Wilson v. New York and Presbyterian Hospital

Filing 64

MEMORANDUM AND ORDER: For the reasons stated above, Wilsons motion for reconsideration is denied and defendants motion for entry of judgment is granted. The Clerk of Court is respectfully directed to enter judgment in favor of defendant and to close this case. So Ordered by Judge Roslynn R. Mauskopf on 7/15/2021. (Herrera, Isaiah)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MICHAEL WILSON,
Plaintiff,

MEMORANDUM AND ORDER
17-CV-5012 (RRM) (CLP)

- against NEW YORK AND PRESBYTERIAN HOSPITAL
d/b/a NEW YORK-PRESBYTERIAN HOSPITAL,
Defendant.
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ROSLYNN R. MAUSKOPF, United States District Judge.

On June 22, 2021, this Court issued a Memorandum and Order, (the “Prior M&O” (Doc.
No. 59)), granting defendant’s motion for summary judgment as to Counts II and V–VII of the
complaint and recommitting the case to Magistrate Judge Pollack for all remaining pre-trial
matters. Defendant now brings a motion to correct the Prior M&O, noting that Wilson orally
withdrew all remaining claims at a status conference on October 24, 2019, and requests that the
Court enter final judgment pursuant to Fed. R. Civ. P. 58. (Letter Motion to Correct (Doc. No.
60).) Wilson opposes this motion and cross-moves for reconsideration pursuant to either Fed. R.
Civ. P. 54(b), 59(e), or 60(b). For the reasons set forth below, defendant’s motion is granted and
Wilson’s motion is denied.
BACKGROUND
Although familiarity with the facts and procedural history of this case is assumed, the
Court will briefly recap the relevant background in this case.
Factual Background
Michael Wilson was hired on or about September 2, 2014, to work as a Projectionist in
defendant’s Media Services Department. (Defendant’s 56.1 Statement of Undisputed Material

Facts (“Def.’s SOF”) (Doc. No. 46) ¶¶ 1–3; Plaintiff’s 56.1 Counterstatement of Material Facts
(“Pl.’s SOF”) (Doc. No. 52) ¶¶ 1–3.) Wilson reported to Alan Pine, the Director of Media
Services, and Sandra Aldea. (Def.’s SOF ¶¶ 23, 25; Pl.’s SOF ¶¶ 23, 25.) At the time Wilson
was hired by defendant, he was classified as an exempt employee under the FLSA. (Def.’s SOF
¶ 117; Pl.’s SOF ¶ 117.)
On August 2, 2015, Wilson emailed Eric Carr, an employee in the Human Resources
department, to ask whether Wilson was FLSA exempt. (Def.’s SOF ¶ 121; Pl.’s SOF ¶ 121.) On
October 1, 2015, defendant changed Wilson’s job classification from exempt to non-exempt,
effective immediately, and retroactively paid Wilson for all overtime worked; the classifications
for all other Projectionists in Wilson’s department were also changed effective October 1, 2015,
and they, too, were retroactively compensated for overtime worked. (Def.’s SOF ¶¶ 125–30;
Pl.’s SOF ¶¶ 125–30.)
It is undisputed that after Wilson’s job classification changed to non-exempt, he
continued to be offered opportunities to cover jobs scheduled in the evening or on the weekend.
(Def.’s SOF ¶ 133; Pl.’s SOF ¶ 133.) It is also undisputed that after Wilson’s job reclassification
changed on October 1, 2015, he continued to make frequent requests to leave work early and for
time off and continued to turn down off-hours assignments. (Def.’s SOF ¶ 135; Pl.’s SOF ¶
135.) Nevertheless, Wilson testified at his deposition that “after the exemption changed
suddenly,” his coworkers continued “to work all the nighttime gigs and get paid overtime … for
all that work, but I was never again put on any of those gigs… I was not allowed to, at that point,
get any overtime work.” (Kosovych Declaration Exhibit 2 (Doc. No. 50-2) at 44, 46.)
In the months following Wilson’s reclassification, Aldea and Pine admonished Wilson
for various infractions. On August 3, 2015, Pine emailed Wilson to remind him that he should

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not arrive late to the office or be absent from work without informing his supervisors, and he
should not disrupt a coworker’s vacation to ask him a question about work. (Def.’s SOF ¶ 148;
Pl.’s SOF ¶ 148.) Aldea also criticized Wilson for refusing to complete a job because it would
require him to stay for an extra ten minutes, (Def.’s SOF ¶¶ 149–51; Pl.’s SOF ¶¶ 149–51), and
disregarding her instructions, ((Def.’s SOF ¶¶ 152–57; Pl.’s SOF ¶ 152–57). Wilson received a
written warning on February 19, 2016, for unprofessional and disruptive conduct, after an
argument with Aldea and Pine regarding absence from work to attend a scheduled meeting.
(Def.’s SOF ¶ 162; Pl.’s SOF ¶ 162.) In March 2016, Wilson received a performance evaluation
for the 2015 year that was critical of his behavior towards his supervisors and coworkers and
stated that he took longer than appropriate to complete tasks; nevertheless, his overall
performance rating stated that Wilson “meets expectations.” (Def.’s SOF ¶¶ 130, 163–78; Pl.’s
SOF ¶¶ 130, 163–78.)
On April 21, 2016, Wilson and Aldea were involved in a verbal altercation after Aldea
asked Wilson what he was working on and for an estimate of how long it would take to
complete. (Def.’s SOF ¶ 183; Pl.’s SOF ¶ 183.) During that argument, Wilson repeated a sexist
comment a coworker had allegedly made about Aldea. (Def.’s SOF ¶ 184; Pl.’s SOF ¶ 184.)
Following an investigation into the altercation, Chastity Cruz-Hamilton, then Labor Relations
Manager, found that Wilson had engaged in disruptive behavior in violation of defendant’s
Discharge for Cause and Corrective Action Policy and Disruptive Behavior/Behaviors Policy.
(Def.’s SOF ¶ 191; Pl.’s SOF ¶ 191.) Cruz-Hamilton consulted with Pine about these findings,
and Pine recommended that Wilson’s employment be terminated; on April 26, 2016, Pine and
Cruz-Hamilton informed Wilson that his employment was terminated effective that same day.
(Def.’s SOF ¶¶ 194–96; Pl.’s SOF ¶¶ 194–96.)

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Procedural History
Wilson initiated the instant action on August 4, 2017, bringing eight claims. (Compl.
(Doc. No. 1).) Among those claims were three claims for unpaid wages or wage notice
violations, brought under the FLSA and the NYLL. At a telephonic pre-motion conference on
October 24, 2019, Wilson orally withdrew those claims. (See Kosovych Declaration, Exhibit 1 –
Transcript of October 24, 2019, Pre-Motion Conference (Doc. No. 50-1).)
On August 17, 2020, Defendant filed a motion for summary judgment on all remaining
claims. (Mot. (Doc. No. 45).) The Court granted the motion in its entirety on June 22, 2021, but
nonetheless recommitted the case to Magistrate Judge Pollak for all remaining pre-trial matters
in the mistaken belief that some causes of action remained unresolved. (Prior M&O (Doc. No.
59).) On July 6, 2021, fourteen days after the M&O was filed, defendant moved to correct the
Prior M&O, arguing that because Wilson had orally withdrawn three of his claims and the Court
had granted summary judgment on the remaining claims, that an order correcting the Prior M&O
and directing judgment in favor of defendant was proper under Rule 58 of the Federal Rules of
Civil Procedure. (Letter Motion to Amend/Correct/Supplement Order on Motion for Summary
Judgment (“Mot. to Amend”) (Doc. No. 60).)
On July 8, 2021, Wilson filed a letter in opposition to defendant’s motion, arguing that
the Court had clearly not intended to enter judgment, and to do so now would be “highly
prejudicial.” (Pl.’s Opp. to Mot. to Amend (Doc. No. 61) at 1.) Wilson further requested that
this Court “reconsider its dismissal of Counts II, V, VI, and VII pursuant to Fed. R. Civ. P. §§
54(b), 59(e) or 60(b).” (Id.) In support of this motion for reconsideration, Wilson argues that the
Court “engaged in vital oversights.” (Id. at 2.) First, he argues that the Court was incorrect in
concluding that Wilson’s deposition testimony and affidavit were contradictory. (Id.) Second,

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he asserts that the Court erred in concluding that Wilson’s hostile work environment claim could
not survive summary judgment because Wilson had failed to show that the harassment alleged
related to his membership in a protected class, arguing that Wilson had alleged a hostile work
environment “in violation of New York Executive Law § 296(e), not § 296(a).” (Id. at 2.)
Third, Wilson argues that the Court erred in finding that Wilson had not alleged an adverse
employment action sufficient to support a claim of retaliation under the FLSA, and failed to
apply the definition of adverse employment action set forth in Burlington Northern and Santa Fe
Ry. Co. v. White, 548 U.S. 53 (2006). Fourth, Wilson argues that his Local Rule 56.1 CounterStatement of Disputed Facts, (Doc. No. 52), included “119 disputed genuine and material facts
with specific attribution of each fact to the record,” which the Court failed to consider. (Id. at 3.)
Accordingly, Wilson requests that the Court deny defendant’s motion and “clarify and/or
reconsider its dismissal of Counts II, V, VI, and VII.” (Id.)
Defendant subsequently filed a letter opposing Wilson’s motion for reconsideration as
both untimely and meritless. (Opp. to Cross-Mot. for Reconsideration (Doc. No. 62).) As to
timeliness, Defendant points to Local Rule 6.3, which requires that a motion for reconsideration
be served “within fourteen (14) days after the entry of the Court’s determination on the original
motion.” (Id. at 1 (quoting Local Rule 6.3).) Wilson filed his motion sixteen days after the Prior
M&O was issued and failed to provide any explanation for his delay, so defendant argues that his
motion must be dismissed as untimely. (Id.) Defendant also argues that Wilson cannot bring his
motion under either Rule 59(e) or Rule 60(b), because no judgment has been entered. (Id.)
Finally, defendant asserts that Wilson’s arguments merely repeat arguments already considered
and rejected by this Court in the Prior M&O, and so reconsideration is not warranted. (Id.)

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Wilson responded in a letter reiterating that his cross-motion seeks “clarification initially,
and, in the alternative, reconsideration,” which, he argues, exempts him from the time limits set
in Local Rule 6.3 as he is primarily bringing a motion for the revision of a nonfinal judgment
under Rule 54(b). (Reply in Support of Cross-Mot. for Reconsideration (Doc. No. 63) at 1.)
Additionally, Wilson argues that the Court clearly did not intend to enter judgment and dismiss
all of his claims because it did not do so; he contends that to amend the M&O and enter
judgment would be “the result of clear error and would result in manifest injustice.” (Id. at 1–2.)
Finally, Wilson reiterates that the Court erred when it “overlooked or misinterpreted disputed
facts” in its analysis of Wilson’s deposition testimony and affidavit. (Id. at 2.)
DISCUSSION
I.

Wilson’s Motion for Reconsideration
Motions for reconsideration may be brought pursuant to Rules 54(b), 59(e) and 60(b) of

the Federal Rules of Civil Procedure and Local Rule 6.3. Reconsideration is “an extraordinary
remedy to be employed sparingly in the interests of finality and conservation of scarce judicial
resources.” Butto v. Collecto Inc., 845 F. Supp. 2d 491, 494 (E.D.N.Y. 2012) (quoting TransPro Logistic Inc. v. Coby Electronics Corp., No. 05-CV-1759 (CLP), 2010 WL 4065603, at *1
(E.D.N.Y. Oct. 15, 2010) (internal quotation marks and citation omitted)). Under Rule 59(e) and
Local Rule 6.3, “[a] motion for reconsideration should be granted only where the moving party
demonstrates that the Court has overlooked factual matters or controlling precedent that were
presented to it on the underlying motion and that would have changed its decision.” In re N.Y.
Cmty. Bancorp, Inc., Secs. Litig., 244 F.R.D. 156, 159 (E.D.N.Y. 2007); see also Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Similarly, Rule 60(b) provides relief from a
judgment for, among other things, mistakes, inadvertence, excusable neglect, newly discovered

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evidence, and fraud. Fed. R. Civ. P. 60(b). Rule 60(b) provides “extraordinary judicial relief”
that may “only be granted upon a showing of exceptional circumstances.” Nemaizer v. Baker,
793 F.2d 58, 61 (2d Cir. 1986). “The decision whether to grant a party’s Rule 60(b) motion is
committed to the sound discretion of the district court.” Stevens v. Miller, 676 F.3d 62, 67 (2d
Cir. 2012) (internal quotation marks omitted).
“When considering a motion for reconsideration under Rule 54(b), ‘[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.’” Vicuna v. O.P.
Schuman & Sons, Inc., 298 F. Supp. 3d 419, 433 (E.D.N.Y. 2017) (quoting DiLaura v. Power
Authority of NY, 982 F.2d 73, 76 (2d Cir. 1992)). Again, reconsideration under Rule 54(b) is
discretionary, and subject to the caveat “that where litigants have once battled for the court’s
decision, they should neither be required, nor without good reason permitted, to battle for it
again.” Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir. 1964).
Defendant first challenges Wilson’s motion for reconsideration on procedural grounds.
Under Local Rule 6.3, motions for reconsideration must be brought within fourteen days after the
Court’s entry of decision on the original motion. Local Rule 6.3; see also Geo-Group Communs.
v. Shah, 2020 U.S. Dist. LEXIS 176726, at *28 (S.D.N.Y. Sep. 25, 2020) (stating that Local Rule
6.3 applies to Rule 54(b) in addition to Rules 59(e) and 60(b) and collecting cases). Defendant
correctly states that Wilson’s cross-motion, filed two days past this deadline and providing no
explanation for the delay, is time-barred under Local Rule 6.3. Accordingly, Wilson’s motion
for reconsideration must be denied for this reason alone.
In addition, Wilson’s motion fails on the merits because has failed to satisfy the
demanding standard required for reconsideration under any of the three Federal Rules he cites.

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Wilson’s arguments primarily rehash the arguments already considered and rejected by this
Court in the Prior M&O, an inappropriate use of a reconsideration motion that this Court will not
countenance. In addition, Wilson also argues that the Court made several clear errors. The
Court will now address these arguments in turn.
a. Disputed Facts
Wilson first asserts that the Court committed clear error when it inappropriately
disregarded several material disputed facts contained in his Local Rule 56.1 Counter-Statement
of Material Facts. This Court has reviewed its determination regarding Wilson’s CounterStatement of Material Facts and finds that it was not error. As the Court explained in footnote 1,
on pages 1–2 of the Prior M&O, Wilson submitted a Counter-Statement of Material Facts that
improperly interjected arguments or irrelevant facts in response to facts put forth by defendant,
without specifically controverting defendant’s factual assertions. “Rule 56.1 statements are not
argument.” Rodriguez v. Schneider, No. 95-CV-4083 (RPP), 1999 WL 459813, at *1 (S.D.N.Y.
June 29, 1999), aff’d, 56 F. App’x 27 (2d Cir. 2003). Further, “[i]f the opposing party ... fails to
controvert a fact so set forth in the moving party’s Rule 56.1 statement, that fact will be deemed
admitted.” Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003). Wilson’s
submission was an inappropriate use of the Rule 56.1 statement of material facts, and the Court
determined that all facts would be deemed admitted unless specifically controverted. Wilson
provides no authority to suggest that this determination was error and the Court finds that it was
not.
b. Unsupported Assertions and Contradictory Testimony
Wilson next argues that the Court committed error when it found that Wilson’s affidavit
and deposition testimony contradicted one another. The Court has reviewed this finding and

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again concludes that it was not error. A party may not survive a motion for summary judgment
“through reliance upon unsupported assertions” that are contradicted by the record. Goenaga v.
March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). Moreover, “[a] party
may not create an issue of fact by submitting an affidavit in opposition to a summary judgment
motion that, by omission or addition, contradicts the affiant’s previous deposition testimony.”
Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996); Bickerstaff v. Vassar Coll., 196
F.3d 435, 455 (2d Cir. 1999).
In his deposition, Wilson stated that he was forbidden from working evening or weekend
hours after he was reclassified. (Kovalny Declaration, Exhibit 2 – Wilson Deposition (Doc. No.
50-2) at 44, 46–47.) This assertion was not supported by the record and, indeed, the undisputed
record included myriad instances in which Wilson turned down offers of evening or weekend
hours both before and after his reclassification. In his affidavit, Wilson stated that, on the
contrary, he was not forbidden from working evening or weekend hours, but that he was
forbidden from working in excess of 40 hours in a given week. (Wilson Aff. (Doc. No. 53) ¶¶
68, 72, 74.) This assertion directly contradicts his prior testimony and cannot be used to create a
dispute of material fact. Accordingly, the Court finds that it did not err and Wilson is not entitled
to reconsideration on this ground.
c. FLSA and NYLL Retaliation Claims
Wilson next argues that the Court erred in failing to apply the appropriate standard in its
discussion of the FLSA and NYLL retaliation claims. Specifically, Wilson cites Burlington
Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), to support his claim that the alleged
“retaliatory hostile work environment” was an adverse employment action within the context of
his retaliation claims. Wilson did not argue that the White standard was applicable to his

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retaliation claims in his motion papers; in fact, Wilson failed to cite any case law in support of
his retaliation claims. Although Wilson is correct in noting that the Court applied the wrong
definition of adverse employment action to his retaliation claims, this error is not grounds for
reconsideration because, had the Court analyzed the claims under the correct standard, it would
still have determined that Wilson failed to set forth a prima facie retaliation case under either the
FLSA or the NYLL.
Retaliation claims brought under the FLSA and NYLL are evaluated using the three-step
McDonnell Douglas burden-shifting framework. See Mullins v. City of New York, 626 F. 3d 47,
53 (2d Cir. 2010). At the first step, the plaintiff must establish a prima facie case of retaliation
by showing “(1) [he] engaged in a protected activity; (2) [his] employer was aware of this
activity; (3) the employer took adverse employment action against [him]; and (4) a causal
connection exists between the alleged adverse action and the protected activity. Summa v.
Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013) (quoting McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)).
To show that he suffered an adverse employment action within the context of a retaliation
claim, “a plaintiff must show that a reasonable employee would have found the challenged action
materially adverse, which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” White, 548 U.S. at 68 (internal
quotations and citations omitted). This standard is broader than the standard used to determine
whether a plaintiff was subject to discrimination. However, the Supreme Court has explained,
“We speak of material adversity because we believe it is important to separate significant from
trivial harms…. An employee’s decision to report discriminatory behavior cannot immunize that
employee from those petty slights or minor annoyances that often take place at work and that all

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employees experience.” Id. In evaluating whether an act constitutes an adverse employment
action, the Supreme Court has advised that this inquiry is highly fact-intensive: “Context matters.
The real social impact of workplace behavior often depends on a constellation of surrounding
circumstances, expectations, and relationships….” Id. at 69. Nevertheless, “the provision’s
standard for judging harm must be objective” and assess the facts based on the reactions of a
reasonable employee, not “unusual subjective feelings.” Id. at 68.
Though “the application of pre-existing disciplinary policies to a plaintiff ‘without more,
does not constitute adverse employment action,’” Mullins, 626 F.3d at 53 (quoting Joseph v.
Leavitt, 465 F.3d 87, 91 (2d Cir. 2006)), a plaintiff can establish a causal connection between a
disciplinary action and a plaintiff's protected activity “through evidence of retaliatory animus
directed against a plaintiff by the defendant,” Johnson v. Palma, 931 F.2d 203, 207 (2d Cir.
1991) (internal quotation marks and citation omitted), or “by showing that the protected activity
was closely followed in time by the adverse action,” Manoharan v. Columbia Univ. Coll. of
Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988) (citation omitted). To suffice as
indirect proof of retaliatory motive, the Supreme Court has suggested that the temporal proximity
“must be very close.” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 149
L. Ed. 2d 509 (2001) (per curiam) (internal quotation marks and citation omitted). The Second
Circuit “has not drawn a bright line to define the outer limits beyond which a temporal
relationship is too attenuated to establish a causal relationship between the exercise of a federal
constitutional right and an allegedly retaliatory action.” Gorman-Bakos v. Cornell Co-op
Extension of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001). However, “courts in this
Circuit have consistently held that a passage of more than two months between the protected
activity and the adverse employment action does not allow for an inference of causation.” Flood

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v. UBS Global Asset Mgmt., 10-CV-0374 (RJH), 2012 U.S. Dist. LEXIS 12113, at *17
(S.D.N.Y. Feb. 1, 2012).
Wilson repeatedly alleges that defendant inflicted upon him a toxic workplace
environment in retaliation for his protected activity, which, confusingly, he refers to
interchangeably as a “retaliatory hostile work environment” or “harassment.” The Court
addressed Wilson’s hostile work environment discrimination claim separately in the Prior M&O
at Section I, pages 21–23. Wilson argues, however, that the Court erred in failing to consider
whether these slights constituted adverse employment events in the context of his retaliation
claims. Wilson provides scant details of the environment he complains of aside from concluding
that he suffered from a retaliatory hostile work environment. The few details he provides include
moments when Aldea rolled her eyes at him or when Aldea or Pine appeared to be angry with
him. These behaviors do not rise above the petty slights and grievances that often take place at
work and occur between coworkers. Rolling eyes or becoming visibly frustrated with a
coworker may be unkind behavior, but such conduct is too minor to be actionable as retaliation.
Accordingly, if the Court had considered whether the behaviors Wilson describes could
constitute adverse employment events, the Court would have concluded that they do not.
Wilson also asserts he experienced adverse employment actions during the following
discrete events: when he received an email from Pine on August 3, 2015, addressing his recent
lateness and failure to follow Aldea’s instructions not to contact a coworker during his vacation;
a verbal warning on February 17, 2016, regarding failure to warn his supervisors of an
anticipated absence during work hours; a written warning on February 19, 2016, for disruptive
behavior; and a less-than-positive performance evaluation. He further asserts that his
termination on April 21, 2016, was an adverse employment action.

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Neither the August 3, 2015, email nor the verbal warning on February 17, 2016, are
materially adverse employment actions such that a reasonable person would be dissuaded from
reporting discriminatory or illegal behavior. The email, though close in time to Wilson’s
protected activity, came on the Monday following two days of unexpected absences during the
workday, reminding Wilson to inform his supervisors if he would be late or absent. The verbal
warning, part of a heated conversation immediately preceding Wilson’s departure from the office
for a meeting, was also a reminder that he was required to inform his supervisors of his absences
in advance. No reasonable employee would interpret repeated reminders, given either verbally
or over email, to inform one’s supervisors in advance of one’s absence as a substantial harm.
Wilson also alleges that his performance evaluation was an adverse event sufficient to
make out his prima facie case. Wilson’s performance evaluation, though it stated that he failed to
meet expectations in several sub-categories, gave him an overall rating of “meets expectations.”
Though a negative performance evaluation can constitute an adverse employment action in the
retaliation context, a performance evaluation that provides an overall rating of “meets
expectations” is ordinarily not an adverse employment action. See Krinsky v. Abrams, No. 01CV-5052 (SLT) (LB), 2007 U.S. Dist. LEXIS 38376, at *36 (E.D.N.Y. May 25, 2007) (noting
that, while a negative evaluation can constitute an adverse employment event, plaintiff’s
performance evaluations in the three years following his protected activity rated his work
“satisfactory.”) Accordingly, Wilson’s performance evaluation was not an adverse employment
action.
Finally, Wilson claims he suffered an adverse employment action when he was denied
the opportunity to earn overtime. As the Court explained in section I.b, above, Wilson cannot

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survive summary judgment through unsupported assertions or an affidavit contradicting his
deposition testimony.
Even assuming that Wilson’s termination, his February written warning, or his
performance evaluation constituted adverse employment actions, he fails to demonstrate a causal
nexus between these occurrences and his protected activity. “Although ‘temporal proximity can
demonstrate a causal nexus,’ such proximity must be close.” Nicastro v. N.Y.C. Dep’t of Design
& Constr., 125 F. App’x 357, 358 (2d Cir. 2005) (summary order) (quoting Cifra v. G.E. Co.,
252 F.3d 205, 217 (2d Cir. 2001)). And where there was “an intervening causal event that
occurred between the protected activity and the allegedly retaliatory” event, mere temporal
proximity between the protected activity and the retaliatory event is insufficient to support an
inference of a causal connection between the two. Garcia v. Yonkers Bd. of Educ., 2018 U.S.
Dist. LEXIS 142514, at *18 (S.D.N.Y. Aug. 21, 2018) (collecting cases).
Wilson’s termination in April 2016 occurred more than eight months after his inquiry
into his classification and was precipitated by the verbal altercation on April 21, 2016, in which
Wilson repeated a sexist insult he allegedly heard from a coworker. Similarly, the February 19,
2016, written warning occurred six months after Wilson engaged in protected activity and was
preceded by the dispute and verbal warning two days prior. Wilson’s performance review was
provided to him in March 2016, seven months after his protected activity. This temporal gap is
too great to support Wilson’s allegation of retaliatory motive, and Wilson does not provide any
other facts to suggest that these adverse events occurred under circumstances giving rise to an
inference of retaliation.

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Wilson therefore failed to meet his burden to state a prima facie case of retaliation under
either the FLSA or the NYLL. Accordingly, had the Court applied the White standard in the
M&O, it would not have changed its decision.
Because Wilson has not met the substantial burden required to prevail on a motion for
reconsideration, it is denied.
II.

Defendant’s Motion to Amend
Rule 58 requires the Court to enter a separate document for every judgment, subject to

certain exceptions. Fed. R. Civ. P. 58(a). A party can request that the Court enter a separate
judgment under subsection (d). Fed. R. Civ. P. 58(d). Where there are no pending matters to be
resolved in an action, an entry of final judgment upon request of a party is appropriate under
Rule 58(d). See McGee v. Dunn, 09-CV-6098 (FPS), 2015 WL 9077386, at *15 (S.D.N.Y. Dec.
16, 2015), aff’d, 672 F. App’x 115 (2d Cir. 2017) (after granting initial motions to dismiss
certain claims against certain defendants, later granting summary judgment dismissing all claims,
and ordering that the pretrial conference and trial be vacated and the action be dismissed and
stricken from the active docket, Judge properly directed Clerk to enter final judgment pursuant to
Rule 58); Northrop Grumman Ship Sys., Inc. v. Ministry of Defense of Republic of Venezuela,
20-cv-785 (HSO) (RHW), 2020 WL 3000801 at *2 (S.D. Miss. June 4, 2000) (where “there are
no further pending matters to be resolved in this action, … the Court finds that entry of a
separate final judgment is now appropriate. See Fed. R. Civ. P. 58.”); American Hosp. Ass’n v.
Azar, 19-CV-2084 (RC), 2019 WL 3037306, at *1–2 (D.D.C. July 10. 2019) (court reconsidered
holding further proceedings and entered final judgment at defendant’s request), rev’d on merits,
967 F.3d 818 (D.C. Cir. 2020), cert. granted, 2021 WL 274784 (U.S. July 2, 2021); BarnesWallace v. Boy Scouts of Am., 00-CV-1726 (AJB), 2004 WL 7334946, at *4 (S.D. Cal. Apr. 12,

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2004) (where “the Court has now adjudicated all claims … that mandate resolution, entry of final
judgment under Rule 54(b) is not proper. Rather, the Clerk’s office is directed to enter final
judgment as to the entire action pursuant to Rule 58.”), aff’d in part, rev’d in part on the merits,
704 F.3d 1067 (9th Cir. 2012).
Here, Wilson argues that entry of judgment would be “highly prejudicial.” (Cross-Mot.
for Reconsideration at 1.) However, he does not dispute that he orally withdrew three claims
under the FLSA and NYLL at a pre-motion conference before this Court, and all remaining
claims have now been adjudicated. Wilson fails to explain why the entry of final judgment
would be prejudicial to him now that all of his claims have been dismissed by the Court or
voluntarily withdrawn. Nor does he explain how correcting the Prior M&O’s misstatement of
the status of his remaining claims would be “clear error and would result in manifest injustice.”
Because there are no pending matters to be resolved in this action, Defendant’s motion for entry
of final judgment under Rule 58(d) is granted.
CONCLUSION
For the reasons stated above, Wilson’s motion for reconsideration is denied and
defendant’s motion for entry of judgment is granted. The Clerk of Court is respectfully directed
to enter judgment in favor of defendant and to close this case.
SO ORDERED.
Dated: Brooklyn, New York
July 15, 2021

Roslynn R. Mauskopf
____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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