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Proof of Service

The undersigned certifies that a copy of this Order was 

served on the attorneys and parties of record herein by 

electronic means or U.S. Mail on August 11, 2017.

s/Kim Grimes 

Acting in the Absence of 

LaShawn Saulsberry, Case Manager

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CYNTHIA GRABOWSKI,

Plaintiff, CASE NO. 15-12318

HON. DENISE PAGE HOOD

v.

QBE AMERICAS, INC., and

QBE HOLDINGS, INC. REGULAR

OR LIMITED TERM MEMBERS

GROUP MEMBER BASIC LIFE 

INSURANCE PLAN,

Defendants.

 /

ORDER DENYING DEFENDANT QBE’S MOTION FOR 

RECONSIDERATION [#49]

I. BACKGROUND

This matter is now before the Court on Defendant QBE Americas, Inc.’s 

(“QBE”) Motion for Reconsideration filed on April 5, 2017. (Doc # 49) On March 

22, 2017, the Court entered an Order Granting in Part and Denying in Part 

Defendants’ Motion to Dismiss or in the Alternative Motion for Summary Judgment. 

(Doc # 44) For the reasons set forth below, the Court denies QBE’s Motion for 

Reconsideration.
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II. ANALYSIS

A. Standard of Review

The Local Rules of the Eastern District of Michigan provide that any motion 

for reconsideration must be filed within 14 days after entry of the judgment or order. 

E.D. Mich. LR 7.1(h)(1). No response to the motion and no oral argument thereon 

are permitted unless the Court orders otherwise. Id. at 7.1(h)(2). QBE’s Motion is 

timely filed.

Local Rule 7.1 further states:

(3) Grounds. Generally, and without restricting the court’s discretion, 

the 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. The movant must not only demonstrate 

a palpable defect by which the court and the parties and other persons 

entitled to be heard on the motion have been misled but also show that 

correcting the defect will result in a different disposition of the case.

Id. at 7.1(h)(3). “A ‘palpable defect’ is a defect which is obvious, clear, 

unmistakable, manifest, or plain.” Fleck v. Titan Tire Corp., 177 F. Supp. 2d 605, 

624 (E.D. Mich. 2001). A motion for reconsideration is not a vehicle to re-hash old 

arguments, or to proffer new arguments or evidence that the movant could have 

brought up earlier. Sault Ste. Marie Tribe v. Engler, 146 F.3d 367, 374 (6th Cir. 

1998) (motions under Fed. R. Civ. P. 59(e) “are aimed at re consideration, not initial 

consideration”) (citing FDIC v. World Universal Inc., 978 F.2d 10, 16 (1st Cir. 

1992)).
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B. Discovery

QBE argues that the Court made a palpable error in its March 22, 2017 Order 

because the Court incorrectly stated that discovery had closed.

The Court finds that QBE has not met its burden on a motion for 

reconsideration, as it has not demonstrated a palpable defect by which the Court has 

been misled. QBE asserts that the Court stated discovery had closed, specifically 

citing Pg ID 1093. A review of the record, shows that the Court made no such 

statement on Pg ID 1093. The only place where discovery is mentioned in the 

Court’s March 22, 2017 Order is on Pg ID 1115, as part of the Court’s discussion of 

the wrongful refusal to pay life insurance under ERISA claim:

[Cynthia Grabowski] relies on evidence outside of the administrative 

record and, although discovery closed on January 9, 2017 (Doc # 37, 

Pg ID 712), argues that she is entitled to additional discovery. 

Defendants disagree. 

Grabowski’s after-the-fact procedural argument regarding a lack of 

notice fails, and the Court must limit itself to the administrative record 

and will not grant additional discovery. Grabowski never made this 

lack of notice argument in support of her claim during the 

administrative process.

(Doc # 44, Pg ID 1115) Although the Court incorrectly stated that discovery had 

closed where discovery had been stayed, the Court did not grant Grabowski 

additional discovery on this claim because it found that it had to limit itself to the 

administrative record. The Court dismissed this claim, an outcome favorable to 

QBE. In any event, the Court thereafter entered a Stipulated Order Amending the 
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Scheduling Order extending the discovery cut-off date to July 13, 2017. (Doc # 56) 

QBE is not precluded from conducting discovery or filing a dispositive motion on 

the remaining ADA claim.

C. Judicial Estoppel

QBE argues that the Court made a palpable error in its March 22, 2017 Order 

because the Court overlooked the fact that Grabowski made inconsistent 

representations to the short-term and long-term disability plan administrators and to 

the Social Security Administration.

The Court finds that QBE has not met its burden on a motion for 

reconsideration, as it has not demonstrated a palpable defect by which the Court has 

been misled. The Court focused its discussion on Terence Grabowski’s 

representations to the EEOC because the parties focused their arguments on his

representations to the EEOC. In its Motion to Dismiss or in the Alternative Motion 

for Summary Judgment, QBE did mention that the allegations in the Amended 

Complaint are inconsistent with Terence Grabowski’s application for disability 

benefits (Doc # 28, Pg ID 142); and in its Reply, QBE did mention that “Grabowski 

was approved for disability benefits based on representations that ‘he became 

disabled on 9/13/14.’ (Ex. 6)” (Doc # 42, Pg ID 874). As the Court discussed in its 

March 22, 2017 Order, “[u]nder the doctrine of judicial estoppel, a party who has 

successfully and unequivocally asserted a position in a prior proceeding is estopped 
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from asserting an inconsistent position in a subsequent proceeding.” Morales v. 

State Farm Mut. Auto. Ins. Co., 279 Mich. App. 720, 736-37 (2008) (internal 

quotations and citations omitted) (emphasis added). As the Court noted in its prior 

Order, the Social Security Administration denied Terence Grabowski’s request, so 

there is no indication that Terence Grabowski successfully asserted a position before 

the Social Security Administration that is inconsistent with the allegations in the 

Amended Complaint. As to any representations to the short-term and long-term 

disability plan administrators, there is no indication that Terence Grabowski 

unequivocally asserted that he was unable to perform his job duties with or without 

reasonable accommodation or that he never requested an accommodation such that 

Grabowski’s ADA claim should be precluded. QBE pointed only to Exhibit 6, 

which merely shows notes made by plan administrators in their computer system 

after Terence Grabowski’s death. See Doc # 29-3, Pg ID 338. Accordingly, the 

Court did not err in denying QBE’s Motion to Dismiss or in the Alternative Motion 

for Summary Judgment on the basis of judicial estoppel. 

D. Prima Facie Case Under the ADA

QBE argues that the Court made a palpable error in its March 22, 2017 Order 

because the Court conflated the burdens under Rule 12 and Rule 56 of the Federal 

Rules of Civil Procedures. To the extent that any language in the Order was 

confusing, the Court clarifies that the Court found that Grabowski has at this stage
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sufficiently pled the elements of her prima facie case under the ADA, and 

accordingly, the Court denied QBE’s Motion as to the ADA claim. Again, QBE is 

not precluded from conducting discovery or filing a dispositive motion on the 

remaining ADA claim.

1. Disabled Within the Meaning of the ADA

QBE argues that the Court made a palpable error in its March 22, 2017 Order 

in finding that Grabowski had sufficiently alleged that Terence Grabowski was 

disabled within the meaning of the ADA because Grabowski did not allege that 

Terence Grabowski suffered from any specific disability at any time during his 

employment; that Terence Grabowski had a diagnosis at any time during his 

employment; or that any impairment substantially limited Terence Grabowski in any 

major life activity.

The Court finds that QBE has not met its burden on a motion for 

reconsideration because QBE merely re-hashes the same arguments it has made 

before. A motion for reconsideration is not a vehicle to re-hash old arguments. Sault 

Ste. Marie Tribe, 146 F.3d at 374. The Court already considered and rejected these 

arguments and concluded that Grabowski has sufficiently alleged at this stage that 

Terence Grabowski was disabled within the meaning of the ADA. 
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2. Otherwise Qualified to Perform Essential Functions of the 

Job

QBE argues that the Court made a palpable error in its March 22, 2017 Order 

in finding that Grabowski had sufficiently alleged that Terence Grabowski was 

otherwise qualified to perform the essential functions of his job because QBE 

provided Terence Grabowski with the only accommodations that his physician 

indicated would enable him to perform his essential job functions. QBE again notes 

that Terence Grabowski’s physician never supported the need for leave as a 

reasonable accommodation. QBE again asserts that Terence Grabowski is not able 

to explain any inconsistent statements because he is now deceased.

The Court finds that QBE has not met its burden on a motion for 

reconsideration because QBE again merely re-hashes the same arguments it has

made before. The Court already considered and rejected these arguments and 

concluded that Grabowski has sufficiently alleged at this stage that Terence 

Grabowski was otherwise qualified to perform the essential functions of his job. 

3. Adverse Employment Action Because of a Disability

QBE argues that the Court made a palpable error in its March 22, 2017 Order 

in finding that Grabowski had sufficiently alleged that Terence Grabowski suffered 

an adverse employment action because of his disability because he had not been 

diagnosed with any specific condition. QBE again argues that neither Terence 
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Grabowski, nor his doctor, nor QBE knew what was causing Terence Grabowski’s 

symptoms.

The Court finds that QBE has not met its burden on a motion for 

reconsideration because QBE again merely re-hashes the same arguments it has

made before. The Court already considered and rejected these arguments and 

concluded that Grabowski has sufficiently alleged at this stage that Terence 

Grabowski suffered an adverse employment action because of his disability.

E. Pretext Under the ADA

QBE argues that the Court made a palpable error in its March 22, 2017 Order 

in finding that, viewing the evidence in the light most favorable to Grabowski, she 

has put forth enough evidence to create a genuine issue of material fact regarding 

whether Terence Grabowski’s performance issues were sufficient to warrant his

termination. QBE makes new arguments relying on the deposition transcript of 

Shannon Grunst, Terence Grabowski’s supervisor, taken on January 18, 2017 (after 

briefing on Defendants’ Motion to Dismiss or in the Alternative Motion for 

Summary Judgment had already been completed). 

A motion for reconsideration is not a vehicle to proffer new arguments. See

Sault Ste. Marie Tribe, 146 F.3d at 374. Given that the parties had not completed 

discovery at the time of this Court’s prior Order, and given that QBE has not had the 

opportunity to present all relevant facts and evidence outside the pleadings, QBE is 
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not precluded from conducting discovery or filing a dispositive motion on the 

remaining ADA claim. The Court will not, however, dismiss the remaining ADA 

claim for the reasons set forth in its prior Order. The Court finds that construing the 

Amended Complaint in the light most favorable to the Grabowski, accepting its 

allegations as true, and drawing all reasonable inferences in favor of Grabowski, she 

has set forth sufficient factual allegations to support that Terence Grabowski’s 

performance issues were insufficient to warrant the termination. 

F. Request for Reasonable Accommodation

QBE argues that the Court made a palpable error in its March 22, 2017 Order 

because Grabowski cannot establish that Terence Grabowski requested leave as a 

reasonable accommodation. QBE again argues that Terence Grabowski could have 

submitted medical documentation supporting the need for leave, but he did not, and 

his doctor failed to identify leave as a reasonable accommodation.

The Court finds that QBE has not met its burden on a motion for 

reconsideration because QBE merely re-hashes the same arguments it has made 

before. The Court already considered and rejected these arguments. QBE also cites 

cases it could have cited earlier. The Court properly considered the Amended 

Complaint, documentation properly incorporated as part of the pleadings, and 

matters of public record. Drawing all reasonable inferences in favor of Grabowski, 

she has sufficiently pled that Terence Grabowski requested leave as a reasonable 
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accommodation, which was denied. Accordingly, the Court will not dismiss the 

remaining ADA claim. 

G. Recoverable Damages

Lastly, QBE asserts that the Court “did not address the argument that . . . 

Plaintiff is precluded from recovering life insurance benefits as damages under her 

ADA claim.” QBE has not raised this argument before, and in support of its 

argument, QBE cites two cases it has not cited before. The Court declines to address 

this new argument on a motion for reconsideration. QBE is free to raise it in a future 

dispositive motion.

III. CONCLUSION

For the reasons set forth above,

IT IS HEREBY ORDERED that Defendant QBE Americas, Inc.’s Motion for 

Reconsideration (Doc # 49) is DENIED.

IT IS FURTHER ORDERED that the parties may conduct further discovery 

and file dispositive motions on the remaining ADA claim in accordance with the 

Stipulated Order entered on June 2, 2017.

s/Denise Page Hood 

DENISE PAGE HOOD

DATED: August 11, 2017 Chief Judge