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April 14, 2003


The opinion of the court was delivered by: George B. Daniels, United States District Judge


Plaintiff, a pro se litigant, commenced this action against defendants alleging race discrimination in violation of Title VII, 42 U.S.C. § 2000e et seq., and retaliatory discharge in violation of New York labor laws. In a Report and Recommendation by Magistrate Judge Frank Maas, it was recommended that defendants' motion to dismiss and motion for summary judgment be granted,*fn1 and that plaintiff be allowed to submit a second amended complaint as to certain claims provided he could cure the pleading defects. A second amended complaint was submitted by plaintiff and considered by this Court. In an order dated July 19, 2002, this Court adopted the Report and Recommendation, and upon review, dismissed plaintiff's second amended complaint for failure to cure pleading defects. Plaintiff now moves for reconsideration pursuant to Federal Rule of Civil Procedure 59(e). For the reasons set forth below, plaintiff's motion is denied.

Plaintiff argues that the evidence he presented in his second amended complaint was sufficient under pleading standards to survive both a motion to dismiss and summary judgment. Plaintiff also submits additional evidence appended to his motion for reconsideration that he claims shows that his complaint should not have been dismissed. Although plaintiff titles his motion as one for reconsideration under Federal Rule of Civil Procedure 59(e), this Court finds that it is more properly analyzed as a motion for relief from judgment under Rule 60(b).*fn2 See In re Holocaust Victim Assets Litig., 282 F.3d 103, 107 (2d Cir. 2002) (construing defendants' letter submissions as a Rule 60(b) motion).

Federal Rule of Civil Procedure 60(b) provides for six enumerated circumstances whereby a district court may relieve a party from a final judgment. The two relevant circumstances in this instance are:

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(6) any other reason justifying relief from the operation of the judgment.
FED. R. Civ. P. 60(b).

Where the motion is based upon newly discovered evidence under 60(b)(2), the movant must demonstrate that: (1) the newly discovered evidence was of facts that existed at the time of the dispositive proceeding; (2) the movant was justifiably ignorant of them despite due diligence; (3) the evidence would have been admissible and likely would have changed the outcome; and (4) the evidence is not merely cumulative or impeaching See United States v. Int'l Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001). This circuit has described the movant's burden under Rule 60(b) as "onerous." Id.

Plaintiff submitted various documents with his motion for reconsideration for this Court to consider. One of those documents is an affidavit from a co-worker stating that one of the defendants made a racist remark to plaintiff. However, this document does not constitute newly discovered evidence as plaintiff had already submitted that affidavit with his second amended complaint, and this Court duly considered it when it dismissed that complaint. Plaintiff also has submitted a letter from the U.S. Department of Labor discussing the results of a safety and health inspection at plaintiff's workplace. This letter, as well, was previously submitted and this Court found it insufficient to substantiate plaintiff's retaliatory discharge claim.

Plaintiff has further submitted a tape and transcript of a conversation that took place between defendant Carl Rinaldi and one of plaintiff's co-workers as support for his racial discrimination claim. The conversation generally concerns various open positions at the defendants' work site. Defendant Rinaldi also discusses on the tape what he perceives as insubordination towards him by plaintiff's co-worker. On occasion, Rinaldi uses expletive in speaking with plaintiff's co-worker. The content of the conversation, however, is not probative of anything. The plaintiff is never mentioned on the tape. The expletives that are used are not racially motivated or tinged. In fact, the tape does not reveal any racial remarks or overtures at all.

Lastly, plaintiff submits a number of letters from his doctor and psychologist that state that he has been diagnosed with general anxiety disorder. However, this evidence would only be relevant to damages. It is not relevant to his initial burden of proving a set of facts that, if taken as true, could establish defendants' liability, nor relevant to demonstrating a genuine issue of material fact regarding whether defendants discriminated against him. Moreover, these letters refer to treatment that took place before the case was dismissed. Hence, these materials were available to plaintiff when he opposed defendants' motions, and plaintiff provides no explanation as to why he did not include these materials with his submissions at that time. In any event, this evidence is merely cumulative as plaintiff previously submitted similar evidence regarding his anxiety disorder in response to defendants' motions. This Court had the opportunity to fully consider the relevance of that evidence.

Therefore, none of the additional materials submitted by plaintiff constitute newly discovered evidence. Further, plaintiff has not presented any other reason under Rule 60(b)(6) justifying relief from the July 19 Order. This Court is mindful of the fact that plaintiff is pro se and that his complaint must be held to less stringent standards than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curium); Ortiz v. Cornetta, 867 F.2d 146, 148 (2d Cir. 1989). Yet, even relaxing the pleading standards, this Court still does not find that plaintiff's second amended complaint states a claim, or that any of the evidence submitted in support of that complaint creates a genuine issue of material fact with regard to the claims that defendants racially discriminated against plaintiff or discharged him in violation of state labor laws.

Accordingly, plaintiff's motion for reconsideration ...

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