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United States District Court, S.D. New York

March 9, 2004.


The opinion of the court was delivered by: DENISE COTE, District Judge


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 Page 2 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 demonstrating

  (1) the newly discovered evidence was of facts that existed at the time of trial or other dispositive proceeding, (2) the movant must have been justifiably Page 3 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 him.

  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 easier to Page 4 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 denied.


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