Gomez v. Moore et al

Filing 107

ORDER; Defendant's Motion 99 for Reconsideration re Order 95 on Motion for Summary Judgment is DENIED. Signed by Judge Janet Bond Arterton on 6/18/2014. (Morril, Gregory)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RICK GOMEZ,
Plaintiff,
v.
THE METROPOLITAN DISTRICT,
Defendant.

Civil No. 3:11cv1934 (JBA)

June 18, 2014

RULING ON DEFENDANT’S MOTION FOR RECONSIDERATION
Defendant the Metropolitan District moves [Doc. # 99] for partial reconsideration
of the Court’s Order [Doc. # 95] on Defendant’s Motion for Summary Judgment (the
“Order”) denying Defendant’s motion for summary judgment on Plaintiff’s retaliatory
discharge claim.1 For the reasons that follow, Defendant’s motion is denied.
I.

Legal Standard
Motions for reconsideration require the movant to set “forth concisely the matters

or controlling decisions which [the movant] believes the Court overlooked in the initial
decision or order.” D. Conn. L. Civ. R. 7(c)1. The Second Circuit has explained that
“[t]he major grounds justifying reconsideration are ‘an intervening change of controlling
law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice.’” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255
(2d Cir. 1992) (quoting 18B C. Wright, A. Miller, & E. Cooper, Federal Practice &
Procedure § 4478). This standard is “strict,” however, and reconsideration should be
granted only if “the moving party can point to controlling decisions or data that the court
1

The Court granted summary judgment to Defendant on Plaintiff’s
discriminatory termination and failure to rehire claims and his retaliatory failure to rehire
claim.

overlooked—matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.
1995). If “the moving party seeks solely to relitigate an issue already decided,” the court
should deny the motion for reconsideration and adhere to its prior decision. Id.
II.

Discussion
Defendant advances a number of grounds for reconsideration, primarily focusing

on the Court’s analysis of statistical data that Plaintiff Rick Gomez presented in support
of his retaliatory discharge claim. Mr. Gomez offered statistical evidence showing that
five out of the fourteen (36%) non-union employees included in the reduction in force
(“RIF”) had previously filed a complaint or otherwise opposed discrimination.
Additionally, Plaintiff relied upon a related statistic that the only other exempt and
excluded employee who had previously complained of discrimination was terminated in
January 2011, and thus, after the October 2011 layoffs, all six of the non-union employees
who had complained of discrimination were terminated.2 (See Order at 25.)

2

For the first time in its Reply [Doc. # 104], Defendant submits an affidavit (see
Zaik Aff. [Doc. # 104-2]) to the effect that the document it created and produced during
discovery listing all of the non-union employees who had previously filed an employee
discrimination complaint against the District (see List of Exempt and Excluded Nonunion
Employees, Ex. 20 to Pl.’s Loc. R. 56(a)2 Stmt. [Doc. # 81]) contained certain errors
undermining Plaintiff’s “claimed statistic that 100%” of the non-union employees who
had complained of discrimination were terminated by October 2011. (Reply at 10 n.12
(emphasis in original).) Evidence is “newly discovered” so as to justify reconsideration
only where it is “evidence that could not have been discovered earlier.” Boule v. Hutton,
328 F.3d 84, 95 (2d Cir. 2003); see also Palmer v. Sena, 474 F. Supp. 2d 353, 355 (D. Conn.
2007) (“A motion for reconsideration cannot be employed as a vehicle for asserting new
arguments or for introducing new evidence that could have been adduced during the
pendency of the underlying motion.” (internal citations and quotation marks omitted)).
Defendant’s erroneous description of its own workforce based on its own data was plainly
2

The Court conducted an extensive analysis of the parties’ arguments regarding the
significance of these statistics and the case law regarding whether the admittedly small
sample size was sufficient (see id. at 25–29), and concluded that “the statistical evidence
proffered by Plaintiff is relevant circumstantial evidence that could support the inference
that Defendant used the RIF as an occasion to ‘clean house’ of all employees who had
previously engaged in protected activity” (id. at 28).
Applying Stratton v. Dep’t for the Aging for City of New York, 132 F.3d 869, 876
(2d Cir. 1997), the Court held that “such statistical evidence is not sufficient on its own to
support an inference of retaliatory motive, but with Plaintiff’s other evidence—
inconsistencies in Defendant’s explanations about the reduction of Gomez’s
responsibilities and the process used to select him for elimination—Plaintiff has produced
minimally sufficient evidence to support an inference of retaliatory motive.” (Id.)
Defendant now contends that “[c]ontrary to both the data and controlling law, the
Court concludes that the plaintiff’s blanket and inaccurate statistics are relevant
circumstantial evidence.” (Def.’s Mem. Supp. [Doc. # 99-1] at 2, 13.) Defendant’s further
argument in this regard is based on an extensive discussion of the nature of Plaintiff’s
statistical evidence compared to that approved by the Second Circuit in Stratton. (See id.
at 2–4, 16–18.) However, in its Order, the Court discussed and applied Stratton (see

evidence available to Defendant during the pendency of the summary judgment motion
and no excuse is offered for presenting it for the first time in Defendant’s reply brief, and
thus the Court declines to consider it. See Revise Clothing, Inc. v. Joe’s Jeans Subsidiary,
Inc., 687 F. Supp. 2d 381, 387 (S.D.N.Y. 2010) (“It is plainly improper to submit on reply
evidentiary information that was available to the moving party at the time that it filed its
motion and that is necessary in order for that party to meet its burden.”).
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Order at 27–28) and considered and rejected Defendant’s argument that Plaintiff’s
statistical data was not sufficient or reliable.3 Defendant also again contests the adequacy
of the sample size and contends that the Court “improperly concludes that Schoonmaker
v. Spartan Graphics Leasing, LLC, 595 F.3d 261 (6th Cir. 2010) is inapplicable here.”
(Def.’s Mem. Supp. at 10.)
The Court has already addressed why it considers the Sixth Circuit’s holding in
Schoonmaker to be inapplicable here. (See Order at 28 n.10.) Defendant merely seeks to
relitigate issues and the significance of authorities that the Court has already extensively
addressed and does not set forth any valid grounds for the Court to reconsider its
conclusion. See Shrader, 70 F.3d at 257; Morales v. Quintiles Transnational Corp., 25 F.

3

Defendant’s contention that the Court improperly “adopts the plaintiff’s
sweeping, inaccurate allegation that his data is comprised solely of protected activity that
occurred over a short period of time prior to the October 2011 RIF” (Def.’s Mem. Supp. at
4) is itself inaccurate, as the Court discussed exactly when each of these employees
engaged in protected activity (see Order at 9–11). For the same reason, Defendant’s
contention that Plaintiff has “now concede[d] that the Court misunderstood the
purported probative value of [Plaintiff’s] claimed statistics” is also inaccurate. (Reply at
7.) Defendant’s argument that this statistical evidence was insufficient “at the pretext
stage to infer retaliatory intent” because there was no temporal proximity between the
RIF and the adverse actions of the employees in this data set reflects Defendant’s
confusion regarding the nature of this evidence. (See Def.’s Mem. Supp. at 5.) Plaintiff
established a prima facie case as to himself based solely on the three-week temporal
connection between his request for a release of jurisdiction from the CHRO and his
termination. (See Order at 18.) The former District employees in Plaintiff’s data set are
not plaintiffs in this case and the prima facie analysis is simply not applicable to them.
Rather, the statistical evidence was offered as circumstantial evidence that Plaintiff was a
victim of the District’s decision to “clean house.” (Id. at 28; see also Stratton, 922 F. Supp.
857, 864 n.5 (S.D.N.Y. 1996) (“[Other employment] decisions . . . made . . . over only a
four year period, were . . . properly admitted as circumstantial evidence of improper
motive [as to the plaintiff].”), aff’d 132 F.3d 869 (2d Cir. 1997).
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Supp. 2d 369, 372 (S.D.N.Y. 1998) (“[A motion for reconsideration] is not a substitute for
appeal . . . .”).
Next, Defendant contends that the “Court also directly contradicts controlling law
when it concludes that the plaintiff’s request for a release of jurisdiction from the
Connecticut Commission on Human Rights and Opportunities (CHRO) is a protected
activity independent of the plaintiff’s filing in June 2010 of his CHRO complaint.” (Def.’s
Mem. Supp. at 6.) Plaintiff asserted that his October 7, 2011 termination was retaliation
for his July 2010 CHRO complaint and an internal complaint that he filed in March 2011
alleging that his direct supervisor had subjected him to ongoing hostile treatment. In
support of this claim, Plaintiff noted that his job responsibilities were eliminated just
three weeks after the District learned that he sought a release of jurisdiction from the
CHRO and was pursuing his complaint in court, and he was selected for termination
shortly thereafter. (Order at 17–18.)
Citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268 (2001), Defendant had
“asserted that Mr. Gomez could not rely on his September 15, 2011 request for a release
of jurisdiction from the CHRO three weeks before his termination to support a showing
of temporal proximity, because the relevant protected activity was his filing of the CHRO
complaint in June 2010, not the routine step of obtaining a release of jurisdiction.”
(Order at 18–19.) Analyzing Breeden, the Court concluded that it was inapposite to these
facts because “unlike in Breeden, Plaintiff does not rely upon his request for a release of
jurisdiction from the CHRO to establish [his employer’s] knowledge” of his complaint
and instead “contends that this request constituted separate protected activity which
indicated he was seeking enhanced remedies only available in state or federal court.” (Id.
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at 19.) “By contrast in Breeden, the Supreme Court relied upon the fact that the plaintiff
played no role in the issuance of the right-to-sue letter.” (Id. at 19–20.)
Applying Treglia v. Town of Manlius, 313 F.3d 713 (2d Cir. 2002), the Court noted
that “[s]ince Breeden was decided, the Second Circuit has held that the intermediate steps
that a plaintiff actively pursues in support of a discrimination complaint—not just the
filing of such charges themselves—are activities protected from retaliation.” (Order at
20.) Defendant contends that the Court “directly contradicts” Breeden (Def.’s Mem.
Supp. at 6), and “misreads” Treglia (id. at 7), but again this is pure relitigation of matters
that the Court has already discussed and ruled upon (see Order at 18–20) and Defendant
does not set forth any valid grounds for the Court to reconsider its conclusion. That
Defendant disagrees with the Court’s analysis does not make it a proper ground for
reconsideration.
Finally, Defendant contends that the Court “overlooked controlling law and
improperly failed to apply the ‘but-for’ causation requirement” announced by the
Supreme Court in Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013) and
“misread[] Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845–46 (2d Cir. 2013) to
suggest that the heightened standard for retaliation claims pursuant to Nassar does not
alter the district court’s analysis at summary judgment.” (Def.’s Mem. Supp. at 13.)
Contrary to Defendant’s assertion, however, the Court explicitly applied the Nassar “but
for” standard to Plaintiff’s Title VII claims. (See Order at 17.) In discussing uncertainty
regarding whether the Nassar formulation applied under the Connecticut Fair
Employment Practices Act (“CFEPA”), the Court noted that “the Second Circuit has

6

suggested that Nassar does not alter the district court’s analysis at summary judgment.”
(Order at 17 n.6.)
Defendant contends that if the Court had applied the “but for” standard to
Plaintiff’s Title VII claim, this discussion of Nassar would not have been necessary,
because Plaintiff would have necessarily satisfied the less demanding “substantial or
motivating factor” standard. (See Reply at 2 n.3.) Although Defendant is correct that
Plaintiff would have necessarily satisfied the less demanding standard on summary
judgment if he presented evidence from which a jury could infer but-for causation, the
point was that even if the less demanding standard still applied under CFEPA and
different standards were presented to the jury under CFEPA and Title VII, it would be up
to the jury, not the Court on summary judgment, to determine based on Plaintiff’s
evidence if either or both of these standards had been met. See Ideal Steel Supply Corp. v.
Anza, 652 F.3d 310, 328 (2d Cir. 2011) (“[B]ut-for causation is an issue of fact for the
jury, not, where there is evidence to support a finding of causation, a matter to be decided
by the court on a motion for summary judgment.” (citing Jett v. Dallas Indep. Sch. Dist.,
491 U.S. 701, 737 (1989)).
Defendant further contends that in Zann Kwan, “the Second Circuit only held that
‘the ‘but-for’ causation standard does not alter the plaintiff’s ability to demonstrate
causation at the prima facie stage on summary judgment or at trial indirectly through
temporal proximity.” (Def.’s Mem. Supp. at 13 (quoting Zann Kwan, 737 F.3d at 845
(emphasis in original).) Contrary to Defendant’s assertion, however, this was not the
Second Circuit’s “only” discussion of Nassar. Rather, the Second Circuit went on to quite
clearly discuss the impact of Nassar after a prima facie case has been established:
7

Prior to the Supreme Court’s decision in Nassar, in order to demonstrate
pretext, a plaintiff was only required to demonstrate that a retaliatory
motive was “a substantial or motivating factor behind the adverse
action[,]” rather than a “but—for” cause of the adverse action. . . .
However, a plaintiff’s injury can have multiple “but—for” causes, each one
of which may be sufficient to support liability. Requiring proof that a
prohibited consideration was a “but-for” cause of an adverse action does
not equate to a burden to show that such consideration was the “sole”
cause.
In this case, the parties have put forward several alleged causes of the
plaintiff’s termination: retaliation, unsuitability of skills, poor
performance, and inappropriate behavior. The determination of whether
retaliation was a “but—for” cause, rather than just a motivating factor, is
particularly poorly suited to disposition by summary judgment, because it
requires weighing of the disputed facts, rather than a determination that
there is no genuine dispute as to any material fact. A jury should
eventually determine whether the plaintiff has proved by a preponderance
of the evidence that she did in fact complain about discrimination and that
she would not have been terminated if she had not complained about
discrimination.
Zann Kwan, 737 F.3d at 846 n.5 (internal citations omitted) (first alteration in original).
Accordingly, Defendant has presented no grounds for the Court to reconsider its
conclusion.
III.

Conclusion
For the reasons set forth above, Defendant’s Motion [Doc. # 99] for

Reconsideration is DENIED.
IT IS SO ORDERED.
/s
Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 18th day of June, 2014.
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