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March 31, 2004.

RICHARD TAMAYO, JOHN BANKS, and RICHARD VAZQUEZ on behalf of themselves and all others similarly situated, Plaintiffs, against CITY OF NEW YORK, Defendant

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge


Plaintiffs move for reconsideration of the Court's January 26, 2004 Opinion and Order,*fn1 which dismissed nearly all of plaintiffs' claims. Plaintiffs now seek to resurrect some of their claims under Title VII of the Civil Rights Act, codified at 42 U.S.C. § 2000e et seq. For the following reasons, plaintiffs' motion is granted and, upon reconsideration, the Court amends its prior Opinion in part.


  Familiarity with the two prior decisions issued in this case is presumed. See Tamayo v. City of New York, No. 02 Civ. 8030, 2003 WL 21448366 (S.D.N.Y. June 23, 2003) ("Tamayo I") (granting defendant's motion to dismiss the Amended Complaint and granting plaintiffs leave to replead); Tamayo v. City of New York, No. 02 Civ. 8030, 2004 WL 137198 (S.D.N.Y. Jan. 26, 2004) ("Tamayo II") (granting in part and denying in part defendant's motion to dismiss the Second Amended Complaint). Briefly, plaintiffs are detectives with the New York City Police Department ("NYPD"), who brought this action on behalf of themselves and a putative class of Latino and African-American undercover officers in the NYPD*fn2 against the City of New York. Plaintiffs' Second Amended Complaint ("2d Am. Compl.") and Vazquez's Complaint ("Vazquez Page 2 Compl."), which were consolidated by the December 31, 2003 Consolidation Order, assert federal and state law claims based on NYPD's alleged discrimination on the basis of race and national origin in the hiring, assignment, promotion, and working conditions of undercover officers, as well as alleged retaliation, Equal Protection violations, and breach of the implied covenants of good faith and fair dealing in the undercover officers' employment contract. In Tamayo II, this Court dismissed all of plaintiffs' claims except for two arising out of alleged violations of 42 U.S.C. § 1981, 1983, including: (1) Tamayo's claim that the NYPD failed to promote him; and (2) plaintiffs' claims that the NYPD failed to adequately protect Latino and African-American undercover officers based on race and national origin discrimination. Plaintiffs now move for reconsideration and argue that the Court improperly dismissed two of their claims under Title VII of the Civil Rights Act, codified at 42 U.S.C. § 2000e et seq. ("Title VII").


  A. Plaintiffs' Motion for Reconsideration and Notice of Appeal

  Plaintiffs move for reconsideration pursuant to Federal Rule of Civil Procedure ("Fed.R. Civ. P." or "Rule") 60(b) and argue that factual errors and the interests of justice compel the Court to reinstate Tamayo's and Vazquez's Title VII claims. However, as defendant notes, a Rule 60 motion is not the proper vehicle for reconsideration because Tamayo II was not a final judgment or order. Fed.R.Civ.P. 60(b) ("On motion . . . the court may relieve a party . . . from a final judgment order, or proceeding . . .") (emphasis supplied); see also Sank v. City Univ. of New York, No. 94 Civ. 0253, 1997 WL 65910, at *1 (S.D.N.Y. Feb. 13, 1997) (deciding that a Rule 60(b) motion was inapplicable to an order that dismissed only some of plaintiffs discrimination claims, which was interlocutory and not a final judgment); Cancel v. Mazzuca, No. 01 Civ. 3129, 2002 WL 1891395, at *3 (S.D.N.Y. Aug. 15, 2002) (same regarding an order that granted partial summary judgment); Middle Mkt. Fin. Corp. v. D'Orazio, No. 96 Civ. 8138, 2000 WL 798634, at *2 (S.D.N.Y. June 20, 2000) (same). Since, sadly, this is just the tip of the iceberg in terms counsel's overlooks or misconceptions, I will simply construe plaintiffs' Page 3 submissions properly, i.e., as a motion for reconsideration pursuant to Local Rule 6.3. Charter Oak Fire Ins. Co. v. Nat. Wholesale Liquidators, No. 99 Civ. 5756, 2003 WL 22455321, at * 1 (S.D.N.Y. Oct 29, 2003) (treating plaintiffs Rule 60(b) motion as a Local Rule 6.3 motion for consideration because the challenged order was not final since claims remained with respect to some of the defendants); cf. Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 40-41 (2d Cir. 1982) ("Notwithstanding a plaintiffs own reliance on Rule 60(b), where a post-judgment motion is timely filed and calls into question the correctness of that judgment it should be treated as a motion under Rule 59(e), however it may be formally styled.") (quotation marks and citation omitted): Sanchez v. Dankert, No. 00 Civ. 1143, 2003 WL 1878417, at *1 (S.D.N.Y. April 14, 2003) (holding that plaintiffs motion titled as a motion for reconsideration under Rule 59(e) was more properly analyzed as a Rule 60(b) motion).

  Defense counsel, who is no better, having miscalculated both the date of docketing and the manner in which time is calculated, unpersuasively argues that plaintiffs' motion is time-barred. Local Rule 6.3 requires that "[a] notice of motion for reconsideration . . . shall be served within ten (10) days after the docketing of the court's determination of the original motion."*fn3 Plaintiffs have complied with this requirement Because Tamayo II was docketed on January 30, 2004 and Local Rule 6.4 and Fed.R.Civ.P. 6(a) provide that time periods of eleven days or less exclude weekends and legal holidays for the purposes of time computation, the last day plaintiffs could have served their notice of motion was February 17, 2004.*fn4 Defendant acknowledges that plaintiffs'original motion for reconsideration was dated February 17, 2004.*fn5

  Even if defendant was not served with plaintiffs' motion papers by February 17, 2004 as required under Local Rule 6.3, plaintiffs submitted a letter to the Court on February 2, 2004 (the first business day after Tamayo II was docketed) in which they requested a pre-trial conference to Page 4 discuss the Tamayo II Opinion because they believed the Court had overlooked a material issue of fact with respect to Tamayo's Title VII claim. The Court, however, was unavailable for a pre-trial conference and therefore directed plaintiffs to submit a motion for reconsideration, and, by Order dated February 17, 2004, set out a briefing schedule. While plaintiffs ought to have moved for reconsideration in the first instance as Local Rule 6.3 directs, this Court will not elevate form over substance to find plaintiffs' motion to be untimely. In re Holocaust Victim Assets Litig., 282 F.3d 103, 107 (2d Cir. 2002) (construing letters to the district court as a motion for reconsideration); RLS Assocs., LLC v. United Bank of Kuwait PLC, No. 01 Civ. 1290, 2003 WL 22801918, at *1 (S.D.N.Y. Nov. 24, 2003) (same).

  Finally, I conclude that this Court has jurisdiction to decide plaintiffs' motion for reconsideration notwithstanding the fact that plaintiffs filed a notice of appeal of the Tamayo II Opinion on February 27, 2004. Ordinarily the filing of a notice of appeal divests a district court of jurisdiction. Camacho v. United States, 302 F.3d 35, 36 (2d Cir. 2002) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). However, a Rule 59(e) motion for reconsideration has the effect of holding an appeal in abeyance. Fed.R.App.P. 4(a)(4)(B)(i) (providing that when a motion is made pursuant Rule 59 and other enumerated rules, a notice of appeal does not become effective until that motion is decided); Muze, Inc. v. Digital On-Demand, Inc., No. 00 Civ. 8195, 2003 WL 21359705, at *1 (S.D.N.Y. June 12, 2003). While this convoluted process creates a problem, under the law of this Circuit, a motion for reconsideration pursuant to Local Rule 6.3 is the functional equivalent of a Rule 59(e) motion. Palmer v. Artuz, No. 97 Civ. 5457, 2000 WL 640656, at *1 n.1 (S.D.N.Y. May 17, 2000); Jackson v. Walker, No. 96 Civ. 1064, 1998 WL 851600, at *1 (S.D.N.Y. Dec. 8, 1998); cf. United States ex rel. McAllan v. City of New York, 249 F.3d 48, 52 (2d Cir. 2002) (construing a Local Rule 6.3 motion for reconsideration as a Rule 59(e) motion for the purposes of calculating the time for appeal); City of Hartford v. Chase, 942 F.2d 130, 133 (2d Cir. 1991) (ruling that a motion for reconsideration under Local Rule 9(e) of the District of Connecticut was for practical purposes the same as a Rule 59(e) motion). Accordingly, this Court may decide plaintiffs' motion for reconsideration.*fn6 Page 5

  B. Standard of Review

  Local Rule 6.3 requires the party seeking reconsideration to "set[] forth concisely the matters or controlling decisions which counsel believes the court has overlooked." In other words, the movant must "point to controlling decisions or data that the court overlooked . . . that might reasonably be expected to alter the conclusion reached by the court" Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). The standard for granting a motion for reconsideration is strict, id., however, a court may grant a motion for reconsideration "to correct a clear error or prevent manifest injustice." Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983) (quotation marks and citation omitted); see also U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., Ltd., 182 F.R.D. 97, 100 (S.D.N.Y. 1998), aff'd, 241 F.3d 135 (2d. Cir. 2001) ("Local Civil Rule 6.3 provides the Court with an opportunity to correct manifest errors of law or fact, hear newly discovered evidence, consider a change in the applicable law or prevent manifest injustice."). With this standard in mind, I turn to plaintiffs' arguments on reconsideration.

  C. Reconsidered Title VII Claims

  To assert a Title VII claim, a plaintiff must file a complaint or "charge" with the Equal Employment Opportunity Commission ("EEOC") or a state equivalent — in this case, the New York State Division of Human Rights ("NYSDHR") — within 300 days of the complained-of acts. 42 U.S.C. § 2000e-5; Butts v. New York Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superceded by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir. 1998). A district court lacks jurisdiction to hear a Title VII claim that is not included in or "reasonably related" to the EEOC charge. Id. In Tamayo II, I Page 6 concluded that all of plaintiffs' Title VII claims were procedurally ...

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