Awolesi v. Shinseki

Filing 48

-CLERK TO FOLLOW UP- DECISION AND ORDER denying 43 Motion for Reconsideration. Signed by Hon. Michael A. Telesca on 4/29/13. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
MARK AWOLESI, M.D.
Plaintiff,
DECISION AND ORDER
No. 10-CV-6125(MAT)
v.
ERIC SHINSEKI, Secretary, Department of
Veterans Affairs
Defendant.
________________________________________
INTRODUCTION
Plaintiff Mark Awolesi, M.D. (“Plaintiff”), represented by
counsel, filed this action pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., alleging race-based
discrimination in the form of a hostile work environment and
retaliation during his tenure at the Buffalo VA Medical Center
(“Buffalo VA”). (Docket No. 1). On February 7, 2013, the Court
granted and denied in part Defendant’s motion for summary judgment
(Docket No. 40) and referred the case to mediation (Docket No. 41).
On March 7, 2013, Plaintiff filed a motion for reconsideration
(Docket No. 43) pursuant to both Rules 59(e) and 60(b) of the
Federal Rules of Civil Procedure (“F.R.C.P.”). Defendant filed his
opposition on April 9, 2013 (Docket No. 46), and the motion was
submitted without oral argument on April 18, 2013. (Docket No. 47).
For

the

reasons

discussed

reconsideration is denied.

below,

Plaintiff’s

motion

for

DISCUSSION
I.

Plaintiff’s Motion Is Properly Considered Under F.R.C.P. 59(e)
and Not Under F.R.C.P. 60(b).
Plaintiff asserts that he seeks relief pursuant to both

F.R.C.P. 59(e) and F.R.C.P. 60(b). “[W]here a post-judgment motion
is timely filed and ‘calls into question the correctness of that
Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 40 (2d Cir. 1982)
(quoting FED. R. CIV. P. 60(b)); see also Rodriguez-Antuna v. Chase
Manhattan Bank Corp., 871 F.2d 1, 3 (1st Cir. 1989) (“[A] motion
which asks the court to modify its earlier disposition of a case
solely because of an ostensibly erroneous legal result is brought
under Fed. R. Civ. P. 59(e). Such a motion, without more, does not
invoke Fed. R. Civ. P. 60(b). . . .”)
Plaintiff’s motion, however, is properly considered under
F.R.C.P. 59(e) only. As Defendant argues, Plaintiff timely filed
his

motion

with

F.R.C.P.’s

28-day

time-limit.

Furthermore,

Plaintiff alleges no grounds that would entitle him to relief under
Rule 60(b). His sole basis for relief is that the district court
erred, as a matter of law, on several points. Consequently, the
motion should be viewed as an F.R.C.P. 59(e) motion to alter or
amend the judgment. See Echevarria-Gonzalez v. Gonzalez-Chapel, 849
F.2d 24, 26 (1st Cir. 1988) (cautioning that “‘nomenclature should
not be exalted over substance’”) (quoting Lyell Theatre Corp. v.
Loews Corp., 682 F.2d 37, 41 (2d Cir. 1982)).

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II.

Analysis of Plaintiff’s Motion
A.

Legal Standard for Evaluating F.R.C.P. 59(e) Motions

The standard for granting a motion for reconsideration under
F.R.C.P. 59(e) is strict, and relief will be denied unless the
movant can demonstrate that the district court overlooked matters
“that might reasonably be expected to alter the conclusion reached
by the court[,]” such as “controlling decisions or data.” Shrader
v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also
Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52
(2d Cir. 2012). For instance, reconsideration under F.R.C.P. 59(e)
is proper if the movant “presents newly discovered evidence that
was not available at the time of the trial, or there is evidence in
the record that establishes a manifest error of law or fact.” Cray
v. Nationwide Mutual Ins. Co., 192 F. Supp.2d 37, 39 (W.D.N.Y.
2001) (citing Cavallo v. Utica–Watertown Health Ins. Co., Inc.,
3 F. Supp.2d 223, 225 (N.D.N.Y. 1998)); see also United States v.
Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir. 1983) (stating
that the evidence must be “newly discovered or . . . could not have
been found by due diligence”) (citation omitted). The parties,
however, may not “reargue those issues already considered.” In re
Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996). Denials of
relief

under

F.R.C.P.

59(e)

are

reviewed

only

for

abuse

of

discretion. Analytical Surveys, Inc., 684 F.3d at 52 (citation
omitted).

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B.

Application to Plaintiff’s Arguments

Plaintiff asserts that the Court committed manifest errors of
fact and law in determining whether he had sufficiently adduced
evidence that there were other comparators, that is, employees at
the VA similarly situated to him who were Caucasian and who
committed patient abuse, but were not subject to adverse employment
actions as he was. A plaintiff alleging discriminatory treatment
must show he was “‘similarly situated in all material respects’ to
the individuals with whom []he seeks to compare [him]self[,]”
Graham v. Long Island R.R., 230
(citation

omitted),

including

F.3d 34, 39 (2d Cir. 2000)

being

“subject

to

the

same

performance evaluation and discipline standards.” Id. (citation
omitted). Evidence regarding whether a plaintiff’s co-employee was
“similarly situated” must be submitted in proper form to defeat a
motion for summary judgment. Id. It is well established that “where
a party relies on affidavits or deposition testimony to establish
facts, the statements “must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant or

declarant

is

competent

to

testify

on

the

matters

stated.” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012)(citing
FED. R. CIV. P. 56(c)(4); FED. R. ENID. 602)).
In its decision granting summary judgment for Defendant, the
Court found as follows:
Plaintiff refers to several incidents in which other,
[C]aucasian employees were subject to a patient abuse
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investigations or were accused of patient abuse and were
allegedly treated differently. However, after reviewing
Plaintiff’s testimony it is clear that he either does not
have personal knowledge of the events relating to these
accusations or investigations or they are based on
hearsay.
Decision at 7 (quoting DiStiso v. Cook, 691 F.3d at 230 (“[W]here
a party relies on affidavits or deposition testimony to establish
facts, the statements ‘must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant or

declarant

is

competent

to

testify

on

the

matters

stated.’”) (quoting FED. R. CIV. P. 56(c)(4); citing FED. R. EVID.
602)).
Plaintiff asserts that the Court committed a manifest error of
fact in the above-quoted portion of its Decision, arguing that
Plaintiff’s deposition testimony illustrates that he did have
personal knowledge of all of the comparators’ incidents. The Court
has re-reviewed the deposition testimony in question and adheres to
its original ruling with regard to all of the alleged comparators
except Dr. Li, as discussed further below.
With regard to the first comparator, Dr. Simpson, Plaintiff
testified, “I know that there was a doctor who sent a patient home
after major surgery and the patient died in a taxi. . . .”
T.115:20-23.1 Plaintiff did not know Dr. Simpson’s first name or
1

Citations to “T.__” refer to pages from Plaintiff’s deposition
transcript. Numerals following a colon in these citations refer to
individual lines from Plaintiff’s deposition transcript.
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when this incident occurred. T.115:10, 14, 20. Plaintiff thus did
not establish he had personal knowledge of the incident.
With regard to Dr. Dosluoglu, Plaintiff stated, “I know he
left the patient to bleed to death in the hallway in the hospital.”
T.118:13-17. However, he did not offer any other details about the
alleged incident involving Dr. Dosluoglu. This allegation is too
conclusory for purposes of F.R.C.P. 56.
As to Dr. Hobicka, Plaintiff testified that his knowledge of
the

incident

came

from

Dr.

Hobicka

himself.

T.120:16-23.

He

admitted that he “[did]n’t know much about it” and did not know
whether the incident resulted in injury to the patient. T.121:11623. By Plaintiff’s own admission, he did not have any first-hand
knowledge of the incident involving Dr. Hobicka. Plaintiff notably
has not argued that a hearsay exception applies to Dr. Hobicka’s
statements. It appears that Dr. Hobicka’s statements would not
qualify as declarations against interest for purposes of FED. R.
EVID. 803(b)(4) as Plaintiff has failed to make any attempt to show
that he is unavailable. See Deutsche Asset Management, Inc. v.
Callaghan, 2004 WL 758303, at *13 (S.D.N.Y. Apr. 7, 2004) (where
party offering statements did not demonstrate that witnesses were
unavailable, statements, even though against witnesses’ interests,
were hearsay and did not qualify for the exception in FED. R. EVID.
803(b)(4); thus the court did not consider them on a summary
judgment motion).

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With regard to Dr. Cartegena, Plaintiff testified, “He was
accused of patient abuse and I also think sexual abuse, I don’t
know

the

details

of

it.”

T.122:20-22;

see

also

T:125:20-23

(admitting that he “[did]n’t know the details of the [patient
abuse] allegation” such as whether Dr. Cartegena caused injury to
the patient). Again, by Plaintiff’s own admission, he did not have
any personal knowledge of the incident involving Dr. Cartegena,
meaning

that

his

deposition

testimony

was

not

admissible

to

establish that Dr. Cartegena was a comparator. See FED. R. CIV. P.
56.
Finally, as to Dr. Li, Plaintiff said, “I know that Dr. Li had
placed a patient into ventricular fibrillation . . . [and] he
connected the pacemaker in a reverse manner” causing the patient’s
heart to stop. T.126:2-6. The patient did not die, however, and
Plaintiff did not provide any further details about the resultant
injury, if any, to the patient. See id. Plaintiff reported the
incident to their supervisor, Dr. Rainstein, and “nothing was
done.” T.126:7.
Plaintiff could not identify the date of the Dr. Li incident
more precisely than “2007, 2008.” T.126:23. He did not write a
formal memo charging Dr. Li with patient abuse, but he “did
complain . . . about the inappropriateness” of the service Dr. Li
provided. T.127:12-16. Taking the testimony in the light most
favorable to Plaintiff, and assuming arguendo that it showed

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personal knowledge sufficient to raise a triable issue of fact with
regard to one comparator (Dr. Li), Plaintiff has failed to raise an
issue of fact with regard to the issue of pretext, for which he
bears the ultimate burden of proof.
As this Court found in its original Decision and Order,
Plaintiff did not met his burden of coming forward with sufficient
evidence

of

discriminatory,

retaliatory

animus

to

rebut

the

Defendant’s legitimate, non-discriminatory reasons for its actions
in investigating the allegation of patient abuse. As the Court
noted, Plaintiff admitted that the actions taken were authorized by
the Buffalo VA Patient Abuse Policy, and he did not present any
admissible evidence to support a conclusion that following the
Patient Abuse Policy was discriminatory in and of itself. See Brown
v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012)(“an employee
does not suffer a materially adverse change in the terms and
conditions of employment where the employer merely enforces its
preexisting disciplinary policies in a reasonable manner”).
In sum, Plaintiff has offered no new arguments on this issue.
It is beyond cavil that F.R.C.P. 59(e) “is not a vehicle for
relitigating old issues, presenting the case under new theories,
securing a rehearing on the merits, or otherwise taking a ‘second
bite at the apple’. . . .” Analytical Systems, Inc., 684 F.3d at 52
(quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)
(ellipsis in original)). Having offered nothing to change this

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Court’s conclusion on the issue of pretext, Plaintiff is not
entitled to the extraordinary relief contemplated by F.R.C.P.
59(e). Cf. Graham, 230 F.3d at 44 (reversing grant of summary
judgment where “[t]he district court’s conclusions regarding the
similarity of [of several comparators] improperly resolved factual
questions” and the Circuit “also f[ou]nd questions of fact with
respect to plaintiff’s ultimate burden on the issue of pretext”).
CONCLUSION
For

the

foregoing

reasons,

Plaintiff’s

Motion

for

Reconsideration (Docket No. 43) is denied with prejudice.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

April 29, 2013
Rochester, New York

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