Thompson v. Spota et al

Filing 133

MEMORANDUM & ORDER, For the foregoing reasons. Plaintiffs (Dkt. 126) motion for reconsideration is DENIED. So Ordered by Judge Nicholas G. Garaufis on 6/24/2019. (Lee, Tiffeny)

OlF
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

AVEMARIA THOMPSON,
Plaintiff,
MEMORANDUM & ORDER

-against-

14-CV-2473(NGG)
(AKT)
THOMAS J. SPOTA and SUFFOLK COUNTY,

Defendants.
X

NICHOLAS G. GARAUFIS,United States District Judge.

Plaintiff AveMaria Thompson, a former Assistant District Attorney("ADA")with the

Suffolk County District Attorney's Office (the "DA's Office"), brings this action against Suffolk
County (the "County")and her former supervisors, Thomas J. Spota and Robert Ewald

(collectively, the "Individual Defendants"), alleging that Defendants discriminated against her on
the basis of her race and retaliated against her for engaging in protected activity based upon her
race, in violation of Title VII and 42 U.S.C. § 1983. (See Am. Compl.(Dkt. 46).) Plaintiff

asserts causes of action for(1)race discrimination pursuant to 42 U.S.C. § 1983 (against the
Individual Defendants)(2)retaliation pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 1981

(against the Individual Defendants);(3)racial discrimination and hostile work environment in
violation of Title VII ofthe Civil Rights Act of 1964("Title VII")(against the County); and(4)
retaliation in violation of Title VII(against the County). (See id.)
The Individual Defendants and the County both filed motions for summary judgment on

November 17,2017. (See Individual Defs. Not. of Mot.for Summ. J.(Dkt. 77); County Not. of

Mot.for Summ.J.(Dkt. 85).) The motions were denied in part and granted in part as follows:
(1)all ofPlaintiff's claims against Ewald were dismissed in their entirety;(2)Plaintiffs
retaliation and hostile work environment claims against all Defendants were dismissed in their
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entirety;(3)Plaintiffs § 1983 race discrimination claims against Spota and the Coxmty survived;
and (4)Plaintiffs Title VII race discrimination claim against the County survived. (See Sept.

30,2018 Order(Dkt. 125)at 3-4.) Before the court is Spota's motion for reconsideration ofthat
decision regarding Plaintiffs race discrimination claim against him. (See Mem.in Support of
Mot. for Recons.("Mem.")(Dkt. 127) at 2.)

For the following reasons, Plaintiffs motion for reconsideration is DENIED.
I.

BACKGROUND^

Plaintifffiled her complaint on April 17,2014. (Compl.(Dkt. 1).) The case was

originally assigned to United States District Judge Arthur D. Spatt, and was reassigned to United
States District Judge Joan M. Azrack on February 7,2015. (See Feb. 7, 2015 Recusal Order
(Dkt. 40).) With the court's permission. Plaintifffiled an amended complaint on July 24, 2015

(Am. Compl.), and Defendants answered the amended complaint on October 30,2015. (Answer
(Dkt. 54).) On November 17,2017,following the close of discovery. Defendants filed two
motions for summary judgment. (See Notice ofIndividual Defs. Mot. for Summ. J.(Dkt. 77);
Notice ofthe County's Mot.for Summ. J.(Dkt. 85).) On May 11,2018, Judge Azrack referred
those motions to Magistrate Judge Tomlinson for a Report and Recommendation("R&R"). (See
May 11, 2018 Order Referring Mots.) On August 23,2018, Judge Tomlinson issued an R&R
recommending that Defendants' motions for summaryjudgment be GRANTED in part and
DENIED in part as follows:(1)all claims against Ewald were dismissed in their entirety;(2)
Plaintiffs retaliation and hostile work environment claims against all Defendants were dismissed

in their entirety;(3)Plaintiffs § 1983 race discrimination claims against Spota and the County
survived; and (4)Plaintiffs Title VII race discrimination claim against the County survived.

'
The court assumes the parties' familiarity with the underlying facts and factual disputes, and discuss facts only as
necessary to resolve the instant motion.

(R&R.) Following objections from both Plaintiff and Defendants, Judge Azrack reviewed the
motion de novo and adopted the R&R in full. (See Sept. 30,2018 Order at 3.)

Spota filed the instant motion for reconsideration on October 15, 2018. (Mem.; Notice of
Mot.for Recons.(Dkt. 126).) Plaintiff filed her response on October 29,2018(Mem.in Opp'n

to Mot. for Recons.("Opp'n")(Dkt. 129)), and Spota replied on November 5,2018(Reply in
Supp. of Mot.for Recons.("Reply")(Dkt. 130)). The case was reassigned to the imdersigned on
March 25,2019. (Mar. 25,2019 Reassignment Notice.)
n.

LEGAL STANDARD

The standard for a motion for reconsideration 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." Shrader v. CSX Transp.. Inc.. 70 F.3d 255,257(2d Cir. 1995). "Such
motions may be granted:(1)if the court overlooked critical facts;(2)if it overlooked controlling
decisions that could have changed its decision;(3)in light of an intervening change in
controlling law;(4)in light ofnew evidence;(5)to correct clear error; or(6)to prevent manifest
injustice." Monaco v. Hogan. 98-CV-3386(NGG),2016 WL 3212082, at *2(E.D.N.Y. June 8,

2016)(internal citations and quotation marks omitted); see also Rollins v. N.Y. State Div. of
Parole. No. 03-CV-5952(NGG),2007 WL 539158, at *2(E.D.N.Y. Feb. 16, 2007)("A motion
for reconsideration may be granted only if a court overlooked (1)factual matters that were put
before it on the underlying motion or(2)controlling legal authority."(citation omitted)). "A
motion for reconsideration is not an opportunity to relitigate claims that have already been

adjudicated." Williams v. Ctv. of Nassau. 779 F. Supp. 2d 276,279(E.D.N.Y. 2011)(citing
Sequa Com,v. GBJ Corp.. 156 F. 3d 136,144(2d Cir. 1998); Davidson v. Scullv. 172 F. Supp.

2d 458,461-62(S.D.N.Y. 2001)). In any event,"[i]t is within the sound discretion ofthe district
court whether or not to grant a motion for reconsideration." Markel Am.Ins. Co. v. Linhart. No,
ll-CV-5094(SJF), 2012 WL 5879107, at *2(E.D.N.Y. Nov. 16,2012).
III.

DISCUSSION

Spota only seeks reconsideration ofthe portion of Judge Azrak's decision that allowed
Plaintiff's § 1983 race discrimination claims against him to go forward. (Mem. at 2.) Spota
raises three arguments in support of his motion:(1)that Judge Azrak overlooked evidence of a

change in disciplinary policy instituted years before Plaintiff was terminated(Mem. at 4-8);(2)
that Judge Azrak misapplied the law to find that employees identified by Plaintiff were similarly
situated(Mem. at 8-11); and(3)that Judge Azrack misapplied the law to find evidence of
discriminatory intent(Mem. at 11-13).

As an initial matter, the court notes that Spota previously raised all three of his argiiments

in his objections to Judge Tomlinson's R&R fsee Spota Obj. to R&R ("Obj.")(Dkt. 117)), and
Judge Azrack rejected all three (see Sept. 30, 2018 Order at 3). As such, his motion for
reconsideration is merely an attempt to "relitigate claims that have already been adjudicated,"
and can be denied on that groimd alone. S^ Williams v. Ctv. of Nassau,779 F. Supp. 2d 276,

279(E.D.N.Y.2011)(citing Seaua Corp.. 156 F. 3d at 144; Davidson. 172 F. Supp. 2d at 461-62
(S.D.N.Y. 2001)).
The court will nonetheless address the merits of Spota's claims.
A.

Evidence of a Change in Disciplinary Policy

First, Spota argues that Judge Azrack overlooked evidence ofa disciplinary policy in

determining that five white^ ADAs who were allowed to resign rather than being terminated

^ Plaintiff is African-American. (Am. Compl.^1.)
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were similarly situated to Plaintiff. (Mem.at 4.) Spota insists that the Individual Defendants
"submitted credible, admissible evidence that those ADAs were subjected to a different

disciplinary standard applied by a former Division Chief during a different time period, and that
thereafter, there was a change in disciplinary policy instituted... years before Plaintiffs
employment was terminated." (Id) According to Defendant, this evidence "negat[es] any

suggestion" that Plaintiff was subjected to different disciplinary standards than similarly situated
ADAs of a different race. However,in her R&R,Judge Tomlinson declined to consider this
evidence because the Individual Defendants submitted it for the first time with their reply brief.

(R&R at 54.) Spota objected to this determination in front of Judge Azrack (see Spota Obj. to
R&R("Obj.")(Dkt. 117) at 10-13), and Judge Azrack rejected his argument, agreeing with

Judge Tomlinson that the evidence was not properly submitted. (Sept. 30,2018 Order at 3.)
This court agrees with both Judge Azrack and Judge Tomlinson. The Individual
Defendants submitted evidence ofthe change in policy with their Reply papers, not with their

initial filing in support oftheir motion for summary judgment. (R&R at 54; Mem.at 4.) Spota
argues that Judge Tomlinson erred in refusing to consider this evidence because "it did not
constitute'new evidence' or new reasons to support the entry ofsummary judgment, but instead

directly responded to factual assertions made by Plaintiffin her Opposition papers." (Mem. at 5

(citing Bavwav Ref. Co. v. Oxveenated Mktg.& Trading A.G.. 215 F.3d 219, 226-27(2d Cir.
2000); Baugh v. Citv of Milwaukee,823 F. Supp. 1452,1457(E.D. Wis. 1993), affd. 41 F.3d
1510(7th Cir. 1994)).)

Spota is correct that "reply papers may properly address new material issues raised in the

opposition papers so as to avoid giving unfair advantage to the answering party." Guadagni v.
N.Y.C. Transit Auth., 387 F. App'x 124, 125-26(2d Cir. 2010)(summary order)(quoting

Bavwav Ref. Co.. 215 F.3d at 226-27). However,"[i]t is plainly improper to submit on reply

evidentiary information that was available to the moving party at the time that it filed its motion
and that is necessary in order for that party to meet its burden." Monaghan v. Airlines. 16-CV3528(ERK),2018 WL 3682482, at *5 (E.D.N.Y. Aug. 2,2018)(quoting Revise Clothing. Inc. v.
Joe's Jeans Subsidiary. Inc.. 687 F. Supp. 2d 381,387(S.D.N.Y. 2010)). And while "[a] court
has discretion to consider documents filed in violation of procedural rules," Revise Clothing,687

F. Supp. 2d at 387(citations omitted), it is not required to do so.
Here, as Judge Tomlinson observed,the Individual Defendants stated "in their moving

papers that there was no evidence of similarly situated comparators who were treated better than
Plaintiff." (R&R at 5;
^Individual Defs. Mem.in Supp. of Mot. for Summ. J.("Individual
Defs. Summ. J, Mot.")(Dkt. 84)at 14.) It is true that the Individual Defendants' memorandum
in support oftheir motion for summary judgment did not specifically discuss the other ADAs

who allegedly were permitted to resign instead of being terminated. However,Plaintiff's
amended complaint clearly alleges that "it is the custom ofthe Suffolk County DA that white
ADAs who engage in far more serious behavior ... are not terminated and, at most, are demoted
or asked to resign." (Am. Compl. K 29.) Thus,the issue of whether Plaintiff is similarly situated
to those ADAs is hardly a"new material issue[]," Guadagni, 387 F. App'x at 125 (quoting
Bavwav Ref. Co.. 215 F.3d at 226-27); rather, it is a fundamental factual question that has long

been a part ofthe case, and one that the Individual Defendants directly acknowledged in their
motion. (See Individual Defs. Summ. J. Mot. at 14.) Further, Spota does not contest that the
information was available to the Individual Defendants at the time they filed their motion, nor

that proving that no contested issue of material fact existed as to disparate treatment of similarly
situated employees of different races was "necessary in order for [them] to meet [their] burden"

on their motion for summary judgment.

Monaghan. 2018 WL 3682482, at *5 (quoting

Revise Clothing. 687 F. Supp. 2d at 387).

Judge Tomlinson did not, therefore,"overlook" any facts submitted by the Individual
Defendants as would warrant reconsideration. See Rollins. 2007 WL 539158, at *2. Rather, she

appropriately declined to consider evidence improperly submitted on reply. Reconsideration is
not appropriate on this issue.
B.

The Law Regarding Similarly Situated Employees

Second, Spota argues that Judge Tomlinson misapplied the law in determining that the
five white ADAs Plaintiffidentified were similarly situated to Plaintiff. (See Mem. at 8-11.)

However,this argument turns on the evidence submitted for the first time in the Individual
Defendants' reply brief. (See id. at 9.) As discussed above. Judge Tomlinson appropriately
declined to consider such evidence in her R&R. And,leaving that evidence aside, Spota does

not provide any "controlling decisions or data that the court overlooked," Shrader. 70 F.3d at
257. The court therefore rejects this claim as well.
C.

Evidence of Discriminatory Intent

Finally, Spota argues that Judge Tomlinson "misapplied the McDonnell Douglas burden
shifting analysis to find that there was sufficient evidentiary basis to conclude that Mr. Spota's

legitimate reason for terminating Plaintiff was false." (Id. at 11.) Under the McDonnell Douglas
firamework, a plaintiff must first establish a prima facie case ofemployment discrimination. See
Tex. Dep't of Cmtv. Affairs v. Burdine.450 U.S. 248,252-53 (1981). "Generally speaking, a

plaintiff's burden of establishing a prima facie case in the context of employment discrimination
law is minimal." Collins v. N.Y.C. Transit Auth.. 305 F.3d 113,118(2d Cir. 2002)(citation and

quotation marks omitted). Ifthe plaintiff can establish a prima facie case of discrimination.

"such a showing will raise a temporary 'presumption' of discriminatory motivation, shifting the
burden of production to the employer and requiring the employer to come forward with its

justification for the adverse employment action against the plaintiff." Littleiohn v. Citv ofNew
York. 795 F.3d 297,307(2d Cir. 2015)(citing, inter alia. Burdine. 450 U.S. at 253-54). The
employer satisfies this burden if it can proffer a "legitimate, nondiscriminatory" reason for the
adverse action. See Vega v. Hempstead Union Free Sch. Dist.. 801 F.3d 72,83(2d Cir. 2015)

(citing McDonnell Douglas. 411 U.S. at 802)."Plaintiff must then be afforded the opportunity to
prove by a preponderance ofthe evidence that the defendant's proffered, nondiscriminatory
reason was not its true reason for the employment decision, and that... discrimination was
defendant's real motivation." Dais v. Lane Brvant. Inc.. No. 97-CV-2011,2001 WL 1328390, at

*2(S.D.N.Y. Oct. 29,2001)(citing St. Marv's Honor Ctr. v. Hicks. 509 U.S. 502,507-08
(1993)).

Contrary to Spota's assertions. Judge Tomlinson did not misapply this standard. First,
Judge Tomlinson determined that Plaintiff had "proffered facts sufficient to meet her de minimis
prima facie burden as to an inference of discrimination.'' (R&R at 44.) Specifically, Judge
Tomlinson relied on Plaintiffs evidence that "there were other ADAs in her bureau who were

outside her protected class and arrived late, were generally subject to the same workplace
standards regarding attendance, and were not terminated." (Id.) This court agrees that such
evidence meets the "minimal" level required to establish a prima facie case of discrimination.

See Collins. 305 F.3d at 118. Next, Judge Tomlinson correctly noted that Plaintiffs "history of
... repeatedly arriving to work late" is sufficient evidence to provide a "legitimate,

nondiscriminatory reason for Plaintiffs termination." (R&R at 45-46.) Finally, disregarding the
evidence improperly submitted on reply. Judge Tomlinson concluded that "there are sufficient

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facts from which Plaintiff could convince a reasonable jury that the Defendants' true motivation
for her termination was discriminatory." (Id. at 47.) In so holding, she relied on evidence

indicating that similarly situated ADAs ofa different race were treated differently from Plaintiff.
(Id)

Again, Spota argues that this conclusion was incorrect in light ofthe evidence submitted
with the Individual Defendants' renlv brief. And,once again, the court holds that Judge

Tomlinson appropriately declined to consider that evidence. As Spota does not provide any
other arguments illustrating "controlling decisions or data that the court overlooked," Schrader.
70 F.3d at 257,the court rejects this claim as well.
IV.

CONCLUSION

For the foregoing reasons. Plaintiffs (Dkt. 126) motion for reconsideration is DENIED.
SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyn, New York
June^

2019

yiCHOLAS G. GARAUFIS
United States District Judge