against her because of her gender, her pregnancy, and her physical disability. In addition, Lehmuller claims that the Village took retaliatory action against her in response to her discrimination claim filed with the Equal Employment Opportunity Commission (the "EEOC"), which she contends is her protected right to petition the government for redress of grievances under the First Amendment.
By a Memorandum Decision and Order dated November 11, 1996 (the "Order"), the Court granted in part and denied in part the defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56 and plaintiff's cross motion for summary judgment. Specifically, the Court granted the defendants' motion for summary judgment, dismissing the plaintiff's claims arising under the ADA and Section 1983. Presently before the Court is the plaintiff's motion for reconsideration, pursuant to Fed. R. Civ. P. 59 and 60, of the Order granting the defendants' motion for summary judgment dismissing the plaintiff's Section 1983 claim, or in the alternative, the plaintiff seeks to certify for appeal pursuant to Fed. R. Civ. P. 54(b), that portion of the Order dismissing her Section 1983 claim.
The facts presented below are a summary of those outlined in the Court's prior opinion.
Lehmuller is a resident of New York State and is a female and full-time police officer who has been employed by the defendant since 1988. The Incorporated Village of Sag Harbor is a municipality located in Suffolk County. The Sag Harbor Police Department (the "Police Department") currently consists of ten officers and Chief Joseph J. Ialacci ("Chief Ialacci" or "Ialacci").
Since Chief Ialacci joined the Police Department in 1986, the Department has followed an unwritten policy whereby officers who become disabled due to illness or off-duty injury are required to use their sick leave, holidays, vacation days, or compensatory time for the period that they are unable to perform their normal patrol duties. Officers injured in the line of duty who are unable to conduct their patrol duties, but who can perform routine clerical tasks, are required to report for duty at headquarters as their physical condition permits. This policy purportedly stems from New York General Municipal Law § 207-c that mandates that officers injured in the line of duty receive full pay whether they work or not. According to the defendant, the policy is designed to insure that officers perform whatever work they can in exchange for their continued pay.
When the plaintiff was hired as the first and only female police officer, the Village had no established policy regarding light-duty for pregnant officers. When Lehmuller announced her pregnancy and as a result, requested light-duty, Chief Ialacci referred the matter to the Mayor and Board of Trustees of the Village (the "Board"). Upon consideration of the light-duty policy, the Mayor and the Board decided that the Village would treat pregnancy as it did other non-job related injuries. Therefore,. the plaintiff would be required to use her sick leave, holidays, vacation days, or compensatory time for the period that she would be unable to perform her normal patrol duties as a result of her pregnancy.
On October 22, 1993, Lehmuller filed a charge with the EEOC alleging that the Village discriminated against her because of her pregnancy in violation of Title VII, as a result of the denial of her request for light duty work. On April 6, 1995, the EEOC issued to the plaintiff a right-to-sue letter.
The plaintiff continued to perform her usual job responsibilities until November 27, 1993, when she fell and sustained an on-the-job back injury while on patrol. Lehmuller reported the accident and was taken to the Southampton Hospital emergency room where she received limited treatment due to her pregnant condition. Subsequently, Lehmuller's personal orthopedic physician instructed her not to return to work. Lehmuller filed a workers' compensation claim and, on December 6, 1993, the Village prepared an "Employer's Report of Work-Related Accident/Occupational Disease."
On December 15, 1993, Chief Ialacci mailed a certified letter to Lehmuller asking that she submit to an examination by Dr. Reese at Suffolk County Headquarters to evaluate her back injury. Lehmuller complied with the Chief's request. Dr. Reese concluded, contrary to Lehmuller's personal doctor, that Lehmuller could perform light-duty work. The plaintiff was notified of the decision and subsequently returned to work on or about January 17, 1994. She was assigned to "Headquarters-schedule" light-duty with responsibilities that consisted of taking walk-in window complaints and assisting with clerical work as a result of her on-the-job injury.
Lehmuller continued to work until she gave birth to her son on April 21, 1994 and used her holiday, sick, vacation, and personal time to remain at home until September 15, 1994 when she returned to work.
Lehmuller filed this lawsuit alleging that the Village discriminated against her because of her pregnancy in violation of both Title VII and the Pregnancy Discrimination Act. In addition, the plaintiff claims discrimination because of her back-injury disability in violation of the ADA. Finally, the plaintiff maintains that the defendant deprived her of her federal right to free speech based on the alleged retaliation against her for filing the EEOC claim. Specifically, Lehmuller contends that the Village unlawfully required a second examination of her back injury that resulted in her return to work contrary to her own doctor's advice. Further, Lehmuller asserts that he EEOC claim is a protected right to petition the government for redress under the First Amendment and, therefore, the Village's alleged retaliatory actions violated her constitutional right.
A. Standard of review for Rule 6.3 motions
Local Civil Rule 6.3 (formerly Local Rule 3(j)) provides in relevant part:
A notice of motion for reconsideration or reargument shall be served within ten (10) days after the docketing of the court's determination of the original motion. There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked.... No oral argument shall be heard unless the court directs that the matter shall be reargued orally. No affidavits shall be filed by any party unless directed by the court.
As the Second Circuit recently decided, a motion for reconsideration or reargument "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); see also University of Cal. Press v. G.A. Ins. Co. of New York, 1996 U.S. Dist. LEXIS 20557, No. CV-94-4950, 1996 WL 497143, at *2 (E.D.N.Y. Aug. 26, 1996), aff'd, 116 F.3d 466 (2d Cir. 1997); Central Tools, Inc. v. Fred V. Fowler Co., Inc., No. 95 CV 2119, 1995 WL 783183, at *1 (E.D.N.Y. Dec. 22, 1995).
A Local Rule 6.3 motion may not advance new facts, issues, or arguments not previously presented to the court. Walsh v. McGee, 918 F. Supp. 107, 110 (S.D.N.Y. 1996); Walpex Trading Co. v. Yacimientos Petroliferos Fiscales Bolivanos, 1989 U.S. Dist. LEXIS 6587, No. 84 CIV. 4364, 1989 WL 67239, at *1 (S.D.N.Y. June 13, 1989). Local Rule 6.3 is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been fully considered by the court. Walsh, 918 F. Supp. at 110; ACB Mercantile, Inc. v. Houbigant, Inc. (In re Houbigant, Inc.), 914 F. Supp. 997, 1001 (S.D.N.Y. 1996). Lastly, courts have reiterated that a Rule 6.3 motion is not a motion to reargue those issues already considered when a party does not like the way the original motion was resolved. Walsh, 918 F. Supp. at 110; Houbigant, 914 F. Supp. at 1001.
Upon receipt of a notice for reargument pursuant to Local Civil Rule 6.3, the Court has the following options. First, the Court can simply deny the motion, thereby leaving the original decision unaltered. See University of Cal. Press ; 1996 U.S. Dist. LEXIS 20557, 1996 WL 497143, at *5 (denying defendant's motion to reconsider); Walsh, 918 F. Supp. at 110 (denying plaintiffs' motion to reargue motion to dismiss for lack of subject matter jurisdiction). Alternatively, the Court can grant a motion to reargue for the limited purposes of considering the effect of an overlooked matter. See Brignoli v. Balch Hardy & Scheinman, Inc., 735 F. Supp. 100, 101 (S.D.N.Y. 1990) (motion to reargue is granted for the limited purpose of considering the effect of a subsequently rendered decision). After such consideration, the Court can affirm and/or clarify its original decision. See Violette v. Armonk Associates, L.P., 823 F. Supp. 224, 226-27 (S.D.N.Y. 1993) (motion to reargue is granted and, upon reargument, plaintiffs' motion for summary judgment is again denied).
Finally, having granted a motion to reargue, the Court may vacate the original order, decision or judgment. See Morin v. Trupin, 823 F. Supp. 201, 203 (S.D.N.Y. 1993) (motion to reargue granted and, upon reconsideration, motion to dismiss is granted); The Travelers Ins. Co. v. Buffalo Reinsurance Co., 739 F. Supp. 209, 211-13 (S.D.N.Y. 1990) (plaintiff's motion for reargument is granted and, upon reconsideration, judgment granting defendants' motion for summary judgment is vacated).
B. Lehmuller's motion
The plaintiff bases her motion for reconsideration of dismissal of her Section 1983 claim on the following two grounds: (1) the plaintiff's complaint to the EEOC was a matter of public concern because her complaint stemmed from police department employment policy; and (2) the plaintiff's right-to-petition under the Petition Clause of the First Amendment affords her rights which are distinct from, and broader than, those afforded under the Free Speech Clause of the First Amendment.
1. Speech of public concern
An individual does not give up his First Amendment rights to freedom of speech by virtue of public employment. Connick v. Myers, 461 U.S. 138, 140, 103 S. Ct. 1684, 1686, 75 L. Ed. 2d 708 (1983). When a dispute arises relating to the First Amendment rights of a public employee, the courts must balance the employee's rights "as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. (citing Pickering v. Board of Education of Tp. High School, Dist. 205, Will Cty., Ill., 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968)); see also Waters v. Churchill, 511 U.S. 661, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994).
The initial consideration for a court is to determine whether the employee was "speaking" on matters of public concern. "Whether an employee's speech addresses a matter of public concern must be determined by the content, form and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48. The statement at issue will "not be considered in a vacuum; the manner, time, and place of the employee's expression are relevant, as is the context in which the dispute arose." Rankin v. McPherson, 483 U.S. 378, 388, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987); see also Connick, 461 U.S. at 153. As the Second Circuit observed, the Supreme Court has declined to establish a general standard against which such statements may be judged, recognizing that there is a great variety of fact situations in which disputes regarding allegedly protected speech may arise. Blum v. Schlegel, 18 F.3d 1005 (2d Cir. 1994).
The Supreme Court has stated that not every matter that transpires in a government office or pertains to the functioning of a public agency is a matter of "public concern." Connick, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684. In Connick, the Court remarked:
To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark--and certainly every criticism directed at a public official--would plant the seed of a constitutional case."