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Smith v. Town of Hempstead Dep't of Sanitation Sanitary Dist. No. 2

United States District Court, E.D. New York

November 16, 2013

LEO SMITH, JR., BENJAMIN CANNON, JR., and JOHN CHRISTOPHER SMITH, Plaintiffs,
v.
TOWN OF HEMPSTEAD DEPARTMENT OF SANITATION SANITARY DISTRICT NO. 2, BOARD OF COMMISSIONERS in their official and individual capacities, ROBERT NOBLE in his individual and official capacity, MICHAEL MCDERMOTT in his individual and official capacity, NICHOLAS DINICCIO in his individual and official capacity, Defendants

Page 226

For the Plaintiffs: Frederick K. Brewington, Esq., Gregory Calliste, Jr., Esq., of Counsel, Law Offices of Frederick K. Brewington, Esq., Hempstead, NY.

For All Defendants Except John Beyer: Gregory Scot Lisi, Esq., of Counsel, Law Offices of Gregory S. Lisi, P.C., Rockville Center, NY.

For the Defendant John Beyer: David George Gabor, Esq., Hope Senzer Gabor, Esq., of Counsel, Gabor & Gabor, Esqs., Garden City, NY.

OPINION

Page 227

MEMORANDUM OF DECISION AND ORDER

ARTHUR D. SPATT, United States District Judge.

In this civil rights case, the Plaintiffs allege that the Defendants created a hostile work environment in the Plaintiffs' workplace, and then retaliated against the Plaintiffs for formally complaining about the presence of the hostile work environment. Jury selection is scheduled for December 16, 2013.

Previously, on December 23, 2010, the Defendant John Beyer, who is represented separately from the remainder of the defendants, filed a motion for summary judgment dismissing all of the Plaintiffs' claims against him. On December 24, 2010, the remaining Defendants moved for summary judgment dismissing all of the Plaintiffs' claims. Both motions were opposed.

On July 19, 2011, the Court granted Beyer's motion for summary judgment in full, and granted in part and denied in part the remaining Defendants' motion for summary judgment. Of relevance here, the Court denied that part of the remaining Defendants' motion for summary judgment dismissing the retaliation claims of the Plaintiff Leo Smith, Jr. against the Defendants Michael McDermott and the Town of Hempstead Department of Sanitation Sanitary District No. 2 (the " Sanitary District" ).

On November 7, 2013, the Defendants moved for partial reconsideration of that part of the order dated July 19, 2011 permitting the retaliation claims by Leo Smith against McDermott and the Sanitary District to proceed forward. According to the Defendants, the United States Supreme Court's decision in University of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013) represents a change in controlling law. The Plaintiffs oppose the motion for partial reconsideration as untimely. For the reasons set forth, the Court denies the motion for partial reconsideration.

I. BACKGROUND

This case, like another case pending before the Court, Alexandre v. Town of Hempstead, 275 F.R.D. 94, 2011 WL 2181461 (E.D.N.Y. 2011), stems from the April 19, 2007 hanging of a noose in the employee area of the " Sanitary District." Each of the three Plaintiffs, Leo Smith, Jr., Benjamin G. Cannon, Jr., and John Christopher Smith, was an employee of the Sanitary District as of April 19, 2007, and remains employed there today. All three are African-American. The Plaintiffs name as defendants in this case the Sanitary District; its Board of Commissioners; Robert Noble, secretary to the Board of Commissioners; Michael McDermott, the general manager for the Sanitary District; Nicholas Dionisio (identified incorrectly as Nicholas Diniccio in the plaintiffs' complaint), a mid-level supervisor at the Sanitary District; and originally John Beyer, a co-worker of the plaintiffs at the Sanitary District.

The following facts in this case are generally not disputed:

On Thursday, April 19, 2007 at about 6:00 a.m., the Plaintiffs Leo Smith and John Smith arrived for work at the central garage for the Sanitary District. When they entered the garage, they found a rope tied into a noose hanging on the wall in an area where ...


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