MARGO K. BRODIE, District Judge.
Plaintiff Jean-Gespere Pierre, proceeding pro se, commenced this action on September 2, 2015. (Compl., Docket Entry No. 1.) On December 22, 2016, the Court denied Plaintiff's motions to remove Magistrate Judge Steven Tiscione and Plaintiff's motion for sanctions. (Order dated Dec. 22, 2016 ("December Order"), Docket Entry No. 29.) On January 11, 2017, Plaintiff filed a motion for reconsideration of the Court's December Order. (Pl. Mot. for Recons. ("Pl. Mot."), Docket Entry No. 64.) On January 20, 2017, Defendant filed an opposition to Plaintiff's motion for reconsideration. (Def. Opp'n to Pl. Mot. ("Def. Opp'n"), Docket Entry No. 65.) For the reasons discussed below, the Court denies Plaintiff's motion for reconsideration.
The Court assumes familiarity with the litigation and summarizes only the pertinent facts. In an order dated March 29, 2016, Judge Tiscione directed Plaintiff to reschedule the deposition of non-party Eunice Reid which was scheduled for the next day, March 30, 2016, because the timing of the deposition conflicted with Defendant's scheduled deposition of Plaintiff. (Order dated Mar. 29, 2016 ("March 29 Order"), Docket Entry No. 28.) On May 11, 2016, Defendant filed a letter with the Court requesting a pre-motion conference to discuss its anticipated motion for summary judgment. (Def. Letter dated May 11, 2016, Docket Entry No. 31.) Both parties attended the pre-motion conference on July 15, 2016. (Min. Entry dated July 15, 2016.) At a discovery hearing with Judge Tiscione on the same day as the pre-motion conference, Judge Tiscione scheduled Reid's deposition for September 20, 2016, ordered that all outstanding discovery requests be resolved prior to September 20, 2016, and set a schedule for Defendant's summary judgment motion with briefing to begin on November 21, 2016. (Order dated July 18, 2016, Docket Entry No. 42; Min. Entry dated July 18, 2016.) Plaintiff filed a letter with the Court explaining that Reid did not appear at her September 20, 2016 deposition. (Pl. Letter dated Sept. 20, 2016, Docket Entry No. 52.)
Plaintiff filed a motion for sanctions on August 2, 2016, alleging that Defendant's counsel: (1) interfered with Reid's deposition on March 30, 2016; (2) requested a motion for "`[s]ummary [j]udgement' by producing a[n] affidavit from a notice Judge"; (3) sought a "frivolous summary judgment" motion; and (4) engaged in ex parte conversations with Judge Tiscione "to stop a subpoena" on the eve of deposition "with a notice of false statement." (Pl. Mot. for Sanctions ("Pl. Sanctions Mot.") 1-2, Docket Entry No. 44; Pl. Letter dated Oct. 20, 2016, ("Pl. Oct. 20 Letter") 1-2, Docket Entry No. 56.)
On December 22, 2016, the Court dismissed both of Plaintiff's motions. (Dec. Order.) The Court did not rule on Plaintiff's discovery disputes or his request to hold Ms. Reid in contempt of court for failure to appear at two depositions, but instead deferred ruling on those matters to Judge Tiscione. (Id. at 5 n.7.) The Court found there was no merit to Plaintiff's request for sanctions regarding Defendant's anticipated summary judgment motion and alleged ex parte conversations because Plaintiff appeared at a pre-motion conference to discuss the Defendant's anticipated motion for summary judgment, the motion had yet to be filed, and Plaintiff did not allege any plausible facts supporting his allegations of ex parte communications with Judge Tiscione. (Id. at 6.) The Court also denied Plaintiff's motion to remove Judge Tiscione because Plaintiff presented no evidence of partiality and Plaintiff's only dispute with Judge Tiscione appeared to be his disagreement with Judge Tiscione's March 29 Order. (Id. at 8.)
The standard for granting a motion for reconsideration is strict, and "[r]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Cedar Petrochem., Inc. v. Dongbu Hannong Chem. Co., Ltd., 628 F. App'x 793, 796 (2d Cir. 2015) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)); Bank of Am. Nat'l Ass'n v. AIG Fin. Prods. Corp., 509 F. App'x 24, 27 (2d Cir. 2013) ("The standard for granting such a motion is strict . . . ." (quoting Shrader, 70 F.3d at 257)); see also Local Civ. R. 6.3 (The moving party must "set[ ] forth concisely the matters or controlling decisions which counsel believes the Court has overlooked.").
It is thus "well-settled" that 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) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)). A motion for reconsideration is "neither an occasion for repeating old arguments previously rejected nor an opportunity for making new arguments that could have previously been made." Simon v. Smith & Nephew, Inc., 18 F.Supp.3d 423, 425 (S.D.N.Y. 2014) (citations and internal quotation marks omitted). In order to prevail on a motion for reconsideration, "the moving party must demonstrate that the Court overlooked controlling decisions or factual matters that were put before the Court on the underlying motion." Lichtenberg v. Besicorp Grp. Inc., 28 F. App'x 73, 75 (2d Cir. 2002) (citations and internal quotation marks omitted); see also Stoner v. Young Concert Artists, Inc., No. 11-CV-7279, 2013 WL 2425137, at *1 (S.D.N.Y. May 20, 2013) ("A motion for reconsideration is an extraordinary remedy, and this Court will not reconsider issues already examined simply because [a party] is dissatisfied with the outcome of his case. To do otherwise would be a waste of judicial resources." (alteration in original)).
The Court declines to reconsider its December Order because there is no basis to do so. Defendant argues that Plaintiff's motion for reconsider should be denied because the motion is untimely and also fails on the merits, as it does not set forth the necessary grounds for reconsideration. (Def. Opp'n 1-2.)
Plaintiff's motion for reconsideration was filed on January 11, 2017, six days after the fourteen-day period to file a motion for reconsideration had expired. See Local Rule 6.3 (stating that "a motion shall be served within fourteen (14) days after the entry of the Court's determination of the original motion"). However, because Plaintiff is proceeding pro se, the Court considers the merits of whether Plaintiff has presented a basis for reconsideration.
Plaintiff fails to point to any facts or controlling law that the Court overlooked in dismissing the motions and accordingly the Court declines to reconsider the December Order. Plaintiff argues that his disagreement with Judge Tiscione's March 29 Order is a basis for reconsideration, (Pl. Mot. 4 (explaining Plaintiff's position that the March 29 Order rescheduling his deposition was incorrect because there was not a scheduling conflict with the scheduling of the depositions)), but the Court explicitly ruled that disagreement with the March 29 Order was not a basis to remove Judge Tiscione or sanction Defendant, (Dec. Order at 6, 8). Plaintiff also argues that the Court failed to sanction Defendant for "severe violations of subpoenas" and that the Court also failed to hold Reid in contempt of court for failing to appear at her deposition. (Pl. Mot. 5, 8-10.) These are discovery disputes that the Court explicitly declined to decide in the December Order, instead deferring to Judge Tiscione. (Dec. Order at 5 n.7.)
The remainder of the arguments in support of Plaintiff's motion for reconsideration are new factual allegations that were not presented in Plaintiff's initial briefing or have no bearing on whether the Court should reconsider the decision to deny Plaintiff's motions. (See, e.g., Pl. Mot. 5 (explaining that one of Judge Tiscione's law clerks "spied" on Plaintiff while he was in the courthouse); id. at 6 ("In your first paragraph of `sanctions' and third paragraph even you omitted some citations that don't match with my case or Ex Parte Judge Tiscione — Each citation has its own cause and its effects which has nothing to see with my case cause and my effects caused.").)
Plaintiff also fails to identify controlling law that the Court overlooked in its December Order. Plaintiff attaches to the motion for reconsideration multiple pages that include summaries of state disciplinary determinations and citations to the Rules of Judicial Conduct, but none of the summaries or rules are controlling law that the Court overlooked in denying Plaintiff's motion to remove Judge Tiscione.
Accordingly, because Plaintiff does not point to any facts raised in his initial motions or controlling law that the Court overlooked in reaching the December Order, there is no basis for the Court to reconsider its decision. See, e.g., Cedar Petrochem., Inc., 628 F. App'x at 797 (affirming denial of motion for reconsideration where the moving party "failed to point to decisions or data that the district court had `overlooked'"); Bank of Am. Nat'l Ass'n, 509 F. App'x at 27 (affirming denial of motion for reconsideration where the moving party "fail[ed] to point to anything that the district court overlooked in its prior decisions"); Simon, 18 F. Supp. 3d at 427 (denying motion for reconsideration where the moving party "simply repeats arguments already considered and rejected by the Court").
For the foregoing reasons, the Court declines to reconsider the December Order. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Richard L. Giampa, Esq., Bronx, NY, for the Plaintiff.
Michael A. Cardozo, Esq., Corporation Counsel, City of New York, Daniel Gomez-Sanchez, Esq., Assistant Corporation Counsel, New York, NY, for Defendants.
BLOCK, Senior District Judge.
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—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Tramp., Inc., 70 F.3d 255, 257 (2d Cir.1995). In order to have been "overlooked," the decisions or data in question must have been "put before [the court] on the underlying motion . . . and which, had they been considered, might have reasonably altered the result before the court." Range Road Music, Inc. v. Music Sales Corp., 90 F.Supp.2d 390, 392 (S.D.N.Y.2000).
A motion for reconsideration cannot be used for a "second bite at the apple" for a party dissatisfied with the court's ruling by "relitigating old issues, presenting the case under new theories, [or] securing a rehearing on the merits." Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir.1998). Reconsideration is justified only where there exists "an intervening change of controlling law, the availability of new evidence or the need to correct a clear error or prevent manifest injustice." Virgin Atlantic Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.1992) (citing 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4478 at 790). With respect to new evidence, "the movant must present evidence that is truly newly discovered or could not have been found by due diligence." U.S. v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir.1983) (internal quotation marks omitted) (discussing Federal Rule of Civil Procedure 60(b)(2)).
The relief requested by plaintiff is threefold. First, plaintiff challenges the Court's finding that two of the three adverse employment actions offered to prove his retaliation claims did not follow his protected activities closely enough in time to have been caused by those activities. Second, plaintiff seeks a ruling that he may characterize his alleged constructive discharge as part of the damages he suffered from defendants' retaliation. Third, plaintiff requests that the Court reconsider its "finding" that plaintiff was a probationary employee without a property right sufficient to sustain a § 1983 claim under the Due Process Clause of the Fourteenth Amendment.
The Court held only one of the three adverse employment actions alleged by plaintiff—an investigation into a domestic dispute that resulted in the continuation of plaintiffs stint on modified duty—was temporally proximate to his protected activities. Only that action could give rise to an inference of discrimination and support his prima facie case of retaliation. The other two actions—he was ordered to attend alcohol rehabilitation and he retired from the NYPD, which he claims was a constructive discharge—did not follow his protected activities closely enough in time. Plaintiff now challenges this determination.
Consequently plaintiffs motion for reconsideration of the "temporal proximity" element of his retaliation claim is not based upon any overlooked data or legal decisions or any new evidence, and is denied.
Plaintiff contends that defendants' allegedly retaliatory conduct harmed him by forcing him to retire early from the NYPD. Thus, plaintiff argues that he was in fact constructively discharged. Accordingly, should he prove the other elements of his retaliation claim, he seeks to argue at trial that this self-styled constructive discharge is part and parcel of the damage he suffered on account of such retaliation.
Plaintiff is free to make his argument to the jury. He does not characterize his alleged constructive discharge as a separate claim for relief. Rather, it is presented in conjunction with his retaliation claims, in which he contends that his early retirement from the NYPD was actually and proximately caused by his stint on modified duty, which in turn was an act of retaliation by defendants.
In the M & O, the Court held that plaintiff, as a probationary rather than a permanent employee, did not have a property or liberty interest in his job sufficient to sustain a due process claim under § 1983. The Court based this finding upon defendants' statement of facts, which plaintiff belatedly challenges as incorrect. According to defendants' Rule 56.1 Statement, in December 1997 plaintiff "began his employment as a probationary police officer." Defs 56.1 Stmt. ¶ 2. In his own Rule 56.1 Statement, plaintiff does not dispute this characterization; he simply says that he became a "New York Police Officer" in 1998. Pl's 56.1 Stmt. ¶ 2. Plaintiff now contends that he was a permanent employee, a fact which defendants concede. Neither party elaborates on the distinction between probationary versus permanent employees or explains its tardiness in establishing that plaintiff falls into the latter category.
Even were the Court to accept plaintiffs belated assertion, his § 1983 due process claim still would fail. For such claims, the deprivation of a protected liberty or property interest is not enough. Where "the right alleged to have been denied is protected by the Fourteenth Amendment, the plaintiff[ ] must establish that the deprivation was without due process of law." Costello v. Town of Fairfield, 811 F.2d 782, 784 (2d Cir.1987); see also Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir.1998) ("To state a Section 1983 claim [premised upon a due process violation], a plaintiff must demonstrate that he possessed a protected liberty or property interest, and that he was deprived of that interest without due process." (emphasis added)).
Plaintiff contends in conclusory, boilerplate fashion that his due process rights were denied. Even assuming that his imprecise language is meant to refer to the loss of his position while on modified duty or to his alleged constructive discharge, either of which could be a property interest, see Ciambriello v. County of Nassau, 292 F.3d 307, 318 (2d Cir.2002), plaintiff fails to express, let alone show, how his constitutional rights were violated. Nor does he explain what "process" would have ameliorated the situation. Indeed, the record reflects that plaintiff received a hearing on the disciplinary charges that resulted in his placement on modified duty and that he was found not guilty of those charges.
In many instances, courts have "held that the availability under state law of a post-deprivation hearing or tort remedies completely will satisfy due process and bar a section 1983 claim." Ezkwo v. NYC Health & Hosps. Corp., 940 F.2d 775, 784 (2d Cir.1991); see also Giglio v. Dunn, 732 F.2d 1133, 1135 (2d Cir.1984) (In the case of "[a] coerced resignation . . . it is hard to visualize what sort of prior hearing the Constitution would require the employer to conduct."). An Article 78 proceeding, which was available to plaintiff in this case, is commonly considered in this Circuit to be a "perfectly adequate postdeprivation remedy." Hellenic Am. Neighborhood Action Committee v. City of N.Y. 101 F.3d 877, 881 (2d Cir.1996); see also Hoover v. County of Broome, 340 F. App'x 708, 711 (2d Cir.2009) (affirming dismissal of § 1983 due process claim where employee claiming constructive discharge had "failed to utilize the adequate post-deprivation remedy of an Article 78 proceeding"). Given plaintiffs utter lack of proof regarding these issues, even if he were deemed a permanent employee, his § 1983 claim would not survive summary judgment.
Because the M & O admittedly does not clearly distinguish between the claims against individual defendants and those against the City, the Court clarifies the matter here. It is well-settled in this Circuit that individual defendants are not subject to individual liability under Title VII. As a result plaintiffs retaliation claims under Title VII may proceed only against the City of New York, and not against the individual defendants. See Tomka v. Seiler Corp., 66.F.3d 1295, 1313 (2d Cir.1995).
In contrast, individual defendants may be held liable under the New York State Human Rights Law ("NYSHRL") and the New York City Human Rights Law ("NYCHRL") if they participate personally in the discrimination. See N.Y. Exec. Law § 296, N.Y.C. Admin. Code § 8-107; see also Mandell v. Cnty. of Suffolk, 316 F.3d 368, 377 (2d Cir.2003); Drew v. Plaza Constr. Corp., 688 F.Supp.2d 270, 280 (S.D.N.Y.2010). Individual defendants may also be held liable under § 42 U.S.C. § 1981 (" § 1981") for acts of racial discrimination violating that statute's terms. Patterson v. Balsamico, 440 F.3d 104, 110 (2d Cir.2006).
Defendants continue to press for dismissal of plaintiffs retaliation claims against the individual defendants under § 1981, the NYSHRL and the NYCHRL because, defendants contend, plaintiff has not established their "personal involvement" in the claimed discrimination. Already having rejected this argument and determined that these claims may proceed to a jury, the Court will not reconsider this holding simply because defendants "do[ ] not like the way the original motion was resolved." In re Houbigant, Inc., 914 F.Supp. 997, 1001 (S.D.N.Y.1996).
The Court does clarify, however, that these retaliation claims may proceed against the individual defendants who were arguably involved in the circumstances giving rise to plaintiffs retaliation claim as defined by the Court in the M & O (the 2005 NYPD investigation of plaintiffs domestic dispute, resulting in the extension of his placement on modified duty). Defendants George A. Grasso and Raymond W. Kelly made the decision, in May 2006, to return plaintiff to full duty; plaintiffs retaliation claim contends that these defendants would have done so sooner had the domestic dispute investigation not provided a pretext for keeping him on modified duty. None of the other individual defendants are alleged to have had any personal involvement in the domestic dispute investigation and the decision to extend plaintiffs stint on modified duty. Plaintiffs retaliation claims under § 1981, the NYSHRL and the NYCHRL may therefore proceed only against individual defendants Grasso and Kelly; plaintiffs claims against the remaining individual defendants are dismissed.
As defendants correctly note, a municipal entity like the City of New York may only be liable under § 1981 if the claimed violation was caused by an official policy, pattern or practice. See Jett v. Dallas Independent School Dist., 491 U.S. 701, 738, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). In the M & O, the Court already observed that evidence submitted by plaintiff—e.g., the existence of a class action lawsuit against the NYPD and statistics on punishments of white versus minority officers—was inadequate as a matter of law to show a pattern or practice of discrimination on the part of the City. That analysis applies equally to the § 1981 retaliation claims. Thus, the Court clarifies that the § 1981 claim may not be asserted against the City because plaintiff fails to raise a triable issue regarding whether the alleged retaliation was the product of a municipal pattern or practice. The § 1981 claim will proceed, however, against individual defendants Grasso and Kelly.
Except as otherwise clarified in this decision, the parties' motions for reconsideration are denied. The Court clarifies that: (1) plaintiff may, if he succeeds in his retaliation claim, assert at trial that his alleged constructive discharge was a damage flowing from defendants' retaliation; (2) plaintiffs Title VII claims may only be asserted against the City and not against any individual defendants; (3) plaintiffs § 1981 claim may only be asserted against individual defendants Grasso and Kelly and not against the City; and (4) plaintiffs claims against individual defendants other than Grasso and Kelly are dismissed.
Not Reported in F.Supp.2d, 2011 WL 5513228
LORETTA A. PRESKA, Chief Judge.
On September 25, 2012, this Court granted Defendant's motion to dismiss Plaintiffs Second Amended Complaint in its entirety pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b) (6) for failure to state a claim and denied Plaintiffs request for sanctions. (See [dkt. no. 75]. Before the Court now is Plaintiffs motion for reconsideration of that decision brought pursuant to Rule 60 of the Federal Rules of Civil Procedure [dkt. no. 77].
Rule 60(b) states that
Fed.R.Civ.P. 60(b). In deciding whether to grant a motion brought under Rule 60(b), the Court must strike "a balance between serving the ends of justice and preserving the finality of judgments. "Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir.1986). Generally, relief is granted "only upon a showing of exceptional circumstances." Mendell v. Gollust, 909 F.2d 724, 731 (2d Cir.1990), aff'd, 501 U.S. 115 (1991). "A motion for reconsideration is an extraordinary remedy, and this Court will not reconsider issues already examined simply because [a party] is dissatisfied with the outcome of his case. To do otherwise would be a waste of judicial resources." Matura v. United States, 189 F.R.D. 86, 90 (S.D.N.Y.1999). In other words, such a motion is not a vehicle to relitigate the merits. See, e.g., Fleming v. New York Univ., 865 F.2d 478, 484 (2d Cir.1989). Finally, although a pro se litigant "should not be impaired by the harsh application of technical rules," Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983), such a litigant is not excused from producing "highly convincing" evidence in support of such a motion. Kotlicky v. U.S. Fidelity & Guaranty Co., 817 F.2d 6, 9 (2d Cir.1986).
For the foregoing reasons, Plaintiffs motion for reconsideration [dkt. no. 77] is
Not Reported in F.Supp.2d, 2013 WL 2425137
