NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0950n.06
Case No. 11- 1611
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

JOYCE A. G ULLEY, ) ) P laintif

f-App ellant, ) ON AP P EAL FR OM THE

) UNITED STAT ES DIS TRICT ) COURT F OR THE E ASTERN v. ) DISTRICT OF MICHIG AN ) COUNTY OF OAKLAN D, ) ) Defendan t-Appellee. )

BEFORE: COLE and DONALD, Circ uit Jud ges; SARG US, District Judge. *

SARGU S, District Judge. Plaintiff-Appellant J oy ce Gulley appea ls the district court’s (1)
g rant of summary judgme nt in favor of Def endant- Appellee Oakland County , (2) denial of Gulley ’s motion for rec onsideration of tha t decision, and (3) denial of Gulley ’s motion to ex tend discover y and to supplement her witness and exhibi t lists. Gulley alleg es that she suffe red discrimination and

reta liation based on her rac e, g ender , and ag e wh en Oakland County eliminated her position and denied her reque st to “bump” a less senior employ ee from a position to which she desired to transfe r. Gulley broug ht her claims under Title VI I of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . 1

The Honora

ble Edmund A. Sarg us, J r., United S t at es District J udg e for the Southern District of * Ohio, sitti ng by

desig nation Gulley alleg es in her complaint that her rac e, g ender , and ag e claims are filed under Title VI I of the 1 Civil Rights Ac t of 1964. The parties and the district court addre ss her ag e discrimination claimCase No. 11- 1611

Gulley v . County of Oakland The district cour

t gr anted summary

judgme nt in favor of Oakland County , concluding that Gulley failed to establish a prima facie case of discrimination on either her termination or failure to transfe r claims and that even if she had, Oakland County offe red leg itimate, nondiscriminatory rea sons for its actions t hat Gul ley failed to show wer e pretext for discrimination. The dist rict court indicated that Gulley broug ht discrimination and reta liation cla i m s , b u t did not otherwise addre ss Gulley ’s

re t aliation claim. After concluding that Oakland County was entitled to summary judgm en t , t h e district court denied as moot Gulley ’s reque st to extend discovery and to supplement her witness and exhibi t lists. Gulley filed a motion for rec onsi d er at i o n o f the district court’s g rant of summary judgme nt, arg uing that there wa s a p alpable defe ct by which the court rende red its decision. The district court denied Gulley ’s reque st for rec onsideration, finding that she had mere ly prese nted the

sam e issues it had alre ady ruled upon. For the rea sons that follow, we AF F IRM all three of the district court’s de cisions.
I. BACKG ROUND The district cour

t acc urate ly

set forth the unc ontroverte d fac ts as follows: Plaintiff J oy ce Gulley , a 57 y ear old, Afric an Americ an fema le, was hired by the Oakland County Medica l Ex aminer’ s Offic e on November 29, 1999, as a Family Service Counselor (“F SC”), one of three FSC positions newly cre ated with the help of g rant funding

. When g rant funding was lost October 31, 2001, defe ndant Oakland

under Title VI I

. That statute, howeve r, does not prohibit ag e discrimination. The Ag e Discrimination in Employ ment Act (“A DEA” ), 29 U.S.C. § 621 et seq. , is the proper statute under which Gulley should have broug ht her ag e discrimination claim. For purposes of our analy sis, this err or is of no conseque nce beca use we utiliz e the same framework to evalua te discrimination under both of these statutes. Policastro v

. Northw est Airlines , 297 F.3d 535, 538 (6th Cir. 2002) (“[W] e rec og nize that claims of discrimination broug ht pursuant to Title VI I , 42 U.S.C. § 2000e et seq. , and the ADEA , 29 U.S.C. § 621 et seq. , are analy zed under the same fra

mework.” ). 2Case No. 11- 1611

Gulley v . County of Oakland County reduc ed the FSC positions to o n e, to be financ ed from the g ener al fund. [Gull ey ] was give n the re maining F SC posi tion, which she held from November 1, 2001, to March 27, 2009.
I n Marc h 2009, defe ndant Oakland County fac ed a budg et shortag e. The Medica l Ex aminer’ s Offic e was tasked with deter mining way s to reduc e its budg et. One of the rec ommendations included eliminating the g ener al fund FSC position, as well as eliminating a For ensic Tox icolog y Chemist position and eliminating benef its for five other employ ees. [Oakland County ] adopted this rec ommendation. Human R es o u rce s notified [Gull ey ] in a meeting on Marc h 3, 2009, of the planned elimination of her position eff ective March 27, 2009. [Gulley ] was also told at this meeting that she could transfe r into another position at the Veter ans’ Service s Depa rtment in Oakland County

. At that time, [Gull ey ] indicated that she would like to “bump” into a Medica l Ex aminer I nvestig ator (“MEI ”) position, pursuant to t h e Oa k land County Merit Sy stem, which allows mo re s en i or employ ees to repla ce employ ees with less s en iority , provided the more senior employ ee is qualified for the pos ition. Human Resource s ag ree d to look into [Gull ey ]’s qualifica tions for an MEI position based on her curr ent job descr iption and personne l file. Human Resource s also asked [Gull ey ] to provide any information on exper i ence outside her employ ment with Oakland County ; however , [Gull ey ] failed to do so.
H u ma n Re s ource s subsequently informed [Gull ey ] that b a s e d o n th e ma te r ia ls they rev i ew ed , she was not qualified for an MEI position but that she could obtain a statement from her supervisor that she had been perf orming the duties of an MEI

. [Gull ey ] failed to obtain such a statement. [Gull ey ] did contac t Dr. Dra g ovic, one of her supervisors, but [Gull ey ] never followed up o n h i s s ug g estion to arr ang e a meeting to discuss her qualific ations. 2 [Gull ey ] beg an the transfe r proce ss into the position offe red to her in the Veter ans’ Service s Depa

rtment on Marc h 26, 2009, but revoke d her transfe r and filed a complaint wi th the Equal Employ ment Opportunity Commi ssion on Marc h 30, 2009. [Gull ey ] t hen withdre w the cha rg e and obta ined a r ight to sue le tter. (Dist. Ct. Op. Granting Mot. Sum m. J ., Dist. Ct. Docket No. 33, at 1-3.)
Gulley claims that it was Dr. Dra g ovic who fa iled to follow up with her, which is why she neve r 2 arr ang ed the meeting

. As our analy sis infra shows, this dispute is not materia l to the issues befor e the Court. 3Case No. 11- 1611

Gulley v . County of Oakland On October 27, 2009, Gulley filed suit a g ainst Oakland County alleg ing violations of Title
VI I of the Civil Rights Act of 1964, for di s cr i m i n at o ry termination and failure to permit her to repla ce a less senior employ ee for an MEI position. (Compl., Dist. Ct. Docke t No. 1, ¶ 4.) On J une 18, 2010, one month afte r the close of discovery , Oakland County timely filed a motion for summary judgme nt, arg

uing that it was entitled to judgme nt as a matter of law on all of Gulley ’s claims. (Mot. for Summ. J ., Dist. Ct. Docket No. 18.) Also on J une 18, 2010, af t er Oakland County ’s M otion for Sum mary J udg ment was filed, Gulley filed a Motion to Ex tend Discover y and/or to Supplement Ex hibit and Wit ness L ists. (Mot. for Extension of Time or to Supplement, Dist. Ct . Docke t No. 19.) The district court held oral arg ument on Oakland County ’s Motion for Summary J udg ment and issued its decision g ranting the motion. (Dist. Ct. Op. Gra nting Mot. Summ. J ., Dist. Ct. Docke t No. 33.) I n its de cision, the district c ourt indicated that Gulley filed claims for discr imination and

reta liation, analy

zed her discrimination claims, and g rante d summary judgme nt in favor of Oakland
C o u n t y . I n the same decision, the district court also denied as moot Gulley ’s reque st to ex t en d discovery and/or supplement he r exhibit and witness lists.
On September 10, 2010, Gulley moved for rec onsideration of the dist ri ct court’s g rant of
summary judgme nt in Oakland County ’s favor

. (Mot. Recons., Dist. Ct. Docke t No. 37.) The district court denied Gulley ’s Motion for Reconsider ation on April 19, 2011. (Dist. Ct. Op. Deny ing Mot. Recons., Dist. Ct. Docket No. 42.) This appea l follows, challeng ing the district court’s g rant of summary judgme nt to Oakland

4Case No. 11- 1611

Gulley v . County of Oakland County , its denial of Gulley ’s reque st for rec onsideration of that decision, and its denial of Gulley ’s

3
reque st for an e x tension of discover y and to supplement her

witness and exhibit l ists.
II. ANALYSIS
A. G rant of Motion f

or Sum m ary Judgm ent The district cour

t gr anted Oa

kland County ’s Motion for Summary J udg ment. 1. Stand ard of Review
We “re view[] a g rant of summary judgme nt de novo an d co n s ider[] the fac ts and any infere nces draw n from the fac ts in the light most favor able to the non-moving party .” Chapman v. UAW Local 1005 , 670 F.3d 677, 680 (6th Cir. 2012) ( en banc ) (citing W hite v. Detroit Edison Co. , 472 F.3d 420, 424 (6th Cir. 2006)). “Summary judgme nt is appropr iate if there is no g enuine dispute

as to any materia l fac t and the moving parties are entitled to judgme nt as a matter of law.” Id. (citing Fed. R. Civ. P. 56(a) ). “When the non-moving party fails to make a sufficie nt showing o f an essential element of his case on which he bear s the burden of proof, the moving parties are entitled

to judgme nt as a matter of law and summary judgmen t i s p ro p er . ” Id. (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986)).

I n her statement of issues for revie w, Gulley states that the district court err ed in g ranting summary 3 judgme nt in favor of Oakland County o n h er discrimination claim “as well as [her] reta liation” claim. (Gulley Br

. at 2.) Gulley does not addre ss her reta liation claim otherwise and has, there fore , waived any issue that may have been direc ted toward to it. Dillery v. City of Sandusky , 3 9 8 F.3d 562, 569 (6th Cir. 2005) (“I t is well-e stablished that ‘issues adver ted to in a perfu n ct ory manner , unacc ompanied by

some eff ort at deve loped ar g umentation, are deeme d waived.’ ”) ( citing United States v. Layne , 192 F.3d 556, 566 ( 6th Cir. 1999)). 5Case No. 11- 1611

Gulley v . County of Oakland 2. Discussion
To establish a Title VI I or an ADEA emplo y m ent discrimination claim, a plaintiff is
“re quired to either ‘pre sent direc t evidence of discrimination or introduce circ umstantial evidence that would allow an infere nce of discriminatory trea tment.’” 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 utiliz es Title VI I fra mework)

. Where, as h er e, the plaintiff fails to prese nt direc t evidenc e of discrimination, the burden shifting framework first articula ted in McD onnell Douglas Corp. v. Gree n , 411 U.S. 792 (1973), and ref ined 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 para digm, a plain t i ff must first prese nt a prima facie case of discrimination. Id. “Onc e the prima facie case is made, a defe ndant may offe r any leg itimate, nondiscriminatory rea son for the employ ment ac t i o n, which the plaintiff may rebut by evidenc e of prete x t; howeve r, the burden of proof alway s rema ins w ith the plaintiff.” Hartsel v. Keys , 87 F.3d 795, 800 (6th Cir. 1996) (c iting St. Mary’s Honor Cente r v. Hick s , 509 U.S. 502 (1993)).
a. Term ination based on a reduction in f orce “[T] o establish a prima

facie case of disc r im in a

ti o n by the defe ndant, ‘the plaintiff must show (1) that [s] he is a member of a protec ted g roup, (2) that [s] he was subject to an adver se employ ment decision, (3) that [s] he was qualified for t h e p o s i t ion, and (4) that [s] he was repla ced by a person outside of the protec ted class.

. . . [or] by showing that simil arly situated non-protec ted employ ees

wer e t re at ed more favor ably .’” Clayton v. Meijer, Inc. , 281 F.3d 605, 610 (6th Cir. 2002)) (last altera tion in orig inal) (citation omitted). I n a reduc tion in forc e (“RI F” ) case , like this one, the fourth 6Case No. 11- 1611

Gulley v . County of Oakland element of the prima facie case is modified to require the plai ntiff to submit “additional direc t, circ umstantial, or statistical evidenc e tending to indicate that the employ er single d out the plaintiff for discharg e for impermissible rea sons.” Rowan v. L ockhe ed Martin Energy Sys., Inc. , 360 F.3d 544, 547 (6th Cir. 2004) (quoting Ercegov ich v. Goodye ar Tire & Rubber Co. , 154 F.3d 344, 350 (6th Cir. 1998)). “A [R I F] situation o cc u rs when business considerations cause an employ er to eliminate one or more p o s i t i ons within the company .” Barnes v. GenCorp, Inc. , 896 F.2d 1457,
1465 (6th Cir. 1990). Modification of the fourth element in a RI F situ at i o n i s required beca use “[w]hen an employ er is forc ed to reduc e its staff for economic rea sons, the most common leg itimate

rea son for the discharg e is the RI F itself.” Brockle hurst v. PPG Indus. , Inc. , 123 F.3d 890, 896 (6th Cir. 1997) (citing Barnes , 896 F.2d a t 1465). Gulley contends that the district court “ig nor[ed] [ her] prima facie evidenc e of r ace , color,

an d g ender discrimination.” (Gulley Br

. at 14.) Gulley prese nts a litany of cost reduc t i o n
sug g estions that she claims would have saved her position and been more cost eff ective to Oakland County

. She posits that “Oa kland County ’s fa ilure to adopt t hese budge t actions, wit h signific ant
cost saving s, belie its claim of a RI F.” Id. at 20 (conc luding that “the cost saving s for the elimination of [Gulley ]’s posit ion was neg ligible at best”). Howeve r, as the district c ourt corr ectly explained, the bus iness decision of Oakland County to eliminate t he FSC position held by Gulley should not be questioned by

a cour t in the absenc e of evidenc e of an impermissible motive, even if it wa s not the most cost effe ctive dec ision. (Dist. Ct . Op. Gra nting Mot. Summ. J ., Dist. Ct. Docke t No. 33, at 4.) We have previously explained:
I t is not the prer og ative of the courts to eng ag e in the post-hoc manag ement of the 7Case No. 11- 1611

Gulley v . County of Oakland employ er’ s internal aff

airs by second- g uessing how personne l could have been more equitably allotted, or cost-saving s better rea liz ed. See, e.g. , Grave s v. F l eetguard, Inc. , 198 F.3d 245 (Table ), 1999 WL 993963, at *3 (6th Cir. Oct. 21, 1999) (quoting Ack erman v. Diamond Sh a mr o ck C o rp. , 670 F.2d 66, 70 (6th Cir. 1982) (“The ADEA was not intended as a vehicle for judicial revie w of busin es s d ec i s i ons.” (interna l quo t at i o n marks omitted))). [The plaintiff-e mploy ee] must provide evidenc e not that [t he defe ndant-e mploy er] could have made a business decision that others might think more fair, but that [t he defe ndant-e mploy er] made the decision to terminate him bec ause of his membership in a protec ted class. Norbuta v. Loctite Corp. , 1 F. App’x 305, 314-15 (6th Cir. 2001) (re duction in forc e case ); see also Hedrick v. W

. Reserv e Care Sys. , 355 F.3d 444, 462 (6th Cir. 2004) (“A s we have oft times repe ated, ‘it is inappropriate f

or the judiciar

y to substitut e it s judgme nt for that of m anag ement.’” ) (quoting Smith v. Leggett W

ire Co. , 220 F.3d 752, 763 ( 6th Cir. 2000)). Gulley offe red no evidenc e tending to indicate that Oaklan d County single d her out for discharg e for impermissible r easons. Conversely , the evidenc e sug g ests that Oakland County was motivated by fiscal conce rns. Oakland County is the only Medica l Ex aminer’ s Offic e in Michig an
to employ FSCs. (Aff

. of Robert Ger ds, Dist. Ct. Docke t No. 18-2, ¶ 8.) The number of FSC s 4
fluctuat ed o v er t i me, but was never highe r than three and, when g rant funding ended in 2001, Oakland County cre ated a g ener al fund position to ke ep Gulley on as an FSC, which it wa s able to fund for the nex t eig ht y ear s. Id. ¶ 9(a). Ultimately , when budge t cuts fo rc ed Oa kland C ounty to
eng ag e in the cu rr en t R I F that resulted in the elimination of two full time positions and the

Ger ds is the Admi nistrator of the Oakland County Medica l Ex aminer’ s Offic e a nd was Gulley ’s 4 direc t supervisor. (A ff. of Robert Ger ds, Dist. Ct . Docke t No. 18-2, ¶¶ 1–2.)

8Case No. 11- 1611

Gulley v . County of Oakland elimination of t h e benef

its that had been provided to five other employ ees, it offe red Gulley a position i n a diffe rent de partment. Id. ¶¶ 11–12.

b. Denial of

request t o bump a less senior em ployee
I n evalua ting whet her Gulley established a prima facie case of discrimination based on Oakland County ’s denial of her reque st to bump into an MEI position, the district court relied upon the analy sis utiliz ed in non-selec tion case s. I n that analy sis, a plaintiff must show “(1) that [s] he is

a member of a protec ted class; (2) that [s] he applied for, and did not rec eive, a job; (3) that [s] he was qualified for the job; and (4) that a simil arly -situated person who was not in the plaintiff’s protec ted class rec eived the job.” Seay v. TVA , 339 F.3d 454, 463 (6th C i r. 2 0 0 3 ) (a n aly zing termination 5 pursuant to RI F and non-selec tion for vaca nt positions) (citing Thurman v. Y ellow Freight Sys., Inc. , 90 F.3d 1160, 1166 (6th Cir. 1996)). The district court found that the third element of this test was
not me t. The district c ourt went on, howeve r, to explain that even if Gulley had met her burden of

es t ab l i s h i n g a prima facie case of discriminatory failure to permit her to bump a less senio r employ ee, Oakland County met its burden of articula ting a leg itimate, nondiscriminatory rea son for deny ing Gulley the position she desired and that Gulley failed to show the rea son was a prete x t for discrimination.

The court notes that this t es t i s n ot direc tly applicable to the prese nt fac ts beca use there was no 5 position “a

vailable” here that was g iven to another person instead of Gulley

. We ne ed not a ddress this issue bec au s e, as discussed below, Gulley fails to show that Oakland County ’s leg itimate, nondiscriminatory rea son for deny ing her reque st to bump into an M E I position was a prete x t for impermissible discrimination. 9Case No. 11- 1611

Gulley v . County of Oakland Oakland County submits that it declined to permit Gulley to bump the less senior employ ee from the MEI position beca use it believed that she was not qualified for the position. (Aff

. of Robert
Ger ds, Dist. Ct. Docke t No. 18-2, ¶ 16; Aff. of Michae l Z ehnder , Dist. Ct. Docke t No. 18-3, ¶ 13.) 6
I n turn, Gulley arg ues that she was q u al i fi ed for the MEI position and submitt ed evidenc e to the district court of her work experience and profe ssiona l ed u ca tion to support her position. Gulley

asser ts that the trial court improperly eng ag ed in cre dibi li ty d e terminations when it acc epted Oakland County ’s contention t h at s h e wa s unqualified for the MEI position over her contention and supporting evidenc e that she was qualified. Gulley ’s arg ument, howeve r, misapprehe nds Oakland County ’s burde n under the McD onnel Douglas analy sis. That is, Oakland County “nee d not prove a nondiscriminatory re as on for not promoting [Gull ey ], but need mere ly articulate a valid rationale ” for its decision

. Ha r t s el , 87 F.3d at 800 (empha sis in original) ( citing St. Mary’s Honor Cente r , 509 U.S. at 514). Oakland County “bea rs only the burden of production; the burden of persua si o n re m ai n s wi th the plaintiff at all times.”
W eigel v. Baptist Hosp. , 302 F.3d 367, 377– 7 8 (6th Cir. 2002) (citing Burdine , 450 U.S. at 253). Thus, the district court was not tasked with deter mining whether Oakland County ’s contention that Gulley was not qualified for the MEI was more cre dible than her contention that she was qualified for the position. I nstead, the district court neede d only to de termine whether Oakland County

had

met its burden of producing a leg itimate, nondiscriminatory rea son for denying Gulley ’s reque st to

Z ehnder is the Direc tor of Oakland County ’s Public S er v ices Depa rtment. (Aff

. of Michae l 6 Z ehnder , Dist. Ct. Docket No. 18-3, ¶ 1.) 10Case No. 11- 1611

Gulley v . County of Oakland bump into the MEI position. As to that question, the district court corr ectly fo u n d that Oakland County ’s proff

ere d rea son, i.e. , non-qualification, met that burden. The burde n then shifts to Gulley to show that Oakland County ’s stated re ason “is mer ely a prete x t for discrimination.” Id. at 378. “Unde r the lawof our c ircuit, a plaintiff c an show prete x t in three inter

rela ted way s: (1) that the prof fer ed reasons had no basis in fac t, (2) that the pr offe red

rea sons did not actua lly motivate the employ er’ s action, or (3) that they wer e insufficient to motivate the employ er’ s action.” Chen v. Dow Chem. Co. , 580 F.3d 394, 400 (6th Cir. 2009) (citing Hedrick , 355 F.3d at 4 6 0 ). “To car ry her burden in opposing summary judgme nt, [Gull ey ] must produce sufficient evidenc e from which a jury could rea sonably reje ct [Oakland County ]’s explanation of why it” denied her reque st to bump into an MEI position. Id. at 400 (citing Mick ey v. Zeidler Tool

a nd Die Co. , 516 F.3d 516, 526 (6th Cir. 2008). “Prete x t is a commonsense inq u i ry : d i d t h e employ er [t ake the adver se action ag ainst] the employ ee for the stated rea son or not? This require s

a co u rt to ask whether the plaintiff has produce d evidenc e that casts doubt on the employ er’s explanation, and, if so, how strong it is.” Id. at 400, n.4. Gulley arg ues that Oakland County ’s claim that she was unqualifi ed fo r t h e MEI position lacks cre dibilit y b as ed upon the County ’s alleg ed pref ere ntial trea tment of two other County employ ees: Gretche n I ng ram and Ke i t h Batchelor. Although she does not specific ally indicate, it
appea rs that Gulley relies upon the third method articula ted above, which attacks the cre dibilit y of the employ er’ s proff

ere d rea son and, ordinarily , consists of evidenc e that other empl o y ee s wer e
trea ted more favor ably

. See Manzer , 29 F.3d at 1084 (“The third showing is also easily rec og nizable and, ordinarily , consists of evidenc e that other employ ees, particul a r ly e mp lo y e e s n o t in the protec ted 11Case No. 11- 1611

Gulley v . County of Oakland class, we re not fir ed eve n though the y eng ag ed in substantially

identical conduct to that which the employ er contends motivated its discharg e of the plaintiff.”)

. This ty pe of rebuttal is a direc t attack

on the credibility of t h e em p l o y er ’s proff ere d motivation for taking the adver se action ag ainst the plaintiff. Id.
i. Gr etc hen In gram Gulley asser ts that Oakland County ’s proffere d rea son for not permitting her to bum p into the MEI position was prete x tual beca use, “[w]hi le arg uing that Ms. Gulley did not have the requisite qualifica tions, Oakland Cou n t y p ro vided false documentation that Gre tchen I ng ram had the minimum qualifica tions.” (Gulley Br

. at 18.) The “fa lse documentation” to which Gulley ref ers is
I ng ram’s job application. During the discovery proce ss in the instant action, Gulley deposed I ng ram

on April 26, 2010. (De p. of Gre t ch en I n g ram, Dist. Ct. Docke t No. 22-24.) I ng ram had been employ ed as an MEI for five y ear s. Id. During t h e d ep o s i t ion, I ng ram was questioned about her qualifica tions for the MEI position and whether she met the minimum qualifica tions for the job. Id.

at 1–32. As I ng ram testified, it beca me clea r th at she had not been entirely truthful on her application, and that if she had been truthful she would not have met the minimum qualifica tions for the MEI position. Id. Gulley conclude s that Oakland County ’s claim that it denied he r re quest to bump into the MEI position is n o t credible beca use, “[t] he unref

uted and undeniable fac t is that Oakland County employ ed Ms. I ng ram and allowed her to work for o v er fi ve y ear s without the minimum qualifica tions.” (Gulley Br . at 19.) Gulley ’s ar g ument, howeve r, misses the mark.

12Case No. 11- 1611

Gulley v . County of Oakland L eaving aside the inquiry as to whether I ng ram is an appropr iate co mpara tor, it is not 7 disputed that Oakland County was unawa re th at I ng ram had lied on her application until that fac t

came to light in her April 2010 deposition. I ng ram cer tified that the “stateme nts made [on the application] w ere true, complete, and acc urate to the best of [her] knowledg e.” ( Dep. of Gre tchen
I ng ram, Dist. Ct. Docke t 18-27, at 39: 3–12.) There is no evidenc e befor e us that would sug g est that Oakland County had any rea son not to believe I ng ram an d , o n ce the County was informed of her testimony , it subpoenae d I ng ram’s pr ior employ ment rec ords, determined that she had in fac t lied

on her job application, and soug ht her termination. Oakland County was permitted to, an d d id,

re as onably rely upon the particularized fac ts that wer e before it when it hired I ng ram. R o ma n s v. Mich. Dep’ t of Hu ma n Servs. , 668 F.3d 826, 839 (6th Cir. 2012) (“D efe ndant can overc ome Plaintiff’s claims of prete x t if it is ‘able to establish its rea sonable relianc e on the particula rized fac ts that wer e befor e it at the time the decision was made.’ ”) (quoting W right v. Murray Guard Inc. , 455 F.3d 702, 707- 08 (6th Cir. 2006)). Thus, we find that Oakland County easily overc omes Gulley ’s claim of pre text rela ted to Oakland County ’s alleg ed pre fer ential treatment of I ng ram.

ii. Keit h Batchelor Ag ain leaving aside the issue of whether Ba t ch el or is simil arly situated to I ng ram for the
purpose of this analy sis, Gulley contends that when Batchelor ’ s MEI position was eliminated, he was

“I n order to show that an empl oy er’ s proff ere d nondiscriminatory explanation is prete x t on the 7 g rounds that a similarly

situated employ ee r ece ived dispara te trea tment for the sa me conduct, ‘the plaintiff and t h e em p l oy ee with whom the plaintiff seeks to compar e himself or herse lf must be simil ar in all of the rele vant aspec ts.’” W eigel , 302 F.3d at 378–79 (quoting Ercegov ich , 154 F.3d at 352). 13Case No. 11- 1611

Gulley v . County of Oakland permitted to transfe r to another position at th e ex ac t s am e pay . Ultimately , Batchelor transfe rre d back into the MEI position when one beca me avail ab l e. T h i s trea tment, howeve r, is the same
trea tment that was off

ere d to Gulley

. The only differ ence is tha t G ulley would have tr ansfe rre d to a posi tion at a slightly lower salary

. I n light of all of t he evidence b efor e the court, no rea sonable jury could rely upon this differ ence as sufficie nt to cast doubt on Oakland County ’s proff ere d rea son for de ny ing Gulley ’s re quest to bump into an MEI position.

c. Conclusion - su m m ary judgm ent decision
I n light of the fore g oing, we aff irm the district c ourt’s g rant of summary judgme nt in favor of Oakland County

. B. Denial of

Motion for Reconsideration The district cour

t denied Gulley ’s Motion for Reconside ration.
1. Stand ard Gulley moved for rec onsideration of the district court’s g rant of summary judgme nt in favor of Oakla n d C ounty under that court’s L ocal Rule 7.1 and Fe dera l Rule of Civil Procedur e 59.
“Ge nera lly , the denial of a motion to rec onsider is revie wed for an abuse of discretion.” Gage Prods. Co. v. Henk

el C orp. , 393 F.3d 629, 637 (6th Cir. 2004) (citing Northland Ins. Co. v. Stewart Titl e Guar. Co. , 327 F.3d 448, 454 (6th Cir. 2003); GenCorp, Inc. , 178 F.3d at 832)). “Howe ver, when a Rule 59(e ) m otion seeks reconsider ation of a g rant of summary judgme nt, this Court conducts a de novo revie w us ing the same lega l standard employ ed by the di strict court.” Id. (citing Smith v. W al-Mart Stores, Inc. , 167 F.3d 286, 289 (6th Cir. 1999); Columbia Gas T r a n s mi s s i o n, Corp. v. Limited Corp. , 951 F.2d 110, 112 ( 6th Cir. 1991)). 14Case No. 11- 1611

Gulley v . County of Oakland Her e, the district court denied Gulley ’s motion rely ing only on its L ocal Rule 7.1, and Gulley direc ts he r appea l only to the standard employ ed by the L ocal Rule. We r eview appea ls of denials of rec onsideration under the Easter n District of Michig an’s L ocal Rule 7.1 for abuse of discretion. PT Pukuafu Indah v. S.E.C. , 661 F.3d 914, 924 ( 6th Cir. 2011) . The Ea stern District of Michig an L ocal Rule 7.1 provides “that the mov an t m u s t s h o w both that there is a palpable defe ct in the opinion and that corr ecting th e d ef ect will result i n a differe nt dispositi on of t he case.” Id. at 924 (citing E.D. Mich. L R 7.1(g ) and noting that the provision is now found at subsection (h))

. The
L ocal Rule also states that mere ly prese nting the same issues that the court previously ruled on is not

an ac cepta

ble g round for

rec onsideration. Id. Although the stan d a

r d e mp lo y ed makes no differ ence to the outcome here , we revie w de novo the denial of t h e motion in acc ordanc e with our usual prac tice of revie w of denials of motions to

rec onsider the g rant of summary judgme nt filed under Rule 59. Under Rule 59, “a district court may al t er a j u d gm ent

. . . based on (1) a clea r err or of law; (2) newly discovere d evidenc e; (3) an intervening chang e in controlling law; or (4) a need to preve nt manifest injusti ce.” Nolfi v. Ohio Ky. Oil Corp. , 675 F.3d 538, 551–52 (6th Cir. 2012) (citing Leisure Caviar, LLC v. U.S. Fish & W ildlif e Serv. , 616 F.3d 612, 615 ( 6th Cir. 2010)).
2. Discussion Gulley arg ues that “the court err ed in g ranting summary judgme nt as there wer e y et materia l issues of fac t still in dispute, and the court failed to consider the evidenc e prese nted in a light most favor able to the opposing party , i.e. Plaintiff J oy ce Gulley .” (Mot. Recons., Dist. Ct. Docke t No. 37,

at 2.) Gulley then g oes on to rea rgue her positions that she advanc ed i n h er M em o ra ndum in

15Case No. 11- 1611

Gulley v . County of Oakland Opposition to Oakland County ’s Motion for Summary J udg ment and to explain why she disag ree s with the district court’s a

naly sis. A Rule 59(e) motion is not properly used as a vehic le to re- hash old arg uments or to advanc e positions that could have been arg ued ear lier, but wer e not. Sault Ste.
Marie T ribe of Chippewa Indians v. Engler , 146 F.3d 367, 374 (6th Cir. 1998). Moreover, under the Easter n District of Michig an L ocal Rule 7.1, Gull ey wa s require d to both show that there is a palpable defe ct in the opinion a nd that corr ecting the defe ct will r esult in a differ ent dispositi on of the case , neither of which she did. Ther ef o re, we aff

irm the district court’s denial of Gulley ’s Motion for Reconsider ation.
C. Discove ry The district court denied as moot Gulley ’s Motion to Ex tend Discover y and/or Supplement Wit ness and Exhibit L ists.
1. Stand ard
We revie w a district court’s decisions reg arding discovery reque sts 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. Jack son , 509 F.3d 284, 297 (6th Cir. 2007)). “‘Abuse of discretion is define d as a definite and firm conviction that the trial court committed a clea

r err or of judgme nt.’” 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 reque st to extend discovery and/or to permit her to supplement her witness and exhibi ts lists. Gulley submits that even 16Case No. 11- 1611

Gulley v . County of Oakland though she diligently eng ag ed in discovery , she discovere d evidenc e rela ted to Gre tchen I ng ram, the Oakland County MEI with whom Gulley has soug ht to compar e herse lf, that neede d further inquiry

. Additionally , she ar g ues t hat t he documents rela ted t o this discovery and other rec ords she soug ht outside of the schedule d discovery time should have been added to her exhibi t list. Finally , Gulley contends that she should a lso been pe rmitted to add ce rtain witnesses to her witness list. The fac tors the Court considers when revie wing a dis t ri ct co u rt ’s denial of a reque st for additional time to conduct discovery “include: (1) when the moving pa rty lear ned of the issue that is the subject of discovery ; (2) how the discovery would aff ect the ruling below; (3) the leng th of the discovery period; (4) whether the moving party was dilatory ; and (5) whether the adver se party was responsive to prior discovery reque sts. Dowling v. Cleveland Clini c Found. , 593 F.3d 472, 478 (6th Cir. 2010). “The overa

rching inquiry in these overla pping fac tors 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 asser tion that she was provided all of the personne l files she reque sted from Oakland County by Marc h 24, 2010, about 60 day s befor e the close of discovery

. Gulley completed all depositions by Apri l 2 6 , 2 010, about 30 day s befor e the close of discovery

. I t was on this date that Gulley beca me awa re of the
I ng ram issue. Gulley , howeve r, eng ag ed i n n o d i scover y during the entire last month of the discovery period. Gulley then moved for an extension of time two months afte r she found out about the I ng ram iss ue, wh i ch wa s o n e month afte r di scover y had closed and after Oakland C ounty had filed its summary

judgme nt motion.

17Case No. 11- 1611

Gulley v . County of Oakland Second, Gulley makes no arg ument as to how the evidenc e she may have obtained if she had been g rante d permission to seek it would have aff ecte d the district court’s ruling

. I ndeed, in an email
to O akland County ’s counse l, Gulley ’s counse l reque sted a stipulation to he r proposed reque st f or

an extension of discovery specific ally indicating that she did not wish to eng ag e in further discovery , but rathe r, neede d more time to revie w the discovery she had been g iven. (Email, Dist. Ct. Docke t No. 21-2) (“Just for the rec ord I ’m not try ing to do any more depositions or send out I nterrog atories.
I just need to finish identify ing all of the documents which are voluminous in this case , and to complete our

exhibi t list and name all of the witnesse s identified during discovery .”). Reg arding the t hird inq u i ry i nto whether the di strict court abused i ts discretion in deny ing Gulley ’s reque st for an extension of discovery , the leng th of time permitted for discovery was seven months. (Scheduling Orde r, Dist. Ct. Docke t No

. 6 , at 1; Stipul ated Discover y Orde r, Dist. Ct.
Do cket No. 17, at 1.) Seven months is sufficie nt time to conduct discovery in an emplo y m en t discrimination case such as this one.
As to the fifth and final query , there is no evidenc e indicating that Oakland County failed to timely respond to Gulley ’s discover y reque sts. Wit h reg ard t o t h e remaining portion of Gulley ’s motion, her reque st to supplement her witness and exhibi t lists, those reque sts wer e rende red moot by the district court’s g rant of summary judgme nt in favor of

Oakland County

. For these rea sons, we aff irm the district court’s denial as moot of the portion of Gulley ’s Motion to Ex tend Discover y and/or Supplement Wit ness and Ex hibit L ists reg arding her reque st to

18Case No. 11- 1611

Gulley v . County of Oakland supplement her witness and exhibi t lists and aff irm the district court’s denial of Gulley ’s reque st for an extension of discovery on the g rounds set for

th here in.
IV. CONCLUSION
F o r the rea sons stated above, we AF F IRM the district court’s (1) g rant of summary judgme nt in favor of Oakland County , (2) denial of Gulley ’s reque st for rec onsideration of that decision, and (3) de nial of Gulley ’s re quest to ext end discove ry and to supplement her

witness and exhibit l ists.

19