Trent v. Town of Brookhaven
MEMORANDUM & ORDER re: 169 Motion to Alter Judgment and 170 Motion for Reconsideration are DENIED. The Court certifies that any appeal from this Order would not be taken in good faith and in forma pauperis status is DENIED for purpose of an appeal. Ordered by Judge Joanna Seybert on 4/30/2014. (C/M Plaintiff) (Nohs, Bonnie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DARIAN TRENT, SR.,
MEMORANDUM & ORDER
TOWN OF BROOKHAVEN,
Darian Trent, Sr., pro se
104 Gold Street
Brooklyn, NY 11201
David M. Cohen, Esq.
Cooper, Sapir & Cohen, P.C.
560 Broadhollow Road, Suite 210
Melville, NY 11747
SEYBERT, District Judge:
reconsideration pursuant to Federal Rule of Civil Procedure 59.
(See Docket Entries 169-70.)
Although docketed as two separate
entries, the motions are nearly identical with the exception
that one is handwritten and one is typed.1
For the following
reasons, Plaintiff’s motions are DENIED.
The Court presumes familiarity the factual background
Therefore, the Court will generally refer to the motions in the
singular unless otherwise specified.
August 15, 2013 Memorandum and Order granting defendant Town of
Plaintiff--an African-American male--brought this action against
the Town as his former employer for employment discrimination
Americans with Disabilities Act of 1990, as amended 42 U.S.C.
§§ 12112-12117 (“ADA”).
discriminated against Plaintiff on the basis of his race and a
re-aggravated hand injury sustained on the job.
at 4-5 (citations omitted).)
(See SJ Order
In support, Plaintiff maintains
that Defendant treated Caucasian employees more favorably than
(SJ Order at 5 (citations omitted).)
he maintains that, whereas Plaintiff was fired purportedly due
employee Thomas Stretch the opportunity to quit before he would
Facilities Manager, spoke negatively about Plaintiff to other
(SJ Order at 6 (citation omitted).)
Plaintiff had a history of latenesses and absences and that he
Order at 3-4 (citations omitted).)
Defendant denies that Mr.
Stretch was given the opportunity to quit or that any similarlysituated employee was treated more favorably.
(SJ Order at 6
Moreover, Defendant acknowledges that it
received notice of Plaintiff’s injury prior to his termination,
but asserts that its employees believed the notice to pertain to
a previous hand injury and did not realize that there was a new,
or re-aggravated, injury.
The Court concluded: (1) even if Plaintiff could
(SJ Order at 5 (citations omitted).)
sufficiently set forth evidence of pretext; (2) Plaintiff did
not sufficiently carry his burden of showing pretext for his ADA
Plaintiff now seeks reconsideration of that Order.
The Court will first address the legal standard on a
motion for reconsideration before turning to Plaintiff’s motion
I. Legal Standard
Motions for reconsideration may be brought pursuant to
Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure
and Local Rule 6.3.
See Wilson v. Pessah, No. 05-CV-3143, 2007
reconsideration is appropriate when the moving party believes
repackage and relitigate arguments and issues already considered
by the Court in deciding the original motion.
See United States
v. Gross, No. 98-CR-0159, 2002 WL 32096592, at *4 (E.D.N.Y.
Dec. 5, 2002) (“A party may not use a motion to reconsider as an
Lehmuller v. Inc. Vill. of Sag Harbor, 982 F. Supp. 132, 135
Reconsideration may only be granted when the
Court did not evaluate decisions or data that might reasonably
Wechsler v. Hunt Health Sys., 186 F. Supp. 2d 402, 410 (S.D.N.Y.
notarized, (2) that Plaintiff had also alleged a hostile work
environment claim, and (3) that the Court erred in its analysis
of Plaintiff’s defamation claim.
His motion fails for a number
First, Plaintiff cites only to Federal Rule of Civil
Rule 59 allows a court to alter or amend a
judgment, but any such motion must be filed within twenty-eight
days of judgment.
FED. R. CIV. P. 59(e).
The Court entered
Therefore, Plaintiff’s second motion for reconsideration, filed
on September 19, 2013 at Docket Entry 170, is untimely.
Second, even if Plaintiff’s motion(s) is timely, or if
the Court also considers Plaintiff’s motion(s) under Rule 60,2
reconsideration is not merited.
The Court will consider each of
Plaintiff’s specific arguments in turn.
Plaintiff argues that the Court improperly relied upon
Federal Rule of Civil Procedure 60 sets forth several grounds
for relief from a judgment or order. Depending on the specific
ground for relief, a motion pursuant to Rule 60 must be brought
within a reasonable time or no more than one year after the
entry of judgment. See FED. R. CIV. P. 60(b)-(c).
(See Docket Entry 169 ¶¶ 8-16.)
In finding that
Plaintiff had not sufficiently shown pretext to survive summary
judgment on his Title VII claim, the Court did indeed cite to
(See SJ Order at 17.)
is correct that Stretch’s deposition answers are not signed.
(See Stretch Aff., Docket Entry 149-14.)
Magistrate Judge A. Kathleen Tomlinson was
heavily involved in the discovery of this case.
In fact, the
questions were mailed from Judge Tomlinson’s chambers, responses
were then received by her chambers, and she then sent those
responses out to the parties.
(See Docket Entry 98.)
Stretch’s deposition answers and the decision would have been
specifically notes that Defendant presented admissible evidence
Plaintiff’s account of events and stating that Hubbard did not
“allow” Stretch to resign.
(SJ Order at 17 (citing Hubbard
speculation insufficient to meet his burden on summary judgment.3
Although Plaintiff now maintains that he has been in the
process of speaking with Stretch and that Stretch has
reconsideration in this regard is DENIED.
(See Docket Entry 169 ¶ 20 (“The Plaintiff’s
liberally construing Plaintiff’s claims, the Court did not read
a hostile environment claim.
Nor did Plaintiff specifically
raise a hostile work environment claim in his opposition.
generally Docket Entries 157, 159.)
Such deficiencies alone are
enough to deny Plaintiff’s motion.
different and more expensive looking than other employees [sic]
vehicles to the questioning of how could a part-time employee
afford such an expensive car” are insufficient to establish a
hostile work environment claim.
(Docket Entry 169 ¶ 21.)
order to establish a hostile work environment claim, a plaintiff
represented that he did not submit the purported deposition
answers, Plaintiff still fails to come forward with any evidence
from Stretch in this regard.
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.’”
Ugactz v. United Parcel Serv., Inc., No. 10-CV-1247, 2013 WL
1232355, at *17 (E.D.N.Y. Mar. 26, 2013) (quoting Rivera v.
Rochester Genesee Reg’l Transp. Auth., 702 F.3d 685, 693 (2d
“Periodic and episodic incidents,” such as those
Plaintiff raises herein, are not sufficient nor did Plaintiff
even suggest the types of conduct that courts have found form
the proper basis of such a claim.
Id.; contra Maher v. Alliance
Mortg. Banking Corp., 650 F. Supp. 2d 249, 264 (E.D.N.Y. 2009)
(finding the plaintiff’s claims that “she was subjected to a
steady stream of unwelcome, escalating sexual harassment that
included physical assault and continuous sexual intimidation” to
be sufficient (internal quotation marks and citation omitted)).
Accordingly, Plaintiff’s motion for reconsideration is denied in
this regard as well.
defamation claim was unclear.
(See Docket Entry 169 ¶ 22.)
Plaintiff then apparently argues that the basis of his claim was
(See SJ Order at 21-22 (“It is unclear on exactly
To the extent that Plaintiff seeks to raise any
additional issue or basis for his defamation claim, his motion
merely seeks to relitigate the SJ Order.
Thus, Plaintiff again
fails to raise an appropriate ground for reconsideration, and
his motion in this regard is DENIED.
reconsideration are DENIED.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for purpose of
Coppedge v. United States, 369 U.S. 438, 444-45, 82
S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mail a copy of
this Order to the pro se Plaintiff.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
30 , 2014
Central Islip, New York
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