Daniel v. T & M Protection Resources LLC et al

Filing 114

OPINION & ORDER re: 111 MOTION for Reconsideration re; 110 Clerk's Judgment, filed by Otis A. Daniel. For the foregoing reasons, Daniel's motion for reconsideration is denied. The Clerk of Court is directed to terminate the motion pending at docket number 111. SO ORDERED. (See Order.) (Signed by Judge Paul A. Engelmayer on 2/24/2015) (ajs)

USDC SDNY

DOCUMENT

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEV/ YORK

ELECTRONICALLY FILED
DOC #:

DATE FILED

4

OTIS A. DANIEL,

Plaintiff,
13 Civ. 4384 (PAE)

-vOPINION & ORDER

T&M PROTECTION RESOURCES LLC,
Defendant.

PAUL A. ENGELMAYER, District Judge:
On February 19,2015, the Court granted defendant T&M Protection Resources, LLC's

motion for summary judgment onpro se plaintiff Otis Daniel's claims that he had been subjected
to a hostile work environment, discriminatory termination, Family Medical Leave Act violations,
and common law negligence.

Dkt. 106 ("February

19

Opinion"), reported at Daniel v. T&M

Protection Resources ZIC, No. 13 Civ. 4384 (PAE),2015 WL728175 (S.D.N.Y. Feb. 19,

2015). The Court assumes familiarity with the underlying facts of this case and with the
February 19 Opinion. On February 23,2015, Daniel filed a motion for reconsideration. Dkt.
111

("Motion"). On February 24,2015, Daniel filed a letter clarifying the bases for his motion

for reconsideration. Dkt. 113 ("Letter"). For the following reasons, the motion is denied.
The standard governing motions 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." Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir.
o'neither
an occasion for repeating old arguments
2012) (citation omitted). Such a motion is

previously rejected nor an opportunity for making new arguments that could have been
previously advanced." Associated Press v. U.S. Dep't of Def,,395 F. Supp.2d17,19 (S.D.N.Y.

2005); see also Goonan v. Fed. Reserve Bank of N.Y., No. 12 Civ. 3859 (JPO), 2013 WL
1386933, at *2 (S.D.N.Y. Apr. 5,2013) ("Simply put, courts do not tolerate such efforts to

obtain a second bite at the apple."). Rather, reconsideration is appropriate "only when the

[moving party] identifies an intervening change of controlling law, the availability of new
evidence, or the need to correct a clear enor or prevent manifest injustice." Kolel Beth Yechiel

Mechil of Tartikov, Inc. v. YLL lrrevocable Trust,729 F .3d 99, 104 (2d Cir. 2013) (citation
omitted). Here, Daniel does not identiff a change in controlling law, nor does he allege that new
evidence has become available. Accordingly, the Court construes Daniel's motion as seeking
reconsideration to prevent manifest inj ustice.

Daniel's motion includes a numbered list of l7 arguments, which fall into roughly three
categories: legal and factual conclusions, criticism of the defendants, and identifications of facts
the Court did not address. Daniel's letter presents another

2I

arguments, which are similar to the

arguments listed in the motion. The Court addresses each category of argument in turn.

First, Daniel asserts various legal and factual conclusions. See Motion llfl 2, 5, I0, 12, 13,
14, 16,

17

; Lettq

1[1]

I

, 1 3, 17 , 2I . For instance, Daniel claims that his termination "was

oomalice,"
and that T&M's proffered explanation for
motivated by [his] protected class" and by

his termination

'o\ryas

pretextual." Motion

TIT

2, 5, 16,17. Daniel also claims that T&M received

numerous complaints about John Melidones's conduct, Letter fl 13, and that witness statements

provided by T&M were o'fabricated" or "forged," Motion

lTT

10, 12, 14,16. Finally, Daniel

argues that he "did nothing wrong" and "did not violate any policies of

T&M." Motion fl 13;

Letter 1lï I , 14, 2 1 . Daniel does not cite any evidence to support these claims. And the Court,

having carefully reviewed all of the materials submitted by both parties, has already rejected
these claims. In particular, the Court relied on the testimony Daniel gave under oath at his

2

deposition, where he admitted that he had a Smith & Wesson BB gun that looked like a real gun
delivered to his worþlace, Daniel Dep. 177,201, and acknowledged that his possession of the

BB gun may have violated T&M's firearms policy, id. at 168-69, 174-75. As the Court
explained at length in its February 19 Opinion, the evidence indicates that Daniel was terminated

for this legitimate non-discriminatory reason, not because of his race, national origin, or sex. S¿e
February 19 Opinion, at 26-38.
Second, Daniel complains about certain conduct by

T&M

and its counsel. See Motion

TI7, 8; Letter nn2,4,8, 10, ll,14,16. Specifically, Daniel claims that T&M did not respond to
his sur-reply and 56.1 statement. Motion'1T7. That is simply untrue: T&M, with the Court's
permission, filed a response to Daniel's sur-reply on October 23,2014. Dkt. 97-98. Daniel also
claims that T&M's disciplinary committee did not allow him to discuss Melidones's

discriminatory and harassing behavior during his disciplinary hearing. Motion u 8; Letter tf 4.
That fact, although taken as true for the purpose of resolving T&M's motion for summary

judgment, does not prove that T&M discriminated against Daniel. Daniel had many other
opportunities to report Melidones's conduct, and Melidones did not fire

him-the decision to

terminate Daniel was made by a five-member disciplinary committee and approved by T&M's

CEO.

Se¿

February 19 Opinion, at 30-31 (discussing the disciplinary hearing),33-34

(discussing Daniel' s termination).

In his letter, Daniel also complains about Melidones's conduct and the behavior of T&M
management more generally. Letter lifl 2, 8, 10, 11,

14,16. Daniel explains that Melidones's

comments "were severely offensive and hurtful"; that "Melidones repeatedly expressed his utter
disgust or disdain of the security staff'; and that Melidones used "vile, profane, [and] insulting

language." Letter T112, 8, 10, 11. The Court does not doubt that Melidones's conduct was

J

offensive and hurtful. Under federal employment law, however, it is not enough to prove that
Daniel was mistreated or abused while at work. Rather, to state a claim for discrimination, he
must establish that he was mistreated because of his membership in a protected class. Se¿

February 19 Opinion, at

badly-that

I7-t8.

Daniel's allegations that Melidones treated the entire staff

he abused men and women of all races----certainly provide ample basis to condemn

Melidones. Those allegations do not, however, suggest that Melidones singled Daniel out for
harassment based on his race, national origin, or sex. Likewise, Daniel complains that

T&M

"took advantage" of its at-will employment policy and fabricated reasons to fire its employees
because the

at-will "doctrine gives them the legal right to do

it."

Letter

1['lT

14, 16. These

arguments may provide an apt critique of at-will employment law, but they do not indicate that

T&M did anything unlawful-indeed, Daniel

concedes that

T&M

had the right to terminate him

without cause and that his conduct, in fact, provided good cause.
Third, Daniel identifies arange of factual propositions that, he alleges, the Court did not

addressinitsFebruary19 Opinion. Motionllfl 1,3,4,6,911, 15;Letter'11T5,6, 12,15,18,

20. Daniel is certainly correct that "[i]n the Court's opinion

and order

on2ll9ll5

19,

many facts

were stated and other facts were omitted or were not addressed." Motion 1[ 1. Daniel submitted
hundreds of pages of briefing and evidence, as did

T&M. See February 19 Opinion,

at 2

n.I,8-9

(listing the submissions the court considered in resolving the motion for summary judgment).
The Court assures the parties that it thoroughly reviewed every page. In its 44-page Opinion,
however, the Court discussed only the facts and arguments most relevant to Daniel's claims.
The Court did not, for example, discuss Daniel's allegation that "NYPD officers harass[ed] and

intimidate[ed] [him] after [his] employment termination." Motion fl 6; Letter fl 18. Even
assuming the truth of that allegation, which is not supported by evidence in the record,

4

information about the NYPD's conduct did not help the Court resolve whether T&M
discriminated against Daniel, denied him medical leave, or acted negligently. Similarly, the
Court did not address Daniel's allegation that "T&M management did not follow or adhere to its
own policies." Motion fl 15; Letter fl 15. That may well be true, and it may suggest that T&M's
management is disorganized or unfair, but it does not prove that T&M's management behaved in
a

discriminatory or otherwise unlawful fashion. The Court also did not address the lack of video

evidence in the case.. Motion tf 4; Letter fl 20. Daniel testified under oath that he possessed a BB
gun at the worksite. See Daniel Dep. 177-78, 183, 197. Video footage to further confirm that
fact was not necessary, and T&M was not required to provide it.

Daniel emphatically argues that all packages he received at the worksite were accepted
by his co-workers. Motion TT 3, 9, 1 1; Letter l]ll 5,

6. The Court accepts that fact as true.

Daniel's co-workers all so represented in their written statements. However, it is not relevant.
As the Court has explained, that Daniel's co-workers knew about his personal package deliveries
does not establish that Melidones knew about those deliveries. ,See February 19,2015 Opinion,

at28 &, n.7. Nor does it prove that Daniel was allowed to receive packages at work. Notably,
Daniel's co-workers stated that they knew that he was violating T&M policy, see id. at29*30,
and apparently declined to report him, perhaps out of friendship or to avoid being a "snitch."

Nor does it prove that Daniel was unfairly singled out for punishment. The record does not
reflect what, if any, disciplinary actions Daniel's co-workers faced. Even assuming they faced

minimal or no repercussions, it is reasonable to punish the employee who received the packages
(and later displayed the gun that had been within one of them) more harshly than employees who

merely accepted them.

5

Daniel also argues that "the Court did not address the fact that T&M did not have a

policy prohibiting package delivery to the work site" and that "Mr. Melidones during [Daniel's]
employment never instructed [him] to stop package delivery." Motion'1Ì1[3, 9; Letter fl 19. The

Court did, in fact, address these issues.

^9ee

February 19 Opinion, at 28 &,n.6 (discussing

T&M's policy prohibiting package delivery); íd. at26-27 (recounting Daniel's conversation with
Melidones about T&M's policy). More important, however, Daniel's arguments miss the
broader point: The Court held that Daniel's termination was legitimate and non-discriminatory
because

it was based on his possession of a realistic-looking Smith & Wesson BB gun at work,

which violated T&M's policies regarding unauthorized weapons and possession of firearms. See
id., at36-37. Even if Daniel was allowed to receive personal packages in general-for instance,
packages containing books or
a

clothing-he

\ryas

not allowed to receive a package that contained

prohibited weapon.l
Finally, Daniel's letter presents a slew of new allegations that do not appear anywhere in

the record and in fact contradict testimony Daniel gave under oath at his deposition. Letter flfl 3,
7

,9,

10, 1 1. For example, Daniel now claims that he "repeatedly expressed to Mr. Melidones

how I felt and asked him to stop." Letter fl 3. During his deposition, however, Daniel testified
that, apart from one anonymous phone call to a T&M hotline in August 2011, he never
complained about Melidones's behavior during his tenure at

T&M.

See Daniel Dep.

1

19, 26I

.

Similarly, Daniel-for the first time-claims that Melidones "physically threatened members of
the staff with bodily harm" and "violently reprimanded staff members." Letter TT 10, 11. This

1

Similarly, Daniel recounts the incident in which Melidones told Daniel that he was paid too
much. Letter fl 12. As the Court explained, that comment, although offensive and inappropriate,
does not establish a hostile work environment or support an inference that Daniel's termination
was discriminatory. ,See February l9 Opinion, at 3,12,37 (discussing Melidones's statement);
id. at 17-25, 33-38 (explaining the Court's decision on Daniel's Title VII claims).
6

claim is inconsistent with Daniel's statements at his deposition. There, Daniel testified that
Melidones never physically threatened him, Daniel Dep. 154, and that the only physical contact
consisted of isolated incidents in which Melidones brushed against Daniel's buttocks and slapped

him on the shoulder, id. at 133, 149,230. Daniel never mentioned physically threatening or
violent conduct directed as his co-workers, and their statements do not support Daniel's
allegation that such conduct occurred. Because Daniel does not identify any record evidence that
supports his new arguments, the Court cannot consider them.
For the foregoing reasons, Daniel's motion for reconsideration is denied. The Clerk

Court is directed to terminate the motion pending at docket number 111.

SO ORDERED.

P*l
Paul A. Engelmayer
United States District Judge

^

Dated: February 24,2015
New York, New York

7

of