The opinion of the court was delivered by: Block, Senior District Judge:
On July 20, 2011 the Court issued a Memorandum and Order ("M&O") granting partial summary judgment to defendants the City of New York ("the City") and11 New York Police Department ("NYPD") officials (collectively, "defendants"), dismissing all of plaintiff Howard Henderson's claims*fn1 except for his retaliation claims. See Henderson v. City of N.Y., No. 05-CV-2588, 2011 WL 2947048 (E.D.N.Y. 2011). Plaintiff and defendants each move for reconsideration and clarification of that M&O.
The standard for granting a motion for reconsideration "is strict, and reconsideration 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 order to have been "overlooked," the decisions or data in question must have been "put before [the court] on the underlying motion. . . and which, had they been considered, might have reasonably altered the result before the court." Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp. 2d 390, 392 (S.D.N.Y. 2000).
A motion for reconsideration cannot be used for a "second bite at the apple" for a party dissatisfied with the court's ruling by "relitigating old issues, presenting the case under new theories, [or] securing a rehearing on the merits." Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998). Reconsideration is justified only where there exists "an intervening change of controlling law, the availability of new evidence or the need to correct a clear error or prevent manifest injustice." Virgin Atlantic Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (citing 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4478 at 790). With respect to new evidence, "the movant must present evidence that is truly newly discovered or could not have been found by due diligence." U.S. v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir. 1983) (internal quotation marks omitted) (discussing Federal Rule of Civil Procedure 60(b)(2)).
The relief requested by plaintiff is threefold. First, plaintiff challenges the Court's finding that two of the three adverse employment actions offered to prove his retaliation claims did not follow his protected activities closely enough in time to have been caused by those activities. Second, plaintiff seeks a ruling that he may characterize his alleged constructive discharge as part of the damages he suffered from defendants' retaliation. Third, plaintiff requests that the Court reconsider its "finding" that plaintiff was a probationary employee without a property right sufficient to sustain a § 1983 claim under the Due Process Clause of the Fourteenth Amendment.
The Court held only one of the three adverse employment actions alleged by plaintiff-- an investigation into a domestic dispute that resulted in the continuation of plaintiff's stint on modified duty-- was temporally proximate to his protected activities. Only that action could give rise to an inference of discrimination and support his prima facie case of retaliation. The other two actions-- he was ordered to attend alcohol rehabilitation and he retired from the NYPD, which he claims was a constructive discharge-- did not follow his protected activities closely enough in time.Plaintiff now challenges this determination.
Plaintiff bases his motion for reconsideration on supposedly "new evidence": several telephone complaints made by plaintiff to the internal NYPD Equal Employment Office ("EEO") that are more temporally proximate to the alleged adverse employment actions. Plaintiff argues that this is newly discovered evidence that could not have been found earlier by due diligence because: (1) plaintiff's original attorney, who had a full record containing evidence of the additional EEO complaints, refused to turn over his case file to plaintiff's new attorney; (2) defendants' attorney refused to turn over a second complete copy of the previously released discovery; and (3) plaintiff's counsel was given a date to view the full record, which contained evidence of the additional EEO complaints, at defendants' attorney's office, but after a seven hour review of the record "the EEO reports were not ascertainable." Pl's Reply Mem. of Law at 7. The Court is not convinced that it was impossible to obtain this evidence through due diligence; the additional EEO complaints could certainly have been located, for example, by asking plaintiff about any additional complaints filed or by spending more time carefully searching the full record at the office of defendants' attorney.
Consequently plaintiff's motion for reconsideration of the "temporal proximity" element of his retaliation claim is not based upon any overlooked data or legal decisions or any new evidence, and is denied.
2. Constructive Discharge
Plaintiff contends that defendants' allegedly retaliatory conduct harmed him by forcing him to retire early from the NYPD. Thus, plaintiff argues that he was in fact constructively discharged. Accordingly, should he prove the other elements of his retaliation claim, he seeks to argue at trial that this self-styled constructive discharge is part and parcel of the damage he ...