Lindy Korn, Esq., Charles L. Miller, II, Esq., Law Office of Lindy Korn, Buffalo, NY, for Plaintiff.
Margaret A. Clemens, Esq., Trent M. Sutton, Esq., Littler Mendelson, P.C., Rochester, NY for Defendants.
DECISION & ORDER
CHARLES J. SIRAGUSA, District Judge.
This case is before the Court on Plaintiff's motion for reconsideration, filed on April 1, 2013, ECF No. 16. Plaintiff seeks reconsideration of the Court's dismissal of his SECOND cause of action, alleging a hostile work environment. For the reasons stated below, the application is denied.
For the purpose of deciding the motion, the Court assumes the factual allegations in the complaint are true. Those allegations were set out in the Court's original decision, familiarity with which is presumed. More than fourteen days have passed since Plaintiff filed and served his motion. Pursuant to this Court's local rule, the time for Defendant to respond to Plaintiff's reconsideration application has passed. L.R. Civ. P. 7(b)(2)(B) ("The opposing party shall have fourteen days after service of the motion to file and serve responding papers, and the moving party shall have seven days after service of the responding papers to file and serve reply papers.").
STANDARD OF LAW
As the Fifth Circuit has recognized, "[t]here is no motion for reconsideration' in the Federal Rules of Civil Procedure. See Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d 367, 371 n. 10 (5th Cir.1998). However, a motion for reconsideration filed within ten days of the district court's judgment is construed as a Rule 59(e) motion that suspends the time for filing a notice of appeal. Id; Bass v. U.S. Dept. of Agriculture, 211 F.3d 959, 962 (5th Cir. 2000). "The standard for granting such a motion 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 its prior decision and order on the SECOND cause of action, alleging hostile work environment, the Court rejected Xerox's argument that Plaintiff's complaint to the Equal Employment Opportunity Commission ("EEOC") was not broad enough to include a hostile work environment claim. On analysis pursuant to the Rule 12(b)(6) standard, the Court determined that,
the statements in...two exhibits, and the allegations in Plaintiff's complaint, are facially neutral, and neither the exhibits, nor the allegations in the complaint, support a claim of a working environment, "so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of h[is] employment were thereby altered." Fincher, 604 F.3d at 723-24. Plaintiff's allegations "simply do not rise to the level of pervasiveness or abusiveness necessary to state a claim for hostile work environment under Title VII." Milne v. Navigant Consulting, No. 08 Civ. 8964 (NRB), 2009 U.S. Dist. LEXIS 112632, *24 (S.D.N.Y. Nov. 30, 2009).
Brown v. Xerox Corp., No. 10-CV-6233-CJS, 2013 U.S. Dist. LEXIS 31617, *18-19 (W.D.N.Y. Mar 4, 2013).
In his motion for reconsideration, Plaintiff argues that the Court's decision, "does not follow the prescription for analysis in a Title VII matter." Mem. of Law at 2, ECF No. 16-1. Plaintiff contends that the Court failed to examine the totality of the circumstances, "including: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the victim's [job] performance.'" Id. (quoting Hayut v. State Univ. of N.Y., 352 F.3d 733, 745 (2d ...