UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CHARLES H. JOHNSON,

Plaintiff,

v. Case No. 08-14987

VGA GROUP, INC., JO ANN ADAMS, HON. AVERN COHN

DWAYNE OLMSTEAD, RONALD WHEELER,

and NATHAN LOVE,

Defendants.

___________________________________/

ORDER DENYING PLAINTIFF’S RULE 60(B) MOTION

I. 

This was an employment case under the Uniformed Services Employment and

Reemployment Rights Act of 1994 (“USERRA” or “Act”), 38 U.S.C. § 43101 et seq. In

2008, plaintiff Charles Johnson, proceeding pro se and in forma pauperis, sued his

former employer, VGA Group, Inc. and several individuals (collectively “VGA”), claiming

his termination was in violation of USERRA. Johnson was employed for two months as

a driver to transport veterans to the VA Hospital in Detroit. Johnson sought an order

compelling VGA to rehire him and award him back-pay with interest. 

On March 19, 2009, the Court granted VGA’s motion for summary judgment and

dismissed the case. Doc. 44. Plaintiff did not appeal. 

On December 2, 2011, plaintiff filed the instant motion under rule 60(b),

essentially seeking to reverse the dismissal of his case. For the reasons that follow, the

motion is DENIED.

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II.

Fed. R. Civ. P. 60(b) provides in relevant part:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered

Evidence; Fraud, Etc. On motion and upon such terms as are just, the

court may relieve a party or a party's legal representative from a final

judgment, order, or proceeding for the following reasons: (1) mistake,

inadvertence, surprise, or excusable neglect; (2) newly discovered

evidence which by due diligence could not have been discovered in time

to move for a new trial under Rule 59(b); (3) fraud (whether heretofore

denominated intrinsic or extrinsic), misrepresentation, or other misconduct

of an adverse party; (4) the judgment is void; (5) the judgment has been

satisfied, released, or discharged, or a prior judgment upon which it is

based has been reversed or otherwise vacated, or it is no longer equitable

that the judgment should have prospective application; or (6) any other

reason justifying relief from the operation of the judgment. 

A motion under Rule 60(b) must be filed within a reasonable time and for reasons

under subsections (1), (2) and (3), “no more than one year after entry of the judgment or

order or the date of the proceedings.” Fed. R. Civ. P. 60(c). 

III.

Plaintiff has not satisfied this standard for Rule 60(b) relief. As an initial matter,

plaintiff filed this motion more than two (2) years after his case was dismissed. That is

not a reasonable time and plaintiff offers no explanation for the delay. Thus, the motion

may be denied on these grounds.

Regarding the substance of the motion, as best as can be gleaned from his

papers, he asserts that a Sixth Circuit decision, Petty v. Metropolitan Govt. of NashvilleDavidson County, 538 F.3d 431 (6th Cir. 2008), which was issued before his case was

dismissed, entitles him to relief. Plaintiff is mistaken. As explained in the summary

judgment order, plaintiff cannot make out a claim for discrimination in violation of

USERRA because he was not a member of the uniformed services at the time he

applied for employment. Rather, he is a former member of the uniform services,

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1

Plaintiff also appears to argue that he can bring a discrimination claim under

Michigan’s Elliot Larsen civil rights act and a claim under 42 U.S.C. § 1981. Plaintiff did

not allege either of these claims in his complaint and there are no grounds to allow him

to assert new claims at this time. 

honorably discharged from the Air Force in 1987. There was no evidence that

Johnson’s prior membership in the United States’ Air Force 21 years before VGA hired

him was a motivating factor in VGA’s decision to discharge him. Moreover, the decision

in Perry, which pertained to a serviceman’s claim seeking reinstatement to his prior

employment after completing his military service, simply does not apply to plaintiff’s

case.1

 

SO ORDERED.

Dated: December 30, 2011

 S/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to Charles H.

Johnson, 1410 Washington Blvd., Apt. 905, Detroit, MI 48226 and the attorneys of

record on this date, December 30, 2011, by electronic and/or ordinary mail.

 S/Julie Owens 

Case Manager, (313) 234-5160

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