January 21, 2004
MEMORANDUM and ORDER
By a Memorandum and Order dated January 13, 2003, the undersigned granted defendants' motion for summary judgment and dismissed this employment discrimination action. Winnie v. City of Buffalo Police Dep't, 2003 WL 251951 (W.D.N.Y. 2003). Presently before the Court is plaintiff's motion for reconsideration pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure ("FRCvP"). For the reasons stated hereinbelow, plaintiff's motion will be denied.
FRCvP 60(b)(6) pertinently states that, "[o]n motion and upon such terms as are just, the court may relieve a party *** from a final judgment, order, or proceeding for *** any *** reason justifying relief from the operation of the judgment." However, although such rule confers broad discretion on this Court to grant relief when "appropriate to accomplish justice," Matarese v. LeFevre, 801 E2d 98, 106 (2d Cir. 1986) (quotation marks omitted), relief under FRCvP 60(b)(6) is available only in "extraordinary circumstances." Transaero, Inc. v. La Fuerza Area Boliviano, 24 E3d 457, 461 (2d Cir. 1994) (quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)). Such circumstances are rare and "courts usually deny reconsideration where a party had previous opportunities to act upon a motion or somehow prevent an unfavorable result." Williams v. New York City Dep't of Corr.,___ F.R.D. ___, 2003 WL 22928860, at *9 (S.D.N.Y. 2003).
Plaintiff contends that, in granting defendants' summary judgment motion, this Court relied on legal arguments that were not raised by the defendants, thereby depriving him of the opportunity to submit legal authority and facts in the record that purportedly supports the denial of defendants' motion. Pl's Mem. of Law, at 1. Plaintiff has not shown the requisite extraordinary circumstances to justify granting him relief from this Court's judgment. Plaintiff first contends that he had submitted sufficient evidence to establish a genuine issue of fact regarding his hosfile work environment claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). In support of his motion, plaintiff argues that this Court should have considered defendants' alleged conduct that occurred outside the 300-day limitations period.
The Court will first address plaintiff's latter contention. The parties had submitted their respective briefs with respect to defendants' summary judgment motion before the Supreme Court's decision in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), in which that Court held that (1) a hosfile work environment claim is timely under Title VII as long as one of the predicate acts occurred within the limitation period and (2) all acts which plaintiff alleges contributed to a hosfile work environment may be considered by a court inasmuch as they are all part of a single employment practice. Id. at 120. Thus, acts that occurred outside of the 300-day statute of limitations could be considered if the court determines that they "are part of the same actionable hosfile work environment practice." Ibid. In ruling on plaintiff's Title VII claim premised on a hosfile work environment, this Court previously considered only conduct that had allegedly occurred after January 8, 1999 — 300 days prior to plaintiff's November 4, 1999 EEOC claim — based on the fact that plaintiff had not pled a continuing violation. See Winnie, at *3. However, in light of Morgan, this Court should have, and now will, consider whether the totality of plaintiff's evidence, including defendants' conduct that is alleged to have occurred before January 8, 1999, raises a genuine issue of material fact regarding his hosfile work environment claim. Thus, this Order will serve to clarify, amend and supplement this Court's January 13, 2003 Memorandum and Order accordingly.
According to the continuing violations 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) (citations and internal quotation marks omitted).
Plaintiff's evidence is insufficient to raise an issue of triable fact that he suffered from a hosfile work environment. Plaintiff alleges that the following acts, which were not previously considered by the Court, contributed to a hosfile working environment: (1) three derogatory notes that were either left in his mailbox at work or posted on the schedule board, (2) the circumstances and actions surrounding the Easter Mass incident in 1997, (3) various derogatory comments directed at him by Nigro and other police officers and (4) Nigro's incitement of other police officers meant to "ridicule plaintiff because of his race and religion." Pl's Mem. of Law, at 6. Plaintiff also contends that he has been subjected to ridicule because of his race and religion during his entire career at the Buffalo Police Department. Winnie Aff. ¶ 5. However, such conduct — considered in totality with the conduct previously discussed in this Court's MO — does not raise any issues of fact with regard to plaintiff's hosfile work environment claim. Plaintiff simply has not shown that he suffered from conduct that was severe or that such conduct occurred with any kind of frequency. Plaintiff's evidence of the three derogatory notes that were allegedly directed at him during the course of a six-year period does little to show continuous or frequent conduct. In addition, the 1997 Easter Mass Incident is not evidence of discriminatory conduct. Plaintiff alleges that his exposure to the Easter ceremony and Loncar's comments regarding the Easter Mass upset him so much because one of the teachings of his religion is that "the Bible (Christianity)" must be kept out of his life. Winnie Aff. ¶ 13. However, plaintiff neither attended the Easter Mass nor was forced to observe or listen to the ceremony. Although he observed the Easter Mass while it was taking place, he did so voluntarily and such a brief exposure to the ceremony could not be reasonably considered as evidence of offensive or intimidating conduct. Finally, plaintiff's conclusory assertions, with no evidentiary support, that he suffered from racial and religious ridicule during his entire career is insufficient to defeat defendants' summary judgment motion. FRCvP 56(e); see also Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("Conclusory allegations, conjecture and speculation *** are insufficient to create a genuine issue of fact."). In sum, despite drawing all factual inferences in his favor, and considering the totality of his evidence and allegations, plaintiff has not raised any triable issues of fact that (1) his "workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [his] work environment," Richardson v. N.Y. Dep't of Corr. Serv., 180 E3d 426, 436 (2d Cir. 1999), or (2) the discriminatory intimidation was "offensive or pervasive enough that a reasonable person would find it hosfile or abusive." Horsford v. Salvation Army, 2001 WL 1335005, at *9 (S.D.N.Y. 2001) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); see also Richardson, at 436 (citing Harris and discussing the fact that the ultimate issue is whether the environment was "objectively" hosfile).
See Winnie, at *3, for the applicable summary judgment standard.
Plaintiff contends that, of the two notes that were left in his mailbox, one was placed there "sometime after August 31, 1994" and the other one was "dated February 20, 1989." Pl's Mem. of Law, at 23. With respect to the message posted on the schedule board, plaintiff alleges that it was dated sometime around July 8, 1993. Ibid.
See Winnie, at *l-2, for a more detailed recitation and description of the pertinent facts and allegations.
See Winnie, at *l-4.
Plaintiff claims to have briefly witnessed the Easter ceremony while dropping off some paperwork at the police station. Pl's Mem. of Law, at 4.
Plaintiff also asks the Court to reconsider its conclusions with regard to his disparate treatment, section 1981 and New York Human Rights Law ("NYHRL") claims. Notwithstanding his inability to establish a prima facie case of discrimination based on disparate treatment, plaintiff has offered nothing substantive to overcome this Court's previous holding that plaintiff "has offered nothing to show that defendants' confinement policy — a legitimate, non-discriminatory reason for requiring plaintiff to utilize vacation days to leave his place of confinement for an extended period of time — is somehow a pretext for discrimination." Winnie, at *6. Furthermore, plaintiff has offered nothing credible to warrant a change in this Court's previous conclusion that he failed to raise an issue of material fact with regard to his section 1981 claim. See Winnie, at *6-7 (discussing plaintiff's evidence with regard to his section 1981 claim). Additionally, plaintiff's section 1981 and NYHRL claims, which were premised on a hosfile work environment, were properly rejected for the same reasons that his Title VII claim was rejected. See Whidbee v. Garzarelli Food Specialties, Inc., 223 E3d 62, 69 (2d Cir. 2000) (holding that a hosfile work environment claim under section 1981 is to be analyzed pursuant to the Title VII framework); Sullivan v. Newburgh Enlarged Sch. Dist, 281 E Supp.2d 689, 707 (S.D.N.Y. 2003) (holding that Title VII claims and NYHRL claims are to be analyzed in tandem inasmuch as each one requires the same standard of proof) (citing Quinn v. Green Tree Credit Corp., 159 E3d 759, 765 (2d Cir. 1998)).
See Winnie, at *5-6 (discussing the reasons why plaintiff had not satisfied the fourth prong of a disparate treatment claim under Title VII).
Accordingly, it is hereby ORDERED that plaintiff's FRCvP 60(b)(6) motion for relief from the final judgment is denied and that this case shall remain closed.