MICHAEL P. SHEA, District Judge.
Hailee R. DeSouza ("DeSouza") brings this suit
Park West moved for summary judgment on all counts. (ECF No. 128). I granted the motion in part, but denied it with respect to the portion of DeSouza's retaliation claims under the FHA concerning Park West's filing of an affidavit of noncompliance in March 2015 (Counts 1, 2, 3, 6). Now before me is Park West's motion for reconsideration (ECF No. 162), and what I construe as a motion for reconsideration filed by DeSouza (ECF No. 163; ECF No. 164). For the reasons that follow, Park West's motion for reconsideration is granted and DeSouza's motion is denied.
DeSouza is a tenant of Park West and has been for approximately thirteen years. In January 2014, he attained a position as a senior project engineer in Texas—he would remain in this position until April 2014. Given the change in his income upon attaining this position, DeSouza had to complete an interim recertification to retain his Section 8 subsidy. The parties disagreed regarding whether DeSouza complied with this requirement. While Park West contended that DeSouza failed to complete this process, DeSouza maintained that he had complied by reporting his new income. Park West subsequently issued DeSouza a Notice to Quit on April 22, 2014, for failing to complete the recertification process. On June 12, 2014, DeSouza received an eviction notice for failing to complete the recertification process in violation of his lease.
The parties mediated the matter with a housing court mediator on August 29, 2014, resulting in the execution of a Stipulated Agreement ("Agreement") providing, among other things, that DeSouza agreed to complete the recertification process. (See ECF No. 130-8, Exhibit H, at 2 ("Stipulated Agreement").) The Agreement also provided that "[b]oth parties shall be respectful and courteous to one another." (Id.) The parties' subsequent meeting to complete the recertification process went poorly. During the meeting, Park West staff asked DeSouza several times whether he was recording them. He refused to answer. Park West staff subsequently asked DeSouza to leave. Park West then filed an affidavit of non-compliance with the Stipulated Agreement documenting the incident. A hearing was held in Connecticut Superior Court, but the judge never issued an order on the matter.
In December 2014, DeSouza was served with a notice of intent to remove subsidy based on information received by Park West demonstrating that he was making $69 per hour in a new job. Despite this notice, DeSouza refused to pay the market rent for his apartment. On February 26, 2015, as the parties' dispute over this matter was unfolding, Park West manager Kim Doughtie sent an email to Park West Attorney Neil Paul stating as follows:
(ECF No. 88-2 at 3) The remainder of the email chain contained in the document at issue did not shed light upon the context for this email. A few weeks later, Park West filed a second affidavit of noncompliance with the Stipulated Agreement on March 11, 2015. In the affidavit, Park West avers that DeSouza's use of discourteous language directed toward itself and Doughtie violated the portion of the Stipulated Agreement requiring the parties to be courteous to one another. (See ECF No. 130-17 at 2, Exhibit Q, Affidavit of Noncompliance ("Second Affidavit of Noncompliance").) Park West noted in the affidavit that DeSouza had used various epithets to refer to it and had, amongst other discourtesies, compared Ms. Doughtie to Charles Manson and Susan Smith, a woman who had drowned her two young children in South Carolina. (See id.) A Connecticut Superior Court judge subsequently held hearings on the matter and concluded that DeSouza had an obligation to pay market rent for his apartment for those months he was employed. The judge concluded that Park West had failed to prove any other infractions of the Stipulated Agreement by a preponderance of the evidence. DeSouza ultimately paid his arrearage to Park West in July 2015 and has continued to live in his apartment since that time.
DeSouza filed various complaints with the Department of Housing and Urban Development ("HUD") during the events described above. On February 18, 2014, he filed a complaint with HUD offices in Washington, DC, and Boston, Massachusetts. The complaint recounted a variety of DeSouza's disputes with Park West staff, alleging among other things that Park West management had informed him that they wanted him to leave his apartment. DeSouza sent another copy of his HUD complaint to HUD's Washington and Boston offices on March 18, 2014. He mailed a document containing three questions concerning Park West's alleged malfeasance to various HUD offices on April 23, 2014. The parties disputed whether Park West had notice of the February and March complaints at the time they were filed. DeSouza filed four or five more complaints with HUD and various other parties between October 8, 2014, and October 11, 2014, averring that Park West had violated his right to privacy by informing other tenants about the eviction proceedings against him.
On June 14, 2018, I issued a ruling on Park West's motion for summary judgment. (ECF No. 160 ("SJ Ruling").) I granted Park West's motion with respect to the majority of DeSouza's claims but rejected it with respect "to the portion of DeSouza's retaliation claims under the FHA concerning Park West's filing of an affidavit of noncompliance in March of 2015 (Counts 1, 2, 3, 6). (Id. at 2.) I concluded that these latter claims survived due to the February 26, 2015 email from Ms. Doughty to Attorney Paul quoted above. (Id. at 27.) In particular, I noted that Doughtie's statement that she was "hoping that [Attorney Paul] can get [DeSouza] evicted" suggested "that she wished DeSouza to be evicted as a general matter rather than as a result of specific misconduct on his part." (Id. (internal quotation marks omitted).) I concluded that this email raised an inference of retaliation given that Park West filed a second affidavit of non-compliance with the Stipulated Agreement a few weeks after the email was sent. (Id. at 27, 30.) I concluded that "[w]hile the email does not mention DeSouza's filing or prior HUD complaints, it does, when viewed in the light most favorable to DeSouza, raise a genuine issue of material fact concerning whether Ms. Doughtie wanted DeSouza evicted at least in part on the basis of his prior HUD complaints." (Id. at 30 (internal citation omitted).)
On June 21, 2018, Park West filed a motion for reconsideration of the Court's order. (ECF No. 162.) A few days later, DeSouza filed a document entitled "Plaintiff, Appeal Motion for Consideration to Court Summary Judgment Ruling and Request Full Court Hearing [sic]." (ECF No. 163.) Although the document is styled as a "Response re . . . Motion for Reconsideration" on the docket, it is dated June 1, 2018, and makes no mention of Park West's motion for reconsideration.
A motion for reconsideration "is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a `second bite at the apple' . . . ." Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012), as amended (July 13, 2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)). Instead, "the standard for granting [a motion for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also D. Conn. L. R. 7(c)(1) ("[Motions for reconsideration] will generally be denied unless the movant can point to controlling decisions or data that the court overlooked in the initial decision or order.").
Park West's motion for reconsideration rests upon an explanation for the Doughtie email referenced above. (See ECF No. 162-1 at 1.) In particular, Park West avers that the document Doughtie referred to in her email (see ECF No. 88-2 at 3 (discussing a letter "delivered about 15 minutes ago" by DeSouza)) was a motion dated February 23, 2015 and filed by DeSouza in state court accusing her of committing a hit and run. (ECF No. 162-1 at 2-3.) The motion, which was filed in the ongoing housing action between Park West and DeSouza in state court, begins as follows:
(ECF No. 162-2, Exhibit A ("DeSouza Motion") at 2.)
Doughtie's email clearly constitutes a response to DeSouza's February 23, 2015 motion. Notably, the email states that a communique delivered by DeSouza was comprised of "untrue slander" and wrongly accused Doughtie of having taken part in a "hit and run." (ECF No. 88-2 at 3.) The email begins with the statement that DeSouza had "hand delivered" her a "letter"
I therefore grant Park West's motion for reconsideration.
DeSouza's motion for reconsideration consists of a litany of factual and legal assertions allegedly supported by exhibits attached to his papers. (See ECF No. 163; ECF No. 164.)
DeSouza's motion does contain a few new legal arguments challenging my summary judgment ruling. (See ECF No. 163 at 4-6 (contending that DeSouza fully performed his obligations in completing the interim recertification process in early 2014 and that he had no other responsibilities with respect to the recertification process) 15 (averring that Ms. Doughtie was acting in her capacity as an employee of Park West when she allegedly accused DeSouza publicly of raping her daughter and granddaughter), 8 (arguing that the fact that Park West's communications did not mention race does not mean that they were not based upon DeSouza's race).) DeSouza does not provide any reason why these arguments could not have been provided in his objection to Park West's motion for summary judgment. That alone justifies denying his motion for reconsideration. See United States v. Sasbon, No. 10-CR-133 SJF, 2011 WL 867177, at *2 (E.D.N.Y. Mar. 8, 2011) (noting that "reconsideration should not be granted where the moving party . . . advances new arguments or issues that could have been raised on the original motion").
Nonetheless, I will address DeSouza's new legal arguments. His most substantive argument is the one concerning the recertification requirements for his Section 8 subsidy in early 2014. Some portions of this argument lack any merit whatsoever. For example, DeSouza contends that he was working in Texas at the time that Park West desired to complete the recertification process and thus could not "fly back to [Connecticut] just for [a] mere face-to-face HUD Interim Recertification interview." (ECF No. 163 at 5.) This is irrelevant to the matter at hand. DeSouza also claims that the evidence in the summary judgment record demonstrates that he completed the annual recertification process on June 10, 2014, because his rent was reduced at that time. (Id.) He provides no basis for this argument, however, other than the bald assertion that no tenant in receipt of a HUD subsidy has ever received a rent reduction without completing an annual recertification. (Id. (emphasis omitted).) DeSouza also argues that he was not required to undertake any additional steps to complete the interim recertification process in early 2014. He claims in particular that the HUD interim recertification process was entirely Park West's responsibility, contrary to my conclusion in my ruling on Park West's motion for summary judgment. (Id. at 5-6.)
DeSouza's argument fails for several reasons. First, he fails to substantively address the basis for my conclusion that he failed to comply with the requirements of the recertification process, which was a HUD regulation DeSouza attached to his objection to Park West's motion for summary judgment requiring owners to engage in an interactive process with a tenant to complete an interim recertification. (See SJ Ruling at 18 (citing ECF No. 151-4, Pl.'s Ex. 15 at 45 (listing a HUD regulation requiring an owner completing an interim recertification to take several steps, including interviewing the tenant, obtaining third-party verification of the new income, and obtaining the tenant's signature on the interim recertification)).) Second, DeSouza does not address my conclusion that Park West's ongoing attempts to mediate his case undercut any inference of discrimination or retaliation. (See SJ Ruling at 19.) Park West's ongoing attempts to mediate DeSouza's case and entrance into a Stipulated Agreement keeping him in his apartment would make little sense if it sought to use the recertification issue as a pretext to evict him. DeSouza does not point to any evidence in his motion raising a doubt on that point. Third, even if DeSouza's own reading of HUD requirements is more correct than Park West's or mine, that would still not amount to evidence of retaliatory or discriminatory intent. This case is not about whether Park West's position that DeSouza failed to comply with recertification requirements was legally correct; indeed, DeSouza settled that issue with Park West when he entered into the August 29, 2014 Stipulated Agreement. The issue here is instead whether Park West's position was so off base as to suggest retaliatory or discriminatory intent, either by itself or together with other evidence. There is no basis in the record to conclude that it was.
DeSouza's second argument concerning Doughtie's alleged false accusation that he raped her daughter and granddaughter fares little better. In my summary judgment ruling, I granted Park West's motion for summary judgment on DeSouza's common law tort claims against Park West predicated upon this incident based on DeSouza's failure to demonstrate that Park West was vicariously liable for Doughtie's alleged statements. (See SJ Ruling at 39.) In his motion for reconsideration, DeSouza contends that Doughtie was acting in her official capacity because she organized the party at Park West that had taken place shortly before she allegedly publicly accused DeSouza of the crimes noted above and told a police officer that she was the property manager at Park West before she made the accusation. (ECF No. 163 at 15.) But vicarious liability under Connecticut law does not turn upon whether an employee is situated on a premises because of her job. Rather, as I noted in my summary judgment ruling, it turns on whether the employee's actions fell within the "scope of her employment"—i.e., whether her actions furthered the interests of the employer in some manner—or were authorized by the agents of the corporation. (See SJ Ruling at 39 (internal quotation marks omitted).) Even if I credited DeSouza's assertion that Doughtie uttered the statements in question while presiding over a Park West function, it would not fall within either of these categories. DeSouza fails to present a scintilla of evidence that Doughtie's alleged false accusations were authorized by Park West or would in any way benefit it. I therefore reject DeSouza's motion for reconsideration on this point.
Finally, DeSouza contends that the fact that none of Park West's communications included in the summary judgment record mentioned race is not dispositive given that his race was "self-evident." (ECF No. 163 at 1.) I concluded in my summary judgment ruling that DeSouza's racial discrimination claims failed in part due to the fact that none of the communications DeSouza highlighted mentioned race. (See SJ Ruling at 17.) My conclusion also rested on the basis, however, that DeSouza did not "contend nor [did] the record reflect that any of the remarks . . . or their context implicitly reference race in any manner." (SJ Ruling at 17.) Thus, the only evidence DeSouza presented in favor of his racial discrimination claim was "that he subjectively construed [Park West's management's] admittedly hostile remarks . . . as evidence of racial animus on the part of Park West." (Id. at 17-18.) As I noted in my ruling, such subjective evidence is not enough to support an inference of discrimination. (Id. at 18 (citing Pearson v. Bd. of Educ., 499 F.Supp.2d 575, 593 (S.D.N.Y. 2007) (employee's racially neutral insults toward plaintiff could not be construed as "race-based remarks" despite plaintiff's subjective interpretation of them); Rajaravivarma v. Bd. of Trustees for Connecticut State Univ. Sys., 862 F.Supp.2d 127, 152 (D. Conn. 2012) (reaching similar conclusion regarding employee's insult toward plaintiff). Nor is the fact it is "self-evident" that DeSouza is African-American. DeSouza "has done little more than cite to [his alleged] mistreatment and ask the court to conclude that it must have been related to [his] race. This is not sufficient." Grillo v. New York City Transit Auth., 291 F.3d 231, 235 (2d Cir. 2002) (quoting Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir. 2001))).)
I therefore reject DeSouza's motion for reconsideration.
For the reasons set forth above, Park West's motion for reconsideration (ECF No. 162) is GRANTED and DeSouza's motion for reconsideration (ECF No. 163; ECF No. 164) is DENIED. I therefore conclude that Park West is entitled to summary judgment on the remaining portions of DeSouza's retaliation claims under the FHA (Counts 1, 2, 3, and 6). The Clerk is instructed to close this case.
IT IS SO ORDERED. /s/
Michael P. Shea, U.S.D.J.
(2) DeSouza's motion is a public record and is therefore subject to judicial notice, see Rockland Exposition, Inc. v. All. of Auto. Serv. Providers of New Jersey, 894 F.Supp.2d 288, 301, n. 6 (S.D.N.Y. 2012), as amended (Sept. 19, 2012) (noting that Court could take judicial notice of application that was part of public record in adjudicating motion for summary judgment); and (3) I must take judicial notice of DeSouza's motion to avoid a manifest injustice—i.e., willfully ignoring evidence pivotal to adjudicating the merits of DeSouza's remaining claims. See Gupta v. Attorney Gen. of U.S., 52 F.Supp.3d 677, 682 (S.D.N.Y. 2014) (taking judicial notice of new evidence submitted in support of motion for reconsideration "to avoid a manifest injustice").
