United States District Court, S.D. New York
March 9, 2004.
MARK CRICHLOW, Plaintiff, -v- N.Y.S. OFFICE OF MENTAL HEALTH/BRONX CHILDREN'S PSYCHIATRIC CENTER, and BRONX STATE PSYCHIATRIC CENTER, Defendants
The opinion of the court was delivered by: DENISE COTE, District Judge
MEMORANDUM OPINION AND ORDER
On August 25, 2003, Mark Crichlow ("Crichlow") filed a motion
pursuant to Rule 60(b), Fed.R. Civ. P., to vacate the judgment entered
in favor of the New York State Office of Mental Health, Bronx Children's
Psychiatric Center, and Bronx State Psychiatric Center (collectively,
"Defendants") on June 30, 2003, in this employment discrimination action.
For the following reasons, the motion is denied.
As described in the Opinion of June 20, 2003, No. 01 Civ.' 3153 (DLC),
2003 WL 21419608 (S.D.N.Y. June 20, 2003) ("June 20 Opinion"), granting
summary judgment for the Defendants, Crichlow
was employed for approximately two months as a diet technician at
the Bronx Children's Psychiatric Center ("BCPC"), a unit of the New York
State Office of Mental Health. Crichlow had applied for the position of a
food service worker, but was offered and accepted the higher paid
position of a diet technician. He was fired by the person who had hired
him approximately two months after his employment began. The June 20
Opinion found that Crichlow had identified two adverse employment actions
but had not offered evidence that either were taken because of his
gender. The first was the two week delay in adjusting his salary to the
correct rate for the new position he was given, and the second was the
termination of his employment.
Rule 60(b) provides in pertinent part that relief from a final judgment
is available upon a showing of "(2) newly discovered evidence which by
due diligence could not have been discovered in time to move for a new
trial; [or] (3) fraud . . ., misrepresentation, or other misconduct of
an adverse party." Rules 60(b)(2) and (3), Fed.R.Civ.P. A motion for
relief from judgment pursuant to Rule 60(b) is "generally not favored and
is properly granted only on a showing of exceptional circumstances."
United States v. Int'l Brotherhood of Teamsters. 247 F.3d 370,
391 (2d Cir. 2001); Neimazer v. Baker. 793 F.2d 58, 61 (2d Cir.
1984). Under Rule 60(b)(2), a movant must meet an "onerous standard" by
(1) the newly discovered evidence was of facts
that existed at the time of trial or other
dispositive proceeding, (2) the movant must have
ignorant of them despite due diligence, (3)
the evidence must be admissible and of such
importance that it probably would have changed the
outcome, and (4) the evidence must not be merely
cumulative or impeaching.
Int'l Brotherhood at 392.
Crichlow's Rule 60 motion is based on records he acquired from the
Department of Civil Service on May 12, 2003, pursuant to a Freedom of
Information Act ("FOIA") request. Crichlow had requested the documents on
April 7, 2003.*fn1 The record of employment history provided to Crichlow
by the Department of Civil Service indicates that the position of diet
technician to which he was appointed on July 27, 2000, was categorized as
temporary. Crichlow contends that these documents are evidence that the
act of hiring Crichlow as a diet technician was an act of discrimination,
and that the Defendants hid evidence of this discrimination from him
during the discovery process. Crichlow argues that the newly discovered
evidence shows that the diet technician position was only a temporary
position, and that placing him in that position made it easier to fire
These very issues were addressed in the June 20 Opinion. It stated:
Crichlow argues that he may have been hired for
the more responsible position in order to make it
fire him without a hearing. The grade 11
position he was given was a "temporary"
appointment. It makes very little sense, however,
to hire anyone with the intention of firing the
person. In any event, it is undisputed that even
if he had been hired for the grade 9 position, he
would have been a probationary employee for one
year and could have been fired without a hearing
during that first year of employment.
The records that Crichlow acquired in response to his FOIA request do
not alter the Court's conclusion.
None of Crichlow's remaining arguments require discussion. He has not
shown that the Court overlooked any material that he submitted in
opposition to the summary judgment motion, or that the decision reached
in the June 20 Opinion should be altered because of the information he
presented at that time. He also has not shown that the Defendants engaged
in wrongful conduct during the discovery period that requires the
judgment to be vacated.
The plaintiff's motion pursuant to Rule 60, Fed.R. Civ. P., is