Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gong v. The Cleveland Clinic Foundation

United States District Court, N.D. Ohio, Eastern Division

February 9, 2018

YUSONG GONG, Plaintiff,
v.
THE CLEVELAND CLINIC FOUNDATION, INC., et al., Defendants.

          MEMORANDUM OF OPINION AND ORDER, [Resolving ECF No. 14 ]

          Benita Y. Pearson United States District Judge

         Pending is Pro Se Plaintiff Yusong Gong's Motion for Case [Reinstating] [ECF No. 14], filed over two months after the dismissal of the above-entitled action. The Court has been advised, having reviewed the record, the parties' briefs[1] and the applicable law. For the reasons set forth below, the Court denies the motion as substantively without merit.

         I. Background

         Plaintiff was hired by Defendant The Cleveland Clinic Foundation, Inc. (“CCF”) in September 2012 as a senior research technologist. Her employment at CCF was terminated on August 11, 2013 allegedly “in retaliation for [ ] having asserted [her] rights [to an accommodation based on her work restrictions].” Complaint (ECF No. 1) at PageID #: 4, ¶ 23. Plaintiff contacted the Equal Employment Opportunity Commission (“EEOC”), which had her complete an intake questionnaire (ECF No. 10-1) on May 9, 2014. Thereafter, Plaintiff filed a formal Charge (ECF No. 8-1 at PageID #: 63) with the EEOC on July 14, 2014. She subsequently received a right to sue letter, dated July 29, 2016 (ECF No. 1-1).

         On October 26, 2016, Plaintiff filed a Complaint (ECF No. 1) that alleged she was unlawfully discriminated against by CCF, as well as Individual Defendants Dr. Myshrall and Ms. Dybiec, in violation of two statutes. The first is Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111, et seq.The second is Section 504 of the Rehabilitation Act (“Rehabilitation Act”), 29 U.S.C. § 794.

         On January 31, 2017, the Court granted Defendants' Motion to Dismiss (ECF No. 8) pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Memorandum of Opinion and Order (ECF No. 12). The Court held: (1) Plaintiff's ADA claims were time-barred, ECF No. 12 at PageID #: 112-14; (2) Plaintiff's Rehabilitation Act claims were time-barred and failed as a matter of law, ECF No. 12 at PageID #: 114-15; and, (3) Plaintiff could not state a claim against the Individual Defendants, ECF No. 12 at PageID #: 115-16. Plaintiff did not pursue a direct appeal to the United States Court of Appeals for the Sixth Circuit.

         II. Analysis

         The instant motion does not specify the Rule by which Plaintiff seeks relief. It also addresses only the dismissal of Plaintiff's ADA claims as time-barred. Plaintiff does not mention the dismissal of her Rehabilitation Act claims or the Court's prior holding that she cannot state a claim against the Individual Defendants. The motion sets forth three (3) arguments. First, a letter dated March 15, 2017 from “Connie Davis for Cheryl J. Mabry, Director Cleveland Field Office” for the EEOC (ECF No. 14-1) apparently is “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).” Fed.R.Civ.P. 60(b)(2). Second, Plaintiff makes unspecified and unsubstantiated allegations of misrepresentation on the part of Defense counsel and the Court.Third, the motion makes a passing reference to the EEOC's refusal to continue investigating her charge. The latter two arguments are lacking in merit. The Court will now address the first argument.

         Plaintiff previously argued that her charge was deemed filed by her May 9, 2014 submission of an EEOC intake questionnaire (ECF No. 10-1). Memorandum in Opposition (ECF No. 10) at PageID #: 68. The March 2017 letter from Connie Davis at the EEOC states, in pertinent part:

your charge was timely filed with the EEOC. You filed your charge on May 9, 2014, with a date of violation of August 11, 2013 (the date you were discharged) which is within 300 days of the statute of limitations for filing a charge.

ECF No. 14-1.[2]

         Fed. R. Civ. P. 59(e) provides “[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” Generally, when a party files a “motion to reconsider” a final order or judgment within 28 days of its entry, the motion is to be construed as a motion to alter or amend judgment pursuant to Rule 59(e). See, e.g., Inge v. Rock Financial Corp., 281 F.3d 613, 617 (6th Cir. 2002). As in the case at bar, when the party does not file the motion for reconsideration within the 28-day period authorized for filing a Rule 59(e) motion, “it is appropriate for a court to consider the motion as a motion pursuant to Rule 60 for relief from judgment.” Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 268 (6th Cir. 1998).

         Here, the instant motion was filed over two months after the dismissal of the above-entitled action well beyond the 28-day period authorized for filing a Rule 59(e) motion. Pursuant to Fed.R.Civ.P. 6(b)(2), a court “must not extend the time to act” under Rule 59(e). Accordingly, the Court must construe the motion as a Rule 60(b) motion for relief from a judgment or order. See Cook v. United States, 246 Fed.Appx. 990, 995 (6th Cir. 2007).

         “Newly discovered evidence” for motions under Fed.R.Civ.P. 59 or 60(b)(2) must relate to evidence that existed at the time final judgment was entered. Davis by Davis v. Jellico Cmty. Hosp., Inc., 912 F.2d 129, 136 (6th Cir. 1990). Plaintiff asks the Court to reconsider the decision set forth in its January 31, 2017 Memorandum of Opinion and Order (ECF No. 12). However, the newly discovered evidence the letter, dated March 15, 2017, from “Connie Davis for Cheryl J. Mabry, Director Cleveland Field Office” for the EEOC (ECF No. 14-1) does not relate to evidence that existed at the time of that order. Rather, it relates to evidence that came into existence six weeks later. See Satyam Computer Servs., Ltd. v. Venture Global Eng'g, LLC, 323 Fed.Appx. 421, 428 (6th Cir. 2009) (finding a Rule 60(b)(2) motion failed as matter of law because letters relied upon did not exist at time of trial and, therefore, were not “newly discovered evidence”); McFall v. Patton, No. 99-5709, 2000 WL 1721043, at *2 (6th Cir. Nov. 8, 2000) (“The alleged evidence was evidence that came into existence after judgment was entered and this does not qualify as ‘newly discovered evidence' under Rule 60(b)(2).”). Moreover, to overcome the extremely difficult burden before the Court can grant relief under Rule 60(b)(2), the newly discovered “evidence must be admissible and credible, and must be of such a material and controlling nature as will probably change the outcome, not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.