Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

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

Cunningham v. Consolidated Edison Inc.

March 19, 2007


The opinion of the court was delivered by: Sifton, Senior Judge,


Plaintiff, Edward Cunningham, commenced this action by filing a complaint invoking this Court's federal question and supplementary jurisdiction against defendant, Consolidated Edison Inc. ("Con Edison" or "Con Ed"). The complaint sets forth claims for relief based on race discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et. seq. ("Title VII") and the New York State Human Rights Law, Executive Law §296 et seq. ("NYSHRL"), age discrimination in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §621 et. seq. ("ADEA"), and the New York City Human Rights Law, N.Y.C. Admin Code §8-101 et seq. ("NYCHRL"), and retaliation in violation of Title VII, NYSHRL and NYCHRL. This Court granted summary judgment in favor of Con Edison in March 2006. Now before this Court is plaintiff's motion for reconsideration, -pursuant to Fed. R. Civ. P. 59(e) and Local Rule 6.3.*fn1 For the reasons set forth below, plaintiff's motion is denied.


Familiarity with this Court's previous decision is assumed. See Cunningham v. Consol. Edison Inc., 2006 WL 842914 (E.D.N.Y. 2006). The facts relevant to the present motion are summarized below.

On March 28, 2006, I granted Con Edison's motion for summary judgment. In that decision, I held that plaintiff had abandoned his hostile work environment claims (claims 1-6), leaving only his retaliation claims (claims 7-9). I also held that only eight of the eleven adverse employment actions which plaintiff alleged against Con Ed presented a prima facia case for retaliation. With respect to those eight claims I stated, after reviewing Second Circuit authority on the subject, that "passage of two months between the protected activity and the adverse employment actions seems to be the dividing line" for a finding of causal connection; accordingly, I concluded that five of the eight remaining adverse actions were not causally connected to the protected activities alleged and, as a result, could not form the basis for a retaliation claim. Finally, I concluded that Con Ed had presented legitimate, non-discriminatory reasons for the adverse actions remaining and that plaintiff had failed to meet his burden of demonstrating that Con Ed's reasons were pretextual. In reaching these conclusions, I excluded from consideration the affidavit of Ariel Antonmarchi on the ground that plaintiff had failed to disclose Antonmarchi's name in a timely fashion.

Plaintiff now moves for reconsideration of my decision on four grounds: (1) that Con Ed misrepresented facts which led to the decision to exclude the Antonmarchi affidavit; (2) that plaintiff had in fact met his burden on showing that Con Ed's reasons were pretextual with regards to his 2002 suspension; (3) that Con Ed failed to sustain its burden of presenting a non-retaliatory reason for an alleged adverse action, namely, a delay in tuition reimbursement; and (4) that the Court erred in finding no causal connection between plaintiff's protected activities and the adverse employment actions.


Rule 59(e)*fn2 "does not prescribe specific grounds for granting a motion to alter or amend an otherwise final judgment," Munafo v. Metropolitan Transp. Authority, 381 F.3d 99, 105 (2d Cir. 2004), and "district courts may alter or amend a judgment to correct a clear error of law or prevent manifest injustice." Id. (internal citations and quotations omitted); see also Wood v. F.B.I., 432 F.3d 78, 85 n. 4 (2d Cir. 2005) (affirming denial of Rule 59(e) motion where "district court did not commit error or a manifest injustice"). "The standard for granting such a motion is strict, and 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).

1. Excluded Antonmarchi Affidavit

Plaintiff moves for reconsideration of the exclusion of the Antonmarchi affidavit on the ground that a misrepresentation by defendant led to the exclusion of the affidavit.*fn3 Antonmarchi was not listed in plaintiff's initial Rule 26(a) disclosures, nor was an amended Rule 26(a) disclosure filed despite the fact that Antonmarchi's was, according to plaintiff, the sole witness with direct evidence of Con Edison's retaliations against Cunningham.*fn4

According to Con Ed's brief on summary judgment, the first time Antonmarchi's name was mentioned was in the middle of the last day of plaintiff's deposition, January 18, 2005, which was also the final day of discovery. Pursuant to Rule 37(c)(1), this Court excluded the Antonmarchi affidavit since plaintiff offered no explanation for the delay and Con Ed was not given an opportunity to depose Antonmarchi or prepare for cross-examination of Cunningham concerning Antonmarchi.*fn5

Plaintiff now argues that Con Ed was aware that Antonmarchi was a potential witness substantially before January 18, 2005. In response to Con Ed's first set of interrogatories, Antonmarchi's name was listed on June 1, 2004 (along with 50 other names) as someone with knowledge relevant to the action. In plaintiff's first deposition, Cunningham mentioned that Antonmarchi witnessed the 2001 incident with Abbitelli. Further, plaintiff states that two emails sent to Bagwell in May 2002 refer to Antonmarchi and Cunningham both being denied cable-splicing positions and being failed on the precision instruments test.

None of these references to Antonmarchi disclose (in the language of Rule 26(a)(1)(A)) that he "is likely to have discoverable information that [plaintiff] may use to support his claims," much less what the information is. Only on the last day of discovery was Antonmarchi revealed as plaintiff's primary witness to Con Ed's allegedly illegal actions. The nature and relevance of his testimony was obviously known to plaintiff long before then. Plaintiff has to this day provided no excuse for the failure to amend the Rule 26(a) disclosures to include Antonmarchi's name.*fn6 In fact, in response to Con Ed's discovery request for the identities of potential witnesses, plaintiff's response on June 1, 2004 stated (after objecting to the request) that he would address the request in due course and yet, six months later, plaintiff still had not provided this information. From this chain of events, I conclude that plaintiff ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

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