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Bennett v. Verizon Wireless

January 23, 2008

JULIE M. BENNETT, PLAINTIFF,
v.
VERIZON WIRELESS, DEFENDANT.



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

DECISION AND ORDER

Before the Court is defendant Verizon Wireless' ("Verizon") motion for reconsideration (Docket No. 41) of the Court's Decision and Order (Docket No. 40) denying summary judgment for Verizon. For the reasons stated below, the Court grants Verizon's motion for reconsideration, and upon reconsideration, grants Verizon's motion for summary judgment. The Clerk is directed to enter judgment for Verizon.

BACKGROUND

The Court's prior decision fully discussed the facts, and familiarity with them will be presumed. Verizon argues in its reconsideration motion that the Court erroneously relied on the affidavit of Lucy Couvertier to conclude that plaintiff Julie M. Bennett ("Bennett") had raised a material question with regard to whether Verizon's purported reason for dismissing Bennett was a pretext. Specifically, Verizon focuses on the Court's determination that the Couvertier affidavit showed it was a "common practice" for supervisors at Verizon to permit their employees to access the supervisor's family's and friends' accounts and make changes to them. (Couvertier Aff. ¶ 8, Docket No. 33, at 10.) Verizon argues that Bennett made no showing that any supervisor, other than the unnamed one mentioned by Couvertier, gave a subordinate this permission, or that Couvertier's supervisor was similarly situated to Bennett, or that Couvertier's supervisor did not have permission from her supervisor to access her family's and friend's accounts, or that Couvertier's supervisor's conduct was known to the decision-makers who fired Bennett. (Def.'s Mem. of Law in Support of Mot. to Reconsider, Docket No. 43, at 5.) Bennett responds with 15 reasons why a material issue of fact precludes summary judgment, one of which is based on Couvertier's allegations. In response, Verizon points to its reply to the summary judgment response in which they discussed why each of the 15 reasons was insufficient to preclude summary judgment.

STANDARD OF REVIEW

An interlocutory judgment, such as the Court's September 19, 2007, Decision and Order denying summary judgment, "is subject to revision at any time before the entry of [final] judgment." Fed. R. Civ. P. 54(b) A party seeking reconsideration must set "forth concisely the matters or controlling decisions which counsel believes the court has overlooked." Id. Thus, upon a motion to reconsider a "district court has the discretion to reconsider, and if appropriate, revise an interlocutory order." Kliszak v. Pyramid Mgmt. Group., No. 96-CV-0041E(Sc), 1998 U.S. Dist. LEXIS 7588, 1998 WL 268839, *1 (W.D.N.Y. Apr. 30, 1998) (citing Partmar Corp. v. Paramount Corp., 347 U.S. 89, 100, 98 L.Ed. 532, 74 S.Ct. 414 (1954)); see also Virgin Atlantic Airways v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (district court has broad discretion to revise an interlocutory order, noting "need to correct a clear error" as a major ground justifying reconsideration). While a district court has broad discretion to grant reconsideration, parties should not be allowed simply to reargue their case, or present new facts and issues that they failed to argue in the first instance. Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); Lehmuller v. Incorporated Village of Sag Harbor, 982 F. Supp. 132, 135 (E.D.N.Y. 1997).

ANALYSIS

First, the Court adheres to its original determination that Bennett put forth a prima facie case, and that Verizon articulated a legitimate, non-discriminatory reason for Bennett's discharge. At oral argument on the motion to reconsider, the Court focused on one issue raised by Verizon: the Court's reliance on Couvertier's affidavit. In that regard, Verizon argues that Bennett attempted to show through Couvertier's affidavit that two supervisors (Couvertier's and Bennett, who was a supervisor herself) were similarly situated, and that despite the similarities, Couvertier's supervisor was not dismissed, but Bennett was. Verizon relies on the Second Circuit's decision in Graham v. Long Island R.R., 230 F.3d 34, 39-44 (2d Cir. 2000). In that case, the court wrote that,

When considering whether a plaintiff has raised an inference of discrimi-nation by showing that she was subjected to disparate treatment, we have said that the plaintiff must show she was "similarly situated in all material respects" to the individuals with whom she seeks to compare herself.

Graham, 230 F.3d at 39 (quoting Shumway v. United Parcel Serv., 118 F.3d 60, 64 (2d Cir. 1997). The Court went on to articulate what was meant by the phrase, "all material respects," holding that, "the standard for comparing conduct requires a reasonably close resemblance of the facts and circumstances and circumstances of plaintiff's and comparator's cases, rather than a showing that both cases are identical." Id., at 40 (citation omitted). The specific factual situation in Graham is instructive on this point. There, the appellate court wrote:

Beyond his bare assertion, Graham offers no proof that LIRR gave last chance waivers automatically for first time drug and alcohol offenders as a matter of policy or custom. Instead, the only evidence he offers is that one white employee, Carl DiPersia, tested positive for cocaine use in 1987 and received a last chance waiver after his first violation without having to file a grievance. Such isolated evidence is insufficient to make a showing that LIRR maintained a policy or custom.

In addition, the chief trial and investigative officer in Graham's department, Ralph J. Domenici, denied that such a policy was in effect during his tenure in the department between 1985 and 1991.

Id., at 41. This factual scenario parallels Bennett's in that her supervisor, Gulliford (the one who actually terminated her) also denied it was a common practice for supervisors to unilaterally authorize their subordinates to make changes to the supervisor's family's and friends' accounts. (Gulliford Decl. ¶ 40, Docket No. 18, at 11.)*fn1 Bennett's memorandum of law in opposition lists 15 reasons, only one of which touches on this point. At number 11 she states, "[t]he undisputed fact [is] that subordinate employees routinely accessed their supervisor's account with the supervisor's permission as per Verizon Policy without reprimand." (Pl.'s Mem. of Law, Docket No. 45, at 4.)

In order to determine whether Couvertier's affidavit supports Bennett's contention, the Court must carefully parse the specific language to determine whether it is evidentiary proof in admissible form of disparate treatment. Specifically, Couvertier stated, in pertinent part:

Indeed, I had routinely made changes to not only my family['s] and friends' accounts with the prior approval of my supervisor, but to the accounts of my supervisor's family and friends' accounts, all with prior approval by that same supervisor, and that this was common practice. I was only terminated when I accessed my family member's account without prior approval. (Couvertier Aff. ¶¶ 8-9, Docket No. 33, Ex. B.) Couvertier's statement does not specify the "this" which she claims was common practice, but it appears to be that she believed it common practice to access her supervisor's family's and friends' accounts with her supervisor's permission. What is unsaid, is whether Couvertier's supervisor, like Bennett, did not have permission from a supervisor in her own chain of command to grant Couvertier permission to access the accounts. In that regard, Couvertier acknowledged that Verizon's Business Code of Conduct contained this provision:

Our legal and Company requirements governing privacy require that you do not: . Access your personal wireless account information or those of family or friends, without prior approval by your supervisor. Access includes, issuing credits/adjustments, altering account information or making payments or equipment changes. (Id. (emphasis in original).) On reconsideration, the Court concludes, therefore, that Couvertier's affidavit does not support Bennett's argument that a similarly-situated employee was treated more favorably. Consequently, again upon reconsideration, the Court determines that based upon the Couvertier affidavit alone, a material issue of fact that would preclude summary judgment does not exist, and the Court must, therefore, discuss the matters raised in the original summary judgment motion that were not addressed in the initial decision.

In her response to the reconsideration motion, Bennett presents fifteen reasons for why this Court should find a material issue of fact precluding summary judgment. The Court will addresses each one in turn.

Temporal proximity between Bennett's complaints and her termination

On November 17, 2003, six days after Bennett complained to her supervisor, Gulliford, on November 14, 2003, Gulliford recommended her termination. Six days after the November 14 meeting, Savino and Gulliford informed Bennett she was terminated for month end reviews ("MORs") and issues regarding her cell phone account. Bennett argues that this sequence of events represents a strong temporal proximity between her protected act, and the alleged retaliation. Her argument finds some support in Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 180 (2d Cir. 2005), which relied on Quinn v. Green Tree Credit Corp., 159 F.3d 759, 770 (2d Cir. 1998). However, Jute overlooked the factors considered by the court in Quinn. In Quinn, the Second Circuit relied not only on the strong temporal proximity between the employee's protected conduct and the adverse employment action, but also the following: "[n]early all of the record evidence supporting the Company's asserted non-retaliatory reason for discharge both was generated by two of Quinn's alleged harassers-Fahey and Harwood-and followed her initial inquiry with the DHR regarding sexual harassment." In contrast to that situation, here the evidence supporting Verizon's non-retaliatory reason for discharging Bennett was generated before Bennett complained to Gulliford and is not disputed by Bennett. Indeed, later in her memorandum of law, Bennett argues that directing a subordinate to access her account was not a violation of Verizon's Business Code of Conduct. (Pl.'s Mem. of Law, Docket No. 36) at 16.) Moreover, neither the Jute panel nor the panel in Quinn addressed the specific question presented here: is temporal proximity alone enough to show that the defendant's non-retaliatory reason was pretextual? Another Second Circuit panel*fn2 addressed this very issue in a summary order, citing to Quinn:

While the temporal proximity of these events gives rise to an inference of retaliation for the purposes of appellant's prima facie case, without more, such temporal proximity is insufficient to satisfy appellant's burden to bring forward some evidence of pretext. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 770 (2d Cir.1998) (holding that a strong temporal connection between the plaintiff's complaint and other circumstantial evidence is sufficient to raise an issue with respect to pretext).

Simpson v. New York State Dept. of Civil Services, 166 Fed. Appx. 499, 502 (2d Cir. Jan 9, 2006). Since the decision in Simpson is not precedential, see U.S. Court of Appeals, Second Circuit, Rules § 0.23(b), the Court also relies on the reasoning in decisions of two other circuits, which the Court finds persuasive on this point. See Skrjanc v. Great Lakes Power Service Company, 272 F.3d 309 (6th Cir. 2001) ("temporal proximity is insufficient in and of itself to establish that the employer's nondiscriminatory reason for discharging an employee was in fact pretextual."); Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1397-98 (10th Cir. 1997) ...


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