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In a case of procedural ping-pong, a federal judge has vacated an order reopening an employment action against a division of Mitsubishi, instead giving the plaintiff an opportunity to challenge a previous ruling that dismissed the case without prejudice.

U.S. District Chief Judge Joy Flowers Conti of the Western District of Pennsylvania granted Mitsubishi Electric Power Products’ motion for reconsideration of the court’s order reopening plaintiff Nathanael M. Nyamekye’s employment discrimination case.

Nyamekye, who is black, alleged that his white supervisor harassed him and subjected him to harsh discipline for not showing up to work. Nyamekye claimed he was out on Family and Medical Leave Act absence and that he called in multiple times to let the supervisor know, according to his complaint.

The plaintiff also alleged that the supervisor regularly made abusive comments toward him, including, “We don’t fucking pay you to be lazy,” and, “I’m going to get you fired,” according to the complaint.

Nyamekye’s lawyers ultimately dropped out of the case because “counsel became aware of certain facts that [led] them to believe that it would be unethical for them to continue to represent plaintiff in this matter,” according to their motion to withdraw. The court then issued an order to show cause in which it asked Nyamekye whether he intended to proceed pro se or with representation. He did not respond and the case was dismissed Jan. 2 without prejudice.

On Jan. 31, however, the court granted a request by Nyamekye’s new lawyer to reopen the case.

Mitsubishi argued that the motion to reopen the case was improperly decided because the Jan. 2 ruling dismissing the case without prejudice was not a final order or judgment.

The company also argued that “it would be a manifest injustice to [require] it to litigate this case without providing defendant the opportunity to respond to the motion to reopen case,” Conti said.

Conti agreed, saying that while the Jan. 2 ruling dismissing the case without prejudice precluded Nyamekye from refiling his wrongful termination claim under the FMLA, which was time-barred, the ruling did not preclude him from refiling his discrimination and retaliation claims under 42 U.S.C. Section 1981. Therefore, the Jan. 2 ruling was not a final order or judgment and Nyamekye’s petition to reopen the case was procedurally improper.

“Reconsideration of the court’s order dated Jan. 31, 2018, granting plaintiff’s motion to reopen this case is warranted. The court’s order dated Jan. 2, 2018, dismissing this action without prejudice was not a final order,” Conti said in an Aug. 16 opinion and order. “Plaintiff, therefore, was not entitled to relief, i.e., the reopening of this case, under [Federal Rule of Civil Procedure] 60(b). The order dated Jan. 31, 2018, will be vacated, and the motion to reopen case will be denied.”

Conti instead gave Nyamekye 10 days from the entry of the Aug. 16 order to ask for reconsideration of the Jan. 2 ruling dismissing the case without prejudice. Mitsubishi will then have 10 days from the filing of such a motion to respond, Conti said.

Lanre Kukoyi of Carnegie represents Nyamekye and Elaina Smiley of Meyer, Unkovic & Scott in Pittsburgh represents Mitsubishi. Neither responded to requests for comment.