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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SEFANIT TESFA, 

 Case No. 2:12-cv-0397 

 Plaintiff, JUDGE GREGORY L. FROST 

 Magistrate Judge Norah McCann King 

v. 

 

AMERICAN RED CROSS, 

 Defendants. 

ORDER

 This matter is before the Court on Defendant’s motion for reconsideration of this Court’s 

Opinion and Order denying Defendant’s motion for summary judgment. (ECF No. 40.) Plaintiff 

did not file a timely response to Defendant’s motion for reconsideration. As a result, also before 

the Court is Plaintiff’s motion for leave instanter to file a brief in opposition to the motion for 

reconsideration. (ECF No. 51.) The Court DENIES Defendant’s motion (ECF No. 40) and 

DENIES AS MOOT Plaintiff’s motion. 

Although the Federal Rules of Civil Procedure do not explicitly address motions for 

reconsideration of interlocutory orders, the authority for a district court to hear such motions is 

found in both the common law and in Fed. R. Civ. P. 54(b). Rodriguez v. Tenn. Laborers Health 

& Welfare Fund, 89 Fed. Appx. 949, 959 (6th Cir. 2004). Traditionally, courts will find 

justification for reconsidering interlocutory orders when there is (1) an intervening change of 

controlling law; (2) new evidence available; or, (3) a need to correct a clear error or prevent 

manifest injustice. Id. at 959(citing Reich v. Hall Holding Co., 990 F. Supp. 955, 965 (N.D. Ohio 

1998)). In this case, Defendant does not seek reconsideration on either of the first two grounds. 

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Defendant relies only on the third prong, contending that this Court made a clear error of law in 

the disposition of its motion for summary judgment. 

 In support of its view that the Court got it wrong in denying Defendant’s motion for 

summary judgment, Defendant focus on this passage of the Court’s summary judgment ruling: 

[I]t very well could be that Boxill was the more desirable and appropriate 

candidate for promotion to Laboratory Supervisor for entirely legitimate business 

reasons. But on the record before it, the Court finds that a reasonable jury might 

find otherwise. 

(ECF No. 38 at PageID# 710.) Relying on Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 627 

(6th Cir. 2006), Defendant argues that the Court’s reasoning cannot support a triable issue 

concerning whether Defendant’s reasons not to promote Plaintiff were a pretext for 

discrimination. Specifically, Defendant relies on the passage of Bender explaining that” in the 

case in which there is little or no other probative evidence of discrimination, to survive summary 

judgment the rejected applicant’s qualifications must be so significantly better than the 

successful applicant’s qualifications that no reasonable employer would have chosen the latter 

applicant over the former.” Id. at 627. Thus, Defendant reasons that the Court’s analysis 

dictates that “summary judgment should have been entered in favor of the Red Cross because if 

it ‘could be’ that Boxill was the more desirable candidate, then Plaintiff has not met her burden 

to demonstrate that ‘no reasonable employer’ would have chosen him.” (ECF No. 40 at PageID# 

717-18.) 

 The Court is not persuaded. The Sixth Circuit’s opinion in Bender, which this Court 

cited in its decision, also provides: 

Whether qualifications evidence will be sufficient to raise a question of fact as to 

pretext will depend on whether a plaintiff presents other evidence of 

discrimination. In the case in which a plaintiff does provide other probative 

evidence of discrimination, that evidence, taken together with evidence that the 

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plaintiff was as qualified as or better qualified than the successful applicant, might 

well result in the plaintiff's claim surviving summary judgment. 

Bender, 455 F.3d at 626-27. Though Defendant understandably believes otherwise, this is the 

portion of the Bender analysis that applies here and counsels against summary judgment in 

Defendant’s favor. The Court’s pretext analysis revealed a number of circumstances apart from 

the relative qualifications of Plaintiff and Boxill from which a reasonable trier of fact could find 

that Defendant’s proffered reasons for pretextual. (ECF No. 38 at PageID# 705-710.) Thus, 

there was “other probative evidence of discrimination”; this is not a case where simply the 

relative qualifications of the successful and unsuccessful applicant were the only evidence of 

pretext relied upon by the plaintiff. 

 Defendant has failed to show this Court committed a clear error of law. Reconsideration 

is therefore unwarranted. Accordingly, the Court DENIES Defendant’s motion for 

reconsideration (ECF No. 40). Having found no basis for reconsideration demonstrated in 

Defendant’s motion in the first place, the Court DENIES AS MOOT Plaintiff’s motion for leave 

to file a response instanter to Defendant’s motion (ECF No. 51). 

 IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

 GREGORY L. FROST 

 UNITED STATES DISTRICT JUDGE 

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