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FIELDS v. LYNCH

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.

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 ...


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