The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.
Plaintiff Christine C. Anderson, proceeding pro se, moves to re-open
her case pursuant to Federal Rule of Civil Procedure ("Rule") 60(b) and (d)(3).*fn1
Plaintiff seeks a new trial on the grounds of newly discovered evidence consisting
of a federal lawsuit filed by Nicole Corrado in the Eastern District
of New York*fn2 and fraud. Plaintiff alleges that this
newly discovered evidence corroborates the fact that Corrado was
threatened into not testifying at plaintiff's trial.*fn3
For the following reasons, plaintiff's motion is
Represented by counsel, Anderson brought suit against defendants pursuant to, inter alia, Title VII of the Civil Rights Act of 1964 (" Title VII"), 42 U.S.C. § 1981 (" section 1981"), 42 U.S.C. § 1983 ("section 1983"), New York State Executive Law § 296, and state common law. Plaintiff alleged, under both federal and state law, that she was unlawfully terminated and subjected to a hostile work environment because of her race (African American), color (black), and national origin (Jamaican). Plaintiff further claimed that defendants: deprived her of the right to make and enforce contracts; unlawfully retaliated against her for having exercised her constitutional right to free speech; violated her Fourteenth Amendment rights to due process and equal protection by discriminating against her; and that the public entity defendants breached a state collective bargaining agreement.
On April 27, 2009, this Court issued an Opinion and Order granting partial summary judgment to defendants.*fn4 In that Order, plaintiff's claims of discrimination based on race, color and national origin were dismissed. Claims based on the following were also dismissed: section 1981, due process, equal protection, and state law including breach of contract.*fn5 Plaintiff was left with a single First Amendment retaliation claim against Thomas J. Cahill, Sherry K. Cohen, and David Spokony (the "individual defendants") in their individual capacities.*fn6 The gravamen of plaintiff's retaliation claim was that the individual defendants, all of whom worked at the Departmental Disciplinary Committee of the Appellate Division, First Department, New York State Supreme Court ("DDC"), retaliated against her for exercising her constitutional right to free speech. Plaintiff claimed that the individual defendants retaliated against her because she reported acts of misconduct and corruption by the DDC, otherwise know as "whitewashing."*fn7 In particular, Anderson complained that "the DDC favored certain well-connected respondents and attorneys through lenient treatment otherwise known as 'whitewashing,' and that such whitewashing tarnished the mission of the DDC."*fn8 Because I found a disputed issue of material fact, defendants' summary judgment motion seeking to dismiss plaintiff's First Amendment retaliation claim was denied.*fn9
A jury trial was held in October 2009. Corrado was listed as a witness for plaintiff in the Joint Pretrial Order but she was not called as a witness at trial.
Nor was there any discussion about her testifying at trial. On October 29, 2009, the jury returned a verdict for the defendants and judgment was entered the next day. Plaintiff appealed the judgment on November 25, 2009. On April 4, 2011, the Second Circuit affirmed the jury's verdict.*fn10
Plaintiff now argues that there is new evidence that Corrado, a DDC employee, was threatened as a witness in connection with plaintiff's action.*fn11 The allegedly new evidence consists of the following four paragraphs in Corrado's Complaint:
27. In or around June of 2008, Defendant learned Plaintiff [Corrado] would be testifying as a non-party witness in a civil action against Defendant which alleged racial discrimination and other improper conduct on the part of Defendant and its supervisors.
28. In or around June of 2008, in retaliation for Plaintiff agreeing to provide corroborating testimony in the aforementioned discrimination suit, Alan Friedberg, the Division Chief, began closely monitoring Plaintiff's conduct and writing memos reflecting negative comments concerning Plaintiff's productivity and work practices in her file, while not disclosing said memos to Plaintiff.
29. In or around August 2008, approximately two days prior to Plaintiff testifying in the discrimination case against Defendant, Bratton [Plaintiff's supervisor] approached Plaintiff in her office and informed her that in 2007, as a result of her rejecting him, he admitted himself into the psychiatric ward at St. Vincent's hospital for "severe depression and suicidal tendencies" and that he was warning her accordingly. When Plaintiff asked ...