Opinion
Civil Action 2:06-CV-871.
September 4, 2008
OPINION AND ORDER
This matter is before the Court on Defendant's Motion for Reconsideration, Doc. No. 36 (" Motion for Reconsideration"). Pursuant to Fed.R.Civ.P. 59(e), defendant asks this Court to reconsider its Opinion and Order denying summary judgment for the defendant on plaintiff's claims of race discrimination under Title VII, 42 U.S.C. § 2000e-5, Doc. No. 35. For the reasons that follow, the Motion for Reconsideration is GRANTED.
I. BACKGROUND
II. STANDARD
Defendant's Motion for Summary Judgment Motion for Summary Judgment Opinion and Order prima facie Opinion and Order Motion for Summary Judgment Id. Affidavit of Kevin Shepherd Summary Judgment Reply Affidavit of Kevin Shepherd Opinion and Order Id. Motion for Reconsideration.59See e.g. Huff v. Metro. Life Ins. Co. 675 F.2d 119122Henderson v. Walled Lake Consol. Schs.469 F.3d 479496Intera Corp. v. Henderson 428 F.3d 605620Ashburn v. Gen. Nutrition Ctrs.533 F. Supp. 2d 770773See e.g. Thomas v. Health Prime, Inc.2000 U.S. App. LEXIS 9661
Defendant reiterated, word for word, the same argument in its reply brief in support of summary judgment, simply adding one new sentence to distinguish Ms. Thompson from plaintiff: "Cameron's suggestion that Thompson was untimely in submitting her reports in some respect, mischaracterizes her evaluation, which clearly states otherwise." Defendant's Reply Memorandum in Support of Motion for Summary Judgment (" Summary Judgment Reply"), Doc. No. 30, pp. 6-7.
III. DISCUSSION
A. Timeliness
Plaintiff argues that the Motion for Reconsideration is untimely because it was not filed within ten days of the Court's Opinion and Order. Plaintiff's Memorandum Contra Defendant's Motion for Reconsideration, Doc. No. 41 (" Memo. Contra"), p. 2. Defendant disagrees, arguing that its motion was filed within the time-frame based on the applicable rules. Defendant's Reply Memorandum in Support of Its Motion for Reconsideration, Doc. No. 42 (" Reply"), pp. 1-2.
Defendant's argument is well-taken. A motion pursuant to Rule 59(e) "must be filed no later than 10 days after the entry of the judgment." Fed.R.Civ.P. 59(e). However, this rule must be read in conjunction with Fed.R.Civ.P. 6(a), which provides that intervening holidays and weekends are excluded when the time period for filing a motion is less than 11 days. Fed.R.Civ.P. 6(a)(2). See also FHC Equities, LLC v. MBL Life Assurance Corp., 188 F.3d 678, 681 (6th Cir. 1999). Here, the Opinion and Order was entered on May 7, 2008, Doc. No. 35, and the Motion for Reconsideration was filed on May 21, 2008. Excluding the two intervening weekends, the Motion for Reconsideration was timely filed. Accordingly, the Court rejects plaintiff's request to deny the Motion for Reconsideration because it was untimely.
B. "Similarly situated"
1. Arguments of the parties
Defendant asks this Court to reconsider its conclusion that there exists a genuine issue of fact as to whether Ms. Thompson is similarly situated to plaintiff. Motion for Reconsideration. Defendant primarily focuses on Ms. Thompson's probationary status, arguing that a probationary employee is not similarly situated to permanent employee. Id. at 2, 5-7 (citing cases from the United States Court of Appeals for the Sixth Circuit and other circuits). Defendant also reiterates the argument that plaintiff submitted many more late reports than did Ms. Thompson and that plaintiff had a history of discipline. Id. at 4-6.
At the time that the Opinion and Order was issued, defendant had not presented legal authority regarding probationary employees, discussed infra. Accordingly, the Court will now consider the effect of Ms. Thompson's probationary status in light of this legal precedent.
In response, plaintiff contends that defendant has submitted no new argument or evidence to support its position that Ms. Thompson is not similarly situated to plaintiff. Memo. Contra, pp. 4-5. Plaintiff focuses on apparent discrepancies between Ms. Thompson's evaluation and Mr. Shepherd's explanation of her job performance. Id. at 5-9. Plaintiff argues that he need not demonstrate an exact correlation to another employee in order to establish that they are similarly situated. Id. at 9-11. Plaintiff contends that plaintiff "should be presumed to be considered the same as, or at least similarly situated with, any other probationary employee in a new position" because "plaintiff was transferred to an entirely different region and was under a different supervisor, with different reporting procedures." Id. at 6-7. Plaintiff concludes that defendant's proffered legitimate nondiscriminatory reason for terminating plaintiff is merely pretextual. Id. at 6, 11-12. In reply, defendant reiterates that probationary employees are not similarly situated to full-time permanent employees, that plaintiff submitted late reports more often than did Ms. Thompson, that plaintiff, with fifteen years experience as a parole officer, is not similarly situated to a new hire, and that plaintiff, unlike Ms. Thompson, had a history of discipline. Defendants's Reply Memorandum in Support of Its Motion for Reconsideration, Doc. No. 42.
2. Standard
Under the burden-shifting framework of Title VII, a plaintiff must first establish a prima facie case of discrimination by demonstrating that: (1) he was a member of a protected class; (2) he was subject to an adverse employment action; (3) he was qualified for the job; and (4) for the same or similar conduct, he was treated differently from similarly situated non-minority employees. McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). See also Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-56 (1981); Perry v. McGinnis, 209 F.3d 597, 601 (6th Cir. 2000).
In the instant case, it is the fourth element of the prima facie case that is dispositive. "It is the plaintiff's burden to establish that a similarly situated person outside the protected class was treated more favorably than he." Noble v. Brinker Int'l, Inc., 391 F.3d 715, 728-29 (6th Cir. 2004) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). To be "similarly situated" in the disciplinary context, a plaintiff must show that the non-protected employee to whom he seeks to compare himself is similar, that is "nearly identical," in all relevant aspects. Id. (quoting Mitchell, 964 F.2d at 583 and Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998)). Thus, "similarly situated" individuals "must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Mitchell, 964 F.2d at 583.
The Sixth Circuit has "found probationary status to be a relevant consideration for the similarly situated inquiry." Elgabi v. Toledo Area Reg'l Transit Auth., No. 06-3905, 228 Fed. Appx. 537, at *542 (6th Cir. April 10, 2007) (citing Cooper v. North Olmstead, 795 F.2d 1265, 1270-71 (6th Cir. 1986)). See also White v. State, No. 99-4359, 2 Fed. Appx. 453, at *457 (6th Cir. Jan. 18, 2001) (stating that probationary employees face different review periods, do not have seniority and are not subject to the same disciplinary procedures and removal standards); Cooper, 795 F.2d at 1270-71 ("Probationary bus drivers therefore do not stand on equal footing with permanent drivers, and cannot be considered to be similarly situated.").
Other circuits agree that employees on probationary status are not similarly situated to employees who are permanently employed. See, e.g., Green v. New Mexico, 420 F.3d 1189, 1195 (10th Cir. 2005) (finding that two employees who were not on probationary status were not similarly situated to plaintiff, who was on such status); Steinhauer v. Degolier, 359 F.3d 481, 484-85 (7th Cir. 2004) (same); George v. Leavitt, 407 F.3d 405, 415 (D.C. Cir. 2005) ("P]robationary employees and permanent employees are not similarly situated, observing that, under federal regulations, probationary employees may be terminated for problems even if those problems would not be good cause for terminating a permanent employee."); Bogren v. Minnesota, 236 F.3d 399, 405 (8th Cir. 2000) ("[T]roopers beyond the probationary period are not similarly situated to a probationary trooper."); Burgess v. Washington, No. 98-35417, 1999 U.S. App. LEXIS 26852, at *9-12 (9th Cir. Oct. 22, 1999) (stating that there is a significant difference between probationary employees and permanent employees).
3. Application
In this case, the parties do not dispute that Ms. Thompson was a probationary employee. See also Exhibit A, attached to Affidavit of Kevin Shepherd, attached to Motion for Summary Judgment (Ms. Thompson's mid-probationary review for the period September 4, 2005 to December 4, 2005). The parties also agree that plaintiff was a long-term employee. See Motion for Reconsideration, p. 2; Memo. Contra, p. 6; Affidavit of Plaintiff Ned Cameron, Jr. (" Plaintiff Aff."), ¶ 2, attached to Plaintiff's Memorandum Contra Defendant's Motion for Summary Judgment, Doc. No. 27. Plaintiff had worked for defendant for approximately 16 years by the time he was transferred from the Columbus office to the Dayton office in April 2005. Plaintiff Aff., ¶ 2. Plaintiff was a parole officer for defendant when he worked in both the Columbus and Dayton offices. See, e.g., Deposition of Ned Cameron, Jr. (" Plaintiff Depo."), Doc. No. 21, pp. 21-25; 113, 116-22; Plaintiff Depo. Exhibits CC and DD. When he transferred to Dayton in April 2005, plaintiff used his seniority to "bump" another parole officer from an assignment that plaintiff desired. Opinion and Order, pp. 4-5 (citing Plaintiff Depo., pp. 112-20; Plaintiff Depo. Exhibits Z, AA-DD). Accordingly, while Ms. Thompson was a probationary employee, plaintiff was a long-term, permanent employee.
Nevertheless, plaintiff asks the Court to consider him "the same as, or at least similarly situated with, any other probationary employee in a new position," presumably like Ms. Thompson. Memo. Contra, pp. 6-7. Plaintiff cites no authority for this proposition. Moreover, plaintiff cannot have it both ways: his use of seniority to displace another parole officer from an assignment undermines his demand that the Court treat him as a probationary employee. See White, 2 Fed. Appx. 453, at *457 (stating that probationary employees "have no seniority status").
Having found that Ms. Thompson was a probationary employee and that plaintiff was not probationary, the Court concludes that Ms. Thompson was not similarly situated to plaintiff. See, e.g., Cooper, 795 F.2d at 1270-71; Blume v. Potter, No. 07-6237, 2008 U.S. App. LEXIS 17566, at *13-14 (6th Cir. Aug. 14, 2008) (determining that employees on probationary status were not similarly situated to plaintiff). Because plaintiff cannot show that Ms. Thompson is a similarly situated employee, the Court revises its Opinion and Order to conclude that plaintiff has failed to establish a prima facie case of race discrimination. See, e.g., McDonnell Douglas, 411 U.S. at 802 (1973); Burdine, 450 U.S. at 252-56; Blume, 2008 U.S. App. LEXIS 17566, at *14. Accordingly, plaintiff's claim must fail because he cannot establish a prima facie case of race discrimination. See, e.g., Knox v. Neaton Auto Prods. Mfg., 375 F.3d 451, 459 (6th Cir. 2004) ("[T]he district court correctly held that because [plaintiff] failed to establish a prima facie case of discrimination, [defendant] was entitled to summary judgment on the Title VII and R.C. § 4112.02 claims."); Morvay v. Maghielse Tool Die Co., 708 F.2d 229, 233 (6th Cir. 1983) ("Failure to establish a prima facie case by a preponderance of the evidence mandates dismissal of the claim.").
The Court need not, and does not, re-examine the submissions of the parties as to the work performance of Ms. Thompson and plaintiff because Ms. Thompson's probationary status precludes a finding that she is similarly situated. Id.
WHEREUPON, in light of the foregoing, Defendant's Motion for Reconsideration, Doc. No. 36, is GRANTED. Accordingly, Defendant's Motion for Summary Judgment, Doc. No. 22, is GRANTED in its entirety.
The Clerk shall enter FINAL JUDGMENT in this case.