public school
acted outside his authority in drafting a contentious letter that
he alone signed on behalf of a committee, he yelled profane
language at students, and he removed property from the school
premises.
609 F.3d 396-99.
No reasonable jury in either case
would have been able to find the employee did not violate policies.
Here, in contrast, Defendant’s narrow reading of its policy as to
Plaintiff, in contrast to its treatment of other drivers who had
accidents, creates an entirely different scenario.
Plaintiff took
the truck to the company shop for repairs, and then was accused of
lying and stealing company time.
A reasonable jury could find
Defendant’s proffered reason for terminating Plaintiff has no basis
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in fact.
As for its second argument, Defendant contends the Court
relied on inadmissible and irrelevant doctors’ notes from 2002 and
2003.
Defendant contends there is no evidence of any connection
between the notes and Plaintiff’s claim of retaliation in 2008.
Defendant further contends the notes are hearsay.
The Court again disagrees.
the
notes
as
reflecting
a
A reasonable jury could view
company
culture
where
leave
is
discouraged and disdained. The notes do not constitute hearsay, as
Plaintiff argues, because they involve statements made for purposes
of a medical diagnosis, recorded recollections, and records of
regularly conducted activity.
Fed. R. Evid. 803(4-6).
Defendant next argues the Court allowed Plaintiff to
compare himself to employees who are not similarly situated (docs.
49, 51).
Defendant contends the other employees were not accused
of stealing company time, that the others in accidents did not know
they had accidents, and that the others had different supervisors
and decision-makers (Id.).
Plaintiff responds that Defendant errs
in taking an exceedingly narrow interpretation of the similarlysituated standard (doc. 50).
Plaintiff
was
The Court agrees with Plaintiff.
similarly-situated
in
all
relevant
respects.
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344 (6th Cir.
1998).
Like the other employees he was a driver who technically
failed to report an accident. All were subject to the same policy.
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The others did not lose their employment, while Plaintiff did.
McDonald v. Santa Fe Transp. Co., 427 U.S. 273, 282 (1976)(a
plaintiff need only to show that one or more employees not in the
protected group had engaged in acts of “comparable seriousness. .
.were nevertheless retained or rehired”).
Finally, Defendant argues the Court erred in substituting
its judgment for that of the employer, because it found Defendant’s
characterization of Plaintiff’s conduct as “harsh and unfair.”
Such observation was merely dicta in its opinion, and the Court
stands by its observation that it has never seen a situation where
an employee obtaining a repair in a company shop was accused of
lying and stealing time.
The ultimate question is whether a
reasonable jury could come to the conclusion that Defendant’s
proffered reason for Plaintiff’s termination was pretext.
Taking
all inferences in favor of Plaintiff, as it is required to do in
the context of evaluating a summary judgment motion, the Court
answered and answers such question in the affirmative.
III.
Conclusion
Defendant has not proferred new evidence previously
unavailable, nor has Defendant shown any change in controlling law.
Defendant has instead attacked the Court’s reasoning as erroneous
on four grounds, each of which the Court rejects as lacking in
merit.
Allowing Plaintiff the opportunity to present his FMLA
retaliation claim before a jury, the practical result of the
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Court’s
decision,
Defendant
can
in
present
no
way
its
works
proffered
a
“manifest
reasons
for
injustice.”
terminating
Plaintiff, and the jury can decide whether they were legitimate or
pretext for unlawful retaliation.
Accordingly, the Court DENIES Defendant’s Motion for
Reconsideration of the Court’s Summary Judgment Decision (doc. 49).
The Court further SETS this matter for final pretrial conference at
2:00 P.M. on January 17, 2012, and for a four-day jury trial to
commence on February 14, 2012.
SO ORDERED.
Dated: December 7, 2011
/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
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