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Buttaro v. The City of New York

United States District Court, E.D. New York

May 8, 2017

THE CITY OF NEW YORK, DANIEL A. NIGRO, individually and in his capacity as Commissioner of The New York City Fire Department, and PAUL WASHINGTON, individually and in his capacity as Captain in the New York City Fire Department Defendants.


          I. LEO GLASSER, Senior United States District Judge.

         Defendants move for reconsideration of this Court's decision in Buttaro v. City of N.Y., No. 15-CV-5703, 2016 WL 4926179 (E.D.N.Y. Sept. 15, 2016) (hereinafter the “M&O”), which granted Defendants' motion to dismiss Plaintiff's complaint on all but one claim. Plaintiff's sole surviving claim alleges that defendants Washington, Nigro and the City of New York (together, the “Defendants”) violated his rights under the First Amendment of the United States Constitution by retaliating against him for statements he made during the October 1, 2012 fairness hearing before the United States District Court for the Eastern District of New York. Plaintiff has not opposed this motion for reconsideration, nor has he responded to Defendants' attempts to contact him via telephone and voicemail. ECF 39. Defendants' motion is deemed fully briefed and unopposed, [1] and is now addressed by the Court.

         The Local Civil Rules of this court provide that a party may seek reconsideration of an order upon “setting forth concisely the matters or controlling decisions which counsel believes the Court has overlooked.” Local Civil Rule 6.3. Reconsideration may be justified by an “intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Virgin Atl. Airways v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992); see also Brown v. City of N.Y., 622 F.App'x 19, 19 (2d Cir. 2015). Further, “so long as the district court has jurisdiction over the case, it possesses inherent power over interlocutory orders, and can reconsider them when it is consonant with justice to do so.” United States v. LoRusso, 695 F.2d 45, 53 (2d Cir. 1982); see also Unites States v. Jerry, 487 F.2d. 600, 604 (3d Cir. 1973); Liberty Media Corp. v. Vivendi Univ. S.A., 842 F.Supp.2d 587, 592 (S.D.N.Y. 2012). The M&O, which denied Defendants' motion to dismiss in part, is an interlocutory order over which this Court maintains jurisdiction and may correct as justice requires. Vera v. Republic of Cuba, 802 F.3d 242, 246 (2d Cir. 2015) (“A final decision is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” (internal citation and quotation omitted)); see also Luv n' Care, Ltd. v. Regent Baby Prods. Corp., 986 F.Supp.2d 400, 411 (S.D.N.Y. 2013) (a motion granting partial summary judgment is not a final order). Having reconsidered the facts as set forth in the complaint, and for the reasons stated herein, the Court grants Defendants' motion.

         While familiarity with the factual background and the M&O is assumed, a brief timeline of the relevant events, taken from the Complaint (ECF 1, “Complt.”), is necessary to address the propounded arguments:

2011 Buttaro begins wearing the M.A.D.D. and Merit Matters t-shirts (the “t-shirts”). Complt. at ¶ 38.
May 6, 16 & 21, 2012: Buttaro is involved in three separate confrontations regarding the t-shirts. Id. at ¶¶ 50-69. Most of these confrontations involve Officer Shawn L. Thomas (“Thomas”), who was named as a defendant but dismissed from the case for reasons indicated in the M&O. M&O at p. 18.
May 22, 2012 Thomas files a complaint with the EEOC regarding Buttaro's t-shirts. Complt. at ¶ 70. He withdraws the complaint a few days later.
June 14 & 28, 2012 The Fire Department issues two orders reiterating its anti-retaliation and anti-discrimination policies, and stating the importance of strict compliance with Department rules, including its uniform policy.
September 21, 2012 Thomas spots Buttaro wearing an unauthorized t-shirt at the firehouse. Id. at ¶ 89.
October 1, 2012 Buttaro testifies at the fairness hearing. Id. at ¶ 80.
October 8, 2012 Thomas takes a photo of Buttaro wearing an unauthorized t-shirt in the firehouse. Id. at ¶ 82. Later that same day, defendant Washington reports to the EEO office that he received a complaint about Buttaro's t-shirt from a firefighter in his command, Thomas. Id. at ¶ 83.
October 12, 2012 The EEO office notifies Buttaro that he is being investigated for creating a hostile work environment on four specific dates in 2012: May 6 and 16, September 21 and October 8. Id. at ¶¶ 87-88.
Between May and August The EEO office designates Buttaro as “not in good standing.” Id. 2013 at ¶ 94.
September 19, 2013 The EEO office files formal charges against Buttaro for (1) creating a hostile work environment, (2) failure to wear department-issued clothes and (3) failure to ...

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