Opinion
Case Number 03-10117-BC.
April 7, 2005
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION
The plaintiff has filed a motion under Federal Rule of Civil Procedure 60(b) and Local Rule (LR) 7.1(g) seeking reconsideration of and relief from an order entered by this Court granting the defendant's motion for summary judgment and dismissing the case. Based on the Court's diversity jurisdiction, the defendant had removed the plaintiff's complaint filed under Michigan's Whistleblower's Protection Act (WPA). The complaint also included a claim that her termination by the defendant violated Michigan public policy, but the Court held that this latter claim was preempted by the WPA. The plaintiff does not challenge that aspect of the summary judgment ruling. The Court ordered the defendant to respond to the plaintiff's motion and the matter is ready for decision.
I.
The facts of the case are set forth in detail in the Court's earlier opinion and order. The plaintiff was a store manager at the defendant's Saginaw, Michigan store, where she supervised salesperson Jake McShane, among others. McShane complained that the plaintiff mistreated him, and personnel from the defendant's human resources department conducted an investigation into McShane's allegations. The defendant later determined that the plaintiff lied to its investigators and fired her for that reason. However, while the investigation was in progress, the plaintiff discovered a tool in McShane's store apron that she believed had been sharpened into a weapon, and the plaintiff called the police. The allegation later proved to be exaggerated, but the plaintiff insisted that her termination was due, at least in part, to her legitimate complaint to the police about McShane and therefore it violated the WPA.
The Court held in its opinion that the plaintiff failed to offer any direct evidence that her termination was based on an illegal motive by the defendant. Applying the traditional three-part sequential analysis for an inferential case of wrongful termination, see Roulston v. Tendercare (Michigan), Inc., 239 Mich. App. 270, 280-81, 608 N.W.2d 525, 530 (2000) (prescribing a process calling for the plaintiff's presentation of a prima facie case, rebutted by the defendant's proffered legitimate reason(s) for termination, followed by the plaintiff's evidence of pretext), the Court determined that the plaintiff did not offer evidence of pretext sufficient to carry her burden at the summary judgment stage of the proceeding to create a fact question on the defendant's illegal motive for terminating her.
The plaintiff now argues that two items of evidence demonstrate a palpable defect that if corrected will result in a different disposition of the case. The first item is from a report written by Steven Miller, the defendant's regional manager, which states "Cindy [the plaintiff] made a conscious decision to circumvent HR [Human Resources] and RM [Regional Manager] by contacting police directly." Pl.'s Response Ex. 30, Miller Investigation Report at 3. The plaintiff contends this statement shows the defendant terminated her for contacting the authorities. The second item of evidence consists of statements from another report by Miller, which the plaintiff insists are contradictory and demonstrate that Miller obstructed a police investigation. Miller wrote that he told a police officer that the McShane's wrench, which the plaintiff alleged was a weapon, "matched one I had found at the store." Pl.'s Response Ex. 26, Miller Contacts with Sheriff Report at 1. Later in the same report, Miller stated, "I have not, at this point, been able to conclusively match the wrench to a specific piece of furniture in the store." Pl.'s Response Ex. 27, Miller Contacts with Sheriff Report at 1. The plaintiff contends that the discrepancy demonstrates that "the Defendant knew that Plaintiff's protected activity had merit." Pl.'s Response ¶ 11.
II.
Although the plaintiff did not specify which of the six subsections of Federal Rule of Civil Procedure 60(b) she intended to rely upon, the Court presumes that her motion is based on Rule 60(b)(1), which permits relief from an order or judgment when "mistake, inadvertence, surprise, or excusable neglect" has occurred. Fed.R.Civ.P. 60(b)(1). The Sixth Circuit has read the term "mistake" in this section of the rule to extend to claims of legal error. Jalapeno Property Management, LLC v. Dukas, 265 F.3d 506, 515 (6th Cir. 2001) (citing Hopper v. Euclid Manor Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989)). Therefore, a motion based on Rule 60(b)(1) is "intended to provide relief to a party in only two instances: (1) when the party has made an excusable litigation mistake or an attorney in the litigation has acted without authority; or (2) when the judge has made a substantive mistake of law or fact in the final judgment or order." Cacevic v. City of Hazel Park, 226 F.3d 483, 490 (6th Cir. 2000).
However, a party may not use Rule 60(b) "as an occasion to relitigate its case." General Universal Systems, Inc. v. Lee, 379 F.3d 131, 157 (5th Cir. 2004). The Court will grant a motion for reconsideration only if the moving party shows (1) a "palpable defect," (2) the defect misled the court and the parties, and (3) that correcting the defect will result in a different disposition of the case. E.D. Mich. LR 7.1(g)(3). A "palpable defect" is a defect which is obvious, clear, unmistakable, manifest, or plain. Fleck v. Titan Tire Corp., 177 F. Supp. 2d 605, 624 (E.D. Mich. 2001). "[M]otions for rehearing or reconsideration which merely present the same issues ruled upon by the Court, either expressly or by reasonable implication, shall not be granted." E.D. Mich. LR 7.1(h)(3).
The Court does not conclude that the evidence cited by the plaintiff constitutes direct evidence of an illegal motive for terminating the plaintiff, nor does it create a fact question in the issue of pretext. In Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078 (6th Cir. 1994), the court held that for the plaintiff's claim to survive on a motion for summary judgment she must offer sufficient evidence demonstrating that the illegal motivation "overwhelms, or at lest would permit a reasonable juror to conclude that it overwhelms . . . non-discriminatory reasons." Id. at 1084.
A.
The portion of Miller's report containing the statement upon which the plaintiff now relies is set forth here:
Thursday 1/16/03
Cindy and Sandy opened together. Sandy relayed rest of what happened to Cindy, reiterates `tape recorder' and that Kevin stated Jake had hand hidden in pocket with item protruding. Cindy decided to go look in Jake's apron pocket. Cindy described finding wrench cut off and worn down to look like weapon, stated it was not one of our tools, never saw it before, was concerned it was weapon brought into store.
Cindy states that approx 930a called Saginaw twp police for advice on how to proceed, stating that she told them she found tool altered like weapon, they had been having problems with this guy, what should they do? States she did not feel it was an emergency and did not call 911. Sag. twp police referred to county Sheriff due to location. Officer responded a little after 11am. Apparently approx 10am Becky Hall called? but she stated that she did not tell Becky she had called the police. Cindy and officer discussed tool and states that officer held it in hand with shaft protruding between fingers, saying yes this looks like it could be a weapon. the [sic] officer kept the wrench and stated that she wold either come back at 430 to meet Jake or else call him. Officer called back later to say that she had called Jake and talked to him, and the officer read the report to them over the phone.
She states that Sandy was the first to relay information about the weapon to Becky, after Cindy spoke with Becky already. Related that Sandy told Becky, `you're not helping us.'
Cindy states that later in the day she and Sandy went to pick up a copy of the report.
When I asked Cindy why she didn't call me or HR prior to calling police, she gave 3 reasons:
1) she did not think (believe) enough was being done
2) she stated that `this guy' is a major problem
3) she called to ask for advice, not for action to be taken she reiterated that she didn't think it was a problem since she didn't call 911
Asked why not relay after calling police, or to Becky when she called, and Cindy said did not have good answer, she just wanted to protect herself and her team and that she felt she had a right to call the police. SEE SANDY NOTES for more insight to this decision.
. . .
My assertions:
Cindy reacted to Jake regarding his statement about a personal phone call in a manner inconsistent with her usual handling of associates who ask who is calling. Cindy did act in a way which made Jake uncomfortable when he was trying to speak with HR on the phone.
Cindy was not truthful about the incident on Tuesday when Jake tried to use the office phone.
Cindy made a conscious decision to circumvent HR and RM by contacting police directly and failed to notify us of her action in a timely manner.
Cindy made a conscious decision to circumvent the ongoing investigation.
Cindy strongly overreacted to finding the wrench, which does not appear to be a Pier 1 tool previously in the store and exhibited poor judgment in her reaction.
Pl.'s Response Ex. 30, Miller Investigation Report at 2-3 (emphasis added).
Viewed in its proper context, and taken in the light most favorable to the plaintiff, the reference to the plaintiff contacting the police does not suggest an improper motive for terminating her. Rather, Miller's report registers displeasure over the plaintiff's conduct directed to the defendant's human resource department, her failure to cooperate with the investigation by providing truthful information, and her efforts to "circumvent" the company's investigation by using the authorities to compromise McShane. Fairly read, Miller's mention of the police is only incidental to his description of the plaintiff's offending conduct.
This point is illustrated by a recent Sixth Circuit decision, Kocak v. Community Health Partners of Ohio, Inc., 400 F.3d 466 (6th Cir. 2005). In that case, the plaintiff alleged that the defendant violated Title VII by not rehiring her because of her pregnancy. The defendant contended that the plaintiff was unreliable and difficult to work with, and co-workers objected to rehiring her. The plaintiff offered evidence that the defendant's personnel manager, Elizabeth Finnegan, "asked Kocak whether she was pregnant or intended to have more children" and the plaintiff's former supervisor named Melanie Meyer stated she "would not rehire [Kocak] because of the complications in scheduling caused by her past pregnancy." Id. at 468. There also was evidence "that Finnegan told [Kocak] at some point that Meyer did not want to hire her because of the scheduling difficulties attending her prior pregnancy." Id. at 470. The court held that these statements did not constitute direct evidence of discriminatory motive because
it does not require a conclusion that unlawful discrimination motivated the decision not to rehire Kocak. There is unrefuted evidence that Kocak was unreliable when it came to scheduling and difficult to contact when she was employed with Community Health, including before she became pregnant. To conclude that [Meyer's] comment about scheduling difficulties relating to her last pregnancy demonstrates an anti-pregnancy animus and not a non-discriminatory concern about Kocak's past scheduling difficulties — difficulties extending further back than the pregnancy — requires an inference.Ibid. Nor did the evidence support an inference of discrimination sufficient to establish pretext. The court reasoned:
Defendant has produced evidence that it decided not to rehire Kocak because she was an unreliable employee and was avidly disliked by her peers. Kocak has not proffered a single piece of evidence indicating that these reasons are pretextual.Id. at 471.
Similarly, merely because the plaintiff's contact with the police was mentioned in Miller's report does not provide an inferential link to an illegal motive. The defendant offered evidence that its reasons for terminating the plaintiff had roots that pre-existed the call to the police. The evidence is undisputed that the plaintiff's police complaint constituted an over-reaction to her discovery of the wrench in McShane's apron, and she has failed to show that the defendant's conclusion that she exhibited poor judgment and interfered with her company's investigation of the intra-employee dispute between McShane and her was pretextual. The evidence cited by the plaintiff does not establish that the defendant's proffered reasons for firing her were a pretext for retaliation.
B.
The plaintiff next argues that Miller's alleged contradictory statements concerning the wrench found in McShane's store apron demonstrate that "the Defendant knew that Plaintiff's protected activity had merit, since the Defendant then conducted a campaign of obstructing the criminal investigation by knowingly lying to law enforcement officials." Pl.'s Mot. for Reconsideration ¶ 11. The plaintiff asks too much of this evidence because Miller's statements are neither contradictory nor consequential: the plaintiff's argument does not relate to an issue in this case. The defendant did not assert that it terminated the plaintiff for lying to law enforcement officials or making an unmeritorious report to the police. Whether the defendant considered the plaintiff's report to the police meritorious is not a fact of consequence in this case.
Moreover, the reference that Miller made to a wrench matching one he found at the store and a later reference to his inability to match the wrench to a specific piece of store furniture is easily explained: Miller was discussing two different wrenches and his statements are not inconsistent or deceitful. Miller's complete statement concerning the wrench McShane actually possessed, which the police had taken into custody, describes it thus:
[A female police officer] showed me the wrench. It was a brown open ended wrench that appeared identical to the one I found on the workbench at the store and corresponded to the tracing Cindy had made of the wrench before giving it to the deputy on 1/16. She asked me if this was a wrench from the store. I indicated that it matched one I had found at the store. She asked if it was something we would have used to assemble furniture. I stated that it was reasonable to believe that the wrench may have come with furniture and used to assemble it.
Pl.'s Response Ex. 26, Miller Contacts with Sheriff Report at 1. Miller's other statement reads as follows:
About the second wrench I found:
I have not, at this point, been able to conclusively match the wrench to a specific piece of furniture in the store. There was speculation and an assertion from Jake that it matched Domingo, but it is too large and when I opened a new box, the wrench included was different.
The second wrench is slightly longer than the tracing of the one at the Sheriff department, but again I want to point out there was not indication either had been cut down. It appeared identical to the one I handled at the Sheriff department, though the one there may have had text on the handle, where the second one does not.
Pl.'s Response Ex. 27, Miller Contacts with Sheriff Report at 1.
No inference of pretext can be drawn from these statements. They do not conflict and they do not suggest an improper motive for terminating the plaintiff.
III.
The plaintiff has not demonstrated any defect or mistake in the Court's opinion and order granting the defendant's motion for summary judgment.
Accordingly, it is ORDERED that the plaintiff's motion for reconsideration [dkt # 83] is DENIED.