United States District Court, S.D. Florida
JIMMY R. SANCHEZ, JR., Plaintiff,
CITY OF PEMBROKE PINES, FLORIDA, Defendant.
ORDER GRANTING MOTION FOR RECONSIDERATION
BLOOM, UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Plaintiff's
Motion for Reconsideration, ECF No.  (“the
Motion”). In its Motion, Plaintiff argues that genuine
issues of material fact regarding the clarity of the
City's rehiring procedures preclude summary judgment as
to Plaintiff's failure to rehire claims under the FMLA
and ADA. See ECF No.  at 2. In opposition, the
City argues that the authority cited by Plaintiff is
distinguishable from the undisputed facts presented by the
parties on summary judgment. See ECF No.  at
4-7. The Court has carefully reviewed the Motion, all
opposing and supporting materials, the record in this case
and the applicable law, and is otherwise fully advised. For
the reasons set forth below, the Motion is granted.
motion for reconsideration requests the Court to grant
“an extraordinary remedy to be employed
sparingly.” Burger King Corp. v. Ashland Equities,
Inc., 181 F.Supp.2d 1366, 1370 (S.D. Fla. 2002). A party
may not use a motion for reconsideration to “relitigate
old matters, raise argument or present evidence that could
have been raised prior to the entry of judgment.”
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957
(11th Cir. 2009) (quoting Michael Linet, Inc. v.
Village of Wellington, Fla., 408 F.3d 757, 763 (11th
Cir. 2005)). “This prohibition includes new arguments
that were ‘previously available, but not pressed.'
” Id. (quoting Stone v. Wall, 135
F.3d 1438, 1442 (11th Cir. 1998) (per curiam) (motion to
alter judgment properly denied where plaintiffs waited until
after case was dismissed to raise argument that Virginia law
applied, rather than Florida law).
this framework, however, a court may grant reconsideration
when there is (1) an intervening change in controlling law,
(2) the availability of new evidence, and (3) the need to
correct clear error or prevent manifest injustice. See
Hood v. Perdue, 300 Fed. App'x. 699, 700 (11th Cir.
2008). Thus, a motion to reconsider is “appropriate
where, for example, the Court has patently misunderstood a
party, or has made a decision outside the adversarial issues
presented to the Court by the parties, or has made an error
not of reasoning but of apprehension.” Kapila v.
Grant Thornton, LLP, No. 14-61194-CIV, 2017 WL 3638199,
at *1 (S.D. Fla. Aug. 23, 2017) (quoting Z.K. Marine Inc.
v. M/V Archigetis, 808 F.Supp. 1561, 1563 (S.D. Fla.
1992) (internal quotation marks omitted).
reconsideration, Plaintiff argues that the Court improperly
credited Defendant's assertion that the City maintained a
formal and clear process through which Plaintiff could have
sought rehire over Plaintiff's assertion that he was
given insufficient information regarding the rehiring
process. ECF No.  at 5-6. In support of this argument,
Plaintiff brings to the Court's attention-for the first
time-several Eleventh Circuit opinions which control the
sufficiency of a failure to rehire claim where the employee
never applied for the position in question. Id. at
2. These cases outline two exceptions to the general rule
that to survive summary judgment, a plaintiff must
demonstrate that he or she applied for the position that is
the subject of the failure to rehire claim: the
“informal processes” exception and the
“futile gesture” exception. See Williams v.
VWR Int'l, LLC, 685 F. App'x 885, 888 (11th Cir.
2017). Plaintiff argues that both exceptions apply to the
facts here and that the Court should reverse its grant of
summary judgment as to the rehire claims.
Eleventh Circuit has held that a hiring process advertising
available positions only by “word of mouth” falls
into the “informal process” exception, while jobs
posted on a third party website but not an intra-company
website in violation of company policy, do not fall into that
exception. Cf. Carmichael v. Birmingham Saw Works,
738 F.2d 1126, 1133 (11th Cir. 1984) (noting that open
positions were advertised based on “word of
mouth”) and Cox v. Am. Cast Iron Pipe
Co., 784 F.2d 1546, 1560 (11th Cir. 1986) (“The
record indicates that the defendant did use informal
application procedures.”) with Williams v. VWR
Int'l, LLC, 685 Fed.Appx. 885, 888 (11th Cir. 2017)
(finding Plaintiff did not fall into the “informal
process” and the “futile gesture”
exceptions). Here, the parties disagree about what steps
Plaintiff was required to take to be rehired. ECF No.  at
14-16. For example, Chief Picarello testified at his
deposition as follows:
Q: Okay. So just, I guess to get an understanding, if Jimmy
Sanchez was to have been rehired, he would have had to do all
the same exact training, same exact testing as a brand new
Q: Okay. And would that be even though the fact that he was
being rehired was due to a provision under the Collective
Q: Okay. Now, my question to you now is, did this department
have any type of protocols to be able to deal with a
situation that specifically fell for this clause?
ECF No. [51-2] at 6. Chief Hernandez also ...