United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER, [Resolving ECF No.
Y. Pearson United States District Judge
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 and the applicable law. For the reasons
set forth below, the Court denies the motion as substantively
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).
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.
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.
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
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.
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).
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).
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