United States District Court, E.D. New York
MEMORANDUM AND ORDER
GLASSER, Senior United States District Judge.
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,  and is now addressed by the Court.
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.
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 ¶
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
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