The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.
Plaintiff Lorenzo Pugliese ("Pugliese" or "Plaintiff") filed the instant discrimination suit against his employer, Defendant Long Island Rail Road Company ("LIRR"), as well as LIRR ticket clerk Richard Cole ("Cole"), LIRR station cleaner Chris Glaudino ("Glaudino"), Pugliese's former manager Nancy Greer ("Greer"), and LIRR employee Gerome Petronolia/Jerome Petronilia ("Petronilia"), individually and in their official capacities (collectively "Defendants"). Pugliese claims that Defendants engaged in a pattern and practice of discrimination on the basis of his sexual orientation as a homosexual male and their perception that Pugliese did not conform to the stereotypes of his gender, in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and New York Human Rights Law. Specifically, Pugliese brings this lawsuit under 42 U.S.C. § 1983 ("§ 1983") and New York City Administrative Code Section 8-107. (Complaint 1-2.)
The parties conducted discovery under the supervision of Magistrate Judge Marilyn Go.
Defendants LIRR, Petronolia, and Greer ("moving Defendants"), subsequently moved for summary judgment as to each of Pugliese's claims. On September 19, 2006, this court issued an Order granting in part and denying in part Defendant's motion ("the Order"). On October 3, 2006, Defendants filed the instant motion for reconsideration. On October 13, 2006, Plaintiff filed his opposition, and on October 27, 2006, Defendants filed a reply. Familiarity with the facts of this case are presumed.
Under Local Civil Rule 6.3, a party may move for reconsideration of a motion by "setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." However, "[t]he 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). "The applicable standard is strict in order to dissuade repetitive arguments on issues that have already been considered fully by the court." Lykes Pasco v. Ahava Dairy Prods. Corp., No. 97-CV-0652, 1998 WL 427570, at *3 (E.D.N.Y. Jan. 26, 1998) (Glasser, J.) (internal quotations omitted).
Defendants first claim that this court considered a time-barred instance of alleged harassment in making its summary judgment determination. (Memorandum of Law of Defendants the Long Island Rail Road and Nancy Greer in Support of their Motion for Reconsideration ("Def. Mem.") at 5-6.) Defendants are incorrect. While it is true that the Bobby Wright incident is time-barred, the court did not rely on this incident as a basis for any of Pugliese's claims. Rather, the Bobby Wright harassment allegation was simply included in the Order as background evidence to the harassment claim. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 52 L.Ed. 2d 571, 97 S.Ct. 1885 (1977) ("[A] discriminatory act which is not made the basis for a [lawsuit] . . . may constitute relevant background evidence in [the lawsuit]."); see also Doe v. Vill. of Mamaroneck, 462 F. Supp. 2d 520, 550 n.3 (S.D.N.Y. 2006); Seltzer v. Dresdner Kleinwort Wasserstein, Inc., 356 F. Supp. 2d 288, 296 (S.D.N.Y. 2005). Defendants' motion with respect to the Bobby Wright incident is therefore denied.
B. Plaintiff's Filing of Complaints
Defendants next allege that Plaintiff did not file complaints with respect to either the Cole or the Glaudino incidents, and they therefore contend that this court erred in determining that Defendants failed to take action on Plaintiff's behalf. (Def. Mem. at 6-7, 10.) Specifically, Defendants claim that Plaintiff's statement to Greer that Cole was intending to file a false harassment claim against Pugliese did not constitute a complaint warranting investigation. (Id.) Although it is a close question, a reasonable juror could find that Plaintiff's report to Greer that Cole intended to falsely accuse Plaintiff of sexual harassment, coupled with Cole's actual complaint, which did in fact allege that Plaintiff sexually harassed him, provided Greer with sufficient notice that Plaintiff believed that he had been sexually harassed by Cole. Consequently, a reasonable juror could conclude that this is sufficient to have constituted a "complaint" of sexual harassment filed by Plaintiff with Greer.
Regarding the Glaudino incident, Defendants allege that Plaintiff did not file a complaint with Greer against Glaudino, and therefore they contend that Greer was not required, and had no basis upon which, to conduct an investigation into Glaudino's conduct. (Def. Mem. at 10.) Greer stated at her deposition that she had had a conversation with Plaintiff about the Glaudino complaint, and that Plaintiff requested that Greer "disciplin[e]" Glaudino for having filed false allegations against him. (Greer Deposition at 51.) Again, this is a close question, and one with which a jury may disagree. However, a reasonable juror could find that these statements sufficiently established that Pugliese had filed a complaint with Greer that Glaudino had filed a false complaint against him.
Defendants further contend that even if Pugliese had filed such complaints, Greer was not "required" by LIRR policy to have conducted an investigation and that "Diversity Management is responsible for investigating complaints of harassment." (Def. Mem. at 8-9.) Specifically, Defendants allege that the court based its ruling on the court's "statement that Greer was 'required' to investigate" Plaintiff's complaint. (Id. at 9 (citing Order at 3).) Defendants mischaracterize the Order. I based my ruling on the fact that Greer had a responsibility to either "contact appropriate personnel or to investigate" Plaintiff's sexual harassment complaint. Although, at this juncture in the litigation, both Plaintiff and Defendant have failed to clearly set forth Greer's responsibilities, it appears from her own statements that she did, in fact, have a responsibility to contact "appropriate personnel" or personally investigate harassment claims that are brought to her attention. (See Greer Deposition at 19-21, 66.) And, there is evidence that she actually conducted investigations based upon other employees' sexual harassment complaints. (See id. at 46-49, 57.) Her failure to do either when confronted with Plaintiff's sexual harassment complaints is what forms the basis of Plaintiff's Complaint.
Although neither party briefed the issue, the court notes its concern regarding proof that Greer actually failed to investigate Plaintiff's complaints. Plaintiff's complaints were essentially that multiple individuals had leveled false complaints about Plaintiff. Essentially, then, because Greer investigated the veracity of the complaints filed against Plaintiff, she investigated the legitimacy of Plaintiff's complaints. The court declines to address this issue, however, since it was not originally briefed by the parties and is therefore inappropriate to now address it in a motion for reconsideration. In any event, the court recognizes that it is possible ...