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Heba v. New York State Division of Parole

August 18, 2008

DARWISH HEBA, PLAINTIFF,
v.
NEW YORK STATE DIVISION OF PAROLE, DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry United States District Judge

MEMORANDUM & ORDER

DORA L. IRIZARRY, U.S. District Judge

Plaintiff brought this suit against the Defendant under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq, alleging claims of discrimination and retaliation as well as several state and common law claims. Defendant moved for summary judgment against Plaintiff on all claims. The court granted summary judgment in Defendant's favor on all claims except retaliation. See December 11, 2007 Order, Docket Entry No. 43. Defendant filed the instant, timely motion seeking reconsideration of the retaliation claim. For the reasons set forth more fully below, defendant's motion is denied.

BACKGROUND

The following facts are undisputed or, when disputed, are either so indicated or taken in a light most favorable to non-moving Plaintiff.*fn1 Defendant hired Plaintiff in April 1992 as a parole officer and Plaintiff continues to work for Defendant in this capacity. (Compl. ¶ 12.) Around April 2001, Plaintiff joined Defendant's TOP Unit, located in the "Brooklyn IV" office, and began reporting to Zwaryczuk. (Compl. ¶ 14; Heba Dep. 21:7-15.) Shortly after Plaintiff joined the TOP Unit, animosity developed between Plaintiff and Zwaryczuk, his direct supervisor. See December 11, 2007 Order at 3-4.

On June 3, 2001, Plaintiff assisted the NYPD with an investigation involving one of the parolees under Plaintiff's supervision. (Heba Dep. 88:8-24.) The police took the parolee into custody. (Heba Dep. 89:5-6.) When the police requested Plaintiff's presence to release the parolee, Zwaryczuk, who believed that the detention was unwarranted, ordered Plaintiff to refrain from assisting. (Heba Dep. 90:22-91:9; Zwaryczuk Dep. 54:3-9.) Plaintiff disregarded this order and went to the station to release the parolee. (Heba Dep. 92:2-4.)

Despite this act of insubordination and the pre-existing animosity between Plaintiff and Zwaryczuk, Zwaryczuk praised Plaintiff's performance on more than one occasion. On August 23, 2001, Zwaryczuk recommended Plaintiff and another parole officer for a commendation for their work in the arrest of a parolee and the seizure of drugs and a weapon. (Zwaryczuk Dep. 50:13-52:20; Def.'s 56.1 ¶ 26; Pl.'s 56.1 ¶ 26.) Additionally, when Plaintiff applied for a position with the FBI as an Arabic language interpreter following the events of September 11, 2001, both Zwaryczuk and Reiter, the Bureau Chief provided positive recommendations to the FBI. (See Heba Decl. ¶ 16; Heba Dep. 179:16-17; Zwaryczuk Aff. Ex. A; Reiter Decl. Ex. B.)

On November 30, 2001, Plaintiff and Zwaryczuk assisted the police with the execution of a search warrant. (Compl. ¶ 15b; Heba Dep. 116:14-17; Def.'s 56.1 ¶ 29.) After the execution of the search warrant, Zwaryczuk asked Plaintiff to assist the police with taking inventory of the seized property. (Heba Dep. 129:23-131:10.) Plaintiff refused, and, upon returning to the precinct, Zwaryczuk allegedly demanded, "Are you disobeying me? Are you telling me no, you fucking Arab?" (Heba Dep. 135:24-136:2; Def.'s 56.1 ¶ 31.) Plaintiff alleged that Zwaryczuk told him that he would forfeit a day off to come to the office the following Monday ". . . to fuck you up, you fucking Arab." (Heba Dep. 136:3-14.)

Several events transpired on December 3, 2001, the Monday after the search and seizure. Plaintiff contacted Cooper in the ODM, by telephone, complaining about Zwaryczuk's conduct during the November 30 search. (Heba Dep. 151:15-152:9.) Additionally, Plaintiff spoke at least briefly with another ODM employee, Jose Burgos. (Heba Dep. 151: 21-25.) Plaintiff did not file a written complaint at this time. (Heba Dep. 152:10-14.) On this same day, Zwaryczuk wrote a memorandum to Reiter and Reiter's immediate supervisor, describing Plaintiff's insubordination, alleging theft of light switches, and recommending Plaintiff's reassignment and removal from the TOP Unit. (See Schulman Decl. Ex. L.)

On December 7, 2001, Plaintiff received a counseling memorandum prepared by Zwaryczuk, recommending Plaintiff's removal from the TOP Unit as he was not a "team player." (Compl. ¶ 18; Heba Dep. 155:21-156:6.) On that same day, Zwaryczuk called the FBI to change his earlier positive recommendation of Plaintiff to a negative recommendation. (Zwaryczuk Aff. ¶ 8, Ex. B.) The FBI then contacted Reiter, who confirmed Plaintiff's insubordination and imminent removal and reassignment from the TOP Unit. (Reiter Decl. ¶ 15, Ex. C.)

On December 14, 2001, Plaintiff filed a written discrimination complaint with Cooper and the ODM. Zwaryczuk and Reiter denied knowledge of Plaintiff's participation in protected activity until sometime after Plaintiff filed the written complaint. (See Zwaryczuk Dep. 88:1-20; 195:4-198:21.) According to Cooper, before a written complaint is filed with the ODM, any communication between an employee and the ODM is kept confidential. (Cooper Dep. 202:17-25.)

DISCUSSION

I. Motions for Reconsideration

Motions for reconsideration or reargument are governed by Local Civil Rule 6.3 and are entrusted to the discretion of the court. McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983). In general, "[t]he standard for granting [a motion for reconsideration or reargument] is strict, and reconsideration [or reargument] 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). In addition, the moving party must demonstrate that the factual matters or controlling precedent overlooked by the court "were presented to it on the underlying motion." In re N.Y. Cmty. Bancorp, Inc., 04-CV-4165 (ADS)(AKT), 2007 U.S. Dist. LEXIS 47405, *7 (E.D.N.Y. June 29, 2007) (citation omitted). Reconsideration or reargument is, furthermore justified on the ...


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