Opinion
06 Civ. 00482 (RJH) (THK), 07 Civ. 01288 (RJH) (THK).
May 24, 2007
MEMORANDUM OPINION AND ORDER
Plaintiff Gary M. Cohen, proceeding pro se, seeks reconsideration of the Court's April 30, 2007 Memorandum Opinion and Order ("Apr. 30 Order"), denying his request to amend the Complaints in these related workplace discrimination actions to assert a claim of sexual orientation discrimination. Plaintiff also asks this Court to compel Defendant to provide "remaining discovery items," and to order Defendant to provide Plaintiff with a free copy of his videotaped deposition. (See Letter of Gary M. Cohen to the Court, dated May 7, 2007 ("May 7 Ltr."), at 3.) Defendant opposes Plaintiff's requests for reconsideration and for additional discovery. Defendant also requests an enlargement of time to file a motion for summary judgment. (See Letter of Terrence O. Reed to the Court, dated May 15, 2007 ("Def.'s Resp."), at 4-6.)
DISCUSSION
I. Reconsideration of the Court's April 30 Order
As an initial matter, the Court notes the piecemeal manner in which Plaintiff has articulated his proposed sexual orientation discrimination claim. While the Court recognizes that Plaintiff is proceeding pro se, the fact that he is not represented by counsel does not excuse his repeated disregard for the Court's instructions. Plaintiff has been repeatedly instructed that he cannot assert a viable claim on the bare, conclusory assertion that Defendant discriminated and retaliated against him on the basis of his sexual orientation. He has also been repeatedly instructed on the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. Despite this guidance, and myriad opportunities to refine and explain his proposed sexual orientation discrimination claim, Plaintiff has proffered only additional conclusory allegations, and incomplete disclosures.A. Background to the Court's April 30 Order
Plaintiff has submitted to the Court several proposed claims of sexual orientation discrimination, and has consistently represented that the proposed claims pertain to denials of promotions. (See Hearing Transcript ("H. ___"), dated Dec. 8, 2006, at 4 ("The sexual orientation discrimination is relative to . . . ten years of obstruction and promotion and advancement in the company based on my sexual orientation."); Letter of Gary M. Cohen to the Court, dated Jan. 30, 2007, ("Federal Express denied me job advancement and promotion in a multitude of job applications and discriminated against me in these job applications directly because I am gay."); Letter of Gary M. Cohen to the Court, dated Feb. 12, 2007 ("Federal Express denied me job advancement and promotion in a multitude of job applications and discriminated against me in these job applications directly because I am gay."); Motion to Compel Discovery Items for Amended Claims of Sexual Orientation Discrimination, dated Feb. 25, 2007 ("Plaintiff intends to show with this discovery that the defendant discriminated against the Plaintiff in job advancement and promotion based on sexual orientation . . . in at least 10 job applications and hiring decisions justifying a sexual orientation claim.".)
Plaintiff also represented to the Massachusetts Commission Against Discrimination ("MCAD"), in a letter purportedly written after Plaintiff commenced a lawsuit against Defendant in the Southern District of New York, that his sexual orientation discrimination claim related only to promotions. (See Letter of Gary M. Cohen to John Lozada, undated, attached to May 5 Ltr.) In that letter, Plaintiff wrote:
I will also be providing your office a wealth of "supporting documentation" specifically relating to the charges of discrimination based upon sexual orientation.
My forthcoming, supporting documentation will provide comprehensive proof that my employer also discriminated against me relative to job advancement and job promotion over the course of 15 years with approximately 8 job rejections due to my sexual orientation.
This evidence, once reviewed will clearly show that [Defendant] placed roadblocks to my career advancement and movement within the company. This evidence will show that lesser tenured, heterosexual inside employees were advanced as well as less tenured and lesser experienced outside heterosexual employees were advanced while I was left behind due to [Defendant] discriminating against me because I am a homosexual male.
(emphasis in original).
Thrice, the Court has ruled that the proposed amendments to the Complaints submitted by Plaintiff lacked the specific information required under Rule 8 of the Federal Rules of Civil Procedure, and has granted Plaintiff an additional opportunity to plead his claim of sexual orientation discrimination. (See Orders dated Feb. 7, Mar. 12 and Mar. 22, 2007.) Finally, on April 16, 2007, Plaintiff submitted a letter-application to amend the Complaints to assert a claim of sexual orientation discrimination pursuant to Massachusetts General Law Chapter 151B. (See Letter of Gary M. Cohen to the Court, dated Apr. 16, 2007 ("Apr. 16 Ltr.").) Plaintiff asserted that his sexual orientation discrimination claim arose from Defendant "den[ying] [Plaintiff] job advancement and promotion in a multitude of 'at least' 10 job applications and blatantly discriminat[ing] against [Plaintiff] in the workplace because of my homosexuality." (See Apr. 16 Ltr., at 1.) The only specific information about Plaintiff's proposed claim was contained in ten letters, attached to the letter-application, from various Federal Express managers, either inviting Plaintiff to interview for various sales positions, acknowledging the receipt of his application, or notifying him that he had been rejected for a position, or would not be interviewed for a position. (See Letters from Federal Express to Gary M. Cohen, dated Sept. 7, 1994; June 25, Oct. 27, Nov. 8 and Nov. 16, 1995; May 6, July 31, and Aug. 12, 1996; and Feb. 14 and June 30, 1997, attached to Apr. 16 Ltr.)
Defendant timely responded to Plaintiff's letter-application, and argued that — based upon the letters, and Plaintiff's assertion that the sexual orientation discrimination claim arose under Massachusetts state law — Plaintiff's claim was unexhausted and time-barred. (See Letter of Terrence O. Reed to the Court, dated Apr. 20, 2007.) Plaintiff submitted nothing in response.
In the April 30 Order, the Court denied Plaintiff leave to amend because of futility. The Court found that insofar as Plaintiff was seeking to assert a claim of sexual orientation discrimination under Massachusetts General Law Chapter 151B for denial of any of the positions mentioned in the letters he submitted, Plaintiff had failed to administratively exhaust his remedies, and moreover, any such claim was time-barred. Specifically, the Court noted that Plaintiff had not provided any evidence that he timely filed a charge of sexual orientation discrimination with the MCAD regarding the promotions, as required by Chapter 151B. Moreover, the Court held, even if Plaintiff had timely charged discrimination in promotions with the MCAD, any claims based upon the positions Plaintiff sought in the period between 1994 and 1997 (the time frame of the letters submitted by Plaintiff) clearly would be time-barred.
A plaintiff may commence a civil action under Chapter 151B ninety days after filing the charge with the MCAD, but no later than three years after the alleged unlawful practice occurred.See Mass. Gen. L. Ch. 151B § 9. Thus, even if the most recent — June 30, 1997 — denial of promotion had been timely charged, Plaintiff would have had to have filed a civil suit by June 30, 2000.
Plaintiff now requests reconsideration of the April 30 Order, contending that it was erroneous because, inter alia, he had filed a charge of sexual orientation discrimination with the MCAD on March 30, 2006, and that the charge was timely because it was filed within 300 days of the termination of his employment on July 28, 2005. (See May 7 Ltr., at 1.) Plaintiff also contends that the March 30 charge addressed not only the termination of his employment, but also various acts of discrimination and retaliation that allegedly occurred prior to the charge, as well Defendant's failure to promote Plaintiff to various positions in 1994-97. (See id., at 2.) Plaintiff argues that all of this alleged discrimination and retaliation on the basis of his sexual orientation is cognizable under Massachusetts law, regardless of any statute of limitations, because it amounts to a "continuing violation" that was timely charged in 2006. Plaintiff further asserts:
If I state to you a continuing violation of discrimination and a 300 day time adhered filing then [the statute of limitations] would not be applicable [to the denials of promotions]. The basis for my complaint on sexual orientation is job advancement and promotion from the years prior but my current manager was also a part of this continuing violation as I have alleged in all of my prior correspondence. I can sue Federal Express on Sexual Orientation Discrimination and I can go back in time as far as I want for the allegations.
(Id.) Plaintiff also, for the first time, argues that if his claim is not cognizable under Massachusetts law, the matter should be remanded to New York State courts. (See id., at 3.)
B. Legal Standards for Reconsideration
A party moving for reconsideration of a Court Order must demonstrate that the Court overlooked controlling decisions or factual matters that were put forth in the underlying proceeding, and that might reasonably be expected to alter the conclusion reached by the court. See Civil Rule 6.3 of the Southern District of New York; Eisemann v. Greene, 204 F.3d 393, 395 n. 2 (2d Cir. 2000); Jones v. Donnelly, No. 03 Civ. 396 (VM), 2007 WL 1375672, at *1 (S.D.N.Y. May 9, 2007) (citing SEC v. Ashbury Capital Partners, L.P., No. 00 Civ. 7898 (RCC), 2001 WL 604044, at *1 (S.D.N.Y. May 31, 2001)). Such reconsideration is an "extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources."Jones, 2007 WL 1375672, at *1 (quoting In re Health Management Sys. Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)). It is not a "second bite at the apple" for a party dissatisfied with a court's ruling, see Fesco Ocean Mgmt. Ltd. v. High Seas Shipping Ltd., No. 06 Civ. 1055 (NRB), 2007 WL 1406624, at *1 (S.D.N.Y. May 9, 2007) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)), nor is it an opportunity to "advance new facts, issues or arguments not previously presented to the court," Frierson-Harris v. Hough, No. 05 Civ. 3077 (DLC), 2007 WL 1343843, at *1 (S.D.N.Y. May 8, 2007) (quoting Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999)). "A motion for reconsideration may not treat 'the court's initial decision as the opening of a dialogue in which that party may then use such a motion to advance new theories or adduce new evidence in response to the court's rulings." Frierson-Harris, 2007 WL 1343843, at *1 (quotingQuestrom v. Federated Dep't Stores, Inc., 192 F.R.D. 128, 131 (S.D.N.Y. 2000)).
C. Application
Plaintiff does not contend that the Court overlooked any controlling legal authority or factual information in the record. Instead, Plaintiff requests reconsideration on the basis of information and legal arguments that were not before Court when the motion was decided, simply because Plaintiff never provided them. Moreover, while arguing that he administratively exhausted his sexual orientation discrimination claims, Plaintiff still has not provided the Court with his MCAD charge, so the Court is unable to determine exactly what instances of alleged discrimination he raised in 2006.
Plaintiff cannot argue that his MCAD materials were unavailable when he made his April 16 letter-application, since he filed the charge in March 2006, more than a year earlier. Indeed, Plaintiff conceded in his May 7 letter that the MCAD charge was not before the Court prior to its issuing the April 30 Order. (See May 7 Ltr., at 2.) ("In your order and without knowing a 300 day filing had occurred and that a continuing violation exists, you use Massachusetts Law from 1997 to filter my complaint. . . .")
Plaintiff has only provided the Court with an MCAD Intake Interview Form (dated seven months before he filed his MCAD charge), and the MCAD Order dismissing his charge. (See Intake Interview Form, dated Aug. 5, 2005, and Order of Walter J. Sullivan, Esq. Dated Sept. 15, 2006, attached to May 5 Ltr.)
The law in this Circuit is clear: a party is not permitted to put forth "new facts, issues or arguments that were not presented to the court on [the original] motion." See Levin v. Gallery 63 Antiques Corp., No. 04 Civ. 1504 (KMK), 2007 WL 1288641, at *2 (S.D.N.Y. Apr. 30, 2007) (quoting Xiao v. Continuum Health Partners, Inc., No. 01 Civ. 8556 (HB), 2002 WL 31760213, at *3 (S.D.N.Y. Dec. 9, 2002)); see also Koehler v. Bank of Bermuda Ltd., No. M18-302 (CSH), 2005 WL 1119371, at *1 (S.D.N.Y. May 10, 2005) (denying motion for reconsideration when party inadvertently omitted materials from original brief).
Thus, Plaintiff's MCAD charge does not provide support for his motion for reconsideration. Because Plaintiff has not shown that the Court overlooked facts or arguments that were before it when it decided Plaintiff's motion to amend the Complaints, his request for reconsideration is DENIED.
Plaintiff appears to contend that he may "revive" his otherwise untimely and unexhausted failure to promote claim by simply declaring that it was part of a "continuing violation" that culminated in his 2005 termination, which was apparently timely charged with the MCAD in 2006. Although the Court need not consider this argument, raised for the first time on this motion for reconsideration, it is clearly misplaced. Plaintiff has not pleaded or demonstrated how Defendant's failure to promote Plaintiff in 1994-97 is "substantial[ly] relat[ed]" to the termination of his employment, or any of the events leading up to the termination of his employment in 2005. See Ocean Spray Cranberries, Inc. v. Mass. Com'n Against Discrimination, 441 Mass. 632, 642 n. 14, 808 N.E.2d 257, 267 n. 14 (2004) (to demonstrate a continuing violation, a plaintiff must "demonstrate that at least one discriminatory act, occurring within the limitations period, has a substantial relationship to the alleged untimely discriminatory acts"). Indeed, the denied promotions and Plaintiff's termination from employment involve different individuals in different cities, separated by approximately eight years in time. In fact, the individual Plaintiff appears to blame for his firing did not work for Defendant until 2003, six years after his most recent failed application for promotion.
II. Request for Remand
Insofar as Plaintiff is seeking remand of a claim of sexual orientation discrimination to the New York State courts, the request is DENIED. The Court has denied Plaintiff's motion to amend the Complaint to assert a claim of sexual orientation discrimination; therefore, there is no such claim before this Court and, thus, nothing to remand.
III. Discovery Matters
Plaintiff has asked the Court to "demand the remaining discovery items from [Defendant] which [it has] not provided me [] includ[ing] the remaining recent depositions and the prior discovery interrogatories and request for document production." (See May 7 Ltr., at 3.)
A. Depositions
After several extensions of the discovery schedule, primarily necessitated by Plaintiff's failure to comply with the Court's directives, this Court ordered, on February 7, 2007, that depositions be completed by March 30, 2007. (See Feb. 7 Order, at 15.) On March 30, the last day for completion of discovery, Plaintiff faxed to the Court a letter in which he stated that he had sent eight deposition questionnaires to Defendant. (See Letter of Gary M. Cohen to the Court, dated Mar. 30, 2007.) There were no deposition questionnaires attached to Plaintiff's letter. On April 3, 2007, Defendant's counsel faxed the Court a letter, copied to Plaintiff, stating that he had received only two deposition questionnaires from Plaintiff, and asserting that he would "object to any subsequent untimely filed written questions." (See Letter of Terrence O. Reed to the Court, dated Apr. 3, 2007.) Plaintiff did not respond to Defendant's April 3 letter. Although the deposition questions submitted to Defendant on March 30 were, in fact, untimely, since responses could not be provided within the discovery deadline of March 30, Defendant provided written responses to the two questionnaires that were received. (See Def.'s Resp., at 5; Deposition of James Wallace, dated Apr. 23, 2007; Deposition of Sandra Higgs, dated May 1, 2007.)
Under the original Scheduling Order, depositions were to be completed by October 2, 2006. (See Order, dated June 23, 2006.) On December 8, 2006, the Court extended the deadline to February 16, 2007. (See Order, dated Dec. 8, 2006.)
On March 2, 2007, the Court reiterated that the deadline for completion of depositions remained March 30, 2007, and advised that the deadline "will not be extended further." (See Order, dated Mar. 2, 2007.)
The letter is incorrectly dated March 3, 2007.
Plaintiff had notice for over five weeks that Defendant did not have any other deposition questions, yet he did nothing in response. Plaintiff had ample time to remedy the situation by re-sending the deposition questionnaires and seeking an extension in the deposition deadline, but he did not. Plaintiff's request to compel Defendant to answer any more written deposition questions therefore is DENIED.
B. Documents and Interrogatories
As for Plaintiff's remaining document and interrogatory requests, the Court is unclear as to what Plaintiff is seeking. The Court held a lengthy conference with the parties on December 8, 2006 to resolve their outstanding disputes over document production and interrogatories. During the conference the Court heard argument and made rulings on Plaintiff's requests for: (1) door entry records for Defendant's offices in New York City (H. 10-25); (2) performance evaluations for Elliot Phipps (H. 25-27); (3) telephone records for Mr. Phipps (H. 30-31); (4) telephone records for Tim Jones (H. 32); (4) Plaintiff's personnel file (H. 41); (5) workplace violence investigations (H. 42-44); (6) Defendant's policy on disability (H. 44-45); (7) any surveillance conducted by Defendant on Plaintiff (H. 45-46); (8) information on the number of people affected by the change in title from sales coordinator to manager administrator (H. 55); and (9) documents related to a purported relocation package offered to Plaintiff (H. 99). The Court ordered that any further document production and answers to interrogatories be completed by December 22, 2006. (See Dec. 8 Order.) In a letter dated January 23, 2007, Plaintiff stated that Defendant had failed to turn over (1) "several documents relative to a workplace violence filing and my relocation issue," and (2) a "total list of nationwide employees by age, name, workplace location for all Sales Coordinators across the country that we[re] demoted and moved to the Manager Admin umbrella," as well as "the list of names of all sales secretaries moved under the manager admin umbrella." (See Letter of Gary M. Cohen to the Court, dated Jan. 23, 2007 ("Pl.'s Jan. 23 Ltr.") ¶ 1.) The Court ruled that Defendant was in compliance with the Court's December 8 directives and denied Plaintiff's request for further discovery. (See Order, dated Feb. 7 ("Feb. 7 Order"), at 5.)
On February 25, 2007, Plaintiff requested an "immediate hearing . . . to handle the remaining discovery disputes and matters and the refusal of the defense to provide the Plaintiff the original discovery requests made of the defense." (See Letter of Gary M. Cohen to the Court, dated Feb. 25, 2007, at 1.) The Court denied this request and advised Plaintiff, that "Plaintiff has not articulated any specific matters for resolution requiring an additional hearing. Pursuant to this Court's practices, written requests for an informal conference must be in writing, setting forth 'the nature and substance" of the dispute.'" (See Order, dated Mar. 2, 2007.) Plaintiff never responded to this Order.
The discovery deadline has now passed and Plaintiff again is making a general request for "remaining discovery items." (See May 7 Ltr., at 3.) The Court has ruled on Plaintiff's discovery requests, as well as any specific allegations of noncompliance by Defendant. Plaintiff has not specified what discovery information he is still seeking, despite having nearly three months to do so. Thus, Plaintiff's request to compel further discovery is DENIED.
IV. Deposition Videotape
Plaintiff's request for a copy of the videotape of his deposition testimony is governed by Rule 30(f)(2), which reads:
Unless otherwise ordered by the court or agreed by the parties, the officer shall retain stenographic notes of any deposition taken stenographically or a copy of the recording of any deposition taken by another method. Upon payment of reasonable charges therefor, the officer shall furnish a copy of the transcript or other recording of the deposition to any party or to the deponent. (emphasis added).
In other words, Plaintiff may obtain from Defendant, for "reasonable" cost, a copy of his videotaped deposition. As this Court previously has advised Plaintiff (see Feb. 7 Order, at 21-22), there is no clear statutory authority for the Court's absorbing a plaintiff's discovery costs under 28 U.S.C. § 1915(a), the in forma pauperis statute, see Toliver v. Comm. Action Com'n to Help the Economy, Inc., CACHE, 613 F. Supp. 1070, 1072 (D.C.N.Y. 1985) (citing Ebenhart v. Power, 309 F. Supp. 660, 661 (S.D.N.Y. 1969) ("Grave doubts exist as to whether Section 1915 authorizes this Court to order the appropriation of Government funds in civil suits to aid private litigants in conducting pre-trial discovery.")); Hawks v. Diina, No. 05 Civ. 156A, 2006 WL 2806557, at *4 (W.D.N.Y. Sept. 28, 2006) (quoting Haymes v. Smith, 73 F.R.D. 572, 574 (W.D.N.Y. 1976) ("The generally recognized rule is that a court may not authorize the commitment of federal funds to underwrite the necessary expenditures of an indigent civil litigant's action.")).
Defendant has advised the Court that it intends to file a motion for summary judgment. (See supra.) The Court assumes Plaintiff has been provided with a transcript of his deposition, which he may utilize in opposing the motion.
VI. Schedule for Summary Judgment
Defendant has advised the Court that it intends to file for summary judgment and has requested an extension of the motion schedule. It is hereby ORDERED:
In advance of Defendant's anticipated motion for summary judgment, Plaintiff is directed to Local Civil Rule 56.2: Notice to Pro Se Litigants Opposing Summary Judgment, which reads, in relevant part:
The defendant in this case has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This means that the defendant has asked the court to decide this case without a trial, based on written materials including affidavits, submitted in support of the motion. THE CLAIMS YOU ASSERT IN YOUR COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF YOU DO NOT RESPOND TO THIS MOTION by filing your own sworn affidavits or other papers as required by Rule 56(e). An affidavit is a sworn statement of fact based on personal knowledge that would be admissible in evidence at trial. . . .
In short, Rule 56 provides that you may NOT oppose summary judgment simply by relying upon the allegations in your complaint. Rather, you must submit evidence, such as witness statements or documents, countering the facts asserted by the defendant and raising issues of fact for trial. Any witness statements, which may include your own statements, must be in the form of affidavits. You may submit affidavits that were prepared specifically in response to defendant's motion for summary judgment.
Any issue of fact that you wish to raise in opposition to the motion for summary judgment must be supported by affidavits or by other documentary evidence contradicting the facts asserted by the defendant. If you do not respond to the motion for summary judgment on time with affidavits or documentary evidence contradicting the facts asserted by the defendant, the court may accept the defendant's factual assertions as true. Judgment may then be entered in defendant's favor without a trial.
1. Any motion for summary judgment shall be served and filed by June 15, 2007.
2. The response to such motion shall be served and filed by July 16, 2007.
3. Any reply to such motion shall be served and filed by July 27, 2007.
SO ORDERED.