UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KENNETH J. BOUCHARD, 

Plaintiff,

v. Case No. 14-14009

Honorable Denise Page Hood 

CITY OF WARREN,

Defendant.

 /

ORDER DENYING DEFENDANT’S MOTION FOR

RECONSIDERATION, CERTIFICATION FOR

INTERLOCUTORY APPEAL, AND STAY OF PROCEEDINGS [#48]

I. INTRODUCTION

Plaintiff filed this cause of action on October 17, 2014, alleging that he was

constructively discharged in violation of the Family and Medical Leave Act

(“FMLA”), the Michigan Whistleblower Protection Act (“WPA”), and Michigan

public policy. On March 31, 2017, the Court issued and Order that denied in part and

granted in part Defendant’s Motion for Summary Judgment, ruling that a genuine

dispute of material fact existed with respect to Plaintiff’s FMLA and WPA claims. 

On April 14, 2017, Defendant filed a “Motion for Reconsideration re Order on

Motion for Summary Judgment, Order on Motion to Dismiss, Order on Motion to

Compel, Or Alternatively, to Modify and Certify the Order for Interlocutory Appeal
and For a Stay of Proceedings.” Dkt. No. 48.

II. BACKGROUND

The relevant facts regarding this case were set forth in the Court’s March 31,

2017 Order. The Court incorporates those facts by reference in this Order. 

III. ANALYSIS 

A. Legal Standard

In order to obtain reconsideration of a particular matter, the party bringing the

motion for reconsideration must: (1) demonstrate a palpable defect by which the Court

and the parties have been misled; and (2) demonstrate that “correcting the defect will

result in a different disposition of the case.” E.D. Mich. L.R. 7.1(h)(3). See also

Graham ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d 377, 385 (6th

Cir. 2004); Aetna Cas. and Sur. Co. v. Dow Chemical Co., 44 F.Supp.2d 865, 866

(E.D. Mich. 1999); Kirkpatrick v. General Electric, 969 F.Supp. 457, 459 (E.D. Mich.

1997). 

A “palpable defect” is a “defect which is obvious, clear, unmistakable, manifest,

or plain.” Olson v. The Home Depot, 321 F.Supp.2d 872, 874 (E.D.Mich. 2004). The

movant must also demonstrate that the disposition of the case would be different if the

palpable defect were cured. E.D. Mich. L.R. 7.1(h)(3). Brown v. Walgreens Income

Protective Plan for Store Managers, No. 10-CV-14442, 2013 WL 1040530, at *1

2
(E.D. Mich. Mar. 15, 2013). “[T]he court will not grant motions for rehearing or

reconsideration that merely present the same issues ruled upon by the Court, either

expressly or by reasonable implication.” E.D. Mich. L.R. 7.1(h)(3). 

B. Analysis

The Court finds that Defendant fails to offer any new argument regarding the

WPA and FMLA claims. Defendant’s current arguments, like its arguments in its

Motion for Summary Judgment, focus on limited facts and generally ignore that the

facts must be viewed in a light most favorable to the non-moving party – Plaintiff. 

Defendant does not identify or acknowledge many of the facts that the Court found

constituted the basis for the genuine disputes of material fact with regard to the WPA

and FMLA claims. See, e.g., Dkt. No. 46, PgID 1191-92 (events set forth at numbered

paragraphs) and 1198 (“[t]hat Defendant was requiring Plaintiff to submit to, and pass,

a ‘fitness for duty’ evaluation before returning to work constitutes evidence that

Defendant, at a minimum, was concerned that Plaintiff suffered from a serious health

condition”). Defendant’s arguments reveal the true basis for its motion for

reconsideration – it did not like the Court’s ruling the first time and seeks to persuade

the Court to adopt Defendant’s version of the case. The threshold for relief pursuant

to Local Rule 7.1(h)(3) requires more.

 Defendant also offers its perspective of what some “facts” are. Defendant

3
assumes that because Plaintiff has not offered competing facts, Defendant’s

representation of the veracity of those facts must be accepted as true. The Court

concludes that some of those “facts” require a credibility determination by the fact

finder. One example of such an “undisputed” fact asserted by Defendant is that

“neither Easter nor Simlar [the persons who made Plaintiff submit to a psychological

fitness-for-duty evaluation test before returning to active employment] were aware

that [Plaintiff] had presented before the City Council or Council of the Whole,

prepared a PPP, or raised concerns about the City’s policies, rules, or procedures.”

Dkt. No. 48, PgID 1224. As Easter and Simlar were employed by Defendant, and as

Plaintiff’s supervisor Ronald Wuerth stated that the meeting before the City Council

was “infamous,” Dkt. No. 38, Ex. 1 at 55, the Court finds that a fact finder may not

deem credible Defendant’s representation that Easter and Simlar were not aware of

Plaintiff’s history as it related to those events.

The Court concludes that there is no palpable defect by which it or the parties

has been misled, and it denies Defendant’s motion for reconsideration.

C. Motion to Modify and Certify the Order for Interlocutory Appeal

 As Defendant states:

28 U.S. Code § 1292(b) empowers a district court to certify for

interlocutory appeal a ‘non-final order’ where (1) it involves a

4
controlling question of law; (2) for which there is a substantial ground

for difference of opinion; and (3) that an immediate appeal from the

order may materially advance the ultimate termination of the litigation. 

In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002). The Court is not persuaded

by Defendant’s argument that the Court should certify the Order under Section

1292(b). 

Defendant’s argument is premised on a misinterpretation of the basis for the

Court’s ruling. Contrary to Defendant’s suggestion, the Court did not determine that

genuine issues of material fact existed – or that controlling law ensured the survival

of a constructive discharge claim based on an adverse employment action – simply

because there was silent treatment and “an issuance of a written warning and a notice

of the possibility of a one-day suspension.” See Dkt. No. 48, PgID 1231. Similarly,

the Court did not determine that Defendant had notice of Plaintiff’s intent to take

FMLA leave simply because Plaintiff wrote to Defendant that he needed to “go home

and relax.” Id. at PgID 1228. As set forth in the March 31, 2017 Order, there were

numerous events that factored into the Court’s determination that Plaintiff’s WPA and

FMLA claims should survive Defendant’s motion for summary judgment.

For those reasons, the Court concludes that there is no critical controlling issue

of law for which there is a substantial ground for difference of opinion. The Court

5
denies Defendant’s motion to modify and certify the Order for interlocutory appeal.

D. Motion for a Stay of Proceedings

Having denied Defendant’s motion for reconsideration and request to certify

an interlocutory appeal, the Court concludes that there is no basis for staying the

proceedings. Defendant’s motion for a stay of proceedings is denied.

IV. CONCLUSION 

Accordingly, 

IT IS ORDERED that Defendant’s Motion for Reconsideration re Order on

Motion for Summary Judgment, Order on Motion to Dismiss, Order on Motion to

Compel, Or Alternatively, to Modify and Certify the Order for Interlocutory Appeal

and For a Stay of Proceedings [Dkt. No. 48] is DENIED.

IT IS SO ORDERED.

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: May 22, 2017

6
I hereby certify that a copy of the foregoing document was served upon counsel of

record on May 22, 2017, by electronic and/or ordinary mail.

S/LaShawn R. Saulsberry 

Case Manager

7