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Mark Awolesi, M.D. v. Eric Shinseki

April 29, 2013

MARK AWOLESI, M.D. PLAINTIFF,
v.
ERIC SHINSEKI, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS DEFENDANT.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge

DECISION AND ORDER

INTRODUCTION

Plaintiff Mark Awolesi, M.D. ("Plaintiff"), represented by counsel, filed this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., alleging race-based discrimination in the form of a hostile work environment and retaliation during his tenure at the Buffalo VA Medical Center ("Buffalo VA"). (Docket No. 1). On February 7, 2013, the Court granted and denied in part Defendant's motion for summary judgment (Docket No. 40) and referred the case to mediation (Docket No. 41).

On March 7, 2013, Plaintiff filed a motion for reconsideration (Docket No. 43) pursuant to both Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure ("F.R.C.P."). Defendant filed his opposition on April 9, 2013 (Docket No. 46), and the motion was submitted without oral argument on April 18, 2013. (Docket No. 47).

For the reasons discussed below, Plaintiff's motion for reconsideration is denied.

DISCUSSION

I. Plaintiff's Motion Is Properly Considered Under F.R.C.P. 59(e) and Not Under F.R.C.P. 60(b).

Plaintiff asserts that he seeks relief pursuant to both F.R.C.P. 59(e) and F.R.C.P. 60(b). "[W]here a post-judgment motion is timely filed and 'calls into question the correctness of that Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 40 (2d Cir. 1982) (quoting FED. R. CIV. P. 60(b)); see also Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 3 (1st Cir. 1989) ("[A] motion which asks the court to modify its earlier disposition of a case solely because of an ostensibly erroneous legal result is brought under Fed. R. Civ. P. 59(e). Such a motion, without more, does not invoke Fed. R. Civ. P. 60(b). . . .")

Plaintiff's motion, however, is properly considered under F.R.C.P. 59(e) only. As Defendant argues, Plaintiff timely filed his motion with F.R.C.P.'s 28-day time-limit. Furthermore, Plaintiff alleges no grounds that would entitle him to relief under Rule 60(b). His sole basis for relief is that the district court erred, as a matter of law, on several points. Consequently, the motion should be viewed as an F.R.C.P. 59(e) motion to alter or amend the judgment. See Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 26 (1st Cir. 1988) (cautioning that "'nomenclature should not be exalted over substance'") (quoting Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41 (2d Cir. 1982)).

II. Analysis of Plaintiff's Motion

A. Legal Standard for Evaluating F.R.C.P. 59(e) Motions

The standard for granting a motion for reconsideration under F.R.C.P. 59(e) is strict, and relief will be denied unless the movant can demonstrate that the district court overlooked matters "that might reasonably be expected to alter the conclusion reached by the court[,]" such as "controlling decisions or data." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012). For instance, reconsideration under F.R.C.P. 59(e) is proper if the movant "presents newly discovered evidence that was not available at the time of the trial, or there is evidence in the record that establishes a manifest error of law or fact." Cray v. Nationwide Mutual Ins. Co., 192 F. Supp.2d 37, 39 (W.D.N.Y. 2001) (citing Cavallo v. Utica--Watertown Health Ins. Co., Inc., 3 F. Supp.2d 223, 225 (N.D.N.Y. 1998)); see also United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir. 1983) (stating that the evidence must be "newly discovered or . . . could not have been found by due diligence") (citation omitted). The parties, however, may not "reargue those issues already considered." In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996). Denials of relief under F.R.C.P. 59(e) are reviewed only for abuse of discretion. Analytical Surveys, Inc., 684 F.3d at 52 (citation omitted).

B. Application to Plaintiff's Arguments

Plaintiff asserts that the Court committed manifest errors of fact and law in determining whether he had sufficiently adduced evidence that there were other comparators, that is, employees at the VA similarly situated to him who were Caucasian and who committed patient abuse, but were not subject to adverse employment actions as he was. A plaintiff alleging discriminatory treatment must show he was "'similarly situated in all material respects' to the individuals with whom []he seeks to compare [him]self[,]" Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (citation omitted), including being "subject to the same performance evaluation and discipline standards." Id. (citation omitted). Evidence regarding whether a plaintiff's co-employee was "similarly situated" must be submitted in proper form to defeat a motion for summary judgment. Id. It is well established that "where a party relies on affidavits or deposition testimony to establish facts, the statements "must be made on personal ...


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