Opinion
6:16-CV-06570 EAW
2021-01-28
Joel W. FREDERICK, Plaintiffs, v. State of New York, OFFICE OF MENTAL HEALTH, ROCHESTER PSYCHIATRIC CENTER, Colomba Misseritti, Director of Human Resource Management, Joseph Coffey, Director of Facility Administration, Doug Lee, Associate Personnel Administrator, Phillip Griffin, Executive Director, Dr. Guttmacher, Clinical Director, Sgt. David Reed, Safety Department Representative, Tim Coles, Maintenance Supervisor II, Defendants.
Ryan Charles Woodworth, The Woodworth Law Firm, Rochester, NY, for Plaintiffs. Gary M. Levine, New York State Office of the Attorney General, J. Richard Benitez, NYS Attorney General's Office Department of Law, Rochester, NY, for Defendants.
Ryan Charles Woodworth, The Woodworth Law Firm, Rochester, NY, for Plaintiffs.
Gary M. Levine, New York State Office of the Attorney General, J. Richard Benitez, NYS Attorney General's Office Department of Law, Rochester, NY, for Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge On March 27, 2020, this Court entered a Decision and Order granting in part and denying in part Defendants’ motion for summary judgment. (Dkt. 46 (the "March 2020 Decision and Order")). Familiarity with the March 2020 Decision and Order and the underlying facts of this case is presumed for purposes of this Decision and Order.
BACKGROUND
In the March 2020 Decision and Order, the Court granted Defendants’ motion for summary judgment as to Counts I, II, III, V, and VI of Plaintiff's amended complaint, and dismissed the claims against defendant John Burrows. (Id. ). The Court denied in part summary judgment as to Plaintiff's retaliation claim brought pursuant to 42 U.S.C. § 1983, to the extent that claim was based on Plaintiff's placement on administrative leave following his complaints to OMH's Director of Investigations William McDermott. (Id. at 26-27). Specifically, the Court explained:
[A]t the time that Plaintiff was placed on administrative leave and on a restricted list, Misseritti was aware that Plaintiff had spoken with McDermott. While placing him on administrative leave and restricting his access to RPC appears justified, the record indicates that Misseritti was aware of Plaintiff's complaints to McDermott on March 2, 2016, after his mental hygiene arrest but prior to her letter placing him on administrative leave. The standard for what constitutes a retaliatory adverse action both under Title VII and in the First Amendment context is broader than in the discrimination context....
Here Defendants have not addressed the alleged adverse actions raised by Plaintiff and have made no effort to establish the nonretaliatory reasons for his administrative leave, the reasons for the length of this leave, or the delay in returning Plaintiff to work following the April 27th Determination. As a result, Defendants’ motion for summary judgment on Count IV is granted with respect to Plaintiff's mental hygiene arrest, but it is denied as to the remaining adverse actions alleged by Plaintiff.
(Id. at 27).
In support of their motion to file a successive motion for summary judgment, Defendants offer "a chronology taken from emails," which explains "the delay in returning plaintiff back to work after his mental health evaluation." (Dkt. 47-2 at 3-4; see also Dkt. 47-1 at 3 ("As the email string shows there was no delay in returning plaintiff back to work after he was cleared by the mental health evaluator.")). Defendants further contend that the email string demonstrates that Misseritti was the only defendant involved in Plaintiff's return to work. (Dkt. 47-2 at 4).
Defendants contend that this evidence would show that Plaintiff was evaluated by Dr. Hartshorn on April 18, 2016; Plaintiff was evaluated by Dr. Ciulla on April 27, 2016 and cleared to return to work; and RPC personnel received Dr. Ciulla's letter on May 4, 2016. (Dkt. 47-1 at ¶ 5). According to Defendants, a subsequent email chain would demonstrate the following:
May 6, 2016 @ 9:32 AM (Friday) Email from Misseritti to Honikel, Kevin C (OMH); McDermott, William A (OMH); Matney, Matthew (OMH); Burton, Julie
(OMH); Burrows, John (OMH); GRIFFIN, PHILIP G (OMH); Coffey, Joseph G (OMH); Lee, Douglas E (OMH); Heath, Lynn J (OMH)
"Hello all ...
We received EHS confirmation that Mr. Joel Frederick is fit to perform the essential duties of a General Mechanic. I discussed Mr. Frederick's return with our DFAS—our plan is to have Mr. Frederick return to duty on Monday. I don't feel we have enough to discipline for this case. While the words he used may be inappropriate for the work place, I was never able to ascertain in what context those words were used; also, no specific person was threatened with harm.
HR would like to bring him back on Monday [May 9, 2016]. The plan would be to meet with him to outline the expectations going forward (this would also give us a sense of his disposition). Anyone think we should take a different approach?"
May 6, 2016 @ 12:59 PM Email from Lynn Heath to Misseritti, Honikel, Kevin C (OMH); McDermott, William A (OMH); Burton, Julie (OMH); Burrows, John (OMH); GRIFFIN, PHILIP G (OMH); Coffey, Joseph G (OMH); Lee, Douglas E (OMH), Scalesci, Crystal (OMH); Lambert, Dawn (OMH):
"Matt Matney is out of the office today. You will need to wait on any return until you can coordinate with BER. I am looping in Crystal and April"
May 10, 2016 (Tuesday) Misseritti email to Burrows, John (OMH); Matney, Matthew (OMH); Lee, Douglas E (OMH):
"Hello ... Don't know if you've had a chance to review and make a recommendation?"
May 12, 2016 (Thursday) Misseritti emails Burrows, John (OMH); Matney, Matthew (OMH); Lee, Douglas E (OMH); GRIFFIN, PHILIP G (OMH):
"I've had a call from Civil Service (Michael Ryan) asking if we are keeping Joel out of work (apparently, he has complained to them that this is retaliation). I've informed Michael that we received the EHS clearance on May 5, 2016 and are reviewing the course of action to take before we allow him to return to duty."
May 12, 2016 @ 3:01 PM Matney emails Misseritti: "Please call me" May 16, 2016 (Monday) Misseritti emails Burrows, John (OMH); Matney, Matthew (OMH); Lambert, April (OMH); Lee, Douglas E (OMH); GRIFFIN, PHILIP G (OMH):
"After speaking with Matt last Friday, I will be bringing Joel Frederick back to duty tomorrow Tuesday, May 17, 2016. The plan is to have WCC supervisors (Ron Germain, plant supervisor and Timothy Coles (Joel's direct supervisor) meet to discuss Joel's future expectations in the work place. We will be allowing a union rep to be present. Matt and I also discussed a written counseling for this past behavior."
May 16, 2016 @ 1:06 PM Misseritti emails Thompson, Marcy (CS); Ryan, Michael J (CS); Ryan, Michael J (CS):
"Hello This is to inform you that Joel Frederick is returning to duty tomorrow May 17, 2016. Let me know if you have any other concerns regarding this issue. Thanks."
(Id. at ¶¶ 5-6). Plaintiff returned to work on May 17, 2016. (Id. at ¶ 6).
Defendants argue that, given the global pandemic, no trials are being conducted, and therefore permitting them to bring a successive motion for summary judgment would not delay the trial and could efficiently resolve the case. (Dkt. 47-2 at 2). Defendants further contend that, even if the motion is not successful in dismissing the entire claim, the successive motion would address the personal involvement of all the defendants, likely resulting in a more efficient trial. (Id. ). Plaintiff opposes Defendants’ request, arguing that Defendants have failed to establish "good cause" to extend the motion scheduling order, and Defendants should not be permitted to file a successive summary judgment motion to correct deficiencies that could have been addressed in their initial motion papers. (Dkt. 49).
DISCUSSION
"Ordinarily, a movant is limited to a single, timely summary judgment motion ... but a renewed or successive motion may be noticed ... with Court permission, in its discretion." Miller v. Terrillion , 436 F. Supp. 3d 598, 601 (E.D.N.Y. 2020) (internal citation omitted); Elliott v. City of Hartford , 649 F. App'x 31, 33 (2d Cir. 2016) (holding that plaintiff's argument that the district court erred by considering defendant's renewed motion for summary judgment was "meritless," as "district courts enjoy considerable discretion in entertaining successive dispositive motions." (alteration omitted) (citing Sira v. Morton , 380 F.3d 57, 68 (2d Cir. 2004) ). The Court may decline to review a successive summary judgment motion "seeking precisely the same relief as before," where the moving party "has not raised any new facts or arguments which it could not have raised in the first round of briefing." Siemens Westinghouse Power Corp. v. Dick Corp. , 219 F.R.D. 552, 554 (S.D.N.Y. 2004) ; see also Campers’ World Int'l, Inc. v. Perry Ellis Int'l, Inc. , 221 F.R.D. 409, 409 (S.D.N.Y. 2004) ("[I]t is improper for a party to file a successive motion for summary judgment which is not based upon new facts and which seeks to raise arguments it could have raised in its original motion."); Jackson v. Goord , No. 06-CV-6172 CJS, 2013 WL 1560204, at *5 (W.D.N.Y. Apr. 10, 2013) ("[N]o federal litigant has an absolute right to bring multiple, piecemeal motions for summary judgment; rather, a successive Rule 56 motion may be filed only with the district court's authorization." (quotation and citations omitted)).
Defendants explain their failure to submit the additional evidence relevant to Plaintiff's retaliation claim in connection with their original summary judgment motion as follows:
The reason the original summary judgment [motion] did not present facts to address the nonretaliatory reasons for plaintiff's administrative leave, the reasons for the length of this leave, or the delay in returning Plaintiff to work following the April 27th Determination was Defendants’ counsel's failure to recognize the scope of the proof needed to address these issues. If counsel fully understood this issue, additional undisputed factual submissions would have been presented to the Court. Counsel's failure to properly address the remaining issue was not done in bad faith but due to counsel's failure to fully comprehend the issue.
(Dkt. 47-2 at 2-3; see also Dkt. 47-1 at ¶ 3).
Defendants have presented additional evidence to be submitted in connection with a successive motion for summary judgment, which appears to address some of the shortcomings of their original motion, as noted by the Court in the March 2020 Decision and Order. The email chain plainly pertains to the nonretaliatory reasons for the delay following the April 27, 2016 determination that Plaintiff was fit to return to work. Specifically, the email chain demonstrates that, beginning on April 18, 2016, when Plaintiff was examined by Dr. Hartshorn, steps were being taken to clear Plaintiff to return to work.
While the Court is "not convinced that some of the grounds now asserted in support of defendants’ current motion could not have been presented previously" the Court has "discretion to entertain a successive or renewed summary judgment motion[.]" See Beechwood Restorative Care Ctr. v. Leeds , 811 F. Supp. 2d 667, 674 (W.D.N.Y. 2011) (citation omitted); see also Sirico v. British Airways PLC. , No. 98-CV-4938(FB), 2002 WL 113877, at *1 n.2 (E.D.N.Y. Jan. 22, 2002) (entertaining second motion for summary judgment, which raised both new issues and re-raised issues presented in the first summary judgment motion; explaining that "[w]hile it may be preferable for a party to present a single comprehensive summary judgment motion," the court "may consider successive summary judgment motions." (citation omitted)). The Court will permit Defendants to file a successive summary judgment motion addressing the portion of Plaintiff's § 1983 retaliation claim based on his placement on administrative leave. Defendants have presented new evidence relevant to Plaintiff's retaliation claim, which they initially had not deemed relevant. See Bonano v. Doe , 628 F. App'x 25, 27 (2d Cir. 2015) (holding that the district court's consideration of a second summary judgment motion was "entirely appropriate," because the second motion was "accompanied by critical evidence absent from the first summary judgment motion"). This matter has not yet been scheduled for trial and, due to the global pandemic, any trial would not occur for at least several months. Accordingly, there would be no meaningful delay in the case by permitting Defendants to file a successive motion. Cf. Hoefer v. Bd. of Educ. of Enlarged City Sch. Dist. of Middletown , No. 10 Civ. 3244(ER), 2014 WL 1357334, at *3 (S.D.N.Y. Apr. 7, 2014) (denying leave to file successive summary judgment motion; explaining that "[t]he Court is particularly mindful of the fact that this case was filed in April 2010 and scheduled for trial on this very claim in May 2013," and concluding that "at this late juncture, any challenge to Plaintiff's First Amendment claim is properly left for trial."); but see Barnes v. Fedele , No. 07-CV-6197L, 2013 WL 12188241, at *1 (W.D.N.Y. Apr. 10, 2013) (considering that the plaintiff had "not been unfairly prejudiced by defendants’ filing of their [successive] motion for summary judgment"). Further, Defendants have demonstrated that their failure to fully address Plaintiff's retaliation claim was not done in bad faith.
To be clear, the Court in general disapproves of piecemeal litigation. However, under the particular facts of this case, including that given the global pandemic, any trial in this matter would not occur for several months, Defendants may file a successive motion for summary judgment. CONCLUSION
Plaintiff contends that Defendants have failed to show "good cause" to extend the motion scheduling order. (Dkt. 49 at 2). "With regard to ‘good cause,’ the primary consideration is the diligence of the moving party, but the Court may consider additional factors, such as potential prejudice to the nonmoving party." Jackson , 2013 WL 1560204, at *5. While Defendants failed to offer the above-mentioned evidence in connection with their first motion for summary judgment, they filed their motion requesting permission to file a successive motion less than one month following the issuance of the March 2020 Decision and Order. Further, as explained above, the prejudice to Plaintiff is minimal because any trial would not occur for at least several months. While the Court recognizes that Plaintiff will expend resources in opposing Defendants’ motion, that motion would seek relief on the only remaining claim in the case. In other words, it is not as if Plaintiff must again oppose summary judgment on all six of his claims.
Accordingly, Defendants may file a successive motion for summary judgment, addressing the remaining claim in the case. Defendants must file their motion on or before March 1, 2021. The Court will set a scheduling order at that time.
SO ORDERED.