Shaw v. Merit Systems Protection Board et al

Filing 31

OPINION & ORDER re: 25 MOTION for Reconsideration re: 23 Memorandum & Opinion filed by Kenneth Daniel Shaw. For the foregoing reasons, the Court DENIES Plaintiff's motion for reconsideration. The Court respectfully directs the Clerk to terminate the motion at ECF No. 25. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 2/22/2016) Copies Mailed By Chambers. (mml) (Main Document 31 replaced on 2/22/2016) (mml).

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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DATE FILED: i_/'2-2-/ 'Wife

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KENNETH DANIEL SHAW,
Plaintiff,
-againstNo. 14-cv-5856 (NSR)
ROBERT A. MCDONALD,
Secretary of the Depaitment of Veterans Affairs,
DEPARTMENT OF VETERANS AFFAIRS, EMS
CHIEF TERRY VOGT, NURSE MANAGER
EILEEN HUGHES, FOREWOMAN LAVANCHE
THOMAS, ACTING DIRECTOR MARA DAVIS,

OPINION & ORDER

Defendants.
NELSONS. ROMAN, United States District Judge
Presently before the Court is a letter from Plaintiff Kenneth Shaw dated January 1, 2016,
which is captioned as a "Motion to Oppose, Opinion and Order, also Motion to Amend
Complaint, Discrimination Claim." (ECF No. 25.) After reviewing Plaintiffs letter, the Court
determines that the letter is best construed as a motion for reconsideration of the Court's
December 8, 2015 Opinion and Order dismissing Plaintiffs claims for discrimination and
retaliation pursuant to Title VII (ECF No. 23, or the "Motion to Dismiss Opinion"). Familiarity
with the Motion to Dismiss Opinion is assumed.

LEGAL STANDARD
Motions for reconsideration are governed by Local Civil Rule 6.3 and Federal Rule of
Civil Procedure 60(b). "The standard for granting a motion for reconsideration pursuant to Local
Rule 6.3 is strict.'; Targum v. Citrin Cooperman & Company, LLP, No. 12-cv-6909 (SAS), 2013
WL 6188339, at *l (S.D.N.Y. Nov. 25, 2013). Motions for reconsideration are "addressed to the
sound discretion of the district comt and are generally granted only upon a showing of

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exceptional circumstances.” Mendell ex rel. Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir.
1990). A motion to reconsider “is not a vehicle for . . . presenting the case under new theories . .
. or otherwise taking a second bite at the apple.” Analytical Surveys, Inc. v. Tonga Partners,
L.P., 684 F.3d 36, 52 (2d Cir. 2012) (quotation and citation omitted); see also Nat'l Union Fire
Ins. Co. of Pittsburgh, PA v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001) (quoting Polsby v. St.
Martin's Press, No. 97-cv-690 (MBM), 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000)
(Mukasey, J.) (in moving for reconsideration, “‘a party may not advance new facts, issues, or
arguments not previously presented to the Court.’”). They “‘will generally be denied unless the
moving party can point to controlling decisions or data that the court overlooked.’” Analytical
Surveys, 684 F.3d at 52 (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
Reconsideration of a Court's previous order is “an extraordinary remedy to be employed
sparingly in the interests of finality and conservation of scarce judicial resources.” In re Initial
Pub. Offering Sec. Litig, 399 F. Supp. 2d 298, 300 (S.D.N.Y. 2005) (internal citation and
quotation omitted), aff'd sub nom. Tenney v. Credit Suisse First Boston Corp., Nos. 05-cv-3430,
05-cv-4759, & 05-cv-4760, 2006 WL 1423785, at *1 (2d Cir. 2006).
DISCUSSION
Plaintiff’s motion for reconsideration is untimely, improper, and lacks merit. As an
initial matter, Local Civil Rule 6.3 provides that a notice of motion for reconsideration “shall be
served within fourteen (14) days after entry of the Court’s determination of the original motion . .
. .” Here, Plaintiff’s motion was served ten (10) days after the expiration of the 14-day
window—well past the appropriate period to seek reconsideration. While Plaintiff’s
untimeliness is more than sufficient grounds for denying the motion for reconsideration, in light
of his pro se status, the Court will examine the merits of Plaintiff’s motion.

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Plaintiff’s motion presents nothing new for the Court to consider. 1 First, Plaintiff appears
to renew his attack on the sufficiency and findings of the MSPB proceeding. (ECF No. 25 at 2–
4.) In particular, Plaintiff contends that Mr. Jones never submitted a signed, written statement
and that various witnesses lied under oath. (Id.) These contentions have no bearing on
Plaintiff’s discrimination and retaliation claims, since the MSPB proceeding occurred after the
VA made the determination to discipline Plaintiff. Second, Plaintiff reiterates his argument that
he was disciplined in retaliation for filing EEO complaints. (Id. at 4.) However, the Court
considered this exact argument and concluded in the Motion to Dismiss Opinion that Plaintiff
failed to establish a causal connection, in large part due to the lengthy time gap between his
complaints and the adverse employment decision. (Motion to Dismiss Opinion at 12.)
Furthermore, to the extent Plaintiff raises “new” facts in an apparent attempt to amend his
complaint, Plaintiff’s submission is devoid of any facts from which this Court could infer
discriminatory motive for Plaintiff’s termination, specifically that Plaintiff was terminated
because of his race, color, religion, sex, or national origin. Having failed to point to a change in
controlling law, proffer newly discovered evidence in admissible form that would materially
alter the Court’s prior opinion, or allege clear error or manifest injustice, Plaintiff is not entitled
to reconsideration of the Motion to Dismiss Opinion. The Court concludes that “plaintiff’s
arguments amount to nothing more than a disagreement between an understandably disappointed
litigant and the court.” Davidson v. Scully, 172 F. Supp. 2d 458, 462 (S.D.N.Y. 2001) (quotation
and citation omitted).

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Additionally, the Court has examined Plaintiff’s letter dated February 1, 2016 (ECF No. 29) and
Plaintiff’s letter dated February 12, 2016 (ECF No. 30), which contains statements that are either repetitive of
Plaintiff’s letter of January 1, 2016 (ECF No. 25) or largely irrelevant to the Court’s reconsideration of the Motion
to Dismiss Opinion.

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CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiffs motion for reconsideration. The
Comt respectfully directs the Clerk to terminate the motion at ECF No. 25.

Dated:

SO ORDERED:

February 2.)-;"2016
White Plains, New York

NELSONS. ROMAN
United States District Judge

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