Mulligan v. Verizon New York Inc., et al

Filing 94

OPINION AND ORDER re: 85 MOTION for Reconsideration re; 84 Memorandum & Opinion,,,, . filed by Steven J. Mulligan. For the foregoing reasons, Plaintiff's motion is GRANTED. The Court's March 31, 2022 Order is amended to clarify that: the Court denies Defendants' summary judgment motion as to Plaintiff's discrimination claim under the ADA as it relates to Plaintiff's deprivation of overtime from December 12, 2015 until August 10, 2016; and the Court denies Defendants' summary judgment motion as to Plaintiff's discrimination claim under the NYSHRL as it relates to Plaintiff's deprivation of overtime from August 29, 2014 until August 10, 2016. The Clerk of Court is respectfully requested to terminate the motion at ECF No. 85. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 12/16/2022) (tg)

Case 1:17-cv-09390-ALC-JW Document 94 Filed 12/16/22 Page 1 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
STEVEN J. MULLIGAN,
Plaintiff,
17-CV-9390 (ALC)(JW)

-againstVERIZON NEW YORK INC. and JAMES
MELCHIONE,

OPINION AND ORDER

Defendants.
ANDREW L. CARTER, JR., United States District Judge:
Pending before the Court is Plaintiff Steven J. Mulligan’s (“Mulligan”) motion for
reconsideration. Plaintiff seeks reconsideration of the Court’s March 31, 2022 opinion and order
(the “Order”) denying his motion for summary judgment and granting in part and denying in part
Defendants’ motion for partial summary judgment. (See Pl.’s Mot., ECF No. 85.) For the reasons
stated below, the motion for reconsideration is GRANTED. Upon review, this Court’s Order on
the cross motions for summary judgment is hereby MODIFIED as set forth below.
I.

BACKGROUND
A. Factual Background
The relevant facts of this case were fully set forth in the Order. Accordingly, familiarity

with the facts is assumed and the summary to follow will only highlight those facts necessary for
the motion presently before the Court.
Plaintiff brings disability discrimination and related claims against Defendants Verizon
New York Inc. (“Verizon”) and James Melchione (“Melchione”) under the Americans with
Disabilities Act (“ADA”), the New York State Human Rights Law (“NYSHRL”) and Title VII of
the Civil Rights Act of 1964 (“Title VII”). Plaintiff filed an amended complaint on March 9, 2018,
alleging claims against: (1) Verizon for failure to accommodate, retaliation, disability

Case 1:17-cv-09390-ALC-JW Document 94 Filed 12/16/22 Page 2 of 7

discrimination and hostile work environment in violation of the ADA; (2) Melchione and Verizon
for failure to accommodate, disability discrimination, retaliation, and hostile work environment in
violation of the NYSHRL; (3) Verizon for retaliation in violation of the NYSHRL and (4) Verizon
for retaliation in violation of Title VII. (See generally, Am. Compl., ECF No. 11.)
B. The Opinion and Order
On March 31, 2022, the Court issued its Order denying Plaintiff’s motion for summary
judgment and granting in part and denying in part Defendants’ motion for partial summary
judgment. (Order, ECF No. 84 at 14.) Specifically, the Court denied summary judgment as to
(1) Plaintiff’s retaliation claims under the ADA and the NYSHRL (i.e., the Third, Seventh and
Eighth Causes of Action (“COA”)) and (2) Plaintiff’s discrimination claims under the ADA and
NYSHRL relating to Plaintiff’s deprivation of overtime from December 12, 2015 through August
10, 2016 (i.e., the Fourth and Fifth COAs). (Id. at 9, 13.) The Court granted summary judgment
and dismissed Plaintiff’s cause of action for failure to accommodate under the ADA (i.e., the First
COA), hostile work environment under the ADA (i.e., the Ninth COA) and retaliation under Title
VII (i.e., the Sixth COA). (Id. at 6, 10 and 13.) Lastly, the Court declined to exercise supplemental
jurisdiction over Plaintiff’s remaining state law claims that did not correspond to the remaining
federal claims (i.e., the Second and Tenth COAs). (Id. at 13.)
C. The Motion for Reconsideration
Plaintiff filed the instant motion for reconsideration on April 14, 2022. (Pl.’s Mot., ECF
No. 85.) The motion asks the Court to modify Section II of the Order which denied Defendants’
motion for summary judgment motion as to the ADA and NYSHRL disability discrimination
claims for deprivation of overtime. (See generally Pl.’s Mem., ECF No. 85.) Specifically, Plaintiff
argues that the Court applied an incorrect 300-day statute of limitations to his NYSHRL

2

Case 1:17-cv-09390-ALC-JW Document 94 Filed 12/16/22 Page 3 of 7

discrimination claim and asks the Court to modify the Order to apply a three-year statute of
limitations to the NYSHRL claims. (Id. at 2.) Thus, Plaintiff asks the Court to modify the Order
to specify that Defendants’ motion for summary judgment was denied as to Plaintiff’s NYSHRL
discrimination claim from August 29, 2014 until August 10, 2016, instead of from December 12,
2015 to August 10, 2016. (Id.)
In response, Defendants argue that (1) Plaintiff mischaracterizes the Order, (2) Plaintiff’s
state action for disability discrimination warrants dismissal of the pre-December 12, 2015
NYSHRL claim and (3) the Court properly declined to exercise supplemental jurisdiction over
the claim. (See generally ECF No. 90.) Defendants base their argument on their interpretation
of the language in Section VI of the Order which dismissed Plaintiff’s remaining state law claims
“that do not correspond” to the federal claims that had been sustained by the Court. (Order at
13.) Defendants contend that this language signifies that the Court declined to exercise
supplemental jurisdiction over Plaintiff’s pre-December 12, 2015 NYSHRL claims because the
corresponding pre-December 12, 2015 ADA claim were determined to be time barred. (Id. at 3.)
II.

LEGAL STANDARD
“A motion for reconsideration is an extraordinary remedy to be employed sparingly in the

interests of finality and conservation of scarce judicial resources.” Walker v. Carter, 2016 WL
6820554, *2 (S.D.N.Y. Feb. 4, 2016) (citing Drapkin v. Mafco Consol. Grp., Inc., 818 F. Supp. 2d
678, 695 (S.D.N.Y. 2011)). A court will grant such a motion in only three circumstances: where
the party seeking reconsideration identified (1) an intervening change of controlling law; (2) the
availability of new law; or (3) the need to correct a clear error or prevent manifest injustice. See
Berg v. Kelly, 343 F. Supp. 3d 419, 424 (S.D.N.Y. 2018) (citing Kolel Beth Yechiel Mechil of
Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir. 2013)). It is not simply an

3

Case 1:17-cv-09390-ALC-JW Document 94 Filed 12/16/22 Page 4 of 7

opportunity for the moving party to present “the case under new theories” or otherwise take a
“second bite at the apple.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d
Cir. 2012); see also Svenningsen v. Ultimate Grounds Management, Inc., 2017 WL 3105871, *1
(S.D.N.Y. July 20, 2017).
The standard for granting such a motion is strict, and the decision to grant or deny a motion
for reconsideration is one committed to the discretion of the district court. Salveson v. JP Morgan
Chase & Co., 663 Fed.App’x. 71, 75 (2d Cir. 2016) (internal quotations omitted); Sigmon v.
Goldman Sachs Mortgage Company, 229 F.Supp.3d 254, 257 (S.D.N.Y. 2017). In general, any
decision to grant a motion for reconsideration is one supported by a showing of exceptional
circumstances, such as controlling decisions or data that the court overlooked. Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (exceptional circumstances include matters “that
might reasonably be expected to alter the conclusion reached by the court.”); Xiu Feng Li v. Hock,
371 Fed. App’x 171, 175 (2d Cir. 2010).
III.

DISCUSSION
After careful consideration, the Court concludes that a three-year statute of limitations

should have been applied to Plaintiff’s NYSHRL disability discrimination claim. Under New
York law, the statute of limitations for NYSHRL claims is three years. See N.Y. C.P.L.R.
214(2); George v. Prof’l Disposables Int’l, Inc., 221 F. Supp. 3d 428, 436 (S.D.N.Y. 2016). This
period is tolled from the date when a charge is filed with the Equal Employment Opportunity
Commission (“EEOC”) until the right-to-sue letter is issued. Nokaj v. N. E. Dental Mgmt., LLC,
No. 16-CV-3035 (KMK), 2019 WL 634656, at *7 (S.D.N.Y. Feb. 14, 2019); see also Manello v.
Nationwide Mut. Ins. Co., No. 11-CV-0243, 2012 WL 3861236, at *11 (E.D.N.Y. Sept. 4, 2012).
By contrast, A plaintiff bringing a claim under the ADA must file a charge with the EEOC

4

Case 1:17-cv-09390-ALC-JW Document 94 Filed 12/16/22 Page 5 of 7

within 300 days of the alleged unlawful employment practice. See 42 U.S.C. § 2000e–5(e)(1);
42 U.S.C. § 12117(a); see also Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325-28 (2d
Cir. 1999).
Plaintiff alleges that even though he returned to work on August 29, 2014, he was not
deemed a “fully-qualified” lineman until August 10, 2016 because of Defendants’ discrimination
on the basis of his disability. (ECF No. 74 ¶¶ 88, 92, 103.) This delay in full qualification
limited the overtime pay to which he was allegedly entitled. (Id. ¶ 96.) Defendants moved for
summary judgment on the disability discrimination claim under both the NYSHRL and ADA.
(ECF No. 60 at 12–15). The Court denied summary judgment, finding there was a genuine issue
of material fact as to whether Defendants had discriminated against Plaintiff. (Order at 9.)
However, the Court also, applying the 300-day statute of limitations applicable to ADA claims,
limited Plaintiff’s discrimination claim to acts that occurred after December 12, 2015. (Id. at 5,
7.) However, this 300-day limitation period was also inadvertently applied to Plaintiff’s
NYSHRL claims, such that the Court likewise limited the NYSHRL claim to acts that occurred
after December 12, 2015. (Id. at 9, 14.)
Applying the correct three-year statute of limitations period, Plaintiff’s NYSHRL
disability discrimination claims from August 29, 2014 onward remain viable. In the Order, the
Court found that Plaintiff’s denial of overtime constitutes an adverse employment action. (Id. at
7–8.) Plaintiff filed a charge with the EEOC on October 7, 2016. (See ECF No. 74 ¶ 165.) By
this time, roughly 770 days of the three-year statute of limitations had elapsed since the claim
first began to accrue on August 29, 2014 when Plaintiff returned to work as a lineman. The
limitation period was tolled for a period of 329 days, until September 1, 2017, when the EEOC
issued its right to sue notice. (ECF No. 11 ¶ 7.) 90 days later, Plaintiff filed the Complaint on

5

Case 1:17-cv-09390-ALC-JW Document 94 Filed 12/16/22 Page 6 of 7

November 30, 2017, within three years (plus the tolled period) of August 29, 2014. Accordingly,
Plaintiff may pursue his NYSHRL disability discrimination claim for denial of overtime from
August 29, 2014 to August 10, 2016.
Finally, Defendants’ interpretation of the Order is inaccurate. Section II of the Order
denied summary judgment on Plaintiff’s timely NYSHRL and ADA claims, finding that there
were genuine issues of material fact as to whether Plaintiff was discriminated against by
Defendants on the basis of his disability. (ECF No. 84 at 9.) In Section VI of the Order,
regarding Plaintiff’s remaining NYSHRL claims, the Court merely declined to exercise
supplemental jurisdiction over the state law claims that were analogues to federal claims that had
been dismissed by the Court—namely the Second and Tenth COAs. This ruling does not apply
to Plaintiff’s disability discrimination claims, which the Court found were viable under both the
ADA and NYSHRL. The remainder of Defendants’ arguments regarding the parallel state court
proceeding and supplemental jurisdiction are without merit.
IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s motion is GRANTED. The Court’s March 31,

2022 Order is amended to clarify that:
•

the Court denies Defendants’ summary judgment motion as to Plaintiff’s
discrimination claim under the ADA as it relates to Plaintiff’s deprivation of overtime
from December 12, 2015 until August 10, 2016; and

•

the Court denies Defendants’ summary judgment motion as to Plaintiff’s
discrimination claim under the NYSHRL as it relates to Plaintiff’s deprivation of
overtime from August 29, 2014 until August 10, 2016.

The Clerk of Court is respectfully requested to terminate the motion at ECF No. 85.

6

Case 1:17-cv-09390-ALC-JW Document 94 Filed 12/16/22 Page 7 of 7

SO ORDERED.
Dated: December 16, 2022
New York, New York
ANDREW L. CARTER, JR.
United States District Judge

7