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Kercado-Clymer v. City of Amsterdam

April 10, 2009


The opinion of the court was delivered by: Neal P. McCURN, Senior U.S. District Court Judge


This is an employment discrimination action filed by plaintiff Angelita Kercado-Clymer ("plaintiff"), a police officer with the City of Amsterdam Police Department, against the City of Amsterdam ("City") and Police Chief Thomas V.N. Brownell ("Brownell") pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"). Plaintiff also seeks relief and/or damages from both defendants for violation of her right to, inter alia, Equal Protection and Due Process under the Fourteenth Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983 ("§ 1983") and § 1988. Plaintiff seeks state relief under the New York State Human Rights Law ("NYHRL"), codified at NY Exec. Law § 290 et seq.

On January 30, 2009, this court issued a Memorandum - Decision and Order ("MDO") (Doc. No. 53) in this action pursuant to individual motions for summary judgment filed by each defendant. Currently before the court is a motion for reconsideration (Doc. No. 54) filed by the City, pursuant to Fed.R.Civ.P. Rule 60.*fn1

For the reasons set forth below, the court grants the City's motion for reconsideration, but adheres to its earlier decision.


The City raises three issues as the basis for its motion. First, the City argues that the court erred as a matter of law with respect to the second element of the Faragher/Ellerth*fn2 defense. Second, the City states that the court failed to address the legal grounds compelling the dismissal of the plaintiff's § 1983 claims. Specifically, the City argues that the court failed to address the Sea Clammers Doctrine,*fn3 and that as a matter of law, plaintiff failed to present evidence of a Monell claim against the City. Finally, the City argues that even if plaintiff's Title VII claim was not precluded under Faragher/Ellerth, such a claim against the City must nonetheless be dismissed as a matter of law pursuant to the continuing violation exception to the Title VII limitations period. Each point will be discussed in detail below.


A. Motion for Reconsideration Standard

The decision to grant or deny a motion for reconsideration falls squarely within the discretion of the district court. See Devlin v. Transportation Communications International Union, 175 F.3d 121, 132 (2d Cir.1999). "A motion for reconsideration may be granted upon one of three possible grounds: (1) an intervening change in law, (2) the availability of evidence not previously available, and (3) the need to correct a clear error of law or prevent manifest injustice." Shannon v. Verizon New York, Inc., 519 F.Supp.2d 304, 307 (N.D.N.Y.2007) ( citing Doe v. New York City Dept. of Social Servs., 709 F.2d 782, 789 (2d Cir.1983). "[A] motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided." Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257 (2d Cir.1995).

Here, the City is requesting reconsideration based on the need to correct a clear error of law or to prevent manifest injustice. Doc. No. 54-3 at p. 5. First, the City argues that as a matter of law, plaintiff's professed confusion over the City's anti-harassment policy is insufficient to defeat the City's affirmative defense under the Supreme Court's decisions in Faragher/Ellerth. As the court stated in its MDO, the seminal case law on liability of the employer is the so-called Faragher/Ellerth doctrine. In the Supreme Court cases of Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), the Court held that where no adverse employment action is taken, there may be an affirmative defense to liability. The defense comprises two necessary elements: (1) that the employer exercised reasonable care to prevent and correct promptly any sexual harassing behavior, and (2) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

Turner v. Olympic Regional Development Authority, 89 F.Supp 2d 241 (N.D.N.Y. 2000) (citing Faragher, 524 U.S. at 806; Ellerth, 524 U.S. at 763).

In its MDO, the court found a genuine issue of material fact on the issue of adverse employment action. Assuming, arguendo, that no adverse employment action was taken, the Faragher/Ellerth doctrine would apply. The City argues that it has satisfied its burden under the second prong of the Faragher/Ellerth doctrine, "as it is undisputed that the Plaintiff did not make use of the City's Anti-Harassment policy. Plaintiff never filed a harassment complaint pursuant to the City's policy, even though Plaintiff was provided with ample opportunities to do so." Doc. 54-3 at p. 9. The City states that plaintiff's stated reason for not making a complaint pursuant to the City's anti-harassment policy, that "she was confused about whether the City's Anti-Harassment policy was exclusive," is inadequate to satisfy her burden of production. Id. The court disagrees.

In the court's MDO, it stated the following in regard to this issue:

In plaintiff's sworn testimony, she mentions confusion over the complaint procedure that she was supposed to use, because certain police department regulations conflicted with the procedures in the City's employee handbook, and the police department mandated that its regulations were to be followed. Plaintiff asserts that she received a memo from her supervisor to that effect. Doc. No. 39-7, p. 20. Accordingly, the court finds ...

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