Wood v. New York City Transit Authority
ORDER denying 87 Motion for Reconsideration: For the reasons in the attached and those set forth in the Court's summary judgment decision, the Court DENIES Plaintiff's motion for reconsideration. Ordered by Judge Pamela K. Chen on 10/17/2016. (Lee, Helen)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NEW YORK CITY TRANSIT AUTHORITY,
PAMELA K. CHEN, United States District Judge:
Plaintiff Jeffrey Wood, acting pro se, moves for reconsideration of this Court’s August
15, 2016 ruling dismissing this case. (Dkt. 87.) 1 Plaintiff moves under Rule 59(e) “to correct
clear error or prevent manifest injustice” and on the ground that “the Court has misapprehended
the facts.” (Id. at ECF 1. 2) Specifically, Plaintiff’s two primary arguments are that, with respect
to Court’s March 30, 2015 order granting summary judgment (Dkt. 51):
(1) the Court
improperly relied on hearsay statements by Patrick Smith contained in his affidavit in support of
Defendant’s motion for summary judgment, and (2) “Defendant  failed to submit a declaration
from a person [with] first-hand knowledge of events in Plaintiff’s evaluation.” (Dkt. 87 at ECF
With regard to Smith’s affidavit, Plaintiff asserts that Smith improperly acquired his
knowledge by viewing documents, and that Plaintiff has a constitutional right to cross-examine
Smith and all other declarants who submitted affidavits in support of Defendant’s motion for
summary judgment at trial. (Id.) With respect to the second argument, Plaintiff argues that “[n]o
The Court ruled from the bench at oral argument on August 15, 2016, and then issued a
written decision reiterating and further explaining its ruling on August 23, 2016 (Dkt. 85)
(“August 23 Order”).
“ECF” refers to the page number generated by the Electronic Court Filing system rather
than the document’s internal pagination.
witness on the Record, who has first-hand knowledge [of Plaintiff’s promotion evaluation]
specifically said that the accident was the reason the plaintiff was denied promotion.” (Id. at
ECF 6.) The Court rejects both arguments.
First, there is no constitutional right of cross-examination or “confrontation” in civil
cases, Barclay v. New York, 602 F. App’x. 7, 13 (2d Cir. 2015) (“[T]he Sixth Amendment right
of confrontation does not apply in this civil action.”), and there is moreover no suggestion here
that Plaintiff was deprived of an opportunity to depose Defendant’s affiants or any other
witnesses, or to otherwise submit evidence controverting Defendant’s account of events. Indeed,
it is much too late for evidentiary objections, particularly where, as this Court noted in its
summary judgment order, “[t]here is no indication that Plaintiff has undertaken any effort to
conduct meaningful discovery” and “Plaintiff has offered no affidavit, deposition testimony, or
other evidence to demonstrate that he was not promoted due to his race.” (Dkt. 51 at ECF 2, 15.)
Plaintiff has submitted no evidence suggesting that the basis of Defendant’s decision not to
promote him was based on anything other than disciplinary history. Defendant, on the other
hand, has submitted both documentary evidence indicating that Plaintiff was denied a promotion
due to his disciplinary record, and an affidavit from Joseph D’Auria, who made the decision not
to approve Plaintiff for promotion, stating the same. (See, e.g., Def.’s 56.1 ¶ 21; Dkt. 44-7 at
ECF 3, Dkt. 43.) Thus, the sole question before the Court was whether Plaintiff had identified a
similarly-situated comparator with respect to disciplinary record who was treated differently than
Plaintiff during the promotion process, as evidence of Defendant’s discriminatory intent toward
Plaintiff. The Court found that Plaintiff had failed to do so, as explained at the August 15
hearing and in the August 23 Order.
Second, the Court finds that Defendant’s affiants from the original summary judgment
briefing properly attested to statements that were within their personal knowledge. For instance,
Patrick Smith had been employed by Defendant in various Human Resources capacities at the
New York City Transit Authority for 20 years, reaching a senior position. The Court, therefore,
properly relied on Smith’s statements regarding the operation of the one-in-three rule for
promotions, as well as changes in the promotion process. The Court did not rely on any
statement by Smith claiming firsthand knowledge regarding Plaintiff’s specific experience,
though the Court did rely on documentary evidence in the form of an evaluation and
recommendation form attached to D’Auria’s declaration to find that “Wood was not
recommended by the [New York City Transit Authority’s Department of Buses] because of his
thirty–day suspension stemming from the June 2006 accident.” (See Dkt. 51 at ECF 7 n.4.) The
Court’s consideration of this document, and other documents attached to the declarations of
Defendant’s affiants, such as evaluation and recommendation forms for other candidates,
employee personnel records, and internal memos and policies detailing the promotion process,
was entirely proper at the summary judgment stage. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251–52 (1986) (noting that primary difference between summary judgment and
directed verdict motions “is procedural; summary judgment motions are usually made before
trial and decided on documentary evidence, while directed verdict motions are made at trial and
decided on the evidence that has been admitted.”) (emphasis added); Harriscom Svenska, AB v.
Harris Corp., 3 F.3d 576, 581 (2d Cir. 1993) (rejecting plaintiff’s request to strike affidavits and
documents offered in support of defendant’s summary judgment motion, finding that affidavits
were “based on personal knowledge and perceptions and therefore properly were considered . . . .
[and that] “[t]he documents were admissible business records.”) (citation omitted).
Accordingly, for all of the above reasons and those set forth in the Court’s summary
judgment decision, the Court DENIES Plaintiff’s motion for reconsideration.
/s/ Pamela K. Chen _
PAMELA K. CHEN
United States District Judge
Dated: October 17, 2016
Brooklyn, New York
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