Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, S.D. New York

March 29, 2004.


The opinion of the court was delivered by: SIDNEY STEIN, District Judge


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.

I. Background

  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 Act of Page 2 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.

 II. Discussion

 A. Standard

  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 Page 3 *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 Page 4 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 Page 5 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 686).

  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 Page 6 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. 2003).

 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 granted.

  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 Page 7 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 Page 8 purposes in bringing this motion for reconsideration. Therefore, neither costs nor fees will be awarded.

 III. Conclusion

  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.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.