denying plaintiff's motion to amend his complaint because "[p]laintiff cannot establish an adverse employment action as a part of his retaliatory failure to promote claim because he has failed to apply for the specific position he alleges he was denied"Summary of this case from Shah v. Tunxis Cmty. Coll.
99 Civ. 0196 (BSJ)
April 8, 2002
Pro se Plaintiff, Martin Stoner ("Stoner"), brings this action against the New York City Ballet Company ("Ballet") pursuant to Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000eet seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law 290 et seq., and the Administrative Code of the City of New York ("NYCHRL"), §§ 8-101 et seq., alleging employment discrimination in that he has been retaliated against by the Ballet since 1998 because of his alleged protected conduct. A detailed summary of Plaintiff's contentions and the facts of this case is set forth in this court's May 8, 2001, Order and Opinion. See Stoner v. New York City Ballet Co., No. 99 Civ. 0196 (BSJ), 2001 WL 492430, at *1-*3 (S.D.N.Y. May 8, 2001) [hereinafter Stoner I]. Some of the more pertinent background facts are also described below.
The analysis used in considering employment discrimination claims brought under the NYSHRL and the NYCHRL is the same as it is in Title VII claims. See Cruz v. coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) (citing Leopold v. Baccarat, Inc., 174 F.3d 261, 264 n. 1 (2d cir. 1999); Landwehr v. Grey Adver. Inc., 622 N.Y.5.2d 17, 18 (1st Dep't 1995)).
Plaintiff has been employed as a violinist with the Ballet's orchestra since 1976. (Complaint ("Compl.") ¶ 9.) From approximately 1980, Stoner was in a group of male and female substitute musicians known as "necessaries." The necessaries sought, among other things, health benefits and entry into the basic orchestra without audition. In particular, Stoner has fought continuously, but unsuccessfully, for the right to automatic entry to the orchestra without audition for rotation players. (Stoner Dep. at 113, 134-35.) Currently, a collective bargaining agreement ("CBA") between the Ballet and the Associated Musicians of Greater New York, Local 802, American Federation of Musicians, AFL-CIO, ("Union") governs the employment of orchestra musicians.
In 1983, the Ballet and the Union adopted a procedure into their CBA to govern the process by which musicians would attain entry into a permanent opening in the basic orchestra. (Goldberg Aff. ¶ E.) There are several options available to fill a permanent position in the orchestra under the CBA. (See Menaker Decl. of 6/11/01, Ex. C.) These options, which a joint management-musicians Audition Committee "shall attempt to satisfy in the following order of preference," include:
1. to appoint a player from the orchestra or from among the players who have substituted for orchestra members on a regular basis without audition, on the basis of personal knowledge; 2. to appoint a player recommended to it, but only after a personal audition before the Committee; 3. to appoint a player chosen through open auditions.
(Menaker Decl. of 6/11/01, Ex. C, at 35-3¶, 40-41.) Eight votes are required for appointments under options one and two. (Id. at 41.) f there are insufficient votes to appoint an applicant to the orchestra, the Committee must hold an open audition. (Id. at 40-42.)
Although he has never been a basic or permanent member of the orchestra, Plaintiff has been a rotator since 1985, when the Ballet first recognized musicians of that status. Rotators are replacement musicians who are the first musicians to he called in when a permanent orchestra member is absent. (Goldberg Aff. of 2/16/99, ¶ 3.) According to Stoner, during the 1998-1999 winter season, he played in approximately "95% of the required performances," which is more than some of the basic orchestra members of the violin section played. (Pl.'s Aff. in Opp'n to Def.'s Mot. for Summ. J. ¶ 67.)
B. PLAINTIFF'S CLAIMS
In his Complaint, Stoner claimed that the Ballet retaliated against him in violation of Title VII because he "testified in a Federal Court civil rights proceeding against [the Ballet]." (Compl. ¶ 2.) Specifically, Stoner claims that on June 2 and September 24, 1997, he was deposed in connection with Pray v. New York City Ballet, 96 Civ. 5723 ("Pray"), a sexual harassment lawsuit initiated against the Ballet by three female violinists. The plaintiffs in the Pray litigation alleged that they had been subjected to a hostile work environment by Laurance Fader ("Fader"), a fellow musician, who was the head of the Union Negotiating Committee. Stoner testified against Fader and Jack Katz, another musician who was the Chairman of the Audition Committee. According to Stoner, his testimony was damaging to the Ballet. (Compl. ¶¶ 10-12.) Stoner claims that since that time the Ballet has consistently retaliated against him for his participation in the Pray litigation, principally by failing to promote him to the basic orchestra without audition.
C. PENDING MOTIONS
Currently multiple motions are pending before this court. Both Defendant and Plaintiff move for reconsideration of different portions of this court's May 8, 2001, Order and Opinion. Plaintiff also moves to amend his Complaint. Moreover, Plaintiff has raised additional arguments and claims in correspondence to the court to which Defendant has responded by letter brief. Finally, Plaintiff has filed a motion for sanctions against Defendant.
Many of this court's problems in resolving Plaintiff's motions and claims stem from Plaintiff's own conduct. Throughout this litigation, Plaintiff's claims have represented an ever-moving target. For example, although Plaintiff informed the court, by letter dated April 21, 1999, that he intended to move for leave to amend his complaint, Plaintiff did not make the motion until more than a year later, after both Defendant's and Plaintiff's motions for summary judgment were fully submitted. See Stoner I, 2001 WL 492430, at *5 *5 n. 7. Even after decision on dispositive motions, Plaintiff has repeatedly changed his claims and raised entirely new theories of liability often only briefly mentioned and buried in correspondence to the court or in unrelated motion papers. As late as December of 2001, Plaintiff articulated new bases for liability in correspondence to the court. Defendant is entire correct when it asserts that "Plaintiff has employed a succession of tactics — including (two] failed request(s) for a preliminary injunction, a campaign of abusive, and then abandoned, discovery requests, repeated attempts to embroil defendant's counsel in this litigation, and a barrage of untimely supplemental requests and briefs — to delay the inevitable dismissal of his [original] complaint." (Mem. of Law in Opp'n to Pl.'s Mot. for Leave to Amend the compl. at 1.)
II. PLAINTIFF'S MOTION FOR RECONSIDERATION
Plaintiff seeks reconsideration of this court's May 8, 2001, Order and Opinion, which addressed Defendant's Motion for Summary Judgment, Plaintiff's Cross-motion for Summary Judgment, and Plaintiff's first Motion to Amend the Complaint. Plaintiff contends that the court erred by overlooking evidence, failing to view the evidence in the light most favorable to Plaintiff, failing to draw inferences in Plaintiff's favor, denying Plaintiff adequate discovery, misapplying the law, failing to view the record as a whole, and impermissibly resolving issues of fact. (See Pl.'s Mem. in Supp. of Pl.'s Mot. for Recons. ("Pl.'s Recons. Mem.") at 1.)
To the extent that Plaintiff seeks reconsideration of the denial of his requests for additional discovery, the court denies Plaintiff's Motion to Reconsider his discovery requests. This court and Magistrate Judge Michael H. Dolinger have repeatedly reconsidered and denied Plaintiff's overly-broad requests for discovery. See, e.g., Order of May 18, 1999 (MHD); Order of Nov. 6, 1999 (MHD); Order of Aug. 12, 2000 (MHD); Order of Nov. 20, 2000 (BSJ). Plaintiff can make no colorable claim that any evidence or authority has been overlooked with respect to his repeated, vexatious requests for overly broad discovery.
A. LEGAL STANDARDS
Motions for reconsideration governed by Local Civil Rule 6.3 are within the sound discretion of the district court. Schaffer v. Soros, No. 92 Civ. 1233, 1994 WL 592891, at *1 (S.D.N.Y. Oct. 31, 1994). The rule provides in pertinent part: "There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." Rule 6.3 must be applied so as to avoid re-litigating repetitive arguments on issues previously decided. System Management Arts, Inc. v. Avesta Tech., Inc., 106 F. Supp.2d 519, 521 (S.D.N.Y. 2000). Therefore, the movant must demonstrate that the court overlooked controlling decisions or factual matters that were put before it on the underlying motion that might reasonably be expected to alter the conclusion reached by the court on the underlying motion. Dellefave v. Access Temporaries, Inc., No. 99 Civ. 6098, 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22, 2001). The movant may not "advance new facts, issues or arguments not previously presented to the Court." Morse/Diesel. Inc. v. Fidelity Deposit Co. of Md., 768 F. Supp. 115, 116 (S.D.N.Y. 1991). Moreover, the parties may not "reargue those issues already considered." In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996).
B. PLAINTIFF'S DISMISSED RETALIATION CLAIMS
Plaintiff seeks reversal of this court's decision dismissing portions of his retalitory failure to promote claim on summary judgment. Contrary to this court's rulings, Plaintiff argues that he did, in fact, demonstrate an adverse employment action sufficient to withstand summary judgment. Specifically, Plaintiff claims that the court overlooked evidence demonstrating (1) that persons hostile to Stoner improperly influenced the Ballet's decision to deny Stoner direct entry to the orchestra, (2) that it would have been futile for Stoner to audition because the process was unfair to him, and (3) that not all openings in the violin section have been filled by open auditions. (See Pl.'s Recons. Mem. at 2-6.) Plaintiff's assertions are entirely without merit.
Plaintiff, for the most part, rehashes the arguments he made before this court in motions decided in the May 8, 2001, Order and Opinion. With respect to the "evidence" Plaintiff claims the court overlooked about the Ballet's denial of Plaintiff's direct entry into the orchestra and the alleged futility of the audition process, Plaintiff's arguments continuously fail to distinguish between unsupported, irrelevant hearsay and evidence that would support his claims. See H. Sand Co., Inc. v. Airtemp, 934 F.2d 450, 454-55 (2d Cir. 1991) ("[T]estimony . . . that would not be admissible if testified to at the trial may not properly be set forth in [the Rule 56(e)] affidavit.") (internal quotations and citations omitted); see also Allen v. Coughlin, 64 F.3d 77, 80 (2d Cir. 1995) (finding conclusory allegations in affidavits insufficient). Moreover, Plaintiff's allegations regarding the "open" or "closed" nature of the auditions overlook the crucial distinction between openings for principal positions and entry into the basic orchestra, which are governed by different processes under the CBA. (See Def.'s Mem. in Opp. to Pl.'s Mot. for Recons. at 6-7.)
Plaintiff's arguments citing law allegedly ignored by the court are similarly unavailing. The "controlling" precedents submitted by Plaintiff are, in fact, inapplicable to Plaintiff's retaliation claims. The doctrines cited by Plaintiff deal with aspects of discrimination and hostile work environment claims unrelated to Plaintiff's failure to demonstrate an adverse employment action in support of his retaliation claims. (See Pl.'s Recons. Mem. at 3.) Since Plaintiff has failed to demonstrate that the court overlooked any evidence or controlling law that, if considered, could reasonably be found to alter the court's decision to dismiss some of his retaliation claims in its May 8, 2001, Order and Opinion, the court denies Plaintiff's Motion for Reconsideration of those claims. See Dellefave, 2001 WL 286771, at *1.
C. PLAINTIFF'S PROPOSED AMENDMENTS TO THE COMPLAINT
1. RETALIATORY FAILURE TO PROMOTE
In its Order and Opinion of May 8, 2001, the court granted in part and denied in part Plaintiff's first Motion to Amend the Complaint. At that time, Plaintiff's first Proposed Amended Complaint sought to add two new sets of allegations of retalitory conduct on the part of the Ballet. The first set occurred between 1984 and December 1997 and was allegedly precipitated by protected activity in which Stoner claimed he began to engage on January 1, 1980. Plaintiff alleged that the Ballet retaliated against him by failing to promote him to the basic orchestra in 1984; November, 1985; November, 1990; February, 1992; November, 1992; and February, 1996; and by failing to investigate and to take remedial action regarding his complaints that Fader harassed him in January, 1985; January, 1988; January, 1993; May and June, 1997; and December, 1997.Stoner I, 2001 WL 492430, at *8. The second set occurred after the filing of the original Complaint in this litigation on January 11, 1999. Stoner I, 2001 WL 492430, at *5.
Assuming, for the purposes of the motion, that Plaintiff had engaged in protected activity and had demonstrated a discriminatory policy or mechanism, the court found Plaintiff's new claims concerning the Ballet's conduct before February 5, 1998, were time-barred and that Plaintiff failed to set forth a continuing violation sufficient to warrant an exception to the statutorily required limitations on filing time. Stoner I, 2001 WL 492430, at *7 Therefore, the court denied Plaintiff leave to amend by adding retaliation claims concerning any conduct of the Ballet prior to February 5, 1998).
Plaintiff's complaint that the court erred by concluding that he could not show an "ongoing policy or mechanism" of discrimination, (see Pl.'s Recons. Mem. at 11), entirely ignores the fact that in deciding the motion, the court assumed such a policy or mechanism to exist. See Stoner I, 2001 ML 492430, at *7.
The court did, however, permit Plaintiff to add two allegations of retaliation allegedly occurring after the filing of his original complaintSee Stoner I 2001 WL 492430, at *8.
For the most part, Plaintiff's objections to the court's decision concern the findings that his allegations prior to 1998 were time-barred because Plaintiff failed to set forth a continuing violation. (See Pl.'s Recons. Mem. at 8-11.) Under Title VII, a claimant must file a discrimination claim "with the EEOC within 180 days of the alleged unlawful employment action or, if the claimant has already filed the charge with a state or local employment agency, within 300 days of the alleged discriminatory action." Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996). This statutory requirement is analogous to a statute of limitations, so a charge filed after the stated time frame will be barred. Id. The continuing violation doctrine provides an exception to that rule. "Under that doctrine, if a plaintiff has experienced a continuous practice and policy of discrimination, . . . the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (internal quotations and citations omitted). The Second Circuit has held that
[a]lthough the continuing violation exception is usually associated with a discriminatory policy, rather than with individual instances of discrimination, and although acts so `isolated in time . . . from each other [or] from the timely allegations as to break the asserted continuum of discrimination' will not suffice, Quinn v. Green Tree Credit Corp., 159 F.3d at 766, continuing violation may be found "where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994).Fizgerald, 251 F.3d at 359. A plaintiff may not rely on such a continuing violation theory, however, unless he has asserted a continuing violation in the administrative proceedings. Miller v. International Tel. Tel. Corp., 755 F.2d 20, 25 (2d Cir.), cert. denied, 474 U.S. 851 (1985).
The evidence Plaintiff suggests that the court "overlooked" when denying his Motion to Amend by adding retalitory conduct occurring prior to February 5, 1998, consists almost entirely of hearsay allegations contained within Plaintiff's own self-serving affidavits. (See. e.g., Pl.'s Recons. Mem. at 9-10.) Moreover, Plaintiff has continually "reconstrued" the often contradictory facts and conclusory allegations on which he relies to support his claims of a continuing violation in an attempt to make his case resemble favorable precedent. For example, Plaintiff initially claimed that he has been engaged in protected activity since at least January 1, 1980. (Proposed Am. Compl. ¶¶ 12, 16-17.) However, as the court noted in its May 8, 2001, Order and Opinion, Stoner's own allegations and the documents he relies upon do not support his claim that the NLRB charges [Stoner raised in the early 1980s] related to gender based discrimination" Stoner I, 2001 WL 492430, at *6. Moreover, even assuming that there was a continuing policy or mechanism of gender-based discrimination, Plaintiff, by his own admissions, should have been on notice no later than the mid-1980s of the Ballet's discriminatory policy. Consequently, Plaintiff's notice precluded application of the continuing violation doctrine. See Stoner I, 2001 WL 492430, at *7.
In an apparent attempt to circumvent those notice limitations of the continuing violation doctrine, Plaintiff asserted in his Memorandum in Support of Plaintiff's Motion for Reconsideration that despite his complaints and charges filed with the NLRB, (1) his awareness was not triggered because he wasn't regularly harassed until he was noticed for his deposition in May 1997, and (2) it was reasonable for him not to assert his rights until 1998 because he thought the discrimination might be mitigated by a Union settlement in 1985. (Pl.'s Recons Mem. at 10.) The latter assertions is an admission by Plaintiff that he was aware of the alleged discrimination prior to 1985; otherwise, Plaintiff would have no reason to believe there were any "adverse consequences" to be mitigated by the settlement. Moreover, any reliance by Plaintiff on the Union settlement to bring about changes in the audition process would necessarily have been negated by the next occasion on which auditions were held to fill an opening in the orchestra, which occurred in November of 1985. (See Def.'s Mem. in Opp'n to Pl.'s Mot. for Recons. at 10.)
Further "clarifying" his position in his Memorandum of Law in Support of Plaintiff's [second] Motion for a Preliminary Injunction, Plaintiff asserted:
In his complaint and in two amended complaints, Stoner has alleged an ongoing pattern of retaliation by the Ballet. However, Stoner now asserts that there was a break in his protected activity from approximately 1985 to 1997. In other words, Stoner's early activity from 1980-1985 was gender-based, protected opposition and his protected activity from 1997-present was also gender-based.
(Mem. of Law in Supp. of Pl.'s Mot. for Prelim. Inj. at 1-2.) Stoner's most recent averments only serve to demonstrate that he cannot meet the continuity requirements necessary to qualify for a tolling of the statutory filing period under the continuing violation doctrine. The law is clear that discrete, sporadic incidents do not meet the frequency requirement. See Weeks v. New York State Div. of Parole, 273 F.3d 76, 84 (2d Cir. 2001) ("Absent unusual circumstances, a two-year gap is a discontinuity that defeats use of the continuing violation exception.")
Now, however, Plaintiff "alleges that his well-documented fight against auditions for the Rotation Players from 1985-97 (which is undisputed) did not constitute a twelve year gap in Stoner's gender-based protected activity." (Pl.'s Mem. of Law in Supp. of Sanctions at 4.) While Plaintiff's position with respect to the time periods in which he was engaged in protected activity and his awareness of the alleged discrimination by the Ballet has shifted dramatically and repeatedly since the outset of this litigation, Plaintiff's reclassification of the facts on which he relies does not demonstrate that the court overlooked any evidence that, if considered, could reasonably be found to alter the court's decision to deny his Motion to Amend to add retalitory conduct occurring before February 5, 1998.
Stoner argues that the court should reconsider his continuing violation claims not only in light of those new assertions by Stoner but also because the Supreme Court has granted certiorari in Morgan v. Amtrak, 232 F.3d 1008 (9th Cir. 2000), cert. granted, 121 S.Ct. 2547 (2001), a Ninth Circuit case. In Morgan, as in prior cases, the Ninth Circuit rejected the application of the test articulated in Berry v. Board of Supervisors, 715 F.2d 971 (5th Cir. 1983), to continuing violation claims predicated upon the assertion of a hostile environment. Specifically, the Ninth Circuit rejected the strict "notice limitation" of the continuing violation doctrine in the context of hostile work environment claims after finding that "most cases of hostile environment are not capable of facile identification." First, the granting of certiorari by the Supreme Court does not represent a change in law warranting reconsideration, and Plaintiff does not point to any change in the law of this Circuit warranting reconsideration. Second, the twelve-year break in Plaintiff's "protected activity" and the attendant harassment admitted by Stoner is dispositive of his claim for continuing violation under any standard adopted by the courts. See Weeks, 273 F.3d at 84 (holding that where the events pleaded are few and unlinked and no discriminatory incidents were alleged during a three-year period prior to the limitations period there could be no continuing violation); Morgan, 232 F.3d at 1015 (holding that the incidents of discrimination cannot be "isolated, sporadic or discrete" and that the incidents prior to the limitations period must be sufficiently related to those occurring within the limitations period).
Plaintiff, by his own admission, was harassed only once during the twelve-year period prior to his testimony in the Pray litigation, (see Mem. of Law in Supp. of Prelim. Inj. at 1-2), and was unaware of any gender-based harassment against women at the Ballet from at least 1990 to 1996,(see Reply Aff. in Supp. of Pl.'s Rule 15 Mot. of 8/14/00, ¶ 10). Moreover, much of the evidence Plaintiff cites to demonstrate harassment both shortly before and then following his Pray deposition reveals that even Plaintiff did not believe the harassment was gender-based. For example, in a letter dated May 18, 1997, Stoner complained to Local 802 and the Ballet about a hostile environment. (First Proposed Am. Compl. ¶ 25.) However, the text of the letter itself demonstrates that Plaintiff's complaints at that time had nothing to do with gender-based harassment. (See Letter from Stoner to Executive Board, Local 802 of 5/19/97.) Plaintiff also cites two letters written in 1985 and 1988, (First Proposed Am. Compl. ¶¶ 19-20); however, those letters make no reference to gender-based discrimination. Thus, as this court found in its Order and Opinion of May 8, 2001, the alleged discrimination and Stoner's protected activity occurring outside the statutory limitations period, which appears to be labor-related, is not related to the gender-based discrimination alleged during the limitations period and cannot support a continuing violation allegation. See Stoner I, 2001 WL 492430, at *6. Furthermore, in this; case, Plaintiff's claims must be rejected as untimely since Plaintiff, by his own admission, hadactual notice that he should assert his rights as far back as the early 1980s. (See Am. Aff. in Supp. of Pl.'s Cross-mot. for Summ. J. ¶ 34 ("Lawyers that [Stoner] met with in the early 1980's, including former New York City Mayor John Lindsay, suggested to me that I and a group of women . . . file Federal discrimination charges in District Court.").)
Plaintiff admits to actual notice of discrimination and the non-continuity of the alleged harassment. Under either theory, the continuing violation exception to the statutorily imposed filing time limits is inapplicable. Thus, the court denies Plaintiff's Motion for Reconsideration with respect to those amendments. See Dellefave, 2001 WL 286771, at *1. Although Plaintiff may disagree with the manner in which the court applied the relevant legal standard to the facts before it, such disagreement does not justify reconsideration. In re Houbigant, Inc., 915 F. Supp. 997, 1001 (S.D.N.Y. 1996) (A Rule 6.3 motion is "non a motion to reargue those issues already considered when a party does not like the way the original motion was resolved."); see also Carolco Pictures. Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988) (The strict standards of Rule 6.3 aim "to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters.").
In addition to the court's finding that the claims were time-barred and failed to set forth a viable continuing violation exception, the court notes that Plaintiff would be entirely unable to establish an adverse employment action with respect to the allegations that the Ballet retaliated against him by failing to promote him to the basic orchestra in 1984; November, 1985; November, 1990; February, 1992; November, 1992; and February, 1996. See Stoner I, 2001 WL 492430, at *4 (dismissing identical retaliation claims). Thus, there is an additional ground upon which the court finds futility and, therefore, denies Plaintiff leave to amend to add these particular retaliation claims. See Jones v. N.Y. State Div. of Military Naval Affairs, 166 F.3d 45, 47 (2d Cir. 1998); Keady v. Nike. Inc., 116 F. Supp.2d 428, 440 (S.D.N.Y. 2000), vacated in part on other grounds, 2001 WL 1168334 (2d Cir. 2001) (Table, Text in Westlaw). The court also finds that Plaintiff's continued reassertion of these claims, given the court's rulings concerning Plaintiff's failure to establish an adverse employment action with respect to the Ballet's allegedly retalitory failure to promote Stoner to the basic orchestra, demonstrates bad faith and warrants denial of leave to amend on that ground as well. See Keady, 116 F. Supp. 2d at 441.
2. SECTION 1985(2) CLAIM
Plaintiff also contends that the court erred in denying leave to amend to add a claim under 42 U.S.C. § 1985 (2). Plaintiff sought to amend his Complaint to assert a cause of action against the Ballet under 42 U.S.C. § 1981, 1985(2), and 1985(3) because it engaged in a conspiracy with "its officers, and its attorneys to deprive him of equal protection of, and equal privileges and immunities under the Fourteenth Amendments [sic]." Stoner I, 2001 WL 492430, at *9. The court analyzed Plaintiff's new conspiracy claim and properly found that it was not cognizable under either § 1981 or § 1985(3), see id., and those two claims are not addressed in Plaintiff's Motion for Reconsideration. However, the court did not analyze Plaintiff's claim under § 1985(2) sufficiently. Therefore, the court grants Plaintiff's Motion for Reconsideration with respect to Plaintiff's Motion to Amend the Complaint to add a claim under 42 U.S.C. § 1985 (2).
On reconsideration, the court denies Plaintiff's Motion to Amend the Complaint to add a conspiracy claim under 42 U.S.C. § 1985 (2). While it is clear that pro se plaintiffs generally should be afforded the opportunity to amend their complaints, see Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991), "[a]fter the filing of a responsive pleading, the grant or denial of leave to amend is within the discretion of the district court," Keady, 116 F. Supp. 2d at 440. A motion to amend should be denied when the amendment would be futile. Jones v. N.Y. State Div. of Military Naval Affairs, 166 F.3d 45, 47 (2d Cir. 1998); Keady, 116 F. Supp. 2d at 440. Amendments have been found futile where a plaintiff cannot state a claim or where the claims would be subject to dismissal on some other basis. Dove v. Fordham Univ., 56 F. Supp.2d 330, 340 (S.D.N.Y. 1999), aff'd, 210 F.3d 354 (2d Cir. 2000); Azurite Corp. Ltd. v. Amster Co., 844 F. Supp. 929, 939 (S.D.N.Y. 1994) ("Azurite's proposed amendment would be futile because the factual foundations of Azurite's new allegations are insufficient, as a matter of law, to withstand defendants' motion for summary judgment."), aff'd, 52 F.3d 15 (2d Cir. 1995). Additionally, leave to amend may be denied upon a finding of bad faith or when the plaintiff has acted with the intention of unduly delaying the litigation. Keady, 116 F. Supp.2d at 441.
At the time Plaintiff moved to amend his Complaint, he failed to state a cognizable claim under § 1985(2). It is well established that a plaintiff must allege the existence of a § 1985 conspiracy with Particularity. See Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). When Plaintiff moved to add a § 1985 claim, he failed to identify specific individuals involved in the conspiracy or to cite to any agreement, concerted activity, or overt act taken in furtherance of the conspiracy. See id. However, Plaintiff has gradually refined his conspiracy allegations over time, and the court analyzes the claim as it has evolved throughout this pro se Plaintiff's numerous submissions.
42 U.S.C. § 1985 provides in pertinent part: "If two or more persons in any State or Territory conspire to deter, by force, intimidation or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified . . . the party so injured or deprived may have an action for recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators."
In his Motion for Reconsideration, Plaintiff claims that he is alleging two conspiracies: a conspiracy to deter Plaintiff from testifying during his Pray deposition and a conspiracy to retaliate against him for attending that deposition. (See Pl.'s Recons. Mem. at 12.) Later, in a letter to the court, Plaintiff alleged that "Pat Turk, a former Company Manager, and Anne Parsons, the current Company Manager, conspired with Kathleen Mckenna, the Ballet's outside counsel, to injure [Plaintiff]" within the meaning of § 1985(2). (See Letter from Stoner to the court of 10/15/01, at 1.) Plaintiff claims that the alleged conspirators caused him emotional and financial harm by retaliating against him for his participation in the Pray case. Specific acts then alleged by Plaintiff included conspiring to enforce the Ballet's promotion procedures selectively and to deny him promotions for both temporary and permanent positions. (See id.) The conspirators are also alleged to have conspired "to cover up allegations of gender-based harassment and a hostile workplace" with respect to both Plaintiff's testimony in thePray case and in the instant suit. (See id. at 2.)
In a letter to the court dated November 5, 2001, Plaintiff clarifies that he is asserting no less than three different claims under § 1985(2). First, Plaintiff claims that Kathleen McKenna, counsel for Defendant, and Pat Turk violated § 1985(2) "by conspiring to cover up ongoing and repeated instances of gender-based retaliation and harassment during the period of [Plaintiff's] Pray depositions" from May 1997 to June 1998. (Letter from Stoner to the court of 11/4/01, at 2.) Second, Plaintiff claims that Kathleen McKenna and Brooks Parsons, Chief Financial Officer of the Ballet, (see Menaker Decl. of 6/11/01, Ex. B, BK. 1, at 3), violated § 1985(2) "by conspiring to cover up ongoing and repeated instances of gender-based retaliation and harassment" from June 1990 to December 1998. (Letter from Stoner to the court of 11/4/01, at 2.) Third, Plaintiff claims that Kathleen McKenna and Anne Parsons violated § 1985(2) "by conspiring to cover up ongoing and repeated instances of gender-based retaliation and harassment" from May 1998 to the present. (Id.)
Concerted action among the directors, officers, and managers of a corporation cannot constitute a conspiracy. Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir.), cert. denied, 439 U.S. 1003 (1978); Burrell v. City Univ., 995 F. Supp. 398, 414 (S.D.N Y 1998). That prohibition against intra-corporate conspiracies applies to claims lodged under § 1985. See, e.g., Herrmann, 576 F.2d at 459 (finding no claim for conspiracy stated under § 1985(2) where each alleged conspirator was either a trustee or a faculty member of an educational corporation). Since all of the conspiracy theories alleged by Plaintiff involve a conspiracy between officers of the Ballet — Pat Turk, Anne Parsons and Brooks Parsons, they fail under the intra-corporate conspiracy doctrine.
Plaintiff attempts to surmount the intra-corporate conspiracy doctrine by alleging that Defendant's outside counsel Kathleen McKenna was also a conspirator. This ploy can he seen most clearly in Plaintiff's most recent letter, which splits the conspiracy into three separate conspiracies, each of which includes the Ballet's outside counsel and one officer of the Ballet. (See Letter from Stoner to the court of 11/4/01) of course, there can be no conspiracy between a corporation and its counsel where the advice or concerted activity was within the scope of the representation. See Heffernan v. Hunter, 189 F.3d 405, 413-14 (3d Cir. 1999) (dismissing claims under §§ 1985(1) and (2) because there could be no conspiracy between attorney and client where attorneys acted within the scope of their representation, even if attorney may have had mixed motives such as enhancing his reputation); Doherty v. American Motors, 728 F.2d 334, 340 (6th Cir. 1984) (citing the general rule that a corporation cannot conspire with its agents, finding no conspiracy where it was clear the attorneys were motivated "not by personal concerns" but by concern for their clients). Indeed, "treating the involvement of a lawyer as the key unlocking § 1985 would discourage corporations from obtaining legal advice before acting, hardly a sound step to take."Travis v. Gray Comm. Mental health Ctr., 921 F.2d 108, 111 (7th Cir. 1990).
In response, Plaintiff alleges that Kathleen McKenna participated in the conspiracies to further "her own self-interest to prevent [Plaintiff] from deposing Proskauer attorneys or otherwise involve various members of the Proskauer legal team in the instant matter." (Letter from Stoner to the court of 11/4/01, at 2.) Therefore, Plaintiff claims that Kathleen McKenna had a "personal stake" in the conspiracy. (See id.) Plaintiff is correct that "[t]here is a `personal interest' or `personal stake' exception to the intracorporate conspiracy doctrine, . . . which permits a § 1985 claim where there are individuals who are `motivated by an independent personal stake in achieving the corporation's objective.'"Salgado v. City of New York, No. 00 Civ. 3667, 2001 WL 290051, at *8 (S.D.N.Y. Mar. 26, 2001) (quoting Girard v. 94th St. Fifth Ave. Corp., 530 F.2d 66, 72 (2d Cir. 1976)). However, none of the motivations of counsel recited by Plaintiff support the Ballet's alleged goal of retaliation against Stoner. Any alleged attempt by counsel to prevent the deposition of attorneys represents neither a personal stake in the Ballet's alleged retaliation nor a direct attempt to retaliate against Plaintiff. Therefore, Plaintiff has failed to allege a personal stake on the part of the Ballet's counsel sufficient to preclude assertion of the intra-corporate conspiracy doctrine in this case. Since Plaintiff's attempt to allege a claim under § 1985(2) would necessarily fail, the court denies Plaintiff's Motion to Amend the Complaint to add a conspiracy claim. See Jones v. N.Y. State Div. of Military Naval Affairs, 166 F.3d at 47; Keady, 116 F. Supp. 2d at 440.
The court agrees with Defendant that the claims remaining following the court's Order and Opinion of May 8, 2001, were addressed in the motion papers and other submissions at that time. However, both parties, particularly Plaintiff, have regularly made voluminous submissions to the court through correspondence and interrelated motions. To the extent that any of the facts or documents relied upon herein were not formally submitted specifically in support of Defendant's Motion for Summary Judgment, Plaintiff's cross-motion for Summary Judgment, or Plaintiff's first Motion to Amend the Complaint being reconsidered at this time, the court construes Defendant's motion as a renewed motion for summary judgment on the outstanding claims. See. e.g., Bonnie Co. Fashions, Inc. v. Bankers Trust Co., 955 F. Supp. 203, 210 (S.D.N.Y. 1997); Bentley v. New York Nos. 82 civ. 3492 82 Civ. 5774. 1986 U.S. Dist. LEXIS 28224, at *4*5 (S.D.N.Y. Mar. 13, 1986).
A. TEMPORARY POSITIONS IN JANUARY AND DECEMBER, 1998
In its Order and Opinion dated May 8, 2001, the court held that Plaintiff had adequately established a prima facie case of retaliation in support of his allegations that Defendant discriminated against him by hiring temporary employees ahead of him in January and December, 1998.Stoner I, 2001 WL 492430, at *5. The court, therefore, denied Defendant's Motion for Summary Judgment with respect to those claims. Id. Defendant now seeks reconsideration of that decision. (See Mem. of Law in Supp. of Def.'s Mot. for Recons. arid/or Renewed Mot. for Summ. J. ("Def.'s Recons. Mem.") at 6-9.) Defendant argues that the court overlooked evidence that conclusively establishes that the appointment of a substitute player to fill a temporary opening in the orchestra in both January and December of 1998 was neither discriminatory nor retalitory. Defendant also argues that Plaintiff's claims regarding the January appointment are time-barred and that Plaintiff cannot establish a causal connection between his failure to be appointed to the temporary openings and his protected activity. (Id.) Defendant is correct that the court overlooked evidence that would reasonably be expected to affect the outcome of Defendant's Motion for Summary Judgment; therefore, the court grants reconsideration of Defendant's motion with respect to these claims. See Dellefave, 2001 WL 286771, at *1.
B. PLAINTIFF'S PROPOSED AMENDMENTS TO THE COMPLAINT
1. APPOINTMENT OF A "NEW" ROTATOR
In its Order and Opinion dated May 8, 2001, the court permitted Plaintiff to amend his Complaint to add two new claims. Stoner I, 2001 WL 492430, at *8. The first amendment added a new claim of retaliation alleging that "the Ballet created a new violin Rotation Player shortly after plaintiff lost his TRO on February 19, 1999 which plaintiff alleges was intended to impact adversely on plaintiff's work." (First Proposed Am. Compl. ¶¶ 49, 50, 52.) At that time, the court noted that "[w]hile the Ballet claims that this allegation is moot because it recognized that it erred in creating a new rotator and shortly thereafter revoked the new rotator's status, this Court finds that Stoner should he allowed to allege it in his Complaint as the Ballet's actions may have caused Stoner to miss performances he might otherwise have been asked to perform." Stoner I, 2001 WL 492430, at *8 n. 14. Citing evidence overlooked by the court, Defendant seeks reconsideration of that finding. Specifically, Defendant contends that the court overlooked evidence showing that the 1999 rotator appointment took place and was rescinded between seasons, negating any potential adverse impact on Plaintiff's employment, and that appointment to rotator status is not discretionary, negating any inference of causal connection. (See Def.'s Recons. Mem. at 2.)
The Order and Opinion of May 8, 2001, makes it clear that the court did not take notice of evidence establishing that the 1999 rotator appointment was both made and rescinded during the off-season. See Stoner I, 2001 WL 492430, at *8, *8 n. 14. Defendant is correct that if the court had taken that evidence into consideration, it would reasonably have been expected to alter the outcome reached by the court. Thus, the court grants reconsideration of its decision with respect to Plaintiff's Motion to Amend the Complaint to add this claim. See Dellefave, 2001 WL 286771, at *1.
2. ORCHESTRA MEMBERS PLAYING MORE THAN SIX PERFORMANCES
The second amendment the court permitted in its Order and Opinion dated May 8, 2001, permitted Plaintiff to add a claim that "the Ballet allowed a large number of members of the violin section to play more than six performances per week during the week ending February 28, 1999 which caused [Plaintiff] to lose work." (First Proposed Am. Compl. ¶ 49.)See Stoner I, 2001 WL 492430, at *8. Defendant now seeks reconsideration of that decision. Specifically, Defendant argues that the court overlooked evidence showing that basic members of the Ballet orchestra are permitted to work more than six performances per week under the CBA and routinely did so as early as 1994. Defendant is correct that the court did not consider that evidence. Since that evidence could reasonably have been expected to alter the outcome reached by the court, the court grants Defendant's Motion for Reconsideration with respect to this amendment to the Complaint. See Dellefave, 2001 WL 286771, at *1.
A. LAW GOVERNING RETALIATION CLAIMS
Title VII provides that "it shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex . . . ." 42 U.S.C. § 2000e-2 (a)(1). Title VII claims are analyzed under the familiar three-part burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). The plaintiff in a Title VII action has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). In order to establish a prima facie claim of retaliation, a plaintiff must show (1) that he was participating in a protected activity; (2) that his employer knew of his participation in the protected activity; (3) that the employer took adverse action against him; and (4) that a causal connection existed between the protected activity and the adverse action. See Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993) (citations omitted).
If the plaintiff satisfies that initial burden, the burden of production shifts to the defendants to "articulate a legitimate, clear, specific and non-discriminatory reason" for their actions. Quaratino v. Tiffany Co., 71 F.3d 58, 64 (2d Cir. 1995). Once a nondiscriminatory basis is advanced, the burden of persuasion shifts back to the plaintiff to show the finder of fact that the reasons proffered by the defendants are pretextual. Hicks, 509 U.S. at 515; Quaratino, 71 F.3d at 64. That is, the plaintiff must demonstrate by a preponderance of the evidence both (1) that the asserted basis for the employer's conduct is false, and (2) that the real reason for that conduct was unlawful discrimination.Hicks, 509 U.S. at 515-16.
B. TEMPORARY POSITIONS IN JANUARY AND DECEMBER, 1998
During the winter 1997-1998 season, Janet Berman ("Berman"), the Associate First Chair of the second violin section, left the orchestra (Menaker Decl. of 6/11/01, Ex. B, Ex. 1.) In response, Gordon Boelzner ("Boelzner") — at that time the Music Director — selected Alexander Simonescu ("Simonescu"), a member of the basic orchestra, for that Associate First Chair position. (Id.) The selection of Simonescu was made pursuant to the CBA. (See Menaker Decl. of 6/11/01, Ex. C, at 12-13 ("Replacements for any of the foregoing who cease to be associate first chair players by reason of leaving the basic orchestra shall be selected by the Music Director.").) The departure of Berman and the assumption of her Associate First Chair position by Simonescu created a vacancy in the violin section. (Menaker Decl. of 6/11/01, Ex. B, Ex. 1.) Pending the holding of auditions to fill that vacancy, Nancy McAlhany, a substitute player, was appointed as a temporary replacement. Her appointment was made by Boelzner in agreement with the principal of the second violin section of the orchestra pursuant to the procedures set forth in Article XII of the CBA. (Menaker Decl. of 6/11/01, Ex. C., at 36, 43.)
In December 1998, auditions were held to fill five openings in the violin section, including the opening temporarily filled by McAlhany. All violin rotators, including Stoner, were invited to audition. Even though he had previously requested, on October 10, 1998, that the Ballet "count [him] in," (Menaker Decl. of 6/11/01, Ex. D, Ex. 3), Stoner did not audition, (Menaker Decl. of 6/11/01, Ex. D ¶ 19). of the twenty musicians who auditioned only four were selected for entry into the orchestra. The Audition Committee was unable to decide on a fifth violinist. (Menaker Decl. of 6/11/01, Ex. D ¶ 19.) Pursuant to the procedures set forth in Article XII of the CBA, a temporary appointment was made until another audition could be held. (See Menaker Decl. of 6/11/01, Ex. C, at 43 ("A temporary opening of one (1) season or less shall be filled by a player mutually agreeable to the Music Director and the principal of the section having the temporary opening.").) Andy Schaw, who received the most votes among the unsuccessful candidates in the December 1998 audition, was temporarily appointed to the vacancy. Auditions to permanently fill that position were held in February 1999.
On reconsideration, the court first notes that Defendant is correct that Plaintiff's claims regarding the January temporary appointment are time-barred and are, therefore, dismissed. See Stoner I, 2001 WL 492430, at *7 ("[A]ny allegedly unlawful employment actions that occurred . . . on or before February 5, 1998 — are time barred."). Unfortunately, by the time Plaintiff submitted opposition papers to Defendant's Motion for Reconsideration, Plaintiff's claims had once again metamorphosed. In his opposition, Plaintiff asserted new allegations that the Ballet's "failure to appoint him to a permanent opening was due to the selective application of the audition procedure" and that, similarly, the Ballet's failure to promote him to these two temporary openings was also due to the selective application of the audition procedure. (Reply Mem. in Opp'n to Def.'s Mot. for Recons. and/or Renewed Mot. for Summ. J. ("Pl.'s Recons. Reply") at 1.) It is from of these new allegations that Plaintiff attempts to resurrect a continuing violation.
Plaintiff's new continuing violation claim must fail. As the court has already discussed, Plaintiff cannot maintain a continuing violation claim. See discussion supra Part II.C.1. Moreover, the record demonstrates that Plaintiff's failure to be appointed to both temporary positions was not causally connected to his participation in the Pray litigation. Both appointments were made pursuant to clear, unambiguous procedures set forth in the CBA, which does not require that rotators receive any priority in the filling of temporary openings. Stoner has the least seniority of the three rotators in the violin section, and not one of the three rotators — Helen Strilec, Sue Ellen Colgan, or Plaintiff — was selected to fill the temporary openings. (Menaker Decl. of 6/11/01, Ex. D ¶ 7; Ex. E, at 2.) Stoner himseLf admits that the Ballet used this same appointment procedure to fill temporary openings prior to his deposition in Pray, with the same result. (See Menaker Decl. of 6/11/01, Ex. B, Ex. 3 (Stoner NLRB Charge asserting that, on January 1, 1997, the Ballet, allegedly motivated by Stoner's continued Union activity, hired and seated a subordinate ahead of him).) There are no circumstances surrounding these temporary appointments that could give rise to an inference of retaliation. Plaintiff has failed to establish a prima facie case of retaliation with respect to either of the temporary appointments. Therefore, the court grants Defendant's Motion for Summary Judgment with respect to the January and December, 1998, temporary positions and dismisses those claims.
The court also notes that both temporary appointments were made pursuant to a specific provision of the CBA that could not possibly involve selective application. The provisions are clear and unambiguous and were followed by the Ballet. (See, e.g., Menaker Decl. Ex. C, at 43 ("A temporary opening to one (1) season or less shall be filled by a player mutually agreeable to the Music Director and the principal of the section having the temporary opening.").) The evidence on which Plaintiff relies to attempt to establish an issue of fact with respect to the application of the CBA for these two appointments consists entirely of inadmissible hearsay contained in Plaintiff's own self-serving affidavit. Since it is clear that neither of these temporary appointments involved selective application of the audition procedure, they cannot be part of Plaintiff's any alleged continuing violation based on selective application of provisions in the CBA.
C. APPOINTMENT OF A "NEW" ROTATOR
The Ballet has two New York seasons — a winter season from November to February and a spring season from May to June. (Menaker Decl. of 6/11/01, Ex. A ¶ 14.) There is also a three-week tour in July in Saratoga that is not part of the regular season. (Def.'s Recons. Mem. at 3.) In January of 1999, Nancy McAlhany ("McAlhany"), a substitute violist who had played with the orchestra for several years, sought appointment to rotator status under the CBA. (Menaker Decl. of 6/11/01, Ex. F at 4; Ex. G ¶ 5.) Article XIV of the CBA provides that a rotation player "shall be defined as any musician who has worked, or who in the future works, at least fifty (50%) percent of the New York City weeks in at least four out of five consecutive years . . . ." (Menaker Decl. of 6/11/01, Ex. C, at 47.) McAlhany herself approached Arnold Goldberg ("Goldberg"), Personnel Manager of the Ballet orchestra, claiming that she had sufficient performances under the CBA to request appointment under rotator status. (Menaker Decl. of 6/11/01, Ex. G ¶ 5.) Goldberg confirmed McAlhany's performance information and informed her of her appointment on March 31, 1999, when the Ballet was not in season. The Union then notified Goldberg, and it was later determined, that incorrect performance criteria, using calendar years rather than the Ballet's seasonal years, had been applied. Since it turned out McAlhany did not yet qualify for rotator status, her appointment was revoked on April 31, 1999. (Menaker Decl. of 6/11/01, Ex. F, at 4.)
On reconsideration, the court denies Plaintiff's Motion to Amend the Complaint to add a claim of retaliation through the appointment of McAlhany as a new rotation player on February 19, 1999. The entire process occurred while the Ballet was not in season therefore, McAlhany never worked as a rotator and her brief, if mistaken, appointment did not affect Plaintiff's own employment in any way. When Plaintiff moved to amend adding this claim, Plaintiff failed to identify a single negative effect the temporary appointment had on his employment. Given the undisputed facts about McAlhany's appointment, the court finds that Plaintiff will never be able to establish an adverse employment action with respect to this claim. Since this proposed amendment to the Complaint is futile, the court denies Plaintiff's Motion to Amend his Complaint with respect to this claim. See Jones v. N.Y. State Div. of Military Naval Affairs, 166 F.3d at 47; Keady, 116 F. Supp. 2d at 440;Azurite, 844 F. Supp. at 939.
The court is aware that a plaintiff need not plead facts sufficient to meet the requirements of a prima facie case, including an adverse employment action, in order to survive a motion to dismiss. See Swierkiewicz v. Sorema, 122 S.Ct. 992, 997 (2002) ("The prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement.") Under the standard announced in Swierkiewicz it is possible this claim might survive a motion to dismiss. Nevertheless, even if the court were to permit Plaintiff to amend his Complaint by adding this claim, the claim would immediately be subject to dismissal on a motion for summary judgment. See Azurite, 844 F. Supp. at 939.
Once again, in response to the court's earlier decisions and Defendant's arguments, Plaintiff attempts to conjure up a new claim including an adverse employment action. Stoner now argues that the adverse employment action stems from the chilling effect of Defendant's allegedly retalitory activity. (See Pl.'s Recons. Reply at 3.) By the time Plaintiff filed his most recent Motion for a Preliminary Injunction, his claim had grown into the contention that the Ballet's actions against him caused a chilling effect that is deterring Ballet employees, the Orchestra Committee, and the Union from protecting their own rights or cooperating as witnesses in this case.
In support of his claim of chilling effect, Stoner cites to an inapposite line of cases in the Second Circuit, Particularly Holt v. Continental Group, Inc., 708 F.2d 87, 91 (2d Cir. 1983) ("A retalitorydischarge carries with it the distinct risk that other employees may be deterred from protecting their rights under the Act or from providing testimony for the plaintiff in her effort to protect her own rights.") (emphasis added). (See Pl.'s Recons. Reply at 3.) The cases on which Plaintiff relies relate to retalitory discharge, which Plaintiff does not and cannot allege. Moreover, the notion of a chilling effect is analyzed in the context of preliminary injunction motions and irreparable harm determinations, not as an adverse employment action.
As this court noted :n its denial of Plaintiff's most recent request for a preliminary injunction,
In this action, Plaintiff's contentions regarding a chilling effect upon fellow employees are wholly unsupported. . . . When Plaintiff merely demands appointment to the regular orchestra but refuses to participate in the audition process, see Stoner, 2001 WL 492430, at *2, the resulting selection of another musician can not have a chilling effect on the other employees.Stoner v. New York City Ballet Co., No. 99 Civ. 0196, 2001 WL 1505492, at *2 (S.D.N.Y. Nov. 26, 2001) [hereinafter Stoner II]. Plaintiff also asserts that the Ballet is chilling participation by the Orchestra Committee and the Union in dealing with matters related to this case. Plaintiff cites the Union's refusal of his request: to file a grievance about the selective application of the contract, a change in the attitude of the Orchestra Committee towards; him after February of 2000, and the failure of rotators and other musicians to complain or assist in his lawsuit as evidence that the Ballet is chilling their efforts to exercise their rights. (See Mem. of Law in Supp. of Pl.'s Mot. for Prelim. Inj. at 3-6.) See also Stoner II, 2001 WL 1505492, at *3. However, the "evidence" cited by Plaintiff does not support a finding of any chilling effect caused by the Ballet's actions. See Stoner II, 2001 WL 1505492, at *2*3 Thus, even Plaintiff's newest allegations of a chilling effect do not affect the futility of raising this claim. Therefore, the court denies Plaintiff leave to amend to add this claim. See supra note 10 and accompanying text. Even if the court were to permit Plaintiff leave to amend adding this claim, such claim would immediately be subject to dismissal on a motion for summary judgment. See Jones v. N.Y. State Div. of Military Naval Affairs, 166 F.3d at 47; Keady, 116 F. Supp. 2d at 440; Azurite, 844 F. Supp. at 939.
D. ORCHESTRA MEMBERS PLAYING MORE THAN SIX PERFORMANCES
Under the CBA, members of the basic orchestra are compensated for a minimum of six performances per week. (Menaker Decl. of 6/11/01, Ex. C, at 3.) In addition, they are permitted to work more than six performances, and if they do so, they receive additional compensation. (Id. at 16.) Regular, or basic, players in the orchestra have, in fact, routinely played more than six performances per week since at least 1994. (Menaker Decl. of 6/11/01, Ex. I; Def.'s Mem. of Law in Supp. of Summ. J. ("Def.'s Summ. J. Mem.") at 5.) That practice has consistently occurred during the Ballet's winter season. (Menaker Decl. of 6/11/01, Ex. F; Def.'s Amend. Br. at 5, n. 4.) Plaintiff himself complained of the practice in a letter to the Executive Board of Local 802 dated January 4, 1994. The letter indicated that members of the basic orchestra were "routinely" being allowed to play more than six performances per week. (Def.'s Summ. J. Mem. at 5; Menaker Decl. of 6/11/01, Ex. I.)
It is clear from the face of the CBA that no selective application of that contract is involved in the decision by an individual musician to play more than six performances per week; the CBA expressly permits regular members of the orchestra to do so.
Based on the evidence presented, the court finds that it is undisputed that the Ballet's routine practice of permitting basic members of the orchestra to play more than six performances per week predated Plaintiff's participation in the Pray litigation by at least three years. Thus, Plaintiff can not put forward a credible claim that the practice is causally related to his participation in the Pray litigation or his filing of an unsuccessful motion for a temporary restraining order in this case in February of 1999. Moreover, Plaintiff's own evidence negates any possible inference of an adverse employment action as well. The chart of performances attached to his opposition by Plaintiff does not support the conclusion that he lost work in comparison with other players who are similarly situated but for Stoner's participation in protected activities (See Pl.'s Recons. Reply at 3-4; Ex. 2.) Plaintiff erroneously focuses on the performers in other sections of the orchestra, but examination of the records for violin rotators indicates that all three violin rotators — Stoner, Colgan, and Strilec — played three performances during the week in question. (See Pl.'s Recons. Reply Ex. 2.) Stoner worked exactly the same amount as the other two violin rotators, both of whom are senior to him and neither of whom has participated in Stoner's alleged protected activities. (See id.) Since Plaintiff will not be able to demonstrate a prima facie claim of retaliation concerning the orchestra members playing more than six performances in any given week, Plaintiff's claim of retaliation in this instance would be futile. See supra note 10 and accompanying text. Even if the court were to permit Plaintiff to amend his Complaint to add such a claim, it would be subject to immediate dismissal on a motion for summary judgment. See Jones v. N.Y. State Div. of Military Naval Affairs, 166 F.3d at 47; Keady, 116 F. Supp. 2d at 440; Azurite, 844 F. Supp. at 939. Therefore, the court denies Plaintiff's Motion to Amend with respect to this claim.
V. PLAINTIFF'S SECOND MOTION TO AMEND THE COMPLAINT
Plaintiff moves to amend his original Complaint pursuant to Rule 15, Federal Rules of Civil Procedure, for the purpose of stating new allegations of retalitory conduct on the part of the Ballet. (See Pl.'s Mem. of Law of 7/6/01, at 1.) Plaintiff alleges that these recent retalitory events were precipitated by Stoner's filing of his Complaint in this action, filing his first Proposed Amended Complaint, and his correspondence to Ms. Anne Parsons, the Ballet's Company Manager, dated December 21, 2001, complaining about the Ballet's audition procedure. (See id.) Plaintiff alleges that all three of those activities were protected activities. (See id.)
Plaintiff's most recent proposed amended Complaint asserts three new allegations of retaliation: the Audition Committee's failure to appoint Stoner to a permanent position in the orchestra on January 18, 2001, and the Ballet's failure to appoint Stoner to two temporary openings in the orchestra in the fall of 2000 and the spring of 2001. (See id.; see also Proposed Am. Compl. of 7/6/01, at 2.) Stoner claims that all three incidents involved the selective application of the CBA, and that such selective application constitutes an ongoing policy or mechanism of discrimination engaged in by the Ballet. (See Proposed Am. Compl. of 7/6/01, at 2.)
A. PERMANENT POSITION IN JANUARY, 2001
First, Stoner asserts that the Ballet failed to appoint him to a permanent position in the orchestra on January 18, 2001. With the exception of its more recent date, this claim is identical to the failure to promote claims raised and addressed by the court when dealing with the parties' initial motions for summary judgment. The court dismissed those claims, and Plaintiff sought reconsideration of that decision. Essentially, Plaintiff's second Motion to Amend the Complaint to add the January 2001 position seeks a second reconsideration of this court's ruling in Stoner I. Plaintiff, urging the court to ignore its earlier ruling, asserts that under the law of the case doctrine "there is no imperative duty to follow the earlier ruling." (Mem. of Law in Support of Mot. for Leave to Amend Compl. at 3.) However, "the law of the case counsels against reconsideration absent `compelling circumstances,' including an intervening change of law, the availability of new evidence, or to correct a clear error or prevent manifest injustice."Scottish Air Int'l v. British Caledonian Group. PLC, 152 F.R.D. 18, 25 (S.D.N.Y. 1993) (citing Diduck v. Kaszycki Sons Contractors. Inc., 737 F. Supp. 792, 796 (S.D.N.Y. 1990); United States v. Uccio, 940 F.2d 757, 757 (2d Cir. 1991)). Plaintiff's claim that a perceived lack of discovery prior to the original summary judgment motions in this case somehow constitutes compelling circumstances for the court to revisit those rulings, (see Pl.'s Reply Mem. of 8/14/01, at 3), fails entirely in the face of this court's repeated scrutiny of discovery in this case and the court's prior rulings finding adequate discovery had been conducted. See supra note 4.
Once again, Plaintiff molds his claims to fit potentially favorable precedent and to fill gaps identified in this court's previous rulings. Plaintiff now specifically asserts that the Ballet's failures to appoint him result in lost benefits, including sick pay, vacation pay, and personal days. (See Pl.'s Mem. of Law of 7/6/01, at 5-6.) Plaintiff's new allegations miss the point, however. As the court ruled previously, Plaintiff cannot establish an adverse employment action as a part of his retalitory failure to promote claim because he has failed to apply for the specific position he alleges he was denied. See Stoner I, 2001 WL 492430, at *4 (citing Brown v. Coach Stores, 163 F.3d 706, 710 (2d Cir. 1998)). In an effort to create "new" evidence that surmounts that insufficiency, Plaintiff "fulfilled" the application requirement with a letter dated December 21, 2000, which demanded direct appointment to the permanent orchestra without audition. (See Pl.'s Mem. of Law of 7/6/01, at 6.) Although the Committee determined that certain musicians, including Stoner, need not submit to the initial round of auditions but could proceed directly to the final audition, (Parsons Decl. of 7/27/01, ¶ 9), Plaintiff did not audition. Again, Plaintiff fails to appreciate that "it is undisputed that Stoner did not audition for the position of permanent orchestra member after the Pray litigation" and that his "contention that the Ballet was required to appoint him to the basic orchestra . . . without audition is without merit." Stoner I, 2001 WL 492430, at *4.
Plaintiff also clarifies his argument concerning the application of the CBA. He alleges that the Audition Committee must proceed through the three audition options in order, (see Menaker Decl. of 6/11/01, Ex. C, at 41), and that the Ballet is bypassing the required step E(2). Plaintiff overlooks the fact that it is provision E(1), not E(2), that would permit the direct appointment of a player from the substitutes without audition. (See Menaker Decl. of 6/11/01, Ex. C, at 41.) Moreover, at a meeting on January 18, 2001, the Audition Committee explicitly considered that possibility but "concluded that no musicians would be appointed for direct entry into the violin section of the basic orchestra." (Parsons Decl. of 7/27/01, at 2; see also Parsons Aff. of 6/11/01, ¶ 3.)
Even if the court assumes, for the purposes of this motion, that the Audition Committee consistently failed to follow the steps listed in the CRA in order, Plaintiff cannot present any evidence to suggest that the alleged practice was instituted in response to his participation in a protected activity. As the court has already ruled about Plaintiff's earlier, identical claims arising from auditions in 1998, "the Ballet has set forth undisputed evidence that open auditions are not only provided for in the current collective bargaining agreement, but have been used to fill every permanent violin opening since the audition procedure was adopted in the collective bargaining agreement of 1983." Stoner I, 2001 WL 492430, at *4. Thus, "the undisputed facts that open auditions have been used to fill every permanent violin opening in the basic orchestra since 1983, and that Stoner did not audition, although invited to do so, adequately rebuts" Stoner's allegation that timing alone can establish causal connection.
Since Plaintiff cannot establish either an adverse employment action or causal connection with respect to this claim of retalitory failure to promote, the court denies Plaintiff's motion to amend his Complaint to add this allegation. See supra note 10 and accompanying text. Any such amendment would be futile because it would be subject to immediate dismissal on a motion for summary judgment. See Jones v. N.Y. State Div. of Military Naval Affairs, 166 F.3d at 47; Keady, 116 F. Supp. 2d at 440; Azurite, 844 F. Supp. at 939. The court also finds that Plaintiff's continued reassertion of these identical retalitory failure to promote claims, given the court's rulings concerning Plaintiff's failure to establish an adverse employment action, demonstrates bad faith and, therefore, warrants denial of leave to amend. See Keady, 116 F. Supp. 2d at 441. This claim is identical to several others previously dismissed by the court, and Plaintiff's own actions attempting to "cure" the defect in his claims with his December, 2001, letter reveal his knowledge that the claim is not viable.
B. TEMPORARY POSITIONS, FALL OF 2000 AND SPRING OF 2001
As the court has already noted with respect to Plaintiff's other claims relating to temporary positions, pursuant to Article XII(H) of the CBA, temporary openings are filled by the Music Director in agreement with the principal of the affected section. (See Menaker Decl. of 6/11/01, Ex. C, at 43.) The CBA does not include any provision requiring that such an opening be filled by a rotation player or any particular individual. In this instance, both vacancies created by the absences of regular musicians Catherine Sim and Aaron Stolow were filled by making the performances available equally to the three violin rotators, instead of appointing a single person to fill the vacancies. ( See Parsons Decl. of 7/27/01, ¶¶ 11-13.) Thus, Stoner received equal consideration and equal opportunity to perform with the other rotators. Moreover, Stoner has the least seniority of the three violin section rotation players — Strilec, Colgan, and Stoner. (See Parsons Decl. of 7/27/01, ¶ 11.) Thus, Stoner cannot establish either an adverse employment action or a causal connection or inference of discrimination with respect to these two claims.
Any amendment to add these two claims would be subject to immediate dismissal on a motion for summary judgment, and so amendment would be futile. See Jones v. N.Y. State Div. of Military Naval Affairs, 166 F.3d at 47; Keady, 116 F. Supp. 2d at 440; Azurite, 844 F. Supp. at 939. Since amendment to add these two claims would be futile, the court denies Plaintiff's Motion to Amend the Complaint with respect to these two claims. See supra note 10 and accompanying text. The court also finds that Plaintiff's attempt to amend to add these two claims was made in bad faith and therefore warrants denial of leave to amend. See Keady, 116 F. Supp. 2d at 441. These allegations are nearly identical to those raised previously concerning temporary appointments. Moreover, Plaintiff deliberately attempted to obfuscate the issues surrounding these claims by failing to address either of these claims in his Memorandum of Law. Plaintiff never revealed to the court that he himself was actually given the opportunity to share equally in these appointments with the two other rotators.
C. PLAINTIFF'S REPLY
Plaintiff's Reply Memorandum of August 14, 2001, in support of his second Motion to Amend the Complaint makes it clear that his Motion to Amend is really a second motion for reconsideration of this court's Order and Opinion of May 8, 2001. The Reply does not even address the new claims asserted in the second Motion to Amend; instead, it recites four numbered arguments seeking reversal of the court's prior rulings. Clearly, Plaintiff's arguments are extremely untimely, and most of the arguments do not merit discussion. One of Plaintiff's newly articulated bases for his claims, however, warrants attention from the court. Plaintiff now claims that the court overlooked evidence demonstrating an adverse employment action through the repeated failure of the Ballet to remedy the harassment of Stoner by Fader and others. (See Pl.'s Reply Mem. of 8/14/01, at 3 (citing Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999) (holding that retalitory harassment may constitute an actionable "adverse employment action")).)
For example, Plaintiff again complains that he was not afforded adequate discovery. (See Pl.'s Reply Mem. of 8/14/01, at 2-3.) The court will not revisit the issue again.
1. THE SHIFTING CONTOURS OF PLAINTIFF'S HOSTILE WORK ENVIRONMENT CLAIM
For the first time in his Cross-motion for Summary Judgment, Plaintiff asserted as "background" that he was motivated to file his complaint to deter . . . a hostile workplace." (Mem. of Law in Supp. of Pl.'s Cross-Mot, for Summ. J. at 3.) However, he alleged only (1) that a hostile environment constitutes an adverse employment action and (2) that "Plaintiff is alleging the existence of a hostile environment which made it impossible for plaintiff to get a fair hearing at an audition." (Mem. of Law in Supp. of Pl.'s Cross-Mot. for Summ. J. at 14-15.) Only later, when he first moved to amend the Complaint, did Plaintiff tie his hostile work environment claim to a continuing violation theory. At that time, he stated "I am also asserting that the conduct alleged in my amended complaint constitutes a "continuing violation." (Aff. in Supp. of Pl.'s Mot. to Amend Compl. of 6/23/00, ¶ 9.)
During the course of this litigation, Plaintiff has raised various allegations of direct harassment of Plaintiff by Fader and others. Recently, however, those allegations have expanded to include Fader's harassment of other, female players and to assert what amounts to a poorly-defined continuing violation/hostile work environment claim predicated on gender-based discrimination against women. Plaintiff's hostile work environment claim, as most recently alleged, appears to have something to do with "the effect of Fader's harassment of Ms. Pray and others on Stoner." (Letter from Stoner to the court of 10/19/01, at 2.) As pointed out by Defendant, "Plaintiff apparently now recognizes that absent an aggregation of various and sundry complaints about isolated incidents of alleged `harassment' occurring over a period of almost twenty years (with a break of twelve years in between `incidents'), his complaints, as a matter of law, cannot satisfy the `severe and pervasive' requirements of a hostile work environment claim." (Letter from Defendant to the court of 12/17/01, at 1 n. 1.)
Contrary to Plaintiff's assertions, the court did, in fact, address Plaintiff's hostile work environment claims, as they were originally pleaded, in its Order and Opinion of May 8, 2001. To prevail on a claim for gender-based hostile work environment under Title VII, a plaintiff must prove that he is a member of a protected class, that the harassment was based upon his membership in the protected class, and that the harassment was sufficiently severe and pervasive to affect a term, condition or privilege of employment. Meritor Sav. Bank. FSB v. Vinson, 477 U.S. 57, 65 (1986); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995). In his Cross-motion for Summary Judgment, the only term or condition of employment that Plaintiff asserted was affected was that Plaintiff could not receive a fair hearing at an audition. However, the court found that (1) plaintiff failed to produce any evidence to support the futility of the auditions, (2) it was undisputed that the audition process guaranteed anonymity, (3) the Ballet had accommodated Stoner's request not to have Fader attend the one audition in which Stoner participated, and (4) "there is no proof that demonstrates the Ballet's audition process was unfair to Stoner." Stoner I, 2001 WL 492430, at *4. Plaintiff has not identified any change in the law or any evidence that the court overlooked when denying Plaintiff's Cross-motion for Summary Judgment with respect to his hostile work environment claims. Thus, there is no basis for reconsideration of that motion. See Dellefave, 2001 WL 286771, at *1.
Considered broadly, however, Plaintiff's voluminous
submissions and correspondence may be construed to raise a claim for continuing violation hostile work environment with slightly different contours than the claim as alleged prior to the court's Order and Opinion of May 8, 2001. Therefore, the court will construe those submissions by Plaintiff as a motion to amend the Complaint to add his newest conception of his hostile work environment claim. Plaintiff now claims that he has established a continuing violation hostile work environment based on Fader's harassment of Stoner and the effect of Fader's gender-based harassment of Ms. Pray and others on Stoner. The court finds that Plaintiff has failed to allege a gender-based hostile work environment claim and denies Plaintiff leave to amend to add such a claim. The court continues to decline to find allegations of a continuing violation sufficient to warrant tolling the statutory time limitations governing Plaintiff's claims; however, the court finds that Plaintiff has sufficiently alleged a claim of retalitory harassment and grants Plaintiff leave to amend the Complaint to maintain a single retaliation claim asserting only retalitory harassment occurring after February 5, 1998.
2. NO GENDER-BASED HOSTILE WORK ENVIRONMENT CLAIM
Plaintiff has failed to state a claim for a gender-based hostile work environment. Plaintiff's allegations that Fader and others harassedwomen working for the Ballet's orchestra do not support his claim because they fail to allege specific acts to support a claim that the work environment was hostile towards men, like Stoner. See Smith v. AVSC Int'l, Inc., 148 F. Supp.2d 302, 311 (S.D.N.Y. 2001). Allegations of harassment against other employees may be relevant to a plaintiff's hostile work environment claim. Leibovitz v. New York City Transit Authority, 252 F.3d 179, 190 (2d Cir. 2001) ("[W]e recognize that evidence of harassment directed at other co-workers can be relevant to an employee's own claim of hostile work environment discrimination."). However, the employees subject to the harassing acts must be in the same protected class as the plaintiff in order for the plaintiff's own hostile work environment claim to withstand a motion to dismiss. See AVSC Int'l, 148 F. Supp. 2d at 310; see also Leibovitz, 252 F.3d at 186 (holding the plaintiff's hostile work environment claim was proper because she was "a member of the protected class that she claims was subjected to discrimination" unlike other cases where plaintiffs "asserted Title VII rights on behalf of a protected class of employees to which the plaintiff did not belong").
Moreover, none of the alleged acts of harassment committed directly against Plaintiff support a claim that Plaintiff is being harassed because he is a male employee. In order for Title VII to be employed to combat a hostile work environment, a causal connection must exist between the gender of the plaintiff and the resultant disparity in treatment in the workplace. DeCintio v. Westchester County Med. Ctr., 807 F.2d 304, 308 (2d Cir. 1986). As the Second Circuit has stated, when read in the context of the legislative history of Title VII, the term "sex" "logically could only refer to membership in a class delineated by gender," rather than harassment for engaging in an activity regardless of gender. See DeCintio, 807 F.2d 304, 306 (2d Cir. 1986); see also Trans World Airlines v. Hardison, 432 U.S. 63, 71 (1977) ("The emphasis of both the language and the legislative history of [Title VII] is on eliminating discrimination in employment; similarly situated employees are not to be treated differently solely because they differ with respect to race, color, religion, sex, or national origin."); Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir. 2001) (referring to the "prohibited causal factor" requirement). Since Plaintiff cannot possibly allege facts in this situation that would state a claim for hostile work environment harassment against him based upon his gender, the court denies Plaintiff leave to amend to add such a claim — any such amendment would be futile. Jones v. N.Y. State Div. of Military Naval Affairs, 166 F.3d at 47; Keady, 116 F. Supp. 2d at 440.
VI. PLAINTIFF'S RETALIATORY HARASSMENT CLAIM
Having found that Stoner cannot state a hostile work environment claim, however, the court notes that Plaintiff is proceeding pro se. Therefore, the court must construe the claims raised in Plaintiff's submissions broadly in an attempt to determine whether Plaintiff may have alleged facts sufficient to state any other claim with respect to harassing acts directed at Plaintiff. So doing, the court finds that Plaintiff can state a retaliation claim for retalitory harassment imposed upon him for his participation in the Pray litigation. The court applies "the same standards in determining whether retalitory harassment constitutes an adverse employment action" for the purposes of a retaliation claim based upon harassment as it does "in assessing whether harassment imposed because of sex works an actionable alteration in the terms or conditions of employment." Gregory v. Daly, 243 F.3d 687, 701 (2d Cir. 2001) (citing Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999) (holding that retalitory harassment may constitute an actionable "adverse employment action" if it works a "materially adverse change in the terms and conditions of employment" (internal quotation marks omitted))).
To sustain a hostile work environment claim, a plaintiff must show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment . . . ." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations and citations omitted). The conduct at issue must create an objectively hostile work environment, and the victim must "subjectively perceive the environment to be abusive." Id. at 21-22 (emphasis added). The plaintiff must show either that a single incident was extraordinarily severe," or that a series of harassing incidents were "sufficiently continuous and concerted" to have altered the conditions of the plaintiff's working environment. Cruz v. Coach Stores, 202 F.3d 560, 570 (2d Cir. 2000) (citations omitted)
Looking at only instances after 1997, plaintiff alleges direct harassment by Fader on May 20, 1997; December 26, 1997; December 28, 1997; and June 11, 1998. (See Letter from Defendant to the court of 12/17/01, Ex. K, Stoner Statement of 12/20/98, at 1.) Fader allegedly tried to distract Stoner and behaved inappropriately during the orchestra's performances. plaintiff has submitted sufficiently specific facts with respect to these allegations to warrant amendment of the Complaint in this case. The court grants plaintiff leave to amend the Complaint to contain a single claim alleging retalitory harassment. However, the court has previously discussed multiple bases for a finding that plaintiff cannot allege a continuing violation exception to the statutory filing limitation in this case. See supra Part II.C.1. Those rationales apply equally to Plaintiff's retalitory harassment allegations. Therefore, plaintiff's retalitory harassment claims prior to February 5, 1998, are time-barred; plaintiff may assert a claim only for retalitory harassment occurring after February 5, 1998.
All other allegations of harassment of other men at the Ballet pointed to by Plaintiff consist of wholly unsupported allegations based entirely on inadmissible hearsay. (See Letter from Stoner to the court of 1/8/02 at 1-2.)
VII. PLAINTIFF'S MOTION FOR SANCTIONS
With permission of the court, Plaintiff filed a Motion for Sanctions against Defendant on December 31, 2001. The court directed Defendant not respond to the motion. Plaintiff asserts that Defendant's submission to the court of December 17, 2001, was an abuse of process. (See Pl.'s Mem. of Law in Supp. of Sanctions at 1.) Plaintiff's allegations are meritless. The court expressly granted Defendant permission to make the filing in a telephone conference with the parties on December 10, 2001. Moreover, Defendant's filing constitutes a response to various and sundry new allegations raised by Plaintiff long after the appropriate time, including a letter from Plaintiff to the court dated October 19, 2001. Plaintiff himself abused the leave granted to him by the court to file the motion for sanctions. After a brief one-page discourse on the alleged abuse of Defendant's submission of December 17, 2001, Plaintiff devotes an additional five pages to rehashing and offering new argument on his hostile work environment and continuing violation claims. Moreover, Plaintiff attaches a new seven-page affidavit that purports to "support" his motion for sanctions but instead reframes and enlarges upon the other "evidence" in support of his claims. If there is any abuse of process here, it is on the part of Plaintiff. For the foregoing reasons, the court denies Plaintiff's Motion for Sanctions.
For the reasons discussed above, the court GRANTS in part and DENIES in part Plaintiff's Motion for Reconsideration of its Order and Opinion of May 8, 2001. Specifically, the court GRANTS reconsideration of Plaintiff's Motion to Amend the Complaint to add a claim under 42 U.S.C. § 1985 (2). On reconsideration, the court DENIES Plaintiff's Motion to Amend the Complaint to add a conspiracy claim under 42 U.S.C. § 1985 (2). The court also GRANTS Defendant's Motion for Reconsideration of its Order and Opinion of May 8, 2001. On reconsideration, the court GRANTS Defendant's Motion for Summary Judgment with respect to Plaintiff's claims concerning the January and December, 1998. temporary positions. On reconsideration, the court also DENIES Plaintiff's Motion to Amend the Complaint to add a claim of retaliation through the appointment of a "new" rotation player on February 19, 1999, and DENIES Plaintiff's Motion to Amend the Complaint to add a claim of retaliation through permitting basic members of the orchestra to play more than six performances per week.
With respect to motions filed after and unrelated to the court's Order and Opinion of May 8, 2001, the court DENIES Plaintiff's second Motion to Amend the Complaint. Moreover, with one exception, the court DENIES Plaintiff leave to amend to add any of the other new claims raised in Plaintiff's extensive submissions to the court in the form of correspondence. The court also DENIES Plaintiff's Motion for Sanctions.
The court GRANTS plaintiff leave to amend the Complaint to contain a single claim alleging retalitory harassment occurring after February 5, 1998. Plaintiff is ORDERED to submit his final proposed amended Complaint on or before May 8, 2002. The court will not grant further leave to amend the Complaint in this case.
If either party believes further discovery must be conducted in order to obtain more complete information concerning this narrowly defined claim, that party must submit a request for further discovery to the court clearly indicating the specific discovery sought and the precise reasons why the discovery is deemed necessary. The parties are ORDERED to submit to this court any proposed requests and schedules for further discovery necessitated by this amendment to the Complaint no later than two weeks after the filing of plaintiff's Amended Complaint.
The court further ORDERS that any party seeking to file a motion or a request for relief with the court, even in correspondence, must first request a pre-motion conference, to be held by the court as soon as practicable following the request.