UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
September 12, 2006
JUVONDI R. PENDER, PLAINTIFF,
STATE OF NEW YORK OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, BROOKLYN DEVELOPMENTAL DISABILITIES SERVICES OFFICE, DEFENDANTS.
The opinion of the court was delivered by: Joseph F. Bianco, District Judge
MEMORANDUM AND ORDER
Juvondi R. Pender, plaintiff pro se, brought the instant case, alleging employment discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. By Memorandum and Order dated July 18, 2006, this Court granted defendants' motion for summary judgment in its entirety and dismissed the complaint. See Pender v. State of New York Office of Mental Retardation and Developmental Disabilities, No. 02-CV-2438 (JFB) (LB), 2006 WL 2013863 (E.D.N.Y. July 18, 2006). Plaintiff moves for reconsideration of that judgment, pursuant to Federal Rules of Civil Procedure 59 and 60. For the reasons stated below, plaintiff's motion is denied.
I. STANDARD OF REVIEW
The standards controlling a motion for reconsideration are set forth in Local Civil Rule 6.3 and Rule 59(e) of the Federal Rules of Civil Procedure. Such motions are subject to a strict standard-"reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, 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); see also Green v. City of N.Y., No. 05- CV-0429 (DLI) (ETB), 2006 WL 2516468, at *1 (E.D.N.Y. Aug. 29, 2006). "The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence or the need to correct a clear error or to prevent manifest injustice." United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000); see also Hightower v. Nassau County Sheriff's Dept., 343 F. Supp. 2d 191, 192 (E.D.N.Y. 2004) (quoting Tenzer). A motion for reconsideration is not intended to be a substitute for an appeal, and should not be granted when it "seeks solely to relitigate an issue already decided." Shrader, 70 F.3d at 257; Green, 2006 WL 2516468, at *1 ("A party cannot merely reiterate or repackage an argument previously rejected by the court; that argument is for appeal.") (internal citation and quotation omitted).
A similarly strict standard applies to motions made for relief from a final judgment, order or proceeding pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. "Because `final judgments should not be lightly reopened, Rule 60(b) may not be used as a substitute for timely appeal . . . . Since 60(b) allows extraordinary relief, it is invoked only upon a showing of exceptional circumstances." Central Vt. Public Service Corp. v. Herbert, 341 F.3d 186, 190 (2d Cir. 2003) (quoting Nemaizer v. Baker, 793 F.2d 58, 61-62 (2d Cir. 1986)). According to the terms of the rule, relief may be granted for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic) , misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
FED. R. CIV. P. 60(b). The provisions are mutually exclusive, see Pioneer Investment Services Co. v. Brunswick Assoc. Ltd. Partnership, 507 U.S. 380, 393 (1993), and a court "may treat a motion to vacate a prior judgment as having been made under 60(b)(6) only if the other, more specific grounds for relief encompassed by the rule are inapplicable." Maduakolam v. Columbia University, 866 F.2d 53, 55 (2d Cir. 1989); see also Oparaji v. N.Y. Dept. of Educ., No. 00-CV-5953 (ENV) (VVP), 2006 WL 2220836, at *2 (E.D.N.Y. July 20, 2006) (quoting Maduakolam). However, relief under the catch-all provision of Rule 60(b)(6) is reserved for cases presenting "extraordinary circumstances." Rodriguez v. Mitchell, 252 F.3d 191, 201 (2d Cir. 2001).
Plaintiff's motion for reconsideration under Rules 59 and 60 lacks merit. Plaintiff's motion does not point to any authority or evidence that the Court overlooked in granting summary judgment. Similarly, the plaintiff has not provided any argument for relief which falls into any of the specific grounds for relief enumerated in Rule 60(b)(1)-(5), and does not present "extraordinary circumstances," justifying relief under the catch-all provision of 60(b)(6).
Instead, plaintiff begins with an unfounded allegation that the Court conducted an ex parte hearing with regards to the adjudication of defendant's motion for summary judgment. This is plainly false-the Court decided the summary judgment motion on submission of the briefs, without oral argument, and has not had any ex parte communication with either of the parties in this case as to any substantive issues.*fn1
Additionally, plaintiff's motion also attaches certain evidence that was part of the record at the time defendant moved for summary judgment. However, this evidence is not probative of his discrimination claims and do not affect this Court's determination that summary judgment, dismissing the case, was appropriate. First, plaintiff attaches a series of documents indicating that, after he was terminated from the employ of the defendants, his position was filled by a Derrick Hamilton, a black male. Although the fact that plaintiff was replaced by someone of the same race does not preclude the establishment of a prima facie case of discrimination,*fn2 this does not constitute affirmative evidence from which a reasonable jury could infer that plaintiff was terminated or denied promotions under circumstances giving rise to racial discrimination. See Pender, 2006 WL 2013863, at *5-*7 (finding summary judgment warranted because the record lacked "evidence from which a reasonable jury could infer that plaintiff was terminated or denied promotions under circumstances giving rise to racial discrimination."). Additionally, as evidence, plaintiff attaches notices of various job postings available at public entities, such as the Manhattan and Bronx Surface Transit Operating Authority. As the Court previously noted in the Memorandum and Order granting summary judgment, this evidence does not support his failure-to-promote claim against the defendants because it does not competently depict a job at one of the defendant organizations for which there exists record evidence that plaintiff is able to perform. See id., at *6 & n.6 (rejecting similar evidence of job postings at entities other than the defendants).
Finally, plaintiff's motion merely reiterates arguments made in opposition to defendant's motion for summary judgment. The Court finds these arguments to be without merit for the reasons set forth in the prior Memorandum and Order, and there is no basis for reconsideration.
In sum, plaintiff's motion for reconsideration under Rules 59 and 60 of the Federal Rules of Civil Procedure is DENIED.