Berlyavsky v. NYC Department of Environmental Protection
Filing
118
ORDER denying 112 Motion for Reconsideration. For the reasons stated in the attached opinion, plaintiff's motion for reconsideration is denied. Ordered by Judge Kiyo A. Matsumoto on 4/7/2016. (Fletcher, Camille)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
VIKTOR BERLYAVSKY,
ORDER DENYING MOTION
FOR RECONSIDERATION
Plaintiff,
-against-
14-cv-3217 (KAM)(RER)
NEW YORK CITY DEPARTMENT OF
ENVIRONMENTAL PROTECTION, et al.,
Defendants.
--------------------------------------X
MATSUMOTO, United States District Judge:
On May 22, 2014, plaintiff Viktor Berlyavsky
(“plaintiff”), initially proceeding pro se, commenced this
action against the New York City Department of Environmental
Protection (“DEP”), a number of current or former New York City
employees (the “Individual City Defendants”) (collectively, the
“City Defendants”), and labor arbitrator Mariann E. Schick
(“Arbitrator Schick”).
Plaintiff filed a first amended
complaint on September 2, 2014 (ECF No. 5.) and the second
amended complaint (“SAC”) on November 4, 2014.
(ECF No. 42.)
Plaintiff asserts federal claims pursuant to Title VII of the
Civil Rights Act of 1964, the Age Discrimination in Employment
Act (“ADEA”), 42 U.S.C. §§ 1981, 1983, and 1985, in addition to
state claims under the New York State Human Rights Law
(“NYSHRL”) and New York City Human Rights Law (“NYCHRL”).
On February 20, 2015, Arbitrator Schick moved to
dismiss all claims against her pursuant to Federal Rule of Civil
Procedure 12(b)(6).
(ECF No. 73.)
On March 6, 2015, the City
Defendants moved to dismiss the SAC with prejudice pursuant to
Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
76.)
(ECF No.
In addition, the City Defendants requested that they be
granted “costs, fees, and disbursements.”
(Mem. of Law in Supp.
of City Defs.’ Mot. to Dismiss the SAC at 29 1, ECF No. 77.)
On
January 5, 2015, Matthew Harris Goldsmith filed a notice of
appearance, appearing as counsel for plaintiff in this case.
(ECF No. 67.)
Plaintiff opposed the motions to dismiss through
counsel.
On April 23, 2015, the court referred the motions to
dismiss to Magistrate Judge Ramon E. Reyes for a Report and
Recommendation (“R&R”).
2015.)
(See Order Referring Mot., Apr. 23,
On August 28, 2015, Judge Reyes issued an R&R
recommending that the court dismiss the SAC in its entirety for
failure to state a claim.
91.)
(R&R dated Aug. 28, 2015, ECF No.
Judge Reyes also recommended that the court deny the City
Defendants’ request for costs, fees, and disbursements and grant
plaintiff one final opportunity to amend his complaint.
27.)
(Id. at
The City Defendants’ objected to Judge Reyes’
1 In the interest of maintaining consistency with Judge Reyes’ R&R, the court
refers to the page numbers generated by the Electronic Case Filing (“ECF”)
system.
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recommendation that the plaintiff be granted leave to file a
fourth complaint on the grounds that any amendment would be
futile and unproductive.
(City Defs.’ Objs. at 4, ECF No. 92.)
Plaintiff opposed the City Defendants’ objection, arguing that
his investigation and collection of evidence remains ongoing and
attaching a proposed Third Amended Complaint (“TAC”) to his
opposition.
(Pl.’s Resp. to the City Defs.’ Objs., ECF No. 99;
TAC (Proposed), ECF No. 99-3.)
The court adopted in part and modified in part the R&R
by Order dated September 30, 2015.
(ECF No. 100.)
The court
adopted the R&R’s recommendations that the court dismiss the SAC
in its entirety for failure to state a claim and that the court
deny the City Defendants’ request for costs, fees, and
disbursements.
The court, however, after considering the TAC
and plaintiff’s contention that his investigation is ongoing,
found that any amendment of plaintiff’s pleading would be
futile, and dismissed the SAC with prejudice.
Court entered judgment on October 2, 2015.
The Clerk of the
(ECF No. 101.)
A month and a half after entry of judgment, plaintiff
filed a letter motion for reconsideration on November 16, 2015
with a proposed schedule to fully brief the motion.
103.)
(ECF No.
The court so ordered plaintiff’s proposed briefing
schedule and after granting two requests for extensions, one
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request from each party, the motion for reconsideration was
fully-briefed on December 31, 2015.
Local Civil Rule 6.3 of the United States District
Court for the Eastern District of New York permits a party to
move for reconsideration based on “matters or controlling
decisions which counsel believes the Court has overlooked”
within fourteen days after entry of judgment.
6.3.
Local Civ. R.
“The standard for granting such a motion is strict, and
reconsideration will generally be denied unless the moving party
can point to controlling decisions or data that the court
overlooked -- matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.”
Mahadeo
v. New York City Campaign Fin. Bd., 514 F. App'x 53, 55 (2d Cir.
2013) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257
(2d Cir. 1995)).
“Where the movant fails to show that any
controlling authority or facts have actually been overlooked,
and merely offers substantially the same arguments he offered on
the original motion or attempts to advance new facts, the motion
for reconsideration must be denied.”
Mikol v. Barnhart, 554 F.
Supp. 2d 498, 500 (S.D.N.Y. 2008) (citing Shrader, 70 F.3d at
257).
First, plaintiff argues that the court erred by
failing to apply the continuing violation doctrine, because
plaintiff alleged a continuing policy or practice of
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discrimination and retaliation in his SAC.
(See Pl.’s Mem. of
Law in Support of Recon. (“Pl.’s Recon. Mem.”) at 2-4, ECF No.
112-11.)
As an initial matter, the court finds, as the R&R did,
that the SAC does not identify a specific, ongoing
discriminatory policy or custom.
(R&R at 9-10.)
The proposed
TAC alleges a “continuous and growing practice of discrimination
. . . that encourages and compensates DEP managers with overtime
to retaliate against subordinate employee-whistleblowers who
report violations of environmental health and safety laws.”
(TAC at 1.)
The court considers whether the continuing
violation doctrine applies to this alleged practice of
discrimination and retaliation.
The Second Circuit has held that under the Supreme
Court’s decision in National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 (2002), discrete discriminatory or retaliatory
acts, “which fall outside the limitations period, cannot be
brought within it, even when undertaken pursuant to a general
policy that results in other discrete acts occurring within the
limitations period.”
Chin v. Port Auth. of New York & New
Jersey, 685 F.3d 135, 157 (2d Cir. 2012).
“[A]n allegation of
an ongoing discriminatory policy does not extend the statute of
limitations where the individual effects of the policy that give
rise to the claim are merely discrete acts.”
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Id.
Here, the parties do not dispute that the alleged
disciplinary actions against plaintiff, his transfer to a new
team and denial of overtime, constitute “discrete acts” that are
“easy to identify.”
Morgan, 536 U.S. at 114; see TAC at 4-9.
The law is clear that the discrete retaliatory acts that
occurred prior to May 22, 2011 are time-barred and do not fall
under the continuing violation exception.
Consequently, the
TAC’s allegations of discrete retaliatory acts are time-barred
and therefore futile.
Second, plaintiff seeks reconsideration of the court’s
finding that SAC and proposed TAC fail adequately to allege the
protected speech and causal connection elements of a First
Amendment retaliation claim.
Plaintiff has identified neither
controlling decisions nor data that the court has overlooked.
The Supreme Court has held in Garcetti v. Ceballos, 547 U.S.
410, 421 (2006), that “when public employees make statements
pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from
employer discipline.”
Here, plaintiff, as an individual
employed by the Compliance Monitoring Section of the DEP,
alleges in the proposed TAC that he made complaints relating to
the “integrity requirement” of CR+6 samples.
(TAC at 5-6.) The
court finds that this speech was made pursuant to plaintiff’s
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official duties of collecting surface water samples and testing
in compliance with federal and state environmental laws.
(Id.)
Consequently, the speech alleged in the proposed TAC is
unprotected, and plaintiff’s First Amendment retaliation claim
is futile.
Plaintiff also contends that the court made a
premature determination of futility prior to affording plaintiff
an opportunity to amend its pleading.
(Pl.’s Recon. Mem. at 6.)
This argument is entirely unavailing.
Plaintiff submitted his
proposed TAC in opposition to City Defendants’ objection to the
R&R.
As such, in the interest of just, speedy, and inexpensive
determination of the action, the court considered the futility
of the TAC in light of the requirements of Federal Rule of Civil
Procedure 12(b)(6).
Plaintiff also contends that the court improperly
considered documents outside of the pleadings in deciding the
motions to dismiss.
(Pl.’s Recon. Mem. at 6-7.)
As the R&R
explained, the court considered the arbitration and
administrative decisions explicitly referenced, relied upon, and
cited in the SAC.
(R&R at 2 n.2 (citing Holmes v. Air Line
Pilots Ass’n. Intern., 745 F. Supp. 2d 176, 181 (E.D.N.Y.
2010).)
The SAC discusses both the arbitration and
administrative decisions in detail, attaches Mr. Villacis’
testimony from a March 27, 2006 administrative hearing, and
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attaches an administrative decision from September 25, 2014.
(See SAC at 6-30.)
Lastly, plaintiff, for the first time in his Reply
Memorandum of Law in support of his motion for reconsideration,
argues that the equal protection claim based on a “class of one”
theory alleged in the TAC is “alternatively predicated” on a
“selective enforcement” theory.
No. 112-12.)
(Pl.’s Reply Recon. Mem., ECF
Plaintiff may not use his reply memorandum for his
motion for reconsideration to amend the proposed TAC, which
alleges no claim of selective enforcement.
For the reasons stated herein, plaintiff’s motion for
reconsideration is denied.
SO ORDERED.
Dated:
April 7, 2016
Brooklyn, New York
_______ ___/s/
Kiyo A. Matsumoto
United States District Judge
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