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Shub v. Westchester Community College

April 28, 2008


The opinion of the court was delivered by: Conner, Senior D.J.


Plaintiff, Michael Shub, brings suit against Joseph N. Hankin ("Hankin"), President of Westchester Community College ("WCC"), in his individual capacity, WCC and the County of Westchester (the "County"), alleging First Amendment retaliation and violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq. He also alleges that he was retaliated against for having filed a Charge of Discrimination under the ADEA with the Equal Employment Opportunity Commission ("EEOC"). Defendants moved for summary judgment of all claims. In an Opinion dated April 7, 2008 (the "Opinion") we granted defendants' motion in part and denied it in part. Defendants now move this Court to reconsider that part of our decision denying their motion for summary judgment. For the following reasons, defendants' motion is denied.


The facts of this case are laid out at length in our Opinion, familiarity with which is presumed. We briefly summarize the facts relevant to this motion.

Plaintiff was hired by WCC in 1970 and worked in the Mathematics Department as an Assistant and later Associate Professor. He left that position in August 1999. During his time at WCC, plaintiff was an active member of the teachers' union and was outspoken about various issues. In 1989 and again in 1994 plaintiff was charged with conduct unbecoming a member of the staff. Plaintiff claimed that both charges were preferred in retaliation for his earlier First Amendment activities. The parties entered into a Settlement in 1999, in which WCC agreed to withdraw the 1994 charges against plaintiff in exchange for plaintiff's resignation from WCC on or before August 31, 1999.

In November 1999, plaintiff applied to teach as an Adjunct at WCC for the Spring 2000 semester. Hankin replied that his request could not be honored because his retirement was a term of the Settlement. The union thereafter filed a grievance on plaintiff's behalf and an arbitrator sustained the union's grievance, determining that plaintiff qualified as a retiree under the CBA and was entitled to be considered for a position. As a result WCC assigned courses to plaintiff as an Adjunct beginning in the Fall 2002 semester and plaintiff was put on a priority list for future Adjunct assignments, pursuant to the CBA, because of his retiree status. Plaintiff taught statistics as an Adjunct during the Fall 2003 semester and the Spring and Fall 2004 semesters but did not teach for the Fall, Spring and Summer 2005 semesters.

During the early part of the Spring 2006 semester WCC was in need of an Adjunct to teach statistics because the professor teaching the class took an unexpected leave of absence. Plaintiff, Peter Mucci ("Mucci") and one other person applied to teach the two statistics classes. At this time Mucci was thirty-seven years old and plaintiff was sixty-two years old. Louis Rotando ("Rotando"), Chairman of the Mathematics Department and Raymond Mignogna ("Mignogna"), Associate Dean for the Division of Mathematics, thought that since plaintiff had not taught for three consecutive semesters in 2005 he was not automatically entitled to teach the courses based on priority. Rotando hired Mucci.

The professor who left in the Spring returned to teach the statistics course during the Fall 2006. Plaintiff applied to teach as an Adjunct for the Fall 2006 and Spring, Summer and Fall 2007 semesters but was not hired for any of these semesters. Rotando testified that it was his decision not to hire plaintiff for these semesters and he made that determination because there was a "suit pending against [WCC] and [he] just didn't know how to proceed after that." Mignogna also testified that he saw plaintiff's requests to teach and instructed Sean Simpson, Assistant Chair and Adjunct Coordinator for the WCC Mathematics Department, not to respond because he was unsure of the status of the grievance and the lawsuit and he knew there was "another action of some sort." Plaintiff had since filed EEOC charges and this action.

The union lodged a grievance on plaintiff's behalf against WCC in March 2006 as a result of the decision to hire Mucci instead of him. Plaintiff filed a claim of age discrimination against WCC with the EEOC in June 2006, and requested a right-to-sue letter from the EEOC in July 2006.

Plaintiff commenced this action on October 12, 2006, alleging that he was denied an Adjunct position in February 2006 in retaliation for his First Amendment activities and he was discriminated against by reason of his age. He also alleged that his application to teach as an Adjunct during the Fall 2006 semester was rejected in retaliation for having filed the age discrimination charges with the EEOC. Defendants moved for summary judgment as to all of these claims. We granted summary judgment as to the First Amendment retaliation and age discrimination claims. However, we denied summary judgment as to plaintiff's ADEA retaliation claim because plaintiff submitted evidence that defendants' legitimate explanation was not the only reason plaintiff was not hired; this evidence created a material issue of fact as to whether plaintiff's EEOC charge was a motivating factor in defendants' decision. Defendants bring this motion for reconsideration of our determination regarding the ADEA retaliation claim.


I. Standard of Review

A motion for reconsideration or re-argument may be granted only if the court has overlooked "'controlling decisions or factual matters that were put before it on the underlying motion . . . and which, had they been considered, might have reasonably altered the result before the court.'" Greenwald v. Orb Commc'ns & Mktg., Inc., 2003 WL 660844, at *1 (S.D.N.Y. Feb. 27, 2003) (quoting Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp. 2d 390, 392 (S.D.N.Y. 2000)); see also S.D.N.Y. LOCAL CIV. R. 6.3. Controlling decisions include decisions from the United States Court of Appeals for the Second Circuit; they do not include decisions from other circuits or district courts, even courts in the Southern District of New York. See Ades v. Deloitte & Touche, 843 F. Supp. 888, 892 (S.D.N.Y. 1994). Local Rule 6.3 should "be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." Dellefave v. Access Temporaries, Inc., 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22, 2001). Where the movant fails to show that any controlling authority or facts have actually been overlooked, and merely offers substantially the same arguments he offered on the original motion or attempts to advance new facts, the motion for reconsideration must be denied. See Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); Brown v. Barnhart, 2005 WL 1423241, at *1 (S.D.N.Y. June 16, 2005) ...

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