UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

CRISTIE CISNEROS, 

 Plaintiff, Case No. 14-cv-14893 

v. Honorable Thomas L. Ludington 

FIRSTMERIT CORPORATION and 

LPL FINANCIAL, LLC, 

 Defendants. 

_______________________________________/ 

OPINION AND ORDER DENYING MOTION FOR RECONSIDERATION 

 On February 8, 2016 a Judgment in favor of Defendants FirstMerit Corporation and LPL 

Financial, LLC, was entered against Plaintiff Cristie Cisneros. Judgment was entered pursuant to 

the Court’s February 8, 2016 Opinion and Order granting Defendants motions for summary 

judgment. The February 8 Opinion concluded that there was no genuine dispute of material fact 

that Cisneros was not terminated because she took leave under the Family and Medical Leave 

Act (“FMLA”). 

 On February 22, 2016, Cisneros timely moved for reconsideration. She argues that the 

Court erred in determining that certain actions by FirstMerit and LPL were not adverse 

employment actions. She also argues that the Court erred by not considering additional evidence 

of causation beyond mere temporal proximity. On April 29, 2016, Cisneros’s motion was granted 

on limited grounds, Defendants’ motions for summary judgment were denied, and the judgment 

against her was vacated. See Apr. 29 Op., ECF No. 49 (herein “April 29 Opinion”). 

 On May 3, 2016, it was the Defendants’ turn. FirstMerit and LPL jointly moved for 

reconsideration of the Court’s April 29 Opinion. They argue that the April 29 Opinion contained 

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two palpable defects. First, it incorrectly concluded that Cisneros was treated differently by not 

receiving a replacement branch when some of her assigned branches closed. Second, the April 29 

Opinion adopted an incorrect date for a meeting between Cisneros and FirstMerit management. 

The opinion’s analysis utilized the incorrect date resulting in a palpable defect. Defendants’ 

motion will be denied. 

I. 

 Defendants do not dispute the general facts as conveyed in the Court’s February 8, 2016 

Opinion.1

 Those facts will be adopted as though fully recited herein. See Feb. 8, 2016 Op. & 

Order, ECF No. 38. 

II. 

A motion for reconsideration will be granted if the moving party shows: “(1) a palpable 

defect, (2) the defect misled the court and the parties, and (3) that correcting the defect will result 

in a different disposition of the case.” Michigan Dept. of Treasury v. Michalec, 181 F. Supp. 2d 

731, 733-34 (E.D. Mich. 2002) (quoting E.D. Mich. LR 7.1(g)(3)). A “palpable defect” is 

“obvious, clear, unmistakable, manifest, or plain.” Id. at 734 (citing Marketing Displays, Inc. v. 

Traffix Devices, Inc., 971 F. Supp. 2d 262, 278 (E.D. Mich. 1997). 

III. 

 Defendants make two claims for reconsideration. First, the April 26 Opinion erred by 

concluding that Cisneros was treated differently than Financial Advisor Emily Rush when Emily 

Rush allegedly received bank branches to replace branches she was previously assigned that 

closed and Cisneros did not. Second, the April 26 Opinion erred by misidentifying the date at 

 1

 Defendants do point out a factual error made in the Court’s April 29, 2016 Opinion and Order granting 

Cisneros’s motion for reconsideration. The April 29 Opinion incorrectly identifies the first meeting between 

Cisneros and FirstMerit management concerning her sales practices as occurring on March 25, 2013. The February 8 

Opinion correctly identifies it as occurring on March 25, 2014. Those are the facts incorporated into this opinion. 

The error in the April 29 Opinion is addressed at length below. 

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which Cisneros was first informed of an impending performance improvement plan and 

misidentified the information conveyed to her during that meeting. 

A. 

 Defendants argue that the April 26 Opinion errs by concluding that Cisneros was treated 

differently than Emily Rush. Defendants highlight the following passage from the Opinion: 

Cisneros’s testimony establishes that at least three branches in her area closed 

(possibly four), one of the branches that closed was assigned to Cisneros and 

Emily Rush “had the rest of the branches.” Id. Thus, Emily Rush had at least two, 

possibly three branches close. Then, according to Cisneros, Rush received new 

branches to offset the branch closures. Which branches these were, Cisneros does 

not explain. Cisneros states only that Emily Rush received the Bay/Shattuck 

branch and that she did not know “what else [Rush] was going to receive,” just 

that she “know[s Rush] was receiving additional branches.” Id. This conclusory 

statement does not establish that Rush actually received other branches. Indeed, 

there is no evidence anywhere in the record that Rush received specific branches 

as compensation for some of her branches closing. Taking Cisneros’s 

contradictory account of the branch closures in a light most favorable to her, both 

Cisneros and Rush suffered an identical net loss of one branch. 

April 26 Op. 12–13, ECF No. 49. Defendants’ focus is on the conclusion that “there is no 

evidence anywhere in the record that Rush received specific branches as compensation for some 

of her branches closing” and the conclusion that “[t]aking Cisneros’s contradictory account of 

the branch closures in a light most favorable to her, both Cisneros and Rush suffered an identical 

net loss of one branch.” Id. 

 But it does not follow from those two conclusions that Cisneros was not treated 

differently than Rush. Those two conclusions serve to illustrate the narrow ground on which 

Cisneros’s claim of disparate treatment survives. The first conclusion only clarifies that there is 

no evidence of Rush receiving any specific branch other than Bay/Shattuck. The conclusion is 

directed at Cisneros’s claim that “she did not know ‘what else [Rush] was going to receive,’ just 

that she ‘know[s Rush] was receiving additional branches.’” Id. The statement that there is no 

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evidence of Rush receiving specific branches as compensation for branch closures does not 

resolve Cisneros’s explanation for why Rush received the Bay/Shattuck branch. 

 Similarly, the second conclusion only addresses the total number of branches assigned to 

Cisneros and Rush. Just because the two of them suffered an identical net loss does not mean that 

Cisneros was not treated differently than Rush. Cisneros’s claim is that the disparate treatment 

followed her and Rush’s request for offsetting branches. She contests that Rush’s request was 

fulfilled while hers was denied. The total amount of branches lost to closures and the net 

resulting number of branches is probative of the question of disparate treatment but not, as 

Defendants suggest, dispositive. 

 To be clear, Cisneros claims that Rush also sought offsetting branches and received, at a 

minimum, the Bay/Shattuck branch.2

 Defendants repeatedly emphasize that Cisneros lost the 

Bay/Shattuck branch because the branch manager did not trust Cisneros to properly advise 

clients. That may be so, but that does not explain why the branch was reassigned to Emily Rush 

or rule out that it was reassigned after Rush asked for offsetting branches. It may be that Rush 

was the only other possible Financial Advisor that could cover that branch and that is why she 

received it. It may also be that Rush never asked for offsetting branches. There may be many 

reasonable explanations that would have merited summary judgment. None was proffered by 

Defendants and so a legitimate question of fact remains to be resolved by a jury. 

 Defendants claim on reconsideration that Emily Rush did request offsetting branches and, 

like Cisneros, Marc Kaeckmeister denied her request. Defendants cite to a specific portion of Mr. 

Kaeckmeister’s transcript attesting to this fact. But the transcript nowhere states that Rush 

requested offsetting branches and only mentions Rush in passing: 

 2

 Cisneros claims that Rush received other, unnamed branches but as explained in the April 26 Opinion and 

above there is no evidence that those unnamed branches existed or that they were reassigned. 

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Q Okay. And were any of the branches that were closing assigned to Ms. 

Cisneros, if you know? 

A Yes. 

Q Do you recall at any time her requesting that the loss of her branch be 

offset by adding an additional branch to her assignment? 

A She requested more branches. 

Q Do you recall, was that a discussion she had directly with you? 

A Yes. 

Q Was anybody else involved in those discussions? 

A Well, there could be two different discussions. There was a discussion 

with Emily Rush that they brought to my attention instead of hiring a third 

advisor that they would absorb the rest of the territories, the rest of the 

book of business. And I declined that request. Cristie also wanted to pick 

up some branches but when branches are closing it didn’t just affect 

Cristie, it affected all advisors, and to give her another branch I’m taking 

away from another advisor. And Cristie was not the only one that lost 

branches during this transition. 

Kaeckmeister Dep. 31, ECF No. 29-14. If anything, this portion of the deposition clarifies that 

Cisneros’s request for offsetting branches was completely separate from another discussion 

involving Rush. The discussion involving Rush concerned a request by Rush and Cisneros to be 

assigned branches in their territory that would otherwise go to a third financial advisor. 

Attempting to portray this as a request by Rush for additional offsetting branches distorts the 

record. 

Further, Mr. Kaeckmeister’s explanation that branch closings “affected all advisors” does 

not establish that Rush did not receive offsetting branches. As explained above, Rush may have 

been affected by branch closures and still received an offsetting branch. See supra (explaining 

that Rush could have suffered a net loss of one branch and still received Bay/Shattuck as 

compensation). 

 Defendants argument for reconsideration on this ground will be denied. 

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B. 

 Second, Defendants claim that the Court erred by misidentifying the date of a 

performance improvement meeting Cisneros attended with FirstMerit Management. The April 29 

Opinion erred in identifying the meeting as having occurred on March 25, 2013. The meeting 

actually took place on March 25, 2014. This was more than just a clerical error. The April 29 

Opinion analyzed Cisneros’s claims as though the meeting occurred on March 25, 2013. 

Correcting this error results in a modified analysis that greatly narrows the scope of Cisneros’s 

pretext claim but it does not change the result of the April 29 Opinion. 

 The relevant portion of the April 29 Opinion that incorrectly analyzes the events between 

Cisneros’s first coaching meeting and the meeting where Defendants presented her with 

performance improvement plans is as follows: 

According to Cisneros, however, in the lead-up to that meeting, there were 

attempts made to bring her performance into line that were not followed through 

on by FirstMerit management. One attempt occurred during a March 25, 2013 

meeting with FirstMerit management. Specifically, FirstMerit management 

informed her that it would no longer be evaluating her product mix by excluding 

her largest client. Cisneros’s largest client purchased exclusively annuities and 

accounted for a significant portion of her sales. Prior to this March 2013 meeting, 

FirstMerit evaluated the suitability of Cisneros’s product mix without considering 

the outsize effect of her largest customer. 

Additionally, following this meeting, Cisneros and one of her supervisors, Mark 

Kaeckmeister, scheduled meetings to work on the suitability of Cisneros’s 

product mix and the products she presented to customers. According to Cisneros, 

Mr. Kaeckmeister “set up appointments for [them] to meet, and he did not show 

up for those meetings.” Cisneros Dep. 112. 

A reasonable jury could conclude that the change in the manner that Cisneros’s 

sales balance was evaluated, and the lack of an effort by Mr. Kaeckmeister to 

constructively meet with Cisneros is evidence that Defendants’ justification for 

their adverse actions was pretextual. That is, a reasonable jury could conclude that 

if FirstMerit properly performed its coaching function following the March 25, 

2013 meeting, Cisneros would not have found herself in a position to be presented 

with a more elaborate and consequential performance improvement plan in May 

of 2014. Thus, the actions of FirstMerit leading to her termination could 

demonstrate that FirstMerit was not motivated by Cisneros’s improper sales and 

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inappropriate product mix because it did not take the remedial steps it had laid out 

over one year earlier. 

Apr. 29 Op. 16, ECF No. 49. Some portions of this analysis must be amended. First, the gap 

between the initial coaching meeting and the presentation of the performance plans was not over 

one year, it was under two months. Second, Cisneros was aware that the second meeting would 

take place and that she would be presented with comprehensive performance improvement plans 

at that meeting. 

 Those corrections are significant. They greatly alter analysis of the Defendants’ behavior, 

particularly FirstMerit, during the period between the two meetings. But neither the contracted 

time period between the coaching period and the performance improvement plan nor Cisneros’ 

knowledge of the performance improvement plans proves that FirstMerit’s behavior was not 

pretextual. A reasonable juror could still conclude that FirstMerit aimed at removing Cisneros 

rather than remedying what Defendants’ viewed as poor practices. While Cisneros was going to 

inevitably be presented with performance improvement plans, she may have been amenable to 

agreeing to such a plan if FirstMerit had demonstrated in the period following the March 25, 

2014 meeting that it was in fact invested in improving her performance. Instead, Mr. 

Kaeckmeister missed meetings and coaching opportunities that were scheduled between him and 

Cisneros. Thus, the April 29 Opinion’s conclusion that “the actions of FirstMerit leading to her 

termination could demonstrate that FirstMerit was not motivated by Cisneros’s improper sales 

and inappropriate product mix because it did not take the remedial steps it had laid out” on 

March 25, 2014 still applies. Indeed, it is bolstered by the fact that following Cisneros’s 

termination Mr. Kaeckmeister himself assumed management of Dr. Godiali, the client that 

accounted for the great majority of Cisneros’s sales, that led her to become the top financial 

advisor at FirstMerit and helped her earn two incentive trips in one year (one of which Cisneros 

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was not permitted to take and was instead taken by Mr. Kaeckmeister, Cisneros Dep. 89, ECF 

No. 29-12). There is little question that a reasonable juror could still determine that Defendants’ 

proffered legitimate reasons for termination were pretextual. 

IV. 

 Accordingly, it is ORDERED that Defendants FirstMerit Corporation and LPL 

Financial, LLC’s motion for reconsideration, ECF No. 51, is DENIED. 

Dated: June 15, 2016 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on June 15, 2016. 

 s/LISA WAGNER_______________ 

 Lisa Wagner Acting in the Absence of 

 Michael A. Sian, Case Manager 

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