Opinion
02 CV 10180 (TPG).
May 24, 2006
OPINION
In this action, pro se plaintiff Liuba Manko asserts claims against her former employer, Deutsche Bank AG, alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the Equal Pay Act, 29 U.S.C. § 206.
In an opinion dated March 19, 2004, the court granted, in part, defendant's motion to dismiss the complaint. In particular, the court dismissed plaintiff's age discrimination, religious discrimination, retaliation, and Equal Pay Act claims, but declined to dismiss her sexual harassment claim. See Manko v. Deutsche Bank, 02-CV-10180, 2004 U.S. Dist. LEXIS 4665 (S.D.N.Y. March 19, 2004).
Plaintiff has now moved, pursuant to Fed.R.Civ.P. 60(b)(6), for reinstatement of her retaliation claim. The motion is denied.
By its plain terms, Rule 60(b)(6) is limited to relief from a "final judgment, order, or proceeding." Id. Since the March 19, 2004 order dismissing a portion of the complaint was an interlocutory order, a motion under Rule 60(b)(6) is inappropriate.
Furthermore, relief under Rule 60(b)(6) is appropriate only in cases presenting "extraordinary circumstances." Rodriguez v. Mitchell, 252 F.3d 191, 201 (2d Cir. 2001). Plaintiff has made no attempt to show the existence of any such extraordinary circumstances.
Even if the court were to construe plaintiff's motion as a motion for reconsideration, it would nevertheless fail for two reasons. First, under Local Civil Rule 6.3, "a notice of motion for reconsideration . . . shall be served within ten (10) days after the entry of the court's determination of the original motion." Id. Here, plaintiff filed this motion more than a year and a half after the court's original order, and it is therefore clearly untimely.
Moreover, reconsideration is appropriate only where the court has "overlooked controlling decisions or factual matters put before it on the underlying motion." In re New York Asbestos Litigation, 847 F. Supp. 1086, 1141 (S.D.N.Y. 1994). Local Civil Rule 6.3, which allows for reconsideration of court orders, is to be "narrowly construed and strictly applied to avoid repetitive arguments on issues that have been considered fully by the court." Anglo Am. Ins. Group, P.L.C. v. Calfed Inc., X.C.F., 940 F. Supp. 554, 557 (S.D.N.Y. 1996)
Here, plaintiff's motion is based upon the very same document she submitted in opposition to defendant's motion to dismiss, and is merely a rehashing of arguments she previously made in response to that motion.
In its March 19, 2004 order, the court dismissed plaintiff's retaliation claim upon a finding that she had failed to raise that claim in her prior complaint before the New York State Department of Human Rights ("NYSDHR"), as required for claims brought under Title VII. See Fitzgerald v. Henderson, 251 F.3d 345, 358-59 (2d Cir. 2001). The court held that
As to plaintiff's claim that defendant terminated her in retaliation for her complaints, this allegation is not contained in her administrative complaint. Nor are any of the factual allegations that underlie plaintiff's retaliation theory . . . contained in the administrative complaint.Manko, 2004 U.S. Dist. LEXIS 4665 at *14.
The court also carefully addressed plaintiff's argument that her subsequent letter to the NYSDHR, dated May 29, 2001, which was submitted almost two years after plaintiff initially filed her administrative complaint, should be considered an amendment to her initial charge. The court held that, in order to be considered an amendment to the original charge, the letter would have to "clarify and amplify the allegations made in the original charge." See 29 C.F.R. § 1601.12(b). The court rejected plaintiff's claim that her May 29, 2001 letter did so:
To the extent that the allegations contained in the letter could be construed as alleging retaliatory employment action, they constitute a new charge, rather than a clarification or amplification of plaintiff's original charge. Because plaintiff did not exhaust her retaliation claim in her administrative complaint, the claim cannot now be argued before this court.Manko, 2004 U.S. Dist. LEXIS 4665 at *16.
In the present motion, plaintiff makes the very same argument as in her opposition to defendant's motion to dismiss, i.e., that her May 29, 2001 letter should be considered an amendment to her original charge. The court finds no merit to this claim and therefore declines to depart from its March 19, 2004 holding.
SO ORDERED