Yeschick v. Mineta

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0096p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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GARY D. YESCHICK,
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Plaintiff-Appellant,
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No. 10-4151
v.
,
>
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NORMAN Y. MINETA, Secretary of

Defendant-Appellee. -
Transportation,
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N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:03-CV-2510—Lesley Brooks Wells, District Judge.
Decided and Filed: April 6, 2012
Before: SUHRHEINRICH, GIBBONS, and McKEAGUE, Circuit Judges.

_________________

COUNSEL
ON BRIEF: Gino Pulito, PULITO & ASSOCIATES, Elyria, Ohio, for Appellant.
Renee A. Bacchus, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for
Appellee.
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant Gary Yeschick
appeals the denial of his motion for relief from judgment brought pursuant to Federal
Rule of Civil Procedure 60(b). Yeschick sought relief from the district court’s grant of
summary judgment in favor of defendant-appellee Norman Mineta, the former Secretary
of the United States Department of Transportation (“Secretary”).1 Yeschick brought an

1
Mineta was sued in his official capacity. The current Secretary of Transportation, Ray LaHood,
is automatically substituted pursuant to Federal Rule of Appellate Procedure 43(c)(2).

1
No. 10-4151 Yeschick v. Mineta Page 2

age discrimination claim against the Secretary, who oversees operations of the Federal
Aviation Administration (“FAA”), alleging that the FAA violated the Age
Discrimination in Employment Act, 29 U.S.C. §§ 621–634, when it failed to rehire
Yeschick as an air traffic controller. Yeschick failed to respond to both the district
court’s motions deadline and the Secretary’s motion for summary judgment. After the
district court granted summary judgment in favor of the Secretary, Yeschick filed his
Rule 60(b) motion. Yeschick explained that his failure to respond to the summary
judgment motion was caused by his attorney’s failure to receive electronic notices of
case filings due to a change of his email address, and requested relief on the grounds of
excusable neglect. The district court denied the motion, citing an affirmative duty to
monitor the docket and maintain a current e-mail address, as well as the prejudice the
Secretary would suffer were the motion to be granted. For the following reasons, we
affirm.

I.

Yeschick worked as an air traffic controller for the FAA from 1974 until 1981.
In 1981, President Reagan imposed an indefinite bar on the FAA’s employment of
members of the Professional Air Traffic Controllers Organization (“PATCO”) who were
engaging in an unauthorized strike. Yeschick joined the strike and was terminated from
his position with the FAA pursuant to Reagan’s order. On August 12, 1993, President
Clinton issued an Executive Order that lifted the bar on employment, restoring FAA
employment eligibility to PATCO members who had gone on strike.

On October 7, 1993, Yeschick applied for reemployment with the FAA as an air
traffic control specialist. Shortly after applying for reemployment in 1993, Yeschick
moved from Stanford Avenue in Elyria, Ohio, to Denison Avenue in Elyria, Ohio, where
he lived for approximately three years before moving to his current residence in Grafton,
Ohio. Yeschick did not inform the FAA that the address used on his reemployment
application had changed. After reviewing Yeschick’s application, the FAA sent him a
copy of a Notice of Receipt of Application that included an instruction that the applicant
should inform the FAA of any changes to his or her application information. A 1995
No. 10-4151 Yeschick v. Mineta Page 3

letter sent to Yeschick regarding the employment opportunities for PATCO applicants
was returned to the FAA by the United States Postal Service with a notice that the
forwarding order had expired. In 2000, the FAA reviewed its list of PATCO
applications and eliminated from the list of eligible applicants those for whom no current
contact information was available. Yeschick’s application was identified as “inactive”
during this process and, as a result, Yeschick’s name was not included in referral lists
issued for the Cleveland Air Route Traffic Control Center (“ARTCC”), which Yeschick
listed as his primary choice for assignment. Yeschick was not rehired by the FAA. He
reported that he did not gain any further aviation experience between 1982 and 2000 and
did not keep up with any changes in FAA operations following his termination.

In October 2002, Yeschick filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”) alleging that he had been discriminated against
based on his age when the FAA failed to rehire him from the PATCO register. The
EEOC dismissed his complaint for untimeliness pursuant to 29 C.F.R. § 1614.107(a)(2),2
because although Yeschick applied to be rehired in 1993, he did not undertake any
follow-up action on his application until October 3, 2002, when he contacted the EEOC.
On appeal, the EEOC affirmed the dismissal, finding that Yeschick did not act with the
required diligence and that his delay was not justified.

Within ninety days of the adverse EEOC decision, on December 9, 2003,
Yeschick filed a complaint in the United States District Court for the Northern District
of Ohio alleging age discrimination in violation of the Age Discrimination in
Employment Act (“ADEA”) by the FAA.3 Yeschick alleged that he met all of the

2
29 C.F.R. § 1614.107(a)(2) provides that the EEOC shall dismiss a complaint “[t]hat fails to
comply with the applicable time limits contained in §§ 1614.105, 1614.106 and 1614.204(c), unless the
agency extends the time limits in accordance with § 1614.604(c), or that raises a matter that has not been
brought to the attention of a Counselor and is not like or related to a matter that has been brought to the
attention of a Counselor.” The time limitation pertinent to Yeschick’s case is set forth in 29 C.F.R.
§ 1614.105, which provides that prior to filing a complaint with the EEOC, an aggrieved person must
contact an EEO counselor in order to facilitate a potential informal resolution of the matter. The contact
with the EEO counselor is to be initiated within forty-five days of the alleged discrimination or personnel
action. See 29 C.F.R. § 1614.105(a).
3
Because Mineta was sued in his official capacity, and Yeschick alleges that the FAA failed to
rehire him in violation of the ADEA, the FAA is referred to as the defendant in this action.
No. 10-4151 Yeschick v. Mineta Page 4

requirements for employment as an air traffic control specialist but was not employed
because of his age—he was forty-two at the time of his application—despite the fact that
the FAA had open positions for controllers and open notices seeking applications for
such positions. In addition, Yeschick alleged that the FAA hired persons with equivalent
or lesser qualifications as air traffic control specialists, and that the FAA followed a
practice of refusing to hire persons over forty years of age for air traffic controller
positions.

On April 28, 2005, the FAA filed a motion to dismiss and, in the alternative, for
summary judgment, arguing that Yeschick lacked standing to sue, failed to exhaust his
administrative remedies, and could not prove a prima facie case of age discrimination.
The district court granted summary judgment for the FAA on the grounds that Yeschick
failed to timely exhaust his administrative remedies under 29 C.F.R. § 1614.105(a)
because his forty-five day period to initiate contact with an EEO counselor would have
run, at the latest, from the date his application was deemed inactive in 2000, but
Yeschick did not contact a counselor until 2002. The district court also considered the
merits of Yeschick’s ADEA claim and found that the FAA would be entitled to judgment
as a matter of law even if Yeschick had timely contacted an EEO counselor because a
failure-to-hire claimant must “demonstrate that his desire for employment was made
known to the employer.” The district court found instructive Williams v. Hevi-Duty
Electric Co., 819 F.2d 620, 627–30 (6th Cir. 1987), where this court held that a
company’s policy of only considering employment applications tendered within the prior
twelve months was not a “device to discriminate.” Because Yeschick “failed to proffer
evidence that he had a valid, active application for employment filed with the FAA at
the time the [FAA] is alleged to have discriminated against him,” the district court
concluded that he was unable to sustain his burden of establishing a prima facie case of
age discrimination.

Yeschick appealed the grant of summary judgment to this court, which found that
“viewing the facts in the light most favorable to Yeschick, . . . there is a genuine issue
of material fact as to whether he was an ‘active’ applicant after 2000.” Yeschick v.
No. 10-4151 Yeschick v. Mineta Page 5

Mineta, 521 F.3d 498, 506 (6th Cir. 2008). As a result, we found that Yeschick could,
at a minimum, challenge the FAA’s failure to hire him for one of the positions obtained
by a younger applicant in the forty-five days preceding his initiation of the
administrative complaint. Id. We then reversed the grant of summary judgment and
remanded the case to the district court. Id.

Proceedings before the district court resumed, and the FAA served its first set of
discovery requests on Yeschick on April 29, 2009. After Yeschick failed to respond to
repeated requests for his discovery responses, the FAA filed a motion to compel on
August 10, 2009. After receiving no discovery responses, the FAA filed a motion for
sanctions on September 30, 2009, requesting the district court dismiss with prejudice
Yeschick’s complaint under Federal Rules of Civil Procedure 37(d)(3), 37(b)(2)(A), and
41(b) for failure to prosecute. Also on September 30, 2009, the FAA filed a motion for
summary judgment arguing that (1) Yeschick could not show that his age was the “but-
for” cause of the decision to classify his application as inactive because the FAA had a
valid, non-age based reason for its decision to change the status of his application, (2) it
had legitimate, non-discriminatory reasons for preferring other applicants, and (3) the
equitable tolling and continuing violation doctrines were inapplicable to Yeschick’s
claim. Yeschick did not respond to the motion for summary judgment. Due to
Yeschick’s failure to respond, the district court relied upon the facts advanced by the
FAA and found that the FAA had presented “evidence that other hired individuals were
older than Mr. Yeschick, that individuals hired through the Veteran’s Readjustment Act
(“VRA”) and Mid America Resource Consortium (“MARC”) programs were not
similarly situated, and that the Manager of the FAA’s Oberlin facility, Richard Kettle,
possessed legitimate non-discriminatory preference for the VRA and MARC graduates.”
Accordingly, the district court held that Yeschick failed to establish that age was the
“but-for” cause of the adverse employment action and granted the FAA’s motion for
summary judgment on January 14, 2010.

On January 23, 2010, Yeschick filed a motion for relief from judgment pursuant
to Federal Rule of Civil Procedure 60(b)(1) and a motion for leave to respond to the
No. 10-4151 Yeschick v. Mineta Page 6

FAA’s motion for summary judgment on the grounds that his counsel failed to receive
notice of the filing of the motion until the district court’s judgment was docketed on
January 15, 2010. Yeschick argued that his failure to respond to the motion for summary
judgment was due to excusable neglect related to his counsel’s failure to receive notice
of case filings.

In the motion, Yeschick’s counsel, Gino Pulito, claimed that he did not receive
notice of filings in Yeschick’s case because his email address was terminated and
“ceased notification of e-mails . . . and had bounced all e-mails delivered after May 15,
2009.” Pulito’s original email address on file with the Clerk of Court was an “alltel.net”
email address. In 2009, all alltel.net email addresses became “windstream.net”
addresses. After May 15, 2009, all alltel.net email addresses stopped working. Pulito
alleged that he had no notice that the emails sent by the court clerk to his alltel.net email
address after May 15, 2009 were “bounced’ until he was notified by a client in an
unrelated case, Big Sky Drilling, Inc., et al. v. Center Capital Corporation, that the
opposing party had filed a position paper.4 Pulito then notified the Clerk of Court of his
correct email address and successfully received email notices after October 30, 2009.

In the Rule 60(b) motion, Pulito also asserted that he “had no notice from the
Clerk of Court of the failure of delivery of any e-mails to the ‘ginopulito@alltel.net’
address until December 28, 2009.” As a result, the first notice of any filing regarding
Yeschick’s case was received by Pulito on December 31, 2009, when a motion to
withdraw was filed by opposing counsel due to his impending retirement, and the first
notice received regarding the filing of the motion for summary judgment was the
Memorandum Opinion and Judgment filed by the district court on January 15, 2010.
Pulito also explained that his office staff did not inform the Clerk of Court of the email
change in May, nor did they check for any filings in pending cases.

4
Pulito asserted that “[a]s of the preparation of [the motion], the only notification of failed
delivery that has been received from the Clerk of Court is a notification in the Center Capital case.”
No. 10-4151 Yeschick v. Mineta Page 7

In response to the motion for relief from judgment, the FAA argued that the
failure to check the docket and keep apprised of the case’s status for a six month period
of time did not constitute excusable neglect sufficient to warrant relief from judgment.

On July 12, 2010, the district court denied Yeschick’s motion for relief from
judgment. The district court observed that “Courts in this Circuit have reiterated the
affirmative duty of monitoring a case’s docket, and denying excusable neglect where,
as here, it is evident that the lack of notice is the result of counsel’s own inaction in
failing to monitor the docket or review counsel’s current address” and found that
“Yeschick’s counsel has not demonstrated that he has established the excusable neglect
necessary to warrant relief from this Court’s judgment on the merits.” The district court
further noted that “Yeschick’s counsel was on notice in early July that the Defendant
was poised to file a motion to compel because [Yeschick] had not responded to any of
the Defendant’s interrogatory requests.” Given that Pulito also knew that discovery was
to close on September 15, 2009, and that dispositive motions were due on October 15,
2009, the district court found that it was “not reasonable for . . . counsel to assume there
were no filings in this case during that specific six-month period.” The district court also
found that the FAA would be prejudiced if Yeschick’s motion were granted. Yeschick
timely appealed from the denial of his Rule 60(b) motion.

II.

This court reviews a district court’s denial of a Rule 60(b) motion for relief from
judgment for an abuse of discretion. Jones v. Illinois Cent. R.R. Co., 617 F.3d 843, 850
(6th Cir. 2010). An abuse of discretion exists when a court “commits a clear error of
judgment, such as applying the incorrect legal standard, misapplying the correct legal
standard, or relying upon clearly erroneous findings of fact.” In re Ferro Corp.
Derivative Litig., 511 F.3d 611, 623 (6th Cir. 2008). Because Yeschick seeks relief from
the district court’s denial of his Rule 60(b) motion, “a review of the merits of [the
summary judgment] decision is not to be considered for the purposes of evaluating the
propriety of the Rule 60(b) denial.” Cacevic v. City of Hazel Park, 226 F.3d 483, 490
(6th Cir. 2000). Instead, our inquiry focuses on “whether one of the specified
No. 10-4151 Yeschick v. Mineta Page 8

circumstances exists in which [the movant] is entitled to reopen the merits of his
underlying claims,” id. (quoting Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 268
(6th Cir. 1998)), and our review is limited to whether the district court abused its
discretion in denying the Rule 60(b) motion. See Burnley v. Bosch Ams. Corp., 75 F.
App’x 329, 332 (6th Cir. 2003); Jinks v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir.
2001). The grant of “‘[r]elief under Rule 60(b) is circumscribed by public policy
favoring finality of judgments and termination of litigation.’” United States v. 2621
Bradford Drive, 369 F. App’x 663, 666 (6th Cir. 2010) (quoting Blue Diamond Coal Co.
v. Trs. of the UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 2001) (internal
quotation marks omitted)).

Rule 60(b) provides grounds for relief from a final judgment for enumerated
reasons, including “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ.
P. 60(b)(1). “In determining whether relief is appropriate under Rule 60(b)(1), courts
consider three factors: ‘(1) culpability—that is, whether the neglect was excusable;
(2) any prejudice to the opposing party; and (3) whether the party holds a meritorious
underlying claim or defense. A party seeking relief must first demonstrate a lack of
culpability before the court examines the remaining two factors.’” Flynn v. People’s
Choice Home Loans, Inc., 440 F. App’x 452, 457–58 (6th Cir. 2011) (quoting Gumble
v. Waterford Twp., 171 F. App’x 502, 506 (6th Cir. 2006)). Clients are held accountable
for their attorneys’ acts and omissions. McCurry v. Adventist Health Sys./Sunbelt, Inc.,
298 F.3d 586, 594–95 (6th Cir. 2002). “Thus, in assessing a claim of excusable neglect,
‘the proper focus is upon whether the neglect of [the parties] and their counsel was
excusable.’” Id. at 595 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 397 (1993)).

The Supreme Court has explained that for Rule 60(b) purposes, “excusable
neglect” includes “situations in which the failure to comply with a filing deadline is
attributable to negligence.” Pioneer, 507 U.S. at 394. In Pioneer Investment Services,
the Supreme Court set forth five factors for determining whether neglect is excusable:
“the danger of prejudice to [the non-moving party], the length of the delay and its
No. 10-4151 Yeschick v. Mineta Page 9

potential impact on judicial proceedings, the reason for the delay, including whether it
was within the reasonable control of the movant, and whether the movant acted in good
faith.” Id. at 395. We have previously considered Pioneer in the context of a Rule 60(b)
motion brought by plaintiffs asserting ADEA claims and emphasized that Pioneer
“focused entirely on ‘out-of-time’ filings” and “stands for the proposition that a district
court should consider the five factors . . . in cases where procedural default has
prevented the court from considering the true merits of a party’s claim.” Jinks, 250 F.3d
at 386.

Here, the district court did consider the merits of Yeschick’s ADEA claim when
it granted summary judgment for the FAA. As a result, although they may help to guide
the analysis of excusable neglect in this case, the Pioneer factors are not controlling. See
id. at 385-86 (affirming denial of 60(b) motion based on finding that motion lacked
supporting evidence and details necessary to substantiate movants’ claim that the illness
of a witness prevented timely filing of an affidavit and declining to engage in analysis
of Pioneer factors); Burnley, 75 F. App’x at 333 (noting that Pioneer factors are not
controlling and focusing on danger of prejudice to the other party); Cacevic, 226 F.3d
at 490–91 (affirming finding of inexcusable neglect for failure to respond to motion for
summary judgment where parties neglected procedural rules and failed to inform court
of any requested extensions informally agreed upon by the parties); Rice v. Consolidated
Rail Corp., 67 F.3d 300, 1995 WL 570911, at *6 (6th Cir. 1995) (unpublished table
decision) (“[T]hese factors are relied on by courts faced with default judgments, not in
cases where relief is requested from a grant of summary judgment, a decision based on
the merits of an action.”).

III.

The district court held that Yeschick’s counsel’s neglect in not checking the
docket was not excusable. We have previously found that parties have an affirmative
duty to monitor the dockets to keep apprised of the entry of orders that they may wish
to appeal. See Kuhn v. Sulzer Orthopedics, Inc., 498 F.3d 365, 370–71 (6th Cir. 2007);
Reinhart v. U.S. Dep’t of Agric., 39 F. App’x 954, 956–57 (6th Cir. 2002). Now that
No. 10-4151 Yeschick v. Mineta Page 10

electronic dockets are widely available, the burden imposed by this affirmative duty is
minimal. Attorneys may monitor the docket from the comfort of their offices; they
simply need to log-on to the CM/ECF system from a computer. Kuhn, 498 F.3d at 371.
Further, email notification of docket activity is often available to assist attorneys in
monitoring their cases. Regardless of the method of communication utilized (posted
mail or email), it is the party, not the court, who bears the burden of apprising the court
of any changes to his or her mailing address. See Casimir v. Sunrise Fin., Inc., 299 F.
App’x 591, 593 (7th Cir. 2008) (affirming district court’s denial of Rule 60(b) motion
where movants claimed they did not receive mail informing them of court’s entry of
summary judgment due to house fire); Soliman v. Johanns, 412 F.3d 920, 922 (8th Cir.
2005) (“[A] litigant who invokes the processes of the federal courts is responsible for
maintaining communication with the court during the pendency of his lawsuit.”); Watsy
v. Richards, No. 86-1856, 816 F.2d 683, 1987 WL 37151, at *1 (6th Cir. 1987)
(unpublished table decision) (affirming dismissal for failure to prosecute where appellant
failed to provide district court with “current address necessary to enable communication
with him”). Thus, after an email address change or migration, just as with a change of
physical address, a party must inform the court of his or her updated contact information
if he wishes to receive notices of electronic filing. However, we emphasize that
regardless of whether email notifications are received, parties continue to have a duty
to monitor the court’s docket. Kuhn, 498 F.3d at 370–71.

Here, Yeschick’s counsel did not receive notice of the electronic filings in
Yeschick’s case because he failed to update his email address on file with the district
court. Further, he did not check the docket in Yeschick’s case until more than a month
after he learned (via communications regarding the unrelated Big Sky Drilling case) that
his email address was no longer working. Even looking beyond the basic duty to
monitor the docket, the notice provided to Yeschick’s counsel about the problems with
his email address in connection with the unrelated case should have “g[iven] him at least
some indication that action might have been taken in [Yeschick’s] case.” Reinhart, 39
F. App’x at 956. In addition, Yeschick’s counsel had notice that filings in the case were
to be expected if he failed to respond to the FAA’s discovery requests and was also
No. 10-4151 Yeschick v. Mineta Page 11

aware of the discovery cut-off date and the deadline for dispositive motions, which came
and went in the almost six months during which he did not check the docket.

Yeschick argues that it is not equitable to deny his motion for relief from
judgment because “the termination of the email address was not precipitated by counsel
but rather by a third party.” However, the email address termination is not the proximate
cause of Pulito’s failure to receive notice of the filings in the case. Pulito was alerted by
Alltel that his email address would be migrating to Windstream, yet he failed to take the
necessary steps to update his email address on file with the court. Further, as noted
above, Pulito discovered that he was not receiving electronic notices about case filings
in relation to the Big Sky case but failed to check if he had missed any filings in
Yeschick’s case, despite his awareness that motions were expected in the case. Pulito
also received notice at the end of December 2009 that his Alltel email address was not
working when the court clerk sent him a message about a bounced email.

We have previously affirmed a district court’s denial of a Rule 60(b) motion for
relief from the entry of a default judgment where the movant’s failure to answer the
complaint was due to its failure to read mail sent to a company drop box in a timely
manner, and the company’s mail policy failed to protect against mail going unread for
long periods of time, despite the fact that the mail procedure was within the company’s
control. Tri-Corner Invs. LLC v. First Defense Int’l Grp., Inc., 361 F. App’x 629, 632
(6th Cir. 2010) (affirming denial of motion to set aside a default judgment after finding
that the district court properly balanced the Pioneer factors). Here, the ability to update
his contact information on file with the court was within Pulito’s control, as was the
ability to access the electronic docketing system directly in order to monitor Yeschick’s
case for new filings. Moreover, we have held that gross carelessness or inadvertent
conduct that results in judgment will not give rise to a successful claim of excusable
neglect if the facts demonstrate a lack of diligence. See B&D Partners v. Pastis, No. 05-
5954, 2006 WL 1307480, at *3 (6th Cir. May 9, 2006) (citing 12 Moore’s Federal
Practice § 60.41[1][c][ii] (3d ed. 2005)). Given that Yeschick’s counsel: (1) knew that
his email address changed from alltel.net to windstream.net; (2) was aware that he was
No. 10-4151 Yeschick v. Mineta Page 12

not receiving notice of electronic filings in other cases and that motions were expected
in Yeschick’s case; (3) failed to diligently update his e-mail address; and (4) failed to
monitor the docket in Yeschick’s case for filings between May 2009 and January 2010,
we also find a lack of the diligence required to make out a successful claim of excusable
neglect.

The prejudice that would be suffered by the FAA if Yeschick’s Rule 60(b)
motion were granted further counsels against a finding of excusable neglect. Prejudice
suffered by the party opposing the motion for relief from judgment due to expenditure
of resources on discovery and filing a motion for summary judgment, which has been
decided on the merits, weighs in favor of finding that attorney oversight constituted
inexcusable neglect, even when good faith is found. See Burnley, 75 F. App’x at 333.
By the time the district court entered summary judgment in its favor, the FAA had been
defending against Yeschick’s ADEA claim for more than six years and had necessarily
expended resources in preparing and filing its second motion for summary judgment.

In sum, given the authorities endorsing an affirmative duty to monitor the
electronic docket, the notice Yeschick’s counsel had about the problems with the Alltel
email address, the length of time that elapsed before Yeschick’s counsel checked the
docket or took action to correct his email address, and the time and resources already
expended by the FAA in defending against Yeschick’s claim, Yeschick’s failure to
respond to the motion for summary judgment does not constitute excusable neglect.
Yeschick has failed to demonstrate that the “facts of [his] case are within one of the
enumerated reasons contained in Rule 60(b) that warrant relief from judgment.” Lewis
v. Alexander, 987 F.2d 392, 396 (6th Cir. 1993). As a result, the district court did not
abuse its discretion in denying Yeschick’s Rule 60(b) motion for relief from judgment.

IV.

Yeschick also seeks relief from the district court’s order granting summary
judgment to the FAA. Yeschick argues that in granting summary judgment to the FAA
the district court erred and violated the law of the case as set forth in our prior decision,
Yeschick v. Mineta, 521 F.3d 498 (6th Cir. 2008).
No. 10-4151 Yeschick v. Mineta Page 13

A.

We review a district court’s grant of summary judgment de novo. Provenzano
v. LCI Holdings, Inc., 663 F.3d 806, 811 (6th Cir. 2011). Summary judgment is
appropriate if the moving party shows that there is no genuine issue of material fact in
dispute and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). A genuine issue of material fact exists “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). When considering a motion for summary judgment, we must
draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When considering an
unopposed motion for summary judgment, we determine de novo whether the facts as
presented by the movant establish that the movant met its initial burden under Rule 56.
Cacevic, 226 F.3d at 491.

The ADEA prohibits an employer from failing or refusing to hire any individual
because of such individual’s age. 29 U.S.C. § 623(a)(1). A plaintiff may establish a
violation of the ADEA through the use of direct or circumstantial evidence. Provenzano,
663 F.3d at 811. Age discrimination claims based on circumstantial evidence are
governed by the three-step framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Geiger v. Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009). In the first step,
the plaintiff employee must establish a prima facie case of discrimination; if this burden
is met, the employer must respond by articulating a legitimate, nondiscriminatory reason
for the challenged adverse employment action. See McDonnell Douglas, 411 U.S. at
802. If the employer meets its burden, then the plaintiff must rebut the proffered reason
by showing that it was pretext intended to mask discrimination. Id. at 804. All ADEA
plaintiffs must carry the burden of persuasion and demonstrate that age was the “but-for”
cause of the adverse employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
129 S. Ct. 2343, 2350 (2009).

After reviewing the record, we believe that the FAA met its burden under Rule
56, so that the district court’s grant of summary judgment to the FAA was proper. See
No. 10-4151 Yeschick v. Mineta Page 14

Cacevic, 226 F.3d at 491–92; see also Guarino v. Brookfield Twp. Trs., 980 F.2d 399,
407 (6th Cir. 1992) (district court correctly relied on evidence designated by defendants
in their unopposed motion for summary judgment). In its second motion for summary
judgment, the FAA attached additional depositions which established that the FAA had
legitimate, nondiscriminatory reasons for hiring air traffic controllers for the Cleveland
ARTCC who graduated from the MARC program or through the VRA. These reasons
included the specialized knowledge and relevant experience those applicants possessed,
knowledge and experience which Yeschick lacked. Furthermore, the district court
correctly found that, on the record before it, Yeschick had not carried his burden of
demonstrating that age was the “but-for” cause of the FAA’s failure to hire him, as he
was required to under Gross, 129 S. Ct. at 2352. The FAA put forth evidence indicating
that Yeschick’s application was designated “inactive” because he did not have current
contact information on file. Further, the FAA showed that applications from older
applicants remained active in the PATCO pool following the review of applications in
2000. Thus, the district court did not err in granting summary judgment.

B.

Yeschick argues that by granting summary judgment to the FAA, the district
court failed to apply the law of the case because the second motion for summary
judgment filed by the FAA is substantially similar to the first motion for summary
judgment filed, granted, and appealed to this court. Yeschick asserts that the factual
issues presented in the second motion for summary judgment have thus already been
addressed by this court and therefore the factual findings made by the district court in
granting summary judgment to the FAA were made in contravention of the law of the
case.

The doctrine of the law of the case governs cases which involve successive
rulings by coordinate courts in the same case. This doctrine “precludes reconsideration
of issues decided at an earlier stage of the case.” Caldwell v. City of Louisville, 200 F.
App’x 430, 433 (6th Cir. 2006) (citation omitted); see also Moses v. Business Card Exp.,
Inc., 929 F.2d 1131, 1137 (6th Cir. 1991) (“‘[W]hen a court decides upon a rule of law,
No. 10-4151 Yeschick v. Mineta Page 15

that decision should continue to govern the same issues in subsequent stages in the same
case.’” (quoting Arizona v. California, 460 U.S. 605, 618 (1983))). An issue that has
been decided by the reviewing court on the merits and is outside the scope of remand
becomes the law of the case. See Saqr v. Holder, 580 F.3d 414, 420 (6th Cir. 2009). To
determine whether a district court violated the law of the case doctrine, this court
considers: “a) whether the [ ] issue was expressly or impliedly decided by this court in
[the first appeal], and b) whether this court’s mandate to the district court was so narrow
in scope as to preclude the district court from considering the [ ] issue.” Waste Mgmt.
of Ohio, Inc. v. City of Dayton, 169 F. App’x 976, 986 (6th Cir. 2006) (internal quotation
marks omitted).

During Yeschick’s prior appeal, in regard to the district court’s exhaustion
finding that grounded its initial grant of summary judgment, we court found that
“viewing the facts in the light most favorable to Yeschick . . . there is a genuine issue of
material fact as to whether he was an ‘active’ applicant after 2000.” Yeschick v. Mineta,
521 F.3d 498, 506 (6th Cir. 2008). We reversed and remanded to the district court
noting that, at a minimum, Yeschick could challenge his failure to obtain a controller
position that a younger applicant was hired for in the forty-five days prior to his filing
of his administrative complaint. Id. We also found that because the district court’s
decision was based on its exhaustion finding, remand was necessary “to determine in the
first instance whether Yeschick meets the remaining elements of the prima facie case.”
Id.

Yeschick’s law of the case argument is without merit. The district court
followed the mandate on remand and assessed whether Yeschick could meet the
elements of a prima facie case of age discrimination under the ADEA. In its second
motion for summary judgment, the FAA argued that Yeschick failed to engage in any
further discovery going to the merits of his complaint, that he could not establish that age
was the but-for cause of the classification of his application as inactive as required under
Gross, 129 S. Ct. at 2351, and that affidavits submitted in support of the motion
demonstrated that the FAA had a legitimate, nondiscriminatory reason for not selecting
No. 10-4151 Yeschick v. Mineta Page 16

Yeschick. Yeschick offered no response to the motion. In our prior decision, we did not
explicitly or impliedly decide that Yeschick could meet the elements of a prima facie
case or that the FAA could not establish a legitimate, nondiscriminatory reason for not
selecting Yeschick. The district court’s decision does not conflict with the law of the
case as decided explicitly or implicitly by this court during Yeschick’s prior appeal. The
district court properly considered the FAA’s motion for summary judgment, which
included supporting affidavits, the FAA’s citation to new controlling Supreme Court
precedent regarding the applicable causation standard for ADEA claims, and the absence
of a response from Yeschick.

V.

For the foregoing reasons, we affirm the judgment of the district court.