Opinion
97 Civ. 4031 (RPP)
April 27, 2000.
OPINION AND ORDER
Plaintiff John Querim moves for reconsideration, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure and Local Civil Rule 6.3, of the Court's Opinion and Order dated March 3, 2000, dismissing all eight counts of plaintiffs Amended Complaint as against all six defendants.
Background
The eight counts in plaintiffs Amended Complaint are: 1) breach of the collective bargaining contract, in violation of 28 U.S.C. § 185, against the New York Times Company (the "Times") and the New York Newspaper Printing Pressmen's Union (the "Union"); 2) breach c the duty of fair representation, in violation of 29 U.S.C. § 185, by the Union; 3) deprivation of the right to contract, in violation of 42 U.S.C. § 1981, by the Times and the Union; 4) Title VII employment discrimination by the Times, the Union, Edward Fleming ("Fleming"), President of the Union, and John O'Brien ("O'Brien"), Deputy General Manager of the Times; 5) conspiracy by the Times, the Union, Fleming, and O'Brien to deprive plaintiff of his constitutional right to make and enjoy contracts and substantive and procedural due process, in violation of 42 U.S.C. § 1985 (3), 42 U.S.C. § 1981, and the Fifth Amendment; 6) violation of 42 U.S.C. § 1986 by the Times, the Union, Fleming, and O'Brien; 7) violation of the Administrative Procedures Act ("APA") and the Fifth Amendment by the Equal Employment Opportunity Commission ("EEOC"); and 8) a Bivens claim against Spencer H. Lewis ("Lewis"), the District Director of the New York Division of the EEOC, for violation of plaintiff equal protection and substantive and procedural due process rights under the Fifth Amendment. The facts upon which plaintiff's complaint is based are set forth in the Court's Opinion and Order of March 3, 2000. (Op. Ord., Mar. 3, 2000, at 1-5.)
Discussion
I. Standard for Motion for Reconsideration
Reconsideration under Rule 59(e) and Local Civil Rule 6.3 is appropriate only where the Court has "overlooked controlling decisions or factual matters that were put before it on the underlying motion," Davis v. The Gap, Inc., 186 F.R.D. 322, 324 (S.D.N.Y. 1999), and which, had they been considered, "might reasonably have altered the result reached by the court."Consolidated Gold Fields. PLC v. Anglo American Corp., 713 F. Supp. 1457, 1476 (S.D.N.Y. 1989). As stated in In Re Houbigani, Inc.:
Local Rule [6.3] is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court. A Rule [6.3] motion is not a motion to reargue those issues already considered when a party does not like the way the original motion was resolved. As such, a party in its motion for reargument "may not advance new facts, issues or arguments not previously presented to the court."
When in Re Houbigant was decided, the Rule pertaining to motions for reargument was Local Rule 3(j). The Rule has since been changed to Local Rule 6.3.
914 F. Supp. 997, 1001 (S.D.N.Y. 1996) (internal citations omitted).
II. Application of Standard to This Motion
Plaintiff raises several arguments in his motion for reconsideration, each of which will be addressed separately.
A. Interpretation of the Consent Decree's Provisions
Plaintiff contends that, in interpreting the Agreement and Order entered on September 3, 1996 as an amendment to the original Consent Decree (hereinafter, the "Decree") instead of a modification to it, "the Court overlooked several unambiguous Decree provisions that would make the Order's second seniority override a modification." (PI.'s Mem. in Supp. of Mot. for Reconsid. at 3.) Plaintiff cites Paragraph 5, Paragraph 13(b), Paragraph 13 (c), and Paragraph 14(a) of the Decree in support of his argument. Plaintiff asserts that these provisions of the Decree illustrate that the Court's interpretation of the Agreement and Order as an amendment instead of a modification "conflicts with the plain language of the decree and effectively rewrites it by rendering paragraphs superfluous." (PI.'s Mem. in Supp. of Mot. for Reconsid. at 4.)
The Agreement and Order was entered into by the EEOC, the Times, and the Union.
Paragraph 5 of the Decree states: "Nothing in this Decree is intended or shall be construed to . . . authorize the Court. by virtue of . . . a failure to meet any goal stated in this decree or any other circumstance, . . . to impose on Times Co. or the Pressmen's Union any different or additional obligation beyond those expressly and specifically set forth in the Decree." (Am. Compl., Ex. 3, ¶ 5.)
Paragraph 13(b) of the Decree states: "The placement on the Casual List of females and minority males who do not sign such a Release will not be affected by the reformulation provided for in Paragraph 13(a)." (Am. Compl., Ex. 3, ¶ 13(b).)
Paragraph 13(c) of the Decree states: "The adjusted placements of the females and minority males on the Casual List, pursuant to Paragraph 13(a), shall be subject to any conflicting judicial or administrative order, including but not limited to an order directing Times Co. to grant to another person or persons superior placement on the Casual List." (Am. Compl., Ex. 3, ¶ 13(c).)
Paragraph 14(a) of the Decree states: "If twenty-five percent (25%) or more of the persons on the Casual List are minority and/or female, Times Co. shall have no obligation under this Paragraph 14." (Am. Compl., Ex. 3, ¶ 14(a).)
The provisions of the Decree cited by plaintiff would not "have altered the result reached by the court." Paragraph 5 of the Decree not authorizing the Court to impose on the Times or the Union a "different or additional obligation beyond those expressly and specifically set forth in the Decree" is not applicable to the Agreement and Order. (Am. Compl., Ex. 3, ¶ 5.) By changing the time by which females and minority males were required to sign the required release to have their positions on the Casual List readjusted, the Agreement and Order did not impose a "different or additional obligation" on the Times or the Union. Paragraph 13(b) is not in conflict with the Court's determination because, after the Agreement and Order, that provision still applies to those females and minority males who failed to take advantage of the second reformulation of the Casual List. The other two provisions cited by plaintiff, Paragraph 13(c) and Paragraph 14(a), are irrelevant to the Court's interpretation of the Agreement and Order: Paragraph 13 (c) concerns the entry of a "conflicting judicial or administrative order," which the Agreement and Order is not; Paragraph 14(a) concerns the supplementary procedures set forth in Paragraph 14, which are only required if the goal of 25% female and minority male representation on the Casual List is not achieved by the reformulation of the Casual List provided for in Paragraph 13. Incidentally, nothing in the language of Paragraph 14(a) prevents the Times from implementing the procedures in Paragraph 14 even if the 25% goal has been reached by the reformulation of the Casual List.
Because plaintiffs argument regarding the Court's interpretation of the Decree does not present "overlooked . . . factual matters," Davis v. The Gap, Inc., 186 F.R.D. 322, 324 (S.D.N.Y. 1999), which might have changed the Court's holding, the dismissal of the Amended Complaint will not be reversed on that basis.
B. Bar on Collateral Attacks of Title VII Consent Decrees
Plaintiff argues that the Court should reconsider its decision that Counts 1, 3, 4, 5, and 6 of the Amended Complaint are barred as impermissible collateral attacks on a Title VII Consent Decree. Plaintiff claims that the Court overlooked that plaintiff's Amended Complaint pleaded "that a new hiring ratio was effected by the Order." (PI.'s Mem. in Supp. of Mot. for Reconsid. at 5.)
In fact, the Court did address plaintiffs position in its decision. The Opinion and Order refers to "plaintiffs argument that the Agreement and Order constitutes a modification of the Decree." (Op. Ord., Mar. 3, 2000, at 10.) It is clear that the Court understood that plaintiff was asserting that the Agreement and Order effected a new hiring ratio. In rejecting plaintiffs argument, the Court described the facts of Crumpton v. Bridgeport Education Association, cited by plaintiff in his memorandum in opposition to defendants' motion to dismiss, and differentiated Crumpton from this case. In view of the detail with which this issue was covered in the Court's decision and in view of the fact that the plaintiff has presented no compelling facts or legal authority not already considered by the Court, the dismissal of Counts 1, 3, 4, 5, and 6 of the Amended Complaint will not be reversed.
C. Count Two of the Amended Complaint: Breach of the Duty of Fair Representation
Plaintiff, who is not a Union member, argues that the dismissal of Count 2 of the Amended Complaint should be reversed because the Court did not consider that the Amended Complaint pleaded "that the nexus of the Decree's ¶ 26(a) to the [collective bargaining agreement] creates an implied non-discrimination clause in the [collective bargaining agreement]." (P1.'s Mem. in Supp. of Mot. for Reconsid. at 6.)
In dismissing Count 2 of the Amended Complaint, the Court did not have to reach the issue of whether "the nexus of the Decree to the CBA . . . creates a warranty of non-discrimination in the hiring practices of the CBA." (Am. Compl. ¶ 44.) The bar on collateral attacks on Title VII consent decrees was sufficient to bar plaintiff from attacking the Union's actions in connection with the Agreement and Order. (Op. Ord., Mar. 3, 2000, at 15.) Plaintiff has presented no factual or legal issues that would change the Court's decision regarding Count 2.
D. Count Seven of the Amended Complaint
Plaintiff contends that the Court overlooked plaintiffs argument that the EEOC went beyond its delegated powers by "argu[ing] in a way that changes the legal regime under Title VII." (PI.'s Mem. in Supp. of Mot. for Reconsid. at 7.) Plaintiff asserts that "EEOC's Agreement to the Order and the content of EEOC's legal argument was a consummation of its policy and interpretation of law and the consequences of this final decision was that a race/gender hiring ratio was effected without evidence and without notice to non-minorities adversely affected for a second time." (Id.)
In making this argument, plaintiff mischaracterizes the nature of the Agreement and Order. Indeed, he appears to be rearguing this issue because he "does not like the way the original motion was resolved." In Re Houbigant, 914 F. Supp. 997, 1001 (S.D.N.Y. 1996). As the Court held, the Agreement and Order was not a modification of the Decree that "adversely affected [non-minorities] for a second time," but an amendment to that Decree, due to the failure of female and minority male casuals to understand the required release, that did nothing more than place non-minorities in a position in which they could have anticipated they would be as a result of the initial Decree. Because this Agreement and Order in no way changed "the legal regime under Title VII," the EEOC's support of this Agreement and Order cannot be said to have done so.
Plaintiffs argument regarding Count 7 is "repetitive," and the issue has been "considered fully by the court." In Re Houbigant, 914 F. Supp. at 1001. Therefore, the dismissal of Count 7 will not be reversed.
E. Count Eight of the Amended Complaint: Bivens Claim Against Lewis
Plaintiff argues that the dismissal of Count 8 of the Amended Complaint must be reconsidered because plaintiff attached exhibits to his Amended Complaint that showed "that Lewis, on four occasions over a period of two years was consistently made aware of the violations but did nothing to remedy the situation." (P1.'s Mem. in Supp. of Mot. for Reconsid. at 8.) The "violations" to which plaintiff refers include "urging [by EEOC employees and officers] that race balancing and no notice or a hearing be afforded to while males like Plaintiff" (Am. Compl. ¶ 85.) Because the actions by the EEOC employees and officers described by plaintiff in his complaint were within their authority, plaintiff has no claim against Lewis as their supervisor, regardless of the sufficiency of plaintiff's proof that Lewis knew about the actions of the EEOC employees and officers. Plaintiffs reargument of Count 8.in this motion does not change the Court's ruling on the issue.
Conclusion
Because plaintiff has presented no "controlling decisions or factual matters," Davis v. The Gap, Inc., 186 F.R.D. 322, 324 (S.D.N.Y. 1999), that the Court overlooked in deciding defendants' motion to dismiss which "might reasonably have altered the result reached by the court," Consolidated Gold Fields v. Anglo American Corp., 713 F. Supp. 1457, 1476 (S.D.N.Y. 1989), plaintiffs motion for reconsideration is denied.
IT IS SO ORDERED.
Dated: New York, New York April 26, 2000
________________________ Robert P. Patterson, Jr. U.S.D.J.
Copies of this Opinion and Order sent to:
Plaintiff Pro Se: John Querim 35 West 75th Street #2B New York, N Y 10023-2096 Tel: 800-454-5173 Fax: 208-247-8066
Counsel for Defendants the Times and O'Brien: Proskauer Rose LLP By: Fredric C. Leffler Lloyd B. Chinn 1585 Broadway New York, N Y 10036-8299 Tel: 212-969-3570 Fax: 212-969-2900
Counsel for Defendants the Union and Edward Fleming: Skadden, Arps, Slate, Meagher Flom LLP By: Lawrence A. Marcus Carl G. Guida 919 Third Avenue New York, N Y 10022 Tel: 212-735-3000 Fax: 212-735-2000
Counsel for Defendant the EEOC: EEOC Office of Legal Counsel By: Stephanie Garner 1801 L Street, NW Washington, DC 20507 Tel: 202-663-4686 Fax: 202-663-4639
Counsel for Defendant Lewis: Mary J0 White, United States Attorney Southern District of New York Ann: Irene Chang, A.U.S.A. 100 Church Street, 19th Floor New York, N Y 10007 Tel: 212-637-2733 Fax: 212-637-2825