Filed: Aug. 27, 2012
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Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 12a0950n.06 Case No. 11-1611 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Aug 27, 2012 JOYCE A. GULLEY, ) LEONARD GREEN, Clerk ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN v. ) DISTRICT OF MICHIGAN ) COUNTY OF OAKLAND, ) ) Defendant-Appellee. ) BEFORE: COLE and DONALD, Circuit Judges; SARGUS, District Judge.* SARGUS, District Judge. Plaintiff-Appellant Joyce Gulley appeals the distr
Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 12a0950n.06 Case No. 11-1611 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Aug 27, 2012 JOYCE A. GULLEY, ) LEONARD GREEN, Clerk ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN v. ) DISTRICT OF MICHIGAN ) COUNTY OF OAKLAND, ) ) Defendant-Appellee. ) BEFORE: COLE and DONALD, Circuit Judges; SARGUS, District Judge.* SARGUS, District Judge. Plaintiff-Appellant Joyce Gulley appeals the distri..
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0950n.06
Case No. 11-1611
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Aug 27, 2012
JOYCE A. GULLEY, ) LEONARD GREEN, Clerk
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF MICHIGAN
)
COUNTY OF OAKLAND, )
)
Defendant-Appellee. )
BEFORE: COLE and DONALD, Circuit Judges; SARGUS, District Judge.*
SARGUS, District Judge. Plaintiff-Appellant Joyce Gulley appeals the district court’s (1)
grant of summary judgment in favor of Defendant-Appellee Oakland County, (2) denial of Gulley’s
motion for reconsideration of that decision, and (3) denial of Gulley’s motion to extend discovery
and to supplement her witness and exhibit lists. Gulley alleges that she suffered discrimination and
retaliation based on her race, gender, and age when Oakland County eliminated her position and
denied her request to “bump” a less senior employee from a position to which she desired to transfer.
Gulley brought her claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.1
*
The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of
Ohio, sitting by designation
1
Gulley alleges in her complaint that her race, gender, and age claims are filed under Title VII of the
Civil Rights Act of 1964. The parties and the district court address her age discrimination claim
Case No. 11-1611
Gulley v. County of Oakland
The district court granted summary judgment in favor of Oakland County, concluding that Gulley
failed to establish a prima facie case of discrimination on either her termination or failure to transfer
claims and that even if she had, Oakland County offered legitimate, nondiscriminatory reasons for
its actions that Gulley failed to show were pretext for discrimination. The district court indicated
that Gulley brought discrimination and retaliation claims, but did not otherwise address Gulley’s
retaliation claim. After concluding that Oakland County was entitled to summary judgment, the
district court denied as moot Gulley’s request to extend discovery and to supplement her witness and
exhibit lists. Gulley filed a motion for reconsideration of the district court’s grant of summary
judgment, arguing that there was a palpable defect by which the court rendered its decision. The
district court denied Gulley’s request for reconsideration, finding that she had merely presented the
same issues it had already ruled upon. For the reasons that follow, we AFFIRM all three of the
district court’s decisions.
I. BACKGROUND
The district court accurately set forth the uncontroverted facts as follows:
Plaintiff Joyce Gulley, a 57 year old, African American female, was hired by
the Oakland County Medical Examiner’s Office on November 29, 1999, as a Family
Service Counselor (“FSC”), one of three FSC positions newly created with the help
of grant funding. When grant funding was lost October 31, 2001, defendant Oakland
under Title VII. That statute, however, does not prohibit age discrimination. The Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., is the proper statute under
which Gulley should have brought her age discrimination claim. For purposes of our analysis, this
error is of no consequence because we utilize the same framework to evaluate discrimination under
both of these statutes. Policastro v. Northwest Airlines,
297 F.3d 535, 538 (6th Cir. 2002) (“[W]e
recognize that claims of discrimination brought pursuant to Title VII, 42 U.S.C. § 2000e et seq., and
the ADEA, 29 U.S.C. § 621 et seq., are analyzed under the same framework.”).
2
Case No. 11-1611
Gulley v. County of Oakland
County reduced the FSC positions to one, to be financed from the general fund.
[Gulley] was given the remaining FSC position, which she held from November 1,
2001, to March 27, 2009.
In March 2009, defendant Oakland County faced a budget shortage. The
Medical Examiner’s Office was tasked with determining ways to reduce its budget.
One of the recommendations included eliminating the general fund FSC position, as
well as eliminating a Forensic Toxicology Chemist position and eliminating benefits
for five other employees. [Oakland County] adopted this recommendation. Human
Resources notified [Gulley] in a meeting on March 3, 2009, of the planned
elimination of her position effective March 27, 2009. [Gulley] was also told at this
meeting that she could transfer into another position at the Veterans’ Services
Department in Oakland County.
At that time, [Gulley] indicated that she would like to “bump” into a Medical
Examiner Investigator (“MEI”) position, pursuant to the Oakland County Merit
System, which allows more senior employees to replace employees with less
seniority, provided the more senior employee is qualified for the position. Human
Resources agreed to look into [Gulley]’s qualifications for an MEI position based on
her current job description and personnel file. Human Resources also asked [Gulley]
to provide any information on experience outside her employment with Oakland
County; however, [Gulley] failed to do so.
Human Resources subsequently informed [Gulley] that based on the materials
they reviewed, she was not qualified for an MEI position but that she could obtain
a statement from her supervisor that she had been performing the duties of an MEI.
[Gulley] failed to obtain such a statement. [Gulley] did contact Dr. Dragovic, one of
her supervisors, but [Gulley] never followed up on his suggestion to arrange a
meeting to discuss her qualifications.2
[Gulley] began the transfer process into the position offered to her in the
Veterans’ Services Department on March 26, 2009, but revoked her transfer and filed
a complaint with the Equal Employment Opportunity Commission on March 30,
2009. [Gulley] then withdrew the charge and obtained a right to sue letter.
(Dist. Ct. Op. Granting Mot. Summ. J., Dist. Ct. Docket No. 33, at 1-3.)
2
Gulley claims that it was Dr. Dragovic who failed to follow up with her, which is why she never
arranged the meeting. As our analysis infra shows, this dispute is not material to the issues before
the Court.
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Gulley v. County of Oakland
On October 27, 2009, Gulley filed suit against Oakland County alleging violations of Title
VII of the Civil Rights Act of 1964, for discriminatory termination and failure to permit her to
replace a less senior employee for an MEI position. (Compl., Dist. Ct. Docket No. 1, ¶ 4.) On June
18, 2010, one month after the close of discovery, Oakland County timely filed a motion for summary
judgment, arguing that it was entitled to judgment as a matter of law on all of Gulley’s claims. (Mot.
for Summ. J., Dist. Ct. Docket No. 18.)
Also on June 18, 2010, after Oakland County’s Motion for Summary Judgment was filed,
Gulley filed a Motion to Extend Discovery and/or to Supplement Exhibit and Witness Lists. (Mot.
for Extension of Time or to Supplement, Dist. Ct. Docket No. 19.)
The district court held oral argument on Oakland County’s Motion for Summary Judgment
and issued its decision granting the motion. (Dist. Ct. Op. Granting Mot. Summ. J., Dist. Ct. Docket
No. 33.) In its decision, the district court indicated that Gulley filed claims for discrimination and
retaliation, analyzed her discrimination claims, and granted summary judgment in favor of Oakland
County. In the same decision, the district court also denied as moot Gulley’s request to extend
discovery and/or supplement her exhibit and witness lists.
On September 10, 2010, Gulley moved for reconsideration of the district court’s grant of
summary judgment in Oakland County’s favor. (Mot. Recons., Dist. Ct. Docket No. 37.) The
district court denied Gulley’s Motion for Reconsideration on April 19, 2011. (Dist. Ct. Op. Denying
Mot. Recons., Dist. Ct. Docket No. 42.)
This appeal follows, challenging the district court’s grant of summary judgment to Oakland
4
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Gulley v. County of Oakland
County,3 its denial of Gulley’s request for reconsideration of that decision, and its denial of Gulley’s
request for an extension of discovery and to supplement her witness and exhibit lists.
II. ANALYSIS
A. Grant of Motion for Summary Judgment
The district court granted Oakland County’s Motion for Summary Judgment.
1. Standard of Review
We “review[] a grant of summary judgment de novo and consider[] the facts and any
inferences drawn from the facts in the light most favorable to the non-moving party.” Chapman v.
UAW Local 1005,
670 F.3d 677, 680 (6th Cir. 2012) (en banc) (citing White v. Detroit Edison Co.,
472 F.3d 420, 424 (6th Cir. 2006)). “Summary judgment is appropriate if there is no genuine dispute
as to any material fact and the moving parties are entitled to judgment as a matter of law.”
Id. (citing
Fed. R. Civ. P. 56(a)). “When the non-moving party fails to make a sufficient showing of an
essential element of his case on which he bears the burden of proof, the moving parties are entitled
to judgment as a matter of law and summary judgment is proper.”
Id. (citing Celotex Corp. v.
Catrett,
477 U.S. 317, 323 (1986)).
3
In her statement of issues for review, Gulley states that the district court erred in granting summary
judgment in favor of Oakland County on her discrimination claim “as well as [her] retaliation”
claim. (Gulley Br. at 2.) Gulley does not address her retaliation claim otherwise and has, therefore,
waived any issue that may have been directed toward to it. Dillery v. City of Sandusky,
398 F.3d
562, 569 (6th Cir. 2005) (“It is well-established that ‘issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.’”) (citing United
States v. Layne,
192 F.3d 556, 566 (6th Cir. 1999)).
5
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Gulley v. County of Oakland
2. Discussion
To establish a Title VII or an ADEA employment discrimination claim, a plaintiff is
“required to either ‘present direct evidence of discrimination or introduce circumstantial evidence
that would allow an inference of discriminatory treatment.’” Carter v. Univ. of Toledo,
349 F.3d
269, 272-73 (6th Cir. 2003) (citing Johnson v. Kroger Co.,
319 F.3d 858, 864-65 (6th Cir. 2003));
see also
Policastro, 297 F.3d at 538 (ADEA utilizes Title VII framework). Where, as here, the
plaintiff fails to present direct evidence of discrimination, the burden shifting framework first
articulated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), and refined by Texas Dep’t
of Cmty. Affairs v. Burdine,
450 U.S. 248 (1981), applies.
Carter, 349 F.3d at 273 (citing
Johnson,
319 F.3d at 865–66). Under that paradigm, a plaintiff must first present a prima facie case of
discrimination.
Id. “Once the prima facie case is made, a defendant may offer any legitimate, non-
discriminatory reason for the employment action, which the plaintiff may rebut by evidence of
pretext; however, the burden of proof always remains with the plaintiff.” Hartsel v. Keys,
87 F.3d
795, 800 (6th Cir. 1996) (citing St. Mary’s Honor Center v. Hicks,
509 U.S. 502 (1993)).
a. Termination based on a reduction in force
“[T]o establish a prima facie case of discrimination by the defendant, ‘the plaintiff must show
(1) that [s]he is a member of a protected group, (2) that [s]he was subject to an adverse employment
decision, (3) that [s]he was qualified for the position, and (4) that [s]he was replaced by a person
outside of the protected class. . . . [or] by showing that similarly situated non-protected employees
were treated more favorably.’” Clayton v. Meijer, Inc.,
281 F.3d 605, 610 (6th Cir. 2002)) (last
alteration in original) (citation omitted). In a reduction in force (“RIF”) case, like this one, the fourth
6
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Gulley v. County of Oakland
element of the prima facie case is modified to require the plaintiff to submit “additional direct,
circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff
for discharge for impermissible reasons.” Rowan v. Lockheed Martin Energy Sys., Inc.,
360 F.3d
544, 547 (6th Cir. 2004) (quoting Ercegovich v. Goodyear Tire & Rubber Co.,
154 F.3d 344, 350
(6th Cir. 1998)). “A [RIF] situation occurs when business considerations cause an employer to
eliminate one or more positions within the company.” Barnes v. GenCorp, Inc.,
896 F.2d 1457,
1465 (6th Cir. 1990). Modification of the fourth element in a RIF situation is required because
“[w]hen an employer is forced to reduce its staff for economic reasons, the most common legitimate
reason for the discharge is the RIF itself.” Brocklehurst v. PPG Indus., Inc.,
123 F.3d 890, 896 (6th
Cir. 1997) (citing
Barnes, 896 F.2d at 1465).
Gulley contends that the district court “ignor[ed] [her] prima facie evidence of race, color,
and gender discrimination.” (Gulley Br. at 14.) Gulley presents a litany of cost reduction
suggestions that she claims would have saved her position and been more cost effective to Oakland
County. She posits that “Oakland County’s failure to adopt these budget actions, with significant
cost savings, belie its claim of a RIF.”
Id. at 20 (concluding that “the cost savings for the elimination
of [Gulley]’s position was negligible at best”). However, as the district court correctly explained,
the business decision of Oakland County to eliminate the FSC position held by Gulley should not
be questioned by a court in the absence of evidence of an impermissible motive, even if it was not
the most cost effective decision. (Dist. Ct. Op. Granting Mot. Summ. J., Dist. Ct. Docket No. 33,
at 4.) We have previously explained:
It is not the prerogative of the courts to engage in the post-hoc management of the
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Gulley v. County of Oakland
employer’s internal affairs by second-guessing how personnel could have been more
equitably allotted, or cost-savings better realized. See, e.g., Graves v. Fleetguard,
Inc.,
198 F.3d 245 (Table),
1999 WL 993963, at *3 (6th Cir. Oct. 21, 1999) (quoting
Ackerman v. Diamond Shamrock Corp.,
670 F.2d 66, 70 (6th Cir. 1982) (“The
ADEA was not intended as a vehicle for judicial review of business decisions.”
(internal quotation marks omitted))). [The plaintiff-employee] must provide
evidence not that [the defendant-employer] could have made a business decision that
others might think more fair, but that [the defendant-employer] made the decision to
terminate him because of his membership in a protected class.
Norbuta v. Loctite Corp., 1 F. App’x 305, 314-15 (6th Cir. 2001) (reduction in force case); see also
Hedrick v. W. Reserve Care Sys.,
355 F.3d 444, 462 (6th Cir. 2004) (“As we have oft times repeated,
‘it is inappropriate for the judiciary to substitute its judgment for that of management.’”) (quoting
Smith v. Leggett Wire Co.,
220 F.3d 752, 763 (6th Cir. 2000)).
Gulley offered no evidence tending to indicate that Oakland County singled her out for
discharge for impermissible reasons. Conversely, the evidence suggests that Oakland County was
motivated by fiscal concerns. Oakland County is the only Medical Examiner’s Office in Michigan
to employ FSCs. (Aff. of Robert Gerds,4 Dist. Ct. Docket No. 18-2, ¶ 8.) The number of FSCs
fluctuated over time, but was never higher than three and, when grant funding ended in 2001,
Oakland County created a general fund position to keep Gulley on as an FSC, which it was able to
fund for the next eight years.
Id. ¶ 9(a). Ultimately, when budget cuts forced Oakland County to
engage in the current RIF that resulted in the elimination of two full time positions and the
4
Gerds is the Administrator of the Oakland County Medical Examiner’s Office and was Gulley’s
direct supervisor. (Aff. of Robert Gerds, Dist. Ct. Docket No. 18-2, ¶¶ 1–2.)
8
Case No. 11-1611
Gulley v. County of Oakland
elimination of the benefits that had been provided to five other employees, it offered Gulley a
position in a different department.
Id. ¶¶ 11–12.
b. Denial of request to bump a less senior employee
In evaluating whether Gulley established a prima facie case of discrimination based on
Oakland County’s denial of her request to bump into an MEI position, the district court relied upon
the analysis utilized in non-selection cases. In that analysis, a plaintiff must show “(1) that [s]he is
a member of a protected class; (2) that [s]he applied for, and did not receive, a job; (3) that [s]he was
qualified for the job; and (4) that a similarly-situated person who was not in the plaintiff’s protected
class received the job.”5 Seay v. TVA,
339 F.3d 454, 463 (6th Cir. 2003) (analyzing termination
pursuant to RIF and non-selection for vacant positions) (citing Thurman v. Yellow Freight Sys., Inc.,
90 F.3d 1160, 1166 (6th Cir. 1996)). The district court found that the third element of this test was
not met. The district court went on, however, to explain that even if Gulley had met her burden of
establishing a prima facie case of discriminatory failure to permit her to bump a less senior
employee, Oakland County met its burden of articulating a legitimate, nondiscriminatory reason for
denying Gulley the position she desired and that Gulley failed to show the reason was a pretext for
discrimination.
5
The court notes that this test is not directly applicable to the present facts because there was no
position “available” here that was given to another person instead of Gulley. We need not address
this issue because, as discussed below, Gulley fails to show that Oakland County’s legitimate,
nondiscriminatory reason for denying her request to bump into an MEI position was a pretext for
impermissible discrimination.
9
Case No. 11-1611
Gulley v. County of Oakland
Oakland County submits that it declined to permit Gulley to bump the less senior employee
from the MEI position because it believed that she was not qualified for the position. (Aff. of Robert
Gerds, Dist. Ct. Docket No. 18-2, ¶ 16; Aff. of Michael Zehnder,6 Dist. Ct. Docket No. 18-3, ¶ 13.)
In turn, Gulley argues that she was qualified for the MEI position and submitted evidence to the
district court of her work experience and professional education to support her position. Gulley
asserts that the trial court improperly engaged in credibility determinations when it accepted Oakland
County’s contention that she was unqualified for the MEI position over her contention and
supporting evidence that she was qualified. Gulley’s argument, however, misapprehends Oakland
County’s burden under the McDonnel Douglas analysis.
That is, Oakland County “need not prove a nondiscriminatory reason for not promoting
[Gulley], but need merely articulate a valid rationale” for its decision.
Hartsel, 87 F.3d at 800
(emphasis in original) (citing St. Mary’s Honor
Center, 509 U.S. at 514). Oakland County “bears
only the burden of production; the burden of persuasion remains with the plaintiff at all times.”
Weigel v. Baptist Hosp.,
302 F.3d 367, 377–78 (6th Cir. 2002) (citing
Burdine, 450 U.S. at 253).
Thus, the district court was not tasked with determining whether Oakland County’s contention that
Gulley was not qualified for the MEI was more credible than her contention that she was qualified
for the position. Instead, the district court needed only to determine whether Oakland County had
met its burden of producing a legitimate, nondiscriminatory reason for denying Gulley’s request to
6
Zehnder is the Director of Oakland County’s Public Services Department. (Aff. of Michael
Zehnder, Dist. Ct. Docket No. 18-3, ¶ 1.)
10
Case No. 11-1611
Gulley v. County of Oakland
bump into the MEI position. As to that question, the district court correctly found that Oakland
County’s proffered reason, i.e., non-qualification, met that burden.
The burden then shifts to Gulley to show that Oakland County’s stated reason “is merely a
pretext for discrimination.”
Id. at 378. “Under the law of our circuit, a plaintiff can show pretext
in three interrelated ways: (1) that the proffered reasons had no basis in fact, (2) that the proffered
reasons did not actually motivate the employer’s action, or (3) that they were insufficient to motivate
the employer’s action.” Chen v. Dow Chem. Co.,
580 F.3d 394, 400 (6th Cir. 2009) (citing
Hedrick,
355 F.3d at 460). “To carry her burden in opposing summary judgment, [Gulley] must produce
sufficient evidence from which a jury could reasonably reject [Oakland County]’s explanation of
why it” denied her request to bump into an MEI position.
Id. at 400 (citing Mickey v. Zeidler Tool
and Die Co.,
516 F.3d 516, 526 (6th Cir. 2008). “Pretext is a commonsense inquiry: did the
employer [take the adverse action against] the employee for the stated reason or not? This requires
a court to ask whether the plaintiff has produced evidence that casts doubt on the employer’s
explanation, and, if so, how strong it is.”
Id. at 400, n.4.
Gulley argues that Oakland County’s claim that she was unqualified for the MEI position
lacks credibility based upon the County’s alleged preferential treatment of two other County
employees: Gretchen Ingram and Keith Batchelor. Although she does not specifically indicate, it
appears that Gulley relies upon the third method articulated above, which attacks the credibility of
the employer’s proffered reason and, ordinarily, consists of evidence that other employees were
treated more favorably. See
Manzer, 29 F.3d at 1084 (“The third showing is also easily recognizable
and, ordinarily, consists of evidence that other employees, particularly employees not in the protected
11
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Gulley v. County of Oakland
class, were not fired even though they engaged in substantially identical conduct to that which the
employer contends motivated its discharge of the plaintiff.”). This type of rebuttal is a direct attack
on the credibility of the employer’s proffered motivation for taking the adverse action against the
plaintiff.
Id.
i. Gretchen Ingram
Gulley asserts that Oakland County’s proffered reason for not permitting her to bump into
the MEI position was pretextual because, “[w]hile arguing that Ms. Gulley did not have the requisite
qualifications, Oakland County provided false documentation that Gretchen Ingram had the
minimum qualifications.” (Gulley Br. at 18.) The “false documentation” to which Gulley refers is
Ingram’s job application. During the discovery process in the instant action, Gulley deposed Ingram
on April 26, 2010. (Dep. of Gretchen Ingram, Dist. Ct. Docket No. 22-24.) Ingram had been
employed as an MEI for five years.
Id. During the deposition, Ingram was questioned about her
qualifications for the MEI position and whether she met the minimum qualifications for the job.
Id.
at 1–32. As Ingram testified, it became clear that she had not been entirely truthful on her
application, and that if she had been truthful she would not have met the minimum qualifications for
the MEI position.
Id. Gulley concludes that Oakland County’s claim that it denied her request to
bump into the MEI position is not credible because, “[t]he unrefuted and undeniable fact is that
Oakland County employed Ms. Ingram and allowed her to work for over five years without the
minimum qualifications.” (Gulley Br. at 19.) Gulley’s argument, however, misses the mark.
12
Case No. 11-1611
Gulley v. County of Oakland
Leaving aside the inquiry as to whether Ingram is an appropriate comparator,7 it is not
disputed that Oakland County was unaware that Ingram had lied on her application until that fact
came to light in her April 2010 deposition. Ingram certified that the “statements made [on the
application] were true, complete, and accurate to the best of [her] knowledge.” (Dep. of Gretchen
Ingram, Dist. Ct. Docket 18-27, at 39: 3–12.) There is no evidence before us that would suggest that
Oakland County had any reason not to believe Ingram and, once the County was informed of her
testimony, it subpoenaed Ingram’s prior employment records, determined that she had in fact lied
on her job application, and sought her termination. Oakland County was permitted to, and did,
reasonably rely upon the particularized facts that were before it when it hired Ingram. Romans v.
Mich. Dep’t of Human Servs.,
668 F.3d 826, 839 (6th Cir. 2012) (“Defendant can overcome
Plaintiff’s claims of pretext if it is ‘able to establish its reasonable reliance on the particularized facts
that were before it at the time the decision was made.’”) (quoting Wright v. Murray Guard Inc.,
455
F.3d 702, 707-08 (6th Cir. 2006)). Thus, we find that Oakland County easily overcomes Gulley’s
claim of pretext related to Oakland County’s alleged preferential treatment of Ingram.
ii. Keith Batchelor
Again leaving aside the issue of whether Batchelor is similarly situated to Ingram for the
purpose of this analysis, Gulley contends that when Batchelor’s MEI position was eliminated, he was
7
“In order to show that an employer’s proffered nondiscriminatory explanation is pretext on the
grounds that a similarly situated employee received disparate treatment for the same conduct, ‘the
plaintiff and the employee with whom the plaintiff seeks to compare himself or herself must be
similar in all of the relevant aspects.’”
Weigel, 302 F.3d at 378–79 (quoting
Ercegovich, 154 F.3d
at 352).
13
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Gulley v. County of Oakland
permitted to transfer to another position at the exact same pay. Ultimately, Batchelor transferred
back into the MEI position when one became available. This treatment, however, is the same
treatment that was offered to Gulley. The only difference is that Gulley would have transferred to
a position at a slightly lower salary. In light of all of the evidence before the court, no reasonable
jury could rely upon this difference as sufficient to cast doubt on Oakland County’s proffered reason
for denying Gulley’s request to bump into an MEI position.
c. Conclusion - summary judgment decision
In light of the foregoing, we affirm the district court’s grant of summary judgment in favor
of Oakland County.
B. Denial of Motion for Reconsideration
The district court denied Gulley’s Motion for Reconsideration.
1. Standard
Gulley moved for reconsideration of the district court’s grant of summary judgment in favor
of Oakland County under that court’s Local Rule 7.1 and Federal Rule of Civil Procedure 59.
“Generally, the denial of a motion to reconsider is reviewed for an abuse of discretion.” Gage Prods.
Co. v. Henkel Corp.,
393 F.3d 629, 637 (6th Cir. 2004) (citing Northland Ins. Co. v. Stewart Title
Guar. Co.,
327 F.3d 448, 454 (6th Cir. 2003); GenCorp,
Inc., 178 F.3d at 832)). “However, when
a Rule 59(e) motion seeks reconsideration of a grant of summary judgment, this Court conducts a
de novo review using the same legal standard employed by the district court.”
Id. (citing Smith v.
Wal-Mart Stores, Inc.,
167 F.3d 286, 289 (6th Cir. 1999); Columbia Gas Transmission, Corp. v.
Limited Corp.,
951 F.2d 110, 112 (6th Cir. 1991)).
14
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Here, the district court denied Gulley’s motion relying only on its Local Rule 7.1, and Gulley
directs her appeal only to the standard employed by the Local Rule. We review appeals of denials
of reconsideration under the Eastern District of Michigan’s Local Rule 7.1 for abuse of discretion.
PT Pukuafu Indah v. S.E.C.,
661 F.3d 914, 924 (6th Cir. 2011). The Eastern District of Michigan
Local Rule 7.1 provides “that the movant must show both that there is a palpable defect in the
opinion and that correcting the defect will result in a different disposition of the case.”
Id. at 924
(citing E.D. Mich. LR 7.1(g) and noting that the provision is now found at subsection (h)). The
Local Rule also states that merely presenting the same issues that the court previously ruled on is not
an acceptable ground for reconsideration.
Id.
Although the standard employed makes no difference to the outcome here, we review de novo
the denial of the motion in accordance with our usual practice of review of denials of motions to
reconsider the grant of summary judgment filed under Rule 59. Under Rule 59, “a district court may
alter a judgment . . . based on (1) a clear error of law; (2) newly discovered evidence; (3) an
intervening change in controlling law; or (4) a need to prevent manifest injustice.” Nolfi v. Ohio Ky.
Oil Corp.,
675 F.3d 538, 551–52 (6th Cir. 2012) (citing Leisure Caviar, LLC v. U.S. Fish & Wildlife
Serv.,
616 F.3d 612, 615 (6th Cir. 2010)).
2. Discussion
Gulley argues that “the court erred in granting summary judgment as there were yet material
issues of fact still in dispute, and the court failed to consider the evidence presented in a light most
favorable to the opposing party, i.e. Plaintiff Joyce Gulley.” (Mot. Recons., Dist. Ct. Docket No. 37,
at 2.) Gulley then goes on to reargue her positions that she advanced in her Memorandum in
15
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Gulley v. County of Oakland
Opposition to Oakland County’s Motion for Summary Judgment and to explain why she disagrees
with the district court’s analysis. A Rule 59(e) motion 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. Sault Ste.
Marie Tribe of Chippewa Indians v. Engler,
146 F.3d 367, 374 (6th Cir. 1998). Moreover, under
the Eastern District of Michigan Local Rule 7.1, Gulley was required to both show that there is a
palpable defect in the opinion and that correcting the defect will result in a different disposition of
the case, neither of which she did. Therefore, we affirm the district court’s denial of Gulley’s
Motion for Reconsideration.
C. Discovery
The district court denied as moot Gulley’s Motion to Extend Discovery and/or Supplement
Witness and Exhibit Lists.
1. Standard
We review a district court’s decisions regarding discovery requests for abuse of discretion.
United States ex rel. Poteet v. Medtronic, Inc.,
552 F.3d 503, 510 (6th Cir. 2009) (citing Popovitch
v. Sony Music Entm’t, Inc.,
508 F.3d 348, 360 (6th Cir. 2007); Ivory v. Jackson,
509 F.3d 284, 297
(6th Cir. 2007)). “‘Abuse of discretion is defined as a definite and firm conviction that the trial court
committed a clear error of judgment.’”
Id. (citing Scottsdale Ins. Co. v. Flowers,
513 F.3d 546, 554
(6th Cir. 2008)).
2. Discussion
Gulley contends that the district court abused its discretion by denying her request to extend
discovery and/or to permit her to supplement her witness and exhibits lists. Gulley submits that even
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Case No. 11-1611
Gulley v. County of Oakland
though she diligently engaged in discovery, she discovered evidence related to Gretchen Ingram, the
Oakland County MEI with whom Gulley has sought to compare herself, that needed further inquiry.
Additionally, she argues that the documents related to this discovery and other records she sought
outside of the scheduled discovery time should have been added to her exhibit list. Finally, Gulley
contends that she should also been permitted to add certain witnesses to her witness list.
The factors the Court considers when reviewing a district court’s denial of a request for
additional time to conduct discovery “include: (1) when the moving party learned of the issue that
is the subject of discovery; (2) how the discovery would affect the ruling below; (3) the length of the
discovery period; (4) whether the moving party was dilatory; and (5) whether the adverse party was
responsive to prior discovery requests. Dowling v. Cleveland Clinic Found.,
593 F.3d 472, 478 (6th
Cir. 2010). “The overarching inquiry in these overlapping factors is whether the moving party was
diligent in pursuing discovery.”
Id.
As to the first and fourth inquiries, Gulley does not dispute Oakland County’s assertion that
she was provided all of the personnel files she requested from Oakland County by March 24, 2010,
about 60 days before the close of discovery. Gulley completed all depositions by April 26, 2010,
about 30 days before the close of discovery. It was on this date that Gulley became aware of the
Ingram issue. Gulley, however, engaged in no discovery during the entire last month of the
discovery period. Gulley then moved for an extension of time two months after she found out about
the Ingram issue, which was one month after discovery had closed and after Oakland County had
filed its summary judgment motion.
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Case No. 11-1611
Gulley v. County of Oakland
Second, Gulley makes no argument as to how the evidence she may have obtained if she had
been granted permission to seek it would have affected the district court’s ruling. Indeed, in an email
to Oakland County’s counsel, Gulley’s counsel requested a stipulation to her proposed request for
an extension of discovery specifically indicating that she did not wish to engage in further discovery,
but rather, needed more time to review the discovery she had been given. (Email, Dist. Ct. Docket
No. 21-2) (“Just for the record I’m not trying to do any more depositions or send out Interrogatories.
I just need to finish identifying all of the documents which are voluminous in this case, and to
complete our exhibit list and name all of the witnesses identified during discovery.”).
Regarding the third inquiry into whether the district court abused its discretion in denying
Gulley’s request for an extension of discovery, the length of time permitted for discovery was seven
months. (Scheduling Order, Dist. Ct. Docket No. 6, at 1; Stipulated Discovery Order, Dist. Ct.
Docket No. 17, at 1.) Seven months is sufficient time to conduct discovery in an employment
discrimination case such as this one.
As to the fifth and final query, there is no evidence indicating that Oakland County failed to
timely respond to Gulley’s discovery requests.
With regard to the remaining portion of Gulley’s motion, her request to supplement her
witness and exhibit lists, those requests were rendered moot by the district court’s grant of summary
judgment in favor of Oakland County.
For these reasons, we affirm the district court’s denial as moot of the portion of Gulley’s
Motion to Extend Discovery and/or Supplement Witness and Exhibit Lists regarding her request to
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Gulley v. County of Oakland
supplement her witness and exhibit lists and affirm the district court’s denial of Gulley’s request for
an extension of discovery on the grounds set forth herein.
IV. CONCLUSION
For the reasons stated above, we AFFIRM the district court’s (1) grant of summary judgment
in favor of Oakland County, (2) denial of Gulley’s request for reconsideration of that decision, and
(3) denial of Gulley’s request to extend discovery and to supplement her witness and exhibit lists.
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