03 Civ. 0257 (RWS).
May 30, 2006
VLADECK, WALDMAN, ELIAS ENGELHARD, P.C. Attorneys for Plaintiff, New York, NY. By: ANNE L. CLARK, ESQ., DANIELA E. NANAU, ESQ., Of Counsel
McDERMOTT WILL EMERY LLP Attorneys for Defendant New York, NY. By: JOEL E. COHEN, ESQ., Of Counsel.
Defendant Norddeutsche Landesbank Girozentrale ("Defendant," the "Bank," or "Nord/LB") has moved pursuant to Rule 6.3 of the Local Rules of Civil Procedure for reconsideration of this Court's opinion dated November 2, 2005 (the "November 2 Opinion"), which denied: (i) Defendant's motion for summary judgment on plaintiff Beverly Zakre's ("Plaintiff" or "Zakre") claims that the Bank discriminated and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law, Executive Law § 296, et seq., and the Administrative Code of the City of New York § 8-107 et seq. (referred to as the "Summary Judgment Motion"); and (ii) Defendant's motion to strike portions of Plaintiff's affirmation and the supporting affirmations (collectively referred to as the "Affirmations") submitted by Plaintiff in opposition to Defendant's Summary Judgment Motion (referred to as the "Motion to Strike"). For the reasons set forth below, the motion for reconsideration is denied.
The filing of Zakre's complaint and the course of the litigation was described in the November 2 Opinion, familiarity with which is assumed.
The instant motion for reconsideration was marked fully submitted on December 21, 2005.
The Applicable Standard
Local Civil Rule 6.3 for the Southern District of New York provides that parties may file motions for reconsideration of the court's decisions, accompanied by a memorandum "setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." To be entitled to reconsideration, the movant must demonstrate that the court overlooked controlling decisions or factual matters that were put before it on the underlying motion that might have altered the result reached by the Court. See Ameritrust Co. Nat'l Ass'n v. Dew, 151 F.R.D. 237, 238 (S.D.N.Y. 1993); East Coast Novelty Co. v. City of New York, 141 F.R.D. 245, 245 (S.D.N.Y. 1992).
It is well established that a motion for reconsideration is not the proper avenue for the submission of new material. See Local Rule 6.3; First American Corp. v. Price Waterhouse LLP, No. M8-85 (RWS), 1999 U.S. Dist. LEXIS 3059, 1999 WL 148460 *3 (S.D.N.Y. Mar. 18, 1999). A party seeking reconsideration 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); see Kara Holding Corp. v. Getty Petroleum Mktg., Inc., 2005 U.S. Dist. LEXIS 257, No. 99 CV. 0275 (RWS), 2005 WL 53266, *1 (S.D.N.Y. Jan. 10, 2005) (citingHoubigant, Inc. v. ACB Mercantile, 914 F. Supp. 997, 1001 (S.D.N.Y. 1996)). Indeed, new material submitted to the Court should be stricken and disregarded. See Quartararo v. Catterson, 73 F. Supp. 2d 270, 273 (E.D.N.Y. 1999).
Local Civil Rule 6.3 is "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." Davidson v. Scully, 172 F. Supp. 2d 458, 462 (S.D.N.Y. 2001); see also In re Health Mgmt. Sys. Inc., Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000) (noting "`that reconsideration of a previous order is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources'") (citation omitted). The policy underlying these principles is to ensure finality and to prevent losing parties from raising matters that already have been rejected. See Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp. 2d 390, 392 (S.D.N.Y. 2000).
The Motion To Strike Is Not Reconsidered
Nord/LB has moved for reconsideration of the denial of its motion to strike. Initially, Nord/LB has contended not that the November 2 Opinion overlooked King v. Auto, Truck, Indus. Parts Supply, 21 F. Supp. 2d 1370 (N.D. Fla. 1998) and Crosfield Hastech, Inc. v. Harris Corp., 672 F. Supp. 580 (D.N.H. 1987), but rather that the decision misapplied those cases. (Def. Memo, p. 4). According to Zakre, the citations were appropriate (Pltf. Memo in Opp., pp. 20-21). As stated above, a disagreement with the Court's analysis of case law considered on the motion does not warrant reconsideration.
Additionally, since Nord/LB has not established any contradictions between Zakre's deposition and her affidavits, nor that any such contradictions would be determinative, reconsideration is not required under Buttry v. General Signal Corp., 68 F.3d 1488 (2d Cir. 1995) ("It is well established in this Circuit that a party's affidavit which contradicts his own prior [sworn] testimony should be disregarded on a motion for summary judgment.").
As to whether the affidavits were based on personal knowledge, the November 2 Opinion concluded that the requisite knowledge existed. The authorities cited by Nord/LB have been appropriately distinguished by Zakre, and Nord/LB has not presented authorities that were overlooked.
Accordingly, grounds warranting reconsideration of the denial of the motion to strike have not been established. Reconsideration Of The Failure To Promote Claim Is Not Required
Nord/LB has also moved for reconsideration of the Court's denial of its motion for summary judgment with respect to Zakre's failure to promote claim, arguing that: (1) the Court erroneously concluded that Mr. Westrick was responsible for Defendant's failure to promote Zakre; (2) the Court erroneously concluded that Zakre presented evidence establishing that she was qualified for the position of Treasurer; and (3) the Court erred in concluding that there is an issue of fact as to whether Zakre was more qualified for the Treasurer position than Mr. Gajano.
As to Nord/LB's first contention, the November 2 Opinion recognized that a factual issue exists with respect to Mr. Westrick's role in the decision-making process surrounding the Treasurer position. Nord/LB's arguments to the contrary were considered on the motion for summary judgment. Therefore reconsideration is not warranted.
As to Nord/LB's contentions concerning Zakre's qualifications, a prima facie case was presented, particularly in view of her previous performance in the Treasurer position. While the decision-maker perception may be most probative, it cannot obviate a factual dispute presented by those with knowledge. The arguments advanced by Nord/LB with respect to Zakre's qualifications were set forth in Nord/LB's original moving papers, and were considered in the November 2 Opinion. Because Nord/LB has failed to demonstrate factual issues and/or case law that was overlooked, reconsideration of this decision is not warranted.
Additionally, material disputed facts as to pretext have been set forth in the November 2 Opinion sufficient to defeat summary judgment. In particular, conflicting facts have been presented with respect to bias and the role of the decision-maker, whether Westrick or Koesters. Moreover, Nord/LB has not pointed to any material facts overlooked by the Court that would warrant reconsideration or call into question the Court's conclusion that a factual issue exists.
For these reasons, Nord/LB has not established grounds for reconsideration of the denial of summary judgment of Zakre's failure to promote claim.
Reconsideration Of The Retaliation Claim Is Not Required
Finally, Nord/LB contends that the Court should reconsider its denial of Nord/LB's motion for summary judgment as to Zakre's retaliation claim. Nord/LB argues that the Court erroneously ruled that Zakre established an issue of fact with respect to whether an adverse employment action was taken. Additionally, Nord/LB contends that the Court erred in finding that Zakre established a causal connection between her complaints of discrimination and the alleged adverse employment actions.
Whether or not, as a matter of law under the authorities, the conduct of Nord/LB constituted adverse employment action is disputed by the parties. The November 2 Opinion resolved the dispute in favor of Zakre. Nord/LB's disagreement with that conclusion does not amount to grounds for reconsideration. The district court cases Nord/LB cites as having been overlooked by the Court do not obviate the Court's finding and therefore do not warrant reconsideration.
As to causality, Zakre has submitted facts that raise an issue of material fact with respect to causality, the treatment of her complaints and requests, and the actions of Gajano. Zakre submitted evidence of a pattern of discrimination starting with her initial complaints and ending with her discharge. As such, sufficient facts have been set forth to raise the issue of causality, such that summary judgment was deemed inappropriate.
Accordingly, reconsideration of the denial of the motion to grant summary judgment on the retaliation claim is not warranted. Reconsideration Of The Denial Of The Hostile Environment Claim Is Not Required
In its motion, Nord/LB reiterates its position taken on the motion for summary judgment — namely that Zakre's complaint did not provide adequate notice of her hostile work environment claim — which was rejected in the November 2 Opinion. Zakre has noted the portions of the complaint that establish the facts sufficient for a hostile claim under Swierkiewiez v. Sorenia, N.A., 534 U.S. 506. The facts alleged could be fairly presumed to give notice of a hostile work environment claim.
As outlined in the November 2 Opinion and set forth in Zakre's opposition to this motion, evidence has been presented from which it could be concluded that Nord/LB's actions constituted a pattern of harassment that was "sufficiently severe or pervasive to alter the conditions of [her] employment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)).
Because Nord/LB has failed to point to facts or case law overlooked by the Court, insufficient grounds for reconsideration have been presented with respect to the hostile environment claim. Conclusion
While Nord/LB has delineated its differences with the conclusions reached in the November 2 Opinion, it has not established grounds for reconsideration as set forth above. The motion for reconsideration is denied.
It is so ordered.