Trent v. Town of Brookhaven

Filing 176

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
---------------------------------------X
DARIAN TRENT, SR.,
Plaintiff,

MEMORANDUM & ORDER
08-CV-3481(JS)(AKT)

-against–
TOWN OF BROOKHAVEN,
Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Darian Trent, Sr., pro se
104 Gold Street
Brooklyn, NY 11201
For Defendant:

David M. Cohen, Esq.
Cooper, Sapir & Cohen, P.C.
560 Broadhollow Road, Suite 210
Melville, NY 11747

SEYBERT, District Judge:
Currently
plaintiff

Darian

pending
Trent,

before
Sr.’s

the

Court

(“Plaintiff”)

are

pro

motions

se
for

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.
BACKGROUND
The Court presumes familiarity the factual background
of

this

case,

which

is

set

forth

in

detail

in

the

Court’s

Therefore, the Court will generally refer to the motions in the
singular unless otherwise specified.
1

August 15, 2013 Memorandum and Order granting defendant Town of
Brookhaven’s
judgment

(“Defendant”

(the

“SJ

or

the

Order,”

“Town”)

Docket

motion

Entry

for

166).

summary
Briefly,

Plaintiff--an African-American male--brought this action against
the Town as his former employer for employment discrimination
pursuant
amended

to
42

Title

VII

U.S.C.

§

of

the

2000e

Civil

et

Rights

seq.

Act

(“Title

of

VII”)

1964,
and

as
the

Americans with Disabilities Act of 1990, as amended 42 U.S.C.
§§ 12112-12117 (“ADA”).
Plaintiff

asserts

that

the

Town

and

its

employees

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
Plaintiff.

(SJ Order at 5 (citations omitted).)

For example,

he maintains that, whereas Plaintiff was fired purportedly due
to

his

latenesses

and

absences,

Defendant

gave

Caucasian

employee Thomas Stretch the opportunity to quit before he would
be

fired.

further

(SJ

asserts

Order
that

at
Ed

5

(citation

Hubbard,

omitted).)

the

Town’s

Plaintiff

Environmental

Facilities Manager, spoke negatively about Plaintiff to other
employees.

(SJ Order at 6 (citation omitted).)
Defendant,

however,

maintains,

inter

alia,

that

Plaintiff had a history of latenesses and absences and that he
2

was

ultimately

terminated

only

after

Order at 3-4 (citations omitted).)

several

warnings.

(SJ

Defendant denies that Mr.

Stretch was given the opportunity to quit or that any similarlysituated employee was treated more favorably.
(citation omitted).)

(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.
In

the

Plaintiff’s

claims

judgment.
establish

Order,
and

the

Court

Defendant’s

considered

arguments

each

for

of

summary

The Court concluded: (1) even if Plaintiff could
a

Defendant
reason

SJ

(SJ Order at 5 (citations omitted).)

prima

had

for

facie

case

established

Plaintiff’s

for

a

Title

legitimate,

termination

and

VII

discrimination,

non-discriminatory
Plaintiff

did

not

sufficiently set forth evidence of pretext; (2) Plaintiff did
not sufficiently carry his burden of showing pretext for his ADA
claim;

and

(3)

Plaintiff

could

not

make

out

a

claim

for

defamation.
Plaintiff now seeks reconsideration of that Order.
DISCUSSION
The Court will first address the legal standard on a
motion for reconsideration before turning to Plaintiff’s motion
specifically.
3

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.
WL

812999,

at

*2

See Wilson v. Pessah, No. 05-CV-3143, 2007
(E.D.N.Y.

Mar.

14,

2007).

A

motion

for

reconsideration is appropriate when the moving party believes
the

Court

overlooked

decisions”

that

Shamis

Ambassador

v.

(S.D.N.Y.

would

1999).

important
have

“matters

influenced

Factors

Corp.,

Reconsideration

is

or

the
187

not

controlling

prior

decision.

F.R.D.
a

148,

proper

tool

151
to

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
opportunity

to

Nor

proper

is

it

reargue
to

the
raise

same
new

points

raised

arguments

and

previously.”).
issues.

See

Lehmuller v. Inc. Vill. of Sag Harbor, 982 F. Supp. 132, 135
(E.D.N.Y. 1997).

Reconsideration may only be granted when the

Court did not evaluate decisions or data that might reasonably
be

expected

to

alter

the

conclusion

reached

by

the

Court.

Wechsler v. Hunt Health Sys., 186 F. Supp. 2d 402, 410 (S.D.N.Y.
2002).

4

II. Analysis
Plaintiff
reconsideration:
Thomas

raises

(1)

Stretch’s

that

unsigned

several
the

issues

Court

deposition

in

his

improperly
answers

motions
relied

that

for
upon

were

not

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

of reasons.
First, Plaintiff cites only to Federal Rule of Civil
Procedure 59(e).

Rule 59 allows a court to alter or amend a

judgment, but any such motion must be filed within twenty-eight
days of judgment.
judgment

on

FED. R. CIV. P. 59(e).

August

19,

2013.

(See

The Court entered
Docket

Entry

168.)

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
Stretch’s

deposition

answers,

which

were

not

signed

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).
2

5

or

notarized.

(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
Stretch’s answers.

(See SJ Order at 17.)

Moreover, Plaintiff

is correct that Stretch’s deposition answers are not signed.
(See Stretch Aff., Docket Entry 149-14.)

However, Stretch’s

written

a

deposition

discovery process.

answers

were

part

of

closely-reviewed

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.
In

any

event,

(See Docket Entry 98.)

the

Court

did

not

rely

solely

on

Stretch’s deposition answers and the decision would have been
the

same

even

absent

its

consideration.

The

SJ

Order

specifically notes that Defendant presented admissible evidence
through

Mr.

Hubbard’s

signed

and

sworn

affidavit

rejecting

Plaintiff’s account of events and stating that Hubbard did not
“allow” Stretch to resign.
Written

Dep.

Questions,

response

to

Defendant’s

(SJ Order at 17 (citing Hubbard

Docket

Entry

evidence,

149-16,

Plaintiff

at

2-3).)

proffered

In
only

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
3

6

(See

SJ

Order

at

16.)

Accordingly,

Plaintiff’s

motion

for

reconsideration in this regard is DENIED.
Plaintiff

also

environment claim.
Complaint

references

a

potential

hostile

work

(See Docket Entry 169 ¶ 20 (“The Plaintiff’s

alleged

a

hostile

work

environment.”).)

Even

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.)

(See

Such deficiencies alone are

enough to deny Plaintiff’s motion.
Even
though,
claim

if

Plaintiff
is

based

appropriate
asserts

on

that

Hubbard’s

vehicle.

(See

Docket

rang[ing]

from

noticing

grounds

Entry

his

for

hostile

that

¶

the

work

environment

regarding

comments
169

reconsideration,

Plaintiff’s

21.)

However,

Plaintiff’s

“comments

vehicle

was

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.)

“In

order to establish a hostile work environment claim, a plaintiff
must

produce

discriminatory

evidence

that

intimidation,

‘the

workplace

ridicule,

and

is

permeated

insult,

that

with
is

represented that he did not submit the purported deposition
answers, Plaintiff still fails to come forward with any evidence
from Stretch in this regard.
7

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
Cir. 2012)).

“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.
Finally,
Court’s

statement

Plaintiff
in

the

seems

SJ

to

Order

defamation claim was unclear.

take

that

issue

the

with

basis

the

of

his

(See Docket Entry 169 ¶ 22.)

Plaintiff then apparently argues that the basis of his claim was
clear

because

his

comments

regarding

¶ 22.)

However,

discussed.

claim

was

founded

Plaintiff’s
this

was

“in

vehicle.

the

exact

part”

on

(Docket
basis

that

Hubbard’s
Entry
the

169
Court

(See SJ Order at 21-22 (“It is unclear on exactly
8

what

basis

apparently

Plaintiff
asserts

founds

that

his

Hubbard

about

the

defamation

claim,

but

he

talking

to

defamed

him

by

kind

car

that

Plaintiff’s

co-workers

of

Plaintiff

drove.”).)

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.
CONCLUSION
For

the

foregoing

reasons,

Plaintiff’s

motions

for

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
an appeal.

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.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
DATED:

April
30 , 2014
Central Islip, New York

9