Flanagan v. Geico General Insurance Company
Filing
83
MEMORANDUM & ORDER denying 77 Motion for Reconsideration; For the foregoing reasons, Plaintiff's motion to reconsider the Summary Judgment Order is DENIED. So Ordered by Judge Joanna Seybert on 11/16/2015. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
MICHELE FLANAGAN,
Plaintiff,
MEMORANDUM & ORDER
11-CV-2682(JS)(GRB)
-against–
GEICO GENERAL INSURANCE COMPANY,
GEICO CORPORATION, GEICO INDEMNITY
COMPANY, and GEICO CASUALTY COMPANY,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiff:
Scott Michael Mishkin, Esq.
Kyle T. Pulis, Esq.
Scott Michael Mishkin, P.C.
One Suffolk Square, Suite 240
Islandia, New York 11749
For Defendants:
Barry I. Levy, Esq.
Kevin A. Novikoff, Esq.
Rivkin Radler LLP
926 RXR Plaza
Uniondale, New York 11556
Bruce S. Harrison, Esq.
Elizabeth Torphy-Donzella, Esq.
Shaw & Rosenthal, LLP
20 So. Charles St., 11th Fl.
Baltimore, MD 21201
SEYBERT, District Judge:
Currently pending before the Court is plaintiff Michele
Flanagan’s (“Plaintiff”) motion for reconsideration.
Entry 77.)
DENIED.
(Docket
For the following reasons, Plaintiff’s motion is
BACKGROUND
The
Court
presumes
familiarity
with
the
factual
background of this case, which is set forth in detail in the
Court’s Memorandum and Order dated March 31, 2015 (the “Summary
Judgment Order”). (Docket Entry 75.) Briefly, Plaintiff commenced
this employment discrimination action against defendants GEICO
General Insurance Company, GEICO Corporation, GEICO Indemnity
Company, and GEICO Casualty Company (collectively, “Defendants”),
asserting
claims
of
hostile
work
environment
pursuant to the New York State Human Rights Law.
at 1.)
and
retaliation
(Summ. J. Order,
This action was initially commenced in state court and
removed to this Court on the basis of diversity jurisdiction.
(Summ. J. Order at 11-12.)
On August 30, 2013, Defendants filed a motion for summary
judgment.
(Docket Entry 66.)
Defendants argued, inter alia, that
Plaintiff failed to establish her retaliation claim.
Summ. J. Br., Docket Entry 69, at 5-21.)
(See Def.’s
Plaintiff’s claim was
based on her contention that GEICO’s Regional Vice President, Seth
Ingall (“Ingall”), orchestrated her transfer to a different group
in retaliation for Plaintiff’s complaint about a December 2008
interaction with Ingall.
(Summ. J. Order at 16.)
In the Summary Judgment Order, the Court concluded that
Plaintiff failed to state a prima facie case for retaliation and
granted summary judgment as to Plaintiff’s retaliation claim.
2
(Summ. J. Order at 16-19.)
Particularly, the Court held that
Plaintiff could not demonstrate that she engaged in a protected
activity when she complained about Ingall because the subject
incident was a “brief, non-sexual and isolated act of touching”
that could not have led Plaintiff to form a reasonable belief that
she was opposing sexual harassment or a hostile work environment
by complaining about the incident.
(Summ. J. Order at 18-19.)
Additionally, the Court noted that the causal connection between
Plaintiff’s complaint and her transfer to a new group was “tenuous”
based on Plaintiff’s admission during her deposition that her
belief that Ingall orchestrated her transfer was speculative.
(Summ. J. Order at 17-18.)
On
April
13,
2015,
Plaintiff
filed
a
motion
for
reconsideration of the Summary Judgment Order’s dismissal of her
retaliation claim (“Plaintiff’s Motion”).
Plaintiff
alleges
that
the
Court
failed
(Docket Entry 77.)
to
consider
the
reasonableness of Plaintiff’s belief that she was opposing sexual
harassment by complaining about Ingall “in light of the totality
of the circumstances of what plaintiff had been subjected to.”
(Pl.’s Br., Docket Entry 77-1, at 4.) (internal quotation marks
and citations omitted.)
Specifically, Plaintiff argues that since
her sexual harassment by Michael Meehan (“Meehan”) overlapped with
the
incidents
Plaintiff
complained
3
about
respecting
Ingall,
Meehan’s conduct should be considered in the context of Plaintiff’s
retaliation claim.
(Pl.’s Br. at 5.)
Plaintiff highlights three incidents involving Ingall
where she alleges she was subjected to sexual harassment: (1) In
or about December 2008, Seth Ingall . . . “entered plaintiff’s
cubicle, confronted her very closely, rested his chin on her head,
and began breathing heavy and repeating, ‘I just want one quote.’”
(Pl.’s Br. at 5.)
(2) Shortly after the December 2008 incident,
while Plaintiff was in an elevator with Ingall and John Pham
(“Pham”), the Assistant Vice President of Claims, Pham started
muttering “creepy creepy.”
When Ingall asked Pham what he was
saying, Plaintiff responded, “He’s calling you creepy.
You walked
into my cubicle, put your chin on my head and breathed all over me
to get me to do a cash for quote.
Br. at 5; Summ. J. Order at 8.)
It was plain creepy.”
(Pl.’s
(3) In February 2010, Plaintiff
and two other female co-workers were on the elevator with Ingall.
When Plaintiff and her colleagues missed their floor, one coworker made a comment to the effect of, “I can go up to your
office, there’s enough room in there.”
worry.
Ingall replied, “Don’t
My office is big enough for all four of us.”
(Pl.’s Br.
at 6; Summ. J. Order at 9.)
Plaintiff avers that the Court only considered the first
“cubicle” incident in evaluating whether she engaged in protected
activity.
(Pl.’s Br. at 6.)
Plaintiff also argues, without
4
citation to the record, that Ingall “was aware” of Plaintiff’s
numerous complaints about Meehan and that, accordingly, Ingall
“either knew, or should have known, that any questionable conduct
or jokes directed toward plaintiff, even if he considered them to
be harmless . . . could have been viewed as further harassment in
light of everything that plaintiff had been subjected to.”
(Pl.’s
Br. at 6.)
Defendants oppose Plaintiff’s Motion and allege that
Plaintiff has simply recycled the arguments that were posited in
opposition to Defendants’ motion for summary judgment.
(Defs.’
Br., Docket Entry 80, at 4.)
DISCUSSION
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 WL
812999,
(E.D.N.Y.
at
*2
Mar.
14,
2007).
A
motion
for
reconsideration is appropriate when the moving party believes the
Court overlooked important “matters or controlling decisions” that
would have influenced the prior decision.
Factors
Corp.,
187
F.R.D.
148,
151
Shamis v. Ambassador
(S.D.N.Y.
1999).
Reconsideration is not a proper tool to repackage and reiterate
arguments and issues already considered by the Court in deciding
the original motion.
See United States v. Gross, No. 98-CR-0159,
5
2002 WL 32096592, at *4 (E.D.N.Y. Dec. 5, 2002).
to raise new arguments and issues.
Nor is it proper
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).
II.
Analysis
Plaintiff
does
not
appear
to
dispute
that
the
controlling framework for analyzing a retaliation claim under the
New York State Human Rights Law requires a plaintiff to establish
that: “‘(1) she engaged in a protected activity; (2) her employer
was
aware
of
this
activity;
(3)
the
employer
took
adverse
employment action against her; 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
Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 608 (2d Cir.
2006)).
Indeed,
Plaintiff
does
overlooked any controlling law.
not
allege
that
the
Court
Instead, Plaintiff argues that
reconsideration is warranted based on: (a) the Court’s alleged
failure to consider all three incidents involving Ingall, and (b)
the Court’s alleged failure to analyze Plaintiff’s retaliation
claim
in
light
of
the
“totality
6
of
the
circumstances”;
specifically, the alleged hostile environment created by Meehan’s
sexual harassment. (See generally Pl.’s Br.) The Court disagrees.
First, the three incidents cited by Plaintiff and the
“totality of circumstances” respecting Meehan’s sexual harassment
have no bearing on the Court’s finding that the causal connection
between Plaintiff’s complaint about Ingall and her transfer to a
new group is “tenuous” in light of Plaintiff’s admission that her
belief that Ingall orchestrated her transfer “was based solely on
her own speculation.”
(Summ. J. Order at 17.)
Second, Plaintiff’s alleged years of sexual harassment
by Meehan does not create a reasonable belief that Plaintiff was
opposing
sexual
complaining
harassment
about
a
or
“brief,
a
hostile
non-sexual
work
and
environment
isolated
act
by
of
touching” by Ingall that she characterized as “creepy”. See, e.g.,
Bowen-Hooks v. City of N.Y., 13 F. Supp. 3d 179, 224 (E.D.N.Y.
2014) (“Absent any express statements indicating that [plaintiff]
was protesting the order because it was discriminatory based on
her race or gender, [p]laintiff’s actions . . . could not have put
[d]efendants
on
notice
that
she
felt
the
order
to
be
discriminatory, and her protest is therefore not protected by the
antiretaliation protections of Title VII, the NYSHRL and § 1981.”)
Moreover, the subsequent incidents with Ingall in the
elevator do not establish a causal connection between the complaint
and the transfer, nor do they support the notion that Plaintiff
7
was engaging in a protected activity by complaining about Ingall.
In fact, the February 2010 elevator incident where Ingall commented
that his office was “big enough for all four of us” occurred after
Plaintiff’s transfer to the new group in approximately May 2009.
(Summ. J. Order at 8-9.)
Third, Plaintiff discussed the three Ingall incidents in
her opposition to Defendants’ motion for summary judgment and
expressly argued that “defendants overlook the fact that plaintiff
had engaged in protected activity on multiple occasions when she
complained about Meehan’s conduct in the past . . . her complaints
regarding
the
Ingall
incidents
were
protected
activity,
as
plaintiff had a good faith reasonable belief that she was being
subjected to further harassment.”
Entry
71,
at
17.)
Thus,
(Pl.’s Summ. J. Br., Docket
Plaintiff’s
motion
is
merely
a
relitigation of points already raised in the underlying motion
sequence.
See Gross, 2002 WL 32096592, at *4 (“A party may not
use a motion to reconsider as an opportunity to reargue the same
points raised previously.”).
[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]
8
CONCLUSION
For
the
foregoing
reasons,
Plaintiff’s
motion
reconsider the Summary Judgment Order is DENIED.
SO ORDERED
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
DATED:
November
16 , 2015
Central Islip, New York
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