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Lore v. City of Syracuse

December 22, 2008

THERESE LORE, PLAINTIFF,
v.
CITY OF SYRACUSE; CITY OF SYRACUSE POLICE DEPARTMENT; CHIEF OF POLICE JOHN FALGE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; FIRST DEPUTY CHIEF DANIEL BOYLE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; DEPUTY CHIEF ROBERT TASSONE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; CITY OF SYRACUSE MAYOR ROY BERNARDI; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; LT. MIKE RATHBUN, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; CAPT. MIKE KERWIN, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; RICK GUY, CITY CORPORATION COUNSEL, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; MICHAEL LEMM, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; AND JOHN DOE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: David N. Hurd United States District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiff Therese Lore brought suit against defendants City of Syracuse, City of Syracuse Police Department ("SPD"), SPD Chief of Police John Falge, SPD First Deputy Chief Daniel Boyle, SPD Deputy Chief Robert Tassone, Syracuse Mayor Roy Bernardi, SPD Lieutenant Mike Rathbun, SPD Captain Mike Kerwin, Syracuse Corporation Counsel Rick Guy, Michael Lemm, and John Doe. All defendants with exception to defendant Lemm (hereinafter referred to together as "defendants") collectively moved for summary judgment as to plaintiff's claims pursuant to Federal Rule of Civil Procedure 56. Defendant Lemm moved separately for summary judgment on additional grounds not asserted by defendants as to the claims against him. Plaintiff opposed both motions and cross-moved for leave to amend her second amended complaint pursuant to Federal Rule of Civil Procedure 15. Defendant Lemm opposed plaintiff's cross-motion for leave to amend.

On October 30, 2008, defendants' motion was granted in part and denied in part. Lore v. City of Syracuse, ___ F. Supp. 2d ___, No. 5:00-CV-1833-DNH-DEP, 2008 WL 4736654, at *32-33 (N.D.N.Y. Oct. 30, 2008). Defendant Lemm's motion was also granted in part and denied in part. Id. at *33. Plaintiff's motion for leave to amend was denied. Id.

Plaintiff now moves for reconsideration of the decision to the extent defendants' motion for summary judgment was granted. Defendant opposes plaintiff's motion for reconsideration and cross-moves for reconsideration of the decision to the extent their motion for summary judgment was denied. Plaintiff opposes defendants' cross-motion. Defendant Lemm has not filed a motion or a response to plaintiff's motion. Both motions were taken on submit without oral argument.

II. BACKGROUND

Familiarity with the factual circumstances leading to plaintiff's allegations is assumed as the parties have been litigating this suit for nearly eight years. See Lore, 2008 WL 4736654, at *1-3 (discussing the relevant facts). Plaintiff asserted the following claims in her second amended complaint: (1) that she was discriminated against on the basis of her gender while working as a SPD police officer in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (hereinafter "Title VII"), 42 U.S.C. § 1983 (hereinafter "§1983"), and the New York Human Rights Law, N.Y. EXECUTIVE LAW § 296 (2000) (hereinafter "HRL"); (2) that she was retaliated against for reporting and complaining of discrimination in violation of Title VII and § 1983; (3) that she was harmed as a result of a hostile work environment in violation of Title VII; (4) that she suffered injury as a result of defendants' defamatory remarks; and (5) that defendants breached a contract negotiated by the Police Officers' Union on behalf of plaintiff and other police officers.

Upon consideration of the parties' motions, defendants' motion for summary judgment was granted as to the following claims and these claims were dismissed: (1) all claims arising under Title VII against each named defendant in his individual capacity; (2) all claims arising under Title VII alleging unlawful conduct occurring prior to September 19, 1999; (3) all claims of discrimination against defendants arising under Title VII; (4) all claims of hostile work environment against defendants arising under Title VII; (5) claims of retaliation under Title VII and of unlawful discrimination as defined in the HRL against defendants based upon plaintiff's allegations that she was unlawfully denied her request for an overtime assignment on November 28, 2000, received sub-par evaluations following her complaints of discrimination, and defendant Rathbun's issuance of a report criticizing plaintiff's work performance; (6) all claims of defamation, libel, or slander against defendants arising under state law; (7) all claims of Intentional Infliction of Emotional Distress ("IIED") against defendants arising under state law; (8) plaintiff's breach of contract claim against defendants for alleged discrimination; (9) all claims of abuse of process, negligence, and gross negligence against defendants arising under state law; (10) claims brought against defendants pursuant to § 1983 alleging denial of plaintiff's rights under the Equal Protection Clause of the United States Constitution; (11) claims brought against defendants pursuant to § 1983 alleging denial of plaintiff's rights under the Due Process Clause of the United States Constitution; and (12) claims brought against defendants pursuant to § 1983 alleging denial of plaintiff's First Amendment rights based upon the denial of plaintiff's request for an overtime assignment on November 28, 2000, the sub-par evaluations of plaintiff following her complaints of discrimination, and defendant Rathbun's issuance of a report criticizing plaintiff's work performance. Lore, 2008 WL 4736654, at *32. As a result, all individual claims against defendants Police Chief Falge, Deputy Chief Robert Tassone, and Lieutenant Mike Rathbun were dismissed. Id.

Defendants' motion for summary judgment was denied with respect to plaintiff's other claims, including: (1) claims of unlawful retaliation under Title VII and of unlawful discrimination as defined in the HRL against defendants based upon defendants' comments to newspaper reporters, the directive banning plaintiff from the Audit and Budget Control Office ("ABC Office") and requiring her to issue internal memoranda for future informational requests, defendants' arbitration counsel's statements to plaintiff's arbitration attorney offering to forego criminal charges in exchange for plaintiff's voluntary discontinuance of her complaint, plaintiff's ten day suspension for use of a photocopier for personal reasons and the pursuit of criminal charges, and the reading of Miranda warnings to plaintiff for allegedly filing a false injury report; (2) claims brought against defendants pursuant to § 1983 alleging denial of plaintiff's First Amendment rights based upon the same factual allegations; and (3) the breach of contract claim based upon alleged unlawful retaliation in violation of the terms of the SPD Union's collective bargaining agreement with defendants.

Plaintiff now moves for reconsideration of the decision to the extent defendants' motion for summary judgment was partially granted. Specifically, plaintiff requests clarification as to whether her claims of disparate overtime assignments have been dismissed, reconsideration of the decision to dismiss all of her discrimination and retaliation claims against defendant Falge, and reconsideration of the decision to dismiss her discrimination claims arising from her removal from the Public Information Officer ("PIO") position.

Defendants oppose plaintiff's motion and cross-move for reconsideration of the decision to the extent their motion for summary judgment was denied. In particular, defendants request reconsideration of the decision to deny summary judgment for plaintiff's claims of unlawful discrimination under the HRL against defendants Bernardi and Guy for comments allegedly made to newspapers. Defendants have also sent a letter requesting either the preclusion of plaintiff's exhibit C from consideration or that plaintiff provide defense counsel with a copy of the exhibit. The exhibit is not available electronically as it has been sealed by court order.

Plaintiff opposes defendants' cross-motion and argues that defendants' motion should be denied because it is untimely and improperly raises new arguments that were not raised in support of their motion for summary judgment. Further, plaintiff agrees to provide defense counsel with a scanned copy of exhibit C, thereby eliminating the need for discussion of defendants' request to preclude the exhibit. Because the timeliness of defendants' motion for reconsideration is a threshold issue that can be easily decided, it will be addressed before the other arguments.

III. MOTION FOR RECONSIDERATION

A court may justifiably reconsider its previous ruling if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent manifest injustice. Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y. 1995) (citing Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir.), cert. denied, 464 U.S. 864 (1983)). The question presented is therefore limited to whether the prior decision constituted a clear error of law as neither party argues that there has been a change in the controlling law or makes a showing of additional evidence that was not previously available.

Summary judgment is warranted when the pleadings, depositions, answers to interrogatories, admissions, and affidavits reveal no genuine issue as to any material fact. FED. R. CIV. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986). All facts, inferences, and ambiguities must be viewed in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986). Initially, the burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2458 (1986). After the moving party has satisfied its burden, the non-moving party must assert specific facts demonstrating there is a genuine issue to be decided at trial. FED. R. CIV. P. 56; Liberty Lobby, Inc., 450 U.S. at 250, 106 S.Ct. at 2511. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at ...


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