United States District Court, S.D. New York
March 29, 2004.
ROSALIE H. FIELDS, Plaintiff -V.- MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Defendant
The opinion of the court was delivered by: SIDNEY STEIN, District Judge
OPINION & ORDER
Rosalie H. Fields brings this motion for reconsideration of the
Opinion and Order dated January 26, 2004 granting Merrill, Lynch, Pierce,
Fenner & Smith, Inc.'s motion to dismiss Field's claim that defendant
to failed to promote her because of her gender in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, et
seq. Plaintiff now seeks reconsideration of that decision pursuant
to Local Rule 6.3 and Fed, R. Civ. P. 59(e) and in the alternative seeks
relief from judgment, pursuant to Fed.R.Civ.P. 60(b)(2), or leave to
amend the complaint and also requests that the Court exercise its
supplemental jurisdiction over the remaining claims in the complaint
pursuant to 28 U.S.C. § 1367(a). Merrill opposes plaintiff's motion
and seeks fees and costs pursuant to 28 U.S.C. § 1927.
On January 26, 2004, this Court issued an Opinion and Order in
Fields v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
301 F. Supp.2d 259 (S.D.N.Y. 2004) (SHS) dismissing Field's Title VII claims
because she failed to file a Charge of Discrimination with the Equal
Opportunity Employment Commission within 300 days of Merrill's alleged
failure to promote her, as required by section 706(d) of the Civil Rights
1964, as amended, 42 U.S.C.A. § 2000e-5(e)(1).*fn1 Because the
Title VII claim was the only federal claim in that action, this Court
exercised its discretion to decline to accept supplemental jurisdiction
over plaintiff's state law claims alleging employment discrimination.
That decision was docketed on January 30, 2004 and Fields made this
motion for reconsideration within ten days thereafter.
Plaintiff moves for reconsideration on the grounds of "new evidence"
that defendant Merrill, subsequent to the date of this Court's January
26, 2004 decision, engaged in another act of discrimination by failing to
promote plaintiff on February 2, 2004. Fields has submitted as evidence
of that act of discrimination an email announcing the appointment of a
male employee to the position of Sales Manager. That email was
distributed by Brett Bernard, Managing Director of Fifth Avenue Financial
Center of Merrill, on February 2, 2004, (Plt's Not Mot., Exh A). Based on
the appointment of a new sales manager, plaintiff also filed a Charge of
Discrimination with the EEOC on February 16, 2004.
Plaintiff brings this motion as one for reconsideration pursuant to
Local Rule 6.3 and Fed.R.Civ.P. 59(e) and also as a motion for relief
from judgment pursuant to Fed.R. Civ.P.60(b)(2). The same standard
governs motions for reconsideration and motions for relief from judgment
brought pursuant to Fed.R.Civ.P. 60(b)(2). See Haywin Texfile
Products, Inc. v. International Finance Investment and Commerce Bank
Limited, 2001 WL 984721, at *3 (S.D.N.Y. 2001); Hemric v. City
of New York, 2002 WL 432381, at
*3 (S.D.N.Y. 2002), And "[g]rounds for relief under Rule 59(e) are
equivalent to the grounds for relief on a motion for reconsideration
under Local Civil Rule 6.3." Ackoff-Ortega v. Windswept Pacific
Entertainment Co. (Inc.), 130 F. Supp.2d 440, 443 (S.D.N.Y. 2000);
see also First Fin. Ins. Co. v. Allstate Interior Demolition
Corp., 1998 WL 567900, at *3). Generally, "[m]otions served within
10 days of judgment . . . fall under Rule 59(e), while motions served
later fall under Rule 60(b)." Association for Retarded Citizens of
Conn., Inc. v. Thorne, 68 F.3d 547, 553 (2d Cir. 1995) (cited in
In re U.S. Lines, Inc., 216 F.3d 228, 232 (2d Cir. 2000).
Because plaintiff served this motion within ten days of the date of
docketing of the Opinion and Order, in compliance with Local Rule 6.3,
this motion will be considered one for reconsideration pursuant to Fed.
R. Civ. P. 59(e).
In a "motion for reconsideration pursuant to Rule 59(e) and Local Civil
Rule 6.3, a party generally may not raise facts or arguments not
previously presented to the court." See EEOC v. Local 638,
etc., No. 71 Civ. 2877, 2001 WL 12007 at *1 (S.D.N.Y. Jan. 2, 2001).
However, "[re]consideration may be granted to correct clear error,
prevent manifest injustice or review the court's decision in light of the
availability of new evidence." USA Certified Merchants, LLC v.
Koebel, 273 F. Supp.2d 501, 503 (S.D.N.Y. 2003) (citing Virgin
Atlantic Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255
(2d Cir. 1992).
A motion brought for reconsideration of a decision on the grounds of
new evidence seeks an "extraordinary remedy to be employed sparingly in
the interests of finality and conservation of scarce judicial
resources.'" In re Health Management Sys. Inc. Secs. Litig.,
113 F. Supp.2d 613, 614 (S.D.N.Y. 2000). The decision of whether to
grant or deny the motion is within the sound discretion of the
district court. See Devlin v. Transportation Communications Int'l
Union, 75 F.3d 121, 132 (2d Cir. 1999); McCarthy v.
Manson, 714 F.2d 234, 237 (2d Cir. 1983).
B. No Argument or Facts Plaintiff Has Presented Would Change the
Outcome of This Action
In order to establish entitlement to this "extraordinary" relief on the
basis of new evidence plaintiff must point to evidence that satisfies all
four prongs of the following test: "(1) newly discovered evidence is of
facts existing at the time of the prior decision; (2) the moving party is
excusably ignorant of the facts despite using due diligence to learn
about them; (3) newly discovered evidence is admissible and probably
effective to change the result of the former ruling; and (4) the newly
discovered evidence is not merely cumulative." Fidelity Partners,
Inc. v. First Trust Co. of New York, 58 F. Supp.2d 55, 59 (S.D.N.Y.
1999). Plaintiff has failed to meet the requirements of this test because
she cannot show that the newly discovered evidence is "probably effective
to change the result of the former ruling." Id.
Plaintiff contends that the events underlying the February 2, 2004
failure to promote took place before this Court's decision on January 26,
2004 and therefore that failure to promote is properly presented as "new
evidence." There is no need to resolve the factual issue of whether
Merrill interviewed or hired a new sales manager prior to the January
26th decision because even if those events took place prior to the
decision, information about that promotion fails to constitute proper new
evidence. This is because the newly discovered evidence is not likely to
change the result of the former ruling.
As set forth in the Opinion and Order, as "a precondition to filing a
Title VII claim in federal court, a plaintiff must first pursue available
administrative remedies and
file a timely complaint with the EEOC." See Fitzgerald v.
Henderson, 251 F.3d 345, 358-59 (2d Cir. 2001), cert. denied,
536 U.S. 922 (2002); Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir.
2003). Plaintiff's claims were originally dismissed because she failed to
file a charge of discrimination with the EEOC within 300 days of the last
complained of act of discrimination, and before bringing an action for
damages pursuant to Title VII.
Fields' claim cannot be based on the "new evidence" of failure to
promote because she did not assert it in a timely EEOC complaint with
respect to that new failure to promote. Legnani v. Alitalia Linee
Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (per
curiam). Because this "new" failure to promote was not asserted before
the EEOC, it would only provide this Court with jurisdiction if it were
"reasonably related" to those that were filed with the agency.
Deravin, 335 F.3d at 200 (citing Legnani, 274 F.3d at
A claim is "reasonably related" to a previously filed claim under
limited circumstances: "`(1) if the claim concerns conduct which would
fall within the scope of the EEOC investigation; (1) a claim `alleging
retaliation by an employer against an employee for filing an EEOC
charge,' and (2) a claim where the plaintiff `alleges further incidents
of discrimination carried out in precisely the same manner alleged in the
EEOC charge.'" Butts v. City of New York Dep't of Hous. Pres. &
Dev., 990 F.2d 1397, 1401-1403 (2d Cir. 1993) (superceded by
statute); (cited in Deravin, 335 F.3d at 201 n.3).
Plaintiff has not shown that the new alleged violation is reasonably
related to any violations alleged in the original EEOC charge of
discrimination. The new alleged failure to promote in 2004, falling well
after the date of the EEOC determination in 2003, did not fall within the
scope of the EEOC investigation. Moreover, the claim does not
involve retaliation for plaintiff filing the EEOC charge. Finally,
plaintiff fails to prove her new claim to be one that is "reasonably
related" as a "further incident of discrimination carried out in
precisely the same manner." That standard is met by a continuing
violation that existed at the time of the EEOC complaint and persists
after the date of a charge of discrimination. Lambert v. Genesee
Hospital, 10 F.3d 46, 53 (2d Cir. 1993). "But, `multiple incidents
of discrimination, even similar ones, that are not the result of a
discriminatory policy or mechanism do not amount to a continuing
violation.'" Spencer v. United Parcel Service 2004 WL 362599,
at*3 (S.D.N.Y. 2004) (citations omitted). Plaintiff has not alleged any
discriminatory policy that would convert the three distinct alleged
failures to promote into one continuing violation. See also Crosland
v. City of New York, 140 F. Supp.2d 300, 308 (S.D.N.Y. 2000);
Evans v. City of New York, 2003 WL 22339468, at *4 (S.D.N.Y.
C. Leave to Amend The Dismissed Complaint Is Denied
Fields asks that the Court grant her leave to amend the dismissed
complaint. Pursuant to Fed.R.Civ.P. 15(a), leave to amend should be
"freely given." See Foman v. Davis, 371 U.S. 178, 182 (1962).
However, "[w]here, as here, leave to amend is sought after the entry of
judgment, the filing of an amended complaint `is not permissible until
judgment is set aside or vacated pursuant to Fed.R.Civ.P. 59(e) or
60(b).'" Lenczycki v. Shearson Lehman Hutton, Inc., 1991 WL
152611, at *3 (S.D.N.Y, 1991) (quoting Nat'l Petrochem. Co. v. M/T
Stolf Sheaf, 930 F.2d 240, 244 (2d Cir. 1991)). Because this Court
declines to set aside or vacate the judgment, leave to amend will not be
Moreover, it is appropriate for a court to deny a plaintiff leave to
amend if the proposed amendments would be fufile, and the amended
complaint would not survive a
motion to dismiss. Lucente v. Int'l Business Machines
Corp., 310 F.3d 243, 258 (2d Cir. 2002) (citing Nettis v.
Levitt, 241 F.3d 186, 193 (2d Cir. 2001); see also Health-Chem
Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) ("An amendment to a
pleading is fufile if the proposed claim could not withstand a motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(6),"). If Fields amended her
complaint to allege the 2004 failure to promote incident, as presented to
the Court in this motion for reconsideration, her complaint would not
survive a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). This is
because her claims based on alleged failure to promote in 2001 and 2002,
already dismissed in the Court's Opinion and Order of January 26, 2004,
would again be dismissed as time-barred. Her failure to promote claim
based on the "new" 2004 incident would be dismissed because although
plaintiff presented this claim to the EEOC in a charge of discrimination
on February 16, 2004, she has not yet received a right to sue letter,
which is a prerequisite to pursuing a Title VII action. Criales v.
American Airlines, Inc., 105 F.3d 93, 95 (2d Cir. 1997). Therefore,
plaintiff will not be granted leave to amend.
D. Fees and Costs Pursuant to 28 U.S.C. § 1927
Defendant has requested that the Court award it the fees and costs
associated with opposing this motion. Pursuant to 28 U.S.C. § 1927,
the court may require any attorney to pay costs if he or she "so
multiplies the proceedings in any case unreasonably and vexatiously." "To
impose sanctions under either authority, the trial court must find clear
evidence that (1) the offending party's claims were entirely meritless
and (2) the party acted for improper purposes." Revson v. Cinque
& Cinque, P.C., 221 F.3d 71, 79 (2d Cir. 2000). There has been
no clear showing that plaintiff acted in bad faith or with improper
purposes in bringing this motion for reconsideration. Therefore,
neither costs nor fees will be awarded.
For the reasons set forth above, plaintiffs' motion for
reconsideration, or in the alternative for relief from judgment or to
amend the complaint, is denied. The Court continues to decline to
exercise supplemental jurisdiction over the state law claims, as set
forth in the Opinion and Order of January 26, 2004.