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Tardd v. Brookhaven National Laboratory

May 8, 2007

MALRY TARDD ANDOTTO WHITE, PLAINTIFFS,
v.
BROOKHAVEN NATIONAL LABORATORY, A.K.A. AND/OR D/B/A BROOKHAVEN SCIENCE ASSOCIATES, CONRAD FORSTER, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; MICHAEL GOLDMAN, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; WILLIAM HEMPFLING, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; SUE FOSTER, IN HER OFFICIAL AND INDIVIDUAL CAPACITY; WALTER DEBOER, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; STEVE DIERKER, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; ED HAAS, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; MICHAEL CARUSO, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; MICHAEL BEBON, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; DEREK LOWENSTEIN, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; WILLIAM GUNTER, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; THOMAS SHERIDAN, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; PETER PAUL, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; KENNETH BROG, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Spatt, District J.

MEMORANDUM OF DECISION AND ORDER

This case arises out of the plaintiffs' claims that the defendants discriminated against them on the basis of their race during the course of their employment at the Brookhaven National Laboratory ("BNL"). The allegations of the parties and the factual background are more fully set forth in this Court's prior opinions ruling on the defendants' motions for judgment on the pleadings and for summary judgment. Tardd v. Brookhaven Nat'l Laboratory, 407 F. Supp. 2d 404 (E.D.N.Y. 2006) (judgment on the pleadings); Memorandum of Decision and Order, dated Mar. 6, 2007 (the "Summary Judgment Order"). Presently before the Court are the defendants' motions (1) for reconsideration and clarification of the Summary Judgment Order; and (2) to sever the claims of the plaintiff Otto White ("White") from the claims of the plaintiff Malry Tardd ("Tardd").

According to the defendants, several of them are misidentified in the caption of the complaint. "Brookhaven National Laboratory, a.k.a. and/or d/b/a Brookhaven Science Associates" should be identified as "Brookhaven Science Associates" ("BSA"). Conrad Foerster is misidentified as "Conrad Forster." William Gunther is misidentified as "William Gunter."

I. The Defendants' Motion for Reconsideration and Clarification

A. As to the Request for Clarification

The defendants request that the Court clarify one holding of the Summary Judgment Order. That order granted in part, and denied in part, the defendants' motion for summary judgment. Specifically, the Court granted partial summary judgment in favor of the defendants and dismissed (1) Tardd's cause of action for breach of a settlement agreement; (2) Tardd's claims that pre-date August 2, 2001; (3) the plaintiffs' Title VI claims; (4) the plaintiffs' Section 1985 and Section 1986 claims; and (5) White's retaliation clause of action to the extent that it was based on conduct occurring prior to the filing of his EEOC charge. Otherwise, summary judgment was denied.

On March 21, 2007 the defendants made a motion seeking "clarification of one point of [the Summary Judgment Order] and for reconsideration of a second point." The defendants seek clarification as to the defendant Michael Caruso, who they contend should be dismissed from the case.

As noted above, the Summary Judgment Order dismissed Tardd's claims to the extent that they were based on incidents occurring prior to August 2, 2001. The August 2, 2001 date was relevant because that is the date on which Tardd and BNL executed a Settlement Agreement related to prior allegations of discrimination made by Tardd. The Court found that through this Settlement Agreement Tardd knowingly and voluntarily released any claims against the defendants arising out of facts occurring before the agreement was executed.

One of the instances of discrimination that Tardd complained of in this case involved him witnessing the defendant Caruso in the work area of BNL wearing "a white Ku Klux Klan hood with the letters 'KKK' clearly written on the side of the hood in black magic marker." It is undisputed that this incident took place before August 2, 2001. Thus, the Court dismissed any cause of action based on that incident because Tardd waived his right to pursue that claim when he signed the Settlement Agreement.

In their motion for clarification, the defendants argue that this "hood" incident is the only allegation of wrongdoing made by Tardd against Caruso, and they request that the Summary Judgment Order be clarified to reflect that all of the Claims against Caruso have been dismissed and that he is no longer a defendant in this case. A review of the papers reveals that the defendants are correct that the only allegation of misconduct against Caruso is the "hood" incident.

In response, the plaintiffs contend that there are allegations and evidence of Caruso's involvement in other acts of discrimination. First, the plaintiffs direct the Court to several allegations in the third-amended complaint ("Complaint") that Caruso engaged in a conspiracy to discriminate against Tardd. These allegations are conclusory, and were dismissed by the Court when it granted summary judgment in favor of the defendants on the Tardd's Section 1985 conspiracy claim.

The plaintiffs also cite Tardd's deposition testimony in support of their argument that other claims against Caruso survive. At his deposition, Tardd was asked whether he made derogatory comments about Caruso. Tardd denied having made any such comments. When asked how he would explain the fact that other employees at BNL believe that he did make such comments, Tardd responded that "[i]t would be the same colleagues that were mad[] at me because I went and told about the racial incidents and harassment that were done to me. . . . They retaliated against me." Whoever Tardd was referring as the "colleagues that were mad[] at him," based on the question that he was responding to it is apparent to the Court that these were colleagues other than Caruso, i.e. those "other employees" who believe that Tardd did make such comments about Caruso.

Finally, Tardd's relies on his New York State Division of Human Rights complaint. This complaint refers to Caruso only once, when it states "Mike Caruso wore a KKK hood."

In sum, the only allegation of misconduct in this case against the defendant Caruso is that he wore a "hood with the letters 'KKK' clearly written on the side of the hood in black magic marker." This claim was dismissed because it occurred prior to August 2, 2001. Accordingly, the defendants' request for clarification is granted to the extent that the Court confirms that, by operation of the Summary Judgment Order, the defendant Caruso should have been dismissed from this case. The caption in this case will be amended accordingly.

B. As to Reconsideration

The defendants also ask the Court to reconsider its ruling that denied summary judgment on White's claim of constructive discharge. Pursuant to Local Rule 6.3, a party may request reconsideration if counsel believes that there are "matters or controlling decisions" that the Court overlooked. Local Rule 6.3; see also Hertzner v. Henderson, 292 F.3d 302, 303 (2d Cir. 2002); Yurman Design Inc. v. Shieler Trading Corp., No. 99 Civ. 9307, 2003 WL 22047849, at *1 (S.D.N.Y. Aug. 28, 2003). "A motion for reconsideration should be granted only where the moving party demonstrates that the Court has overlooked factual matters or controlling precedent that were presented to it on the underlying motion and that would have changed its decision." In re Worldcom, Inc. Sec. Litig., 308 F. Supp. 2d 214, 224 (S.D.N.Y. 2004); Colodney v. Continuum Health Partners, Inc., No. 03-7276, 2004 WL 1857568, at *1 (S.D.N.Y. Aug. 18, 2004); see also In Re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir. 2003).

A motion for reconsideration is "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." Dellefave v. Access Temps., Inc., No. 99 Civ. 6098, 2001 WL 286771, at *1, 2001 U.S. Dist. LEXIS 3165, at *1 (S.D.N.Y. Mar. 22, 2001); see also Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995) (stating that reconsideration "should not be granted where the moving party seeks solely to re-litigate an issue already decided"); In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y.1996) (stating that a Rule 6.3 motion is "not a motion to reargue those issues already considered when a party does not like the way the original motion was resolved"). In addition, "a party in its motion for re-argument may not advance new facts, issues or arguments not previously presented to the court." O'Brien v. Bd. of Educ. of Deer Park Union Free Sch. Dist., 127 F. Supp. 2d 342, 345 (E.D.N.Y. 2001).

Keeping this high standard in mind, the Court is persuaded that reconsideration is appropriate in this case because the Court overlooked facts that "might reasonably be expected to alter the conclusion reached by the Court." Specifically, White testified at his deposition that employees of BNL did not want him to retire and took steps to get him to stay at the laboratory. White also testified that he was treated fairly by his supervisor prior to his retirement. These facts bear directly on White's ability to establish the elements of constructive discharge. See Figueroa v. City of New York, No. 00 CIV. 7559 (SAS), 2002 WL 31163880, at *1 (S.D.N.Y. Sept. 27, 2002) (Scheindlin, J.) (granting reconsideration of the denial of the defendants' motion for summary judgment, because the Court failed to take into account the plaintiff's deposition testimony that she was not treated poorly because of her gender) (citing Shrader, 70 F.3d at 257).

The defendants seek reconsideration of that portion of the Summary Judgment Order that held that summary judgment should not be granted in favor of the defendants on the White's constructive discharge claim. The Court held that there was a disputed issue of material fact regarding whether a reasonable person in White's position would have felt compelled to resign under his circumstances. This finding was based on White's testimony that the defendant Goldman told him that if he pursued his EEOC complaint, that would put him in an "adversarial relationship with the laboratory"; White's statement in his declaration that the defendants "re-assigned" safety initiatives that he negotiated to new managers; his exclusion from discussions and planning related to safety issues; and the production of and distribution of "articles of Safety" without his input or credit. Although this evidence is not substantial, the Court concluded that it was sufficient to defeat summary judgment on the constructive discharge claim because a reasonable person under those circumstances could have found it so intolerable that he felt that he had no other choice but to resign.

However, in making its determination, the Court did not discuss another element of constructive discharge, namely whether the defendants deliberately created this intolerable environment. On this motion for reconsideration, the defendants argue that it was error for the Court to not specifically address the issue of intent. The defendants argue further that in determining the motion for summary judgment in the manner it did, the Court overlooked facts that prove that the defendants did not intentionally and deliberately create a working environment that was so intolerable for White that he would be forced to retire. Although the Court finds that most of the defendants' arguments do not warrant reconsideration, there are two instances of deposition testimony by White that the Court did overlook in determining the motion for summary judgment, and that might have changed the outcome had this evidence been considered by the Court.

At his deposition, White was questioned about the timing of his retirement.

Q: If you thought you were in an adversarial relationship going back to the date that you filed the complaint, why didn't you leave earlier?

A: It was a communication between Mr. Goldman's office that the laboratory truly was interested in my staying on and was going to find a right resolution for the issue.

My Trust -- my trust in their process and my respect that I was dealing with honorable intentioned [sic] was the reason for staying.

Q: So people at the laboratory, in particular, Mr. Goldman, told you that you were a valued employee and they wanted to have you stay on at the lab?

A: Yes.

Q: Was that repeated to you at the meeting with Mr. Goldman and Ms. Kendall?

A: Yes.

White Dep. 178-79. White also testified that, after he was not selected for a promotion, the defendant Goldman told him that he "value[d him] as an employee." White Dep. 169. Finally, White testified positively about his relationship with his new supervisor after he was not selected for promotion.

A: . . . And once Mr. Tarpinian came aboard, I was more convinced that the process had not been fair, that this issue of him being head and shoulder above me and having more contact and being a better manager was clear to me, as I worked for him for -- I reported to him, that was not indeed the case.

Q: Did Mr. Tarpinian ever do or say anything discriminatory to you?

A: No, he did not.

Q: How was your relationship with him?

A: Courteous. He was aware of the complaint. I mean, he was aware of my concern, that I had been a candidate and ...


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