Opinion
94 Civ. 0253 (RWS)
July 31, 2002
DIANE SANK, Pro Se, Englewood Cliffs, N.J., Plaintiff.
ELIOT SPITZER, Attorney General of the State of New York, STEVEN L. BANKS, Assistant Attorney General, New York, NY, Attorney for Defendants.
OPINION
Plaintiff pro se Diane Sank ("Sank") has moved pursuant to Local Rule 6.3 of the Southern District of New York ("Local Rule 6.3") for this Court to reconsider (1) those portions of its Opinion dated April 5, 2002 dismissing Sank's claims for monetary relief and her request for trial by jury; and (2) the portion of its Order dated April 12, 2002 that denied Sank's request for additional time for discovery.
For the following reasons, Sank's motion is granted in part and denied in part.
Facts
The parties, proceedings, and facts have been described in greater detail in Sank v. CUNY, 2002 WL 523282 (April 5, 2002) (the "April 5 Opinion"), familiarity with which is presumed.
Prior Proceedings
Sank filed her complaint in this Court on January 18, 1994, and an amended complaint (the "Complaint") was filed on May 27, 1994. In a series of opinions, the complaint has been whittled down to the remaining Title VII claims. See Sank v. CUNY, No. 94 Civ. 0253, 1995 WL 314696 (S.D.N.Y. May 24, 1995) (pursuant to Fed.R.Civ.P. 12(b)(6) dismissing (1) plaintiff's claims of discrimination based on age, religion, and disability, (2) plaintiff's Title VII claims against individual defendant Beverly Sowande and the CUNY Board of Trustees, and (3) all of plaintiff's claims under 42 U.S.C. § 1983); Sank v. CUNY, 1997 WL 362150 (S.D.N.Y. June 26, 1997) (dismissing Title VII claims against all other individual defendants).
In the April 5 Opinion, the Court dismissed Sank's state FOIL and contract law claims, as well as ruled that Sank was not entitled to a jury trial or to damages because she did not complain of any actions occurring after the effective date of the Civil Rights Act of 1991, which provided for a jury trial and damages to Title VII claimants. The issue of whether summary judgment should be granted on the Title VII claims was not reached, however, because it was determined that Sank had shown that she needed more discovery before responding to the motion.
A hearing was held on April 10, 2002, to discuss what further discovery, if any, should be granted. An opinion issued on April 12, 2002, stating that Sank would be required to respond to CUNY's summary judgment motion on her Title VII claims if the defendants provided a sworn affidavit affirming that they had duly complied with the required discovery. Sank v. CUNY, 2002 WL 548744 (S.D.N.Y. April 12, 2002).
Sank contests portions of both the April 5 Opinion and the April 12 Order.
Sank's Contentions
In determining in the April 5 Opinion that Sank was not entitled to a jury trial or damages because no events occurred after 1990, the Court relied on the defendants' papers and statements of facts, as well as Sank's complaint and prior opinions. Sank did not submit opposition papers or a Rule 56.1 statement. Instead, Sank only submitted a motion pursuant to Rule 56(f) of the Federal Rules of Civil Procedure seeking more discovery.
In her motion to reconsider, Sank has provided additional facts that she did not provide in opposition to the defendant's motion for summary judgment. She alleges that contrary to the statement in the April 5 Opinion, the following adverse actions occurred after 1990 in retaliation for filing her claim of discrimination with the New York City Human Rights Commission (the "Commission") and were a part of the record:
• Denial of Sank's request for a one-semester leave (sabbatical) in 1991;
• Denial of Sank's request for a one-semester leave in 1992;
• Attempts by President Harleston to fire Sank in 1995 by "retrenching" the Anthropology Department (the "Department"); of the six professors in the Department, only Sank was not secretly promised to be reassigned to other departments and thus only she would have been fired in the retrenching; and
• Deliberate errors in the Fall 2001 course schedule that erroneously stated that there were three mathematics and economics prerequisites for Sank's anthropology class when there were none. Sank requested that the errors be corrected from May 2001 to August 2001, and nothing was done until five days before the close of registration. As a result, Sank's course was substantially under-subscribed, giving the Defendants a pretext to cancel it. The Defendants also canceled the class four days prior to close of registration (a mere one day after correcting the mistake regarding the prerequisites), even though two to three other underenrolled Anthropology electives were left open for enrollment during the first week of classes.
Sank also states that she has "suffered continuously . . . the deleterious stigma and embarrassment of having been removed as Chairperson and having the Administration dismantle and take away" her laboratory. Pl.'s Mot. at 5.
Discussion
In addressing the present motion, the Court is mindful that the plaintiff is proceeding pro se and that her submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers . . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). The Court recognizes that it must make reasonable allowances so that a pro se plaintiff does not forfeit rights by virtue of lack of legal training. Traguth v. Zuck, 710 F.2d 90, 94 (2d Cir. 1983).
Indeed, district courts should "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, the Court is also aware that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth, 710 F.2d at 95 (quotations omitted).
I. Standards Under Local Rule 6.3
"To succeed on a motion for reargument, the moving party must demonstrate that the court overlooked the controlling decisions or factual matters that were placed before the court in the underlying motion." Lopez v. Comm'r of Soc. Sec., 2002 U.S. Dist. LEXIS 5091, *1-*2 (S.D.N.Y. March 27, 2002) (quotations and citations omitted); see also Shrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir. 1995) (motion for reargument "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court").
Rule 6.3 is intended to "ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988) (citation omitted). The parties may not present new facts or theories at this stage. Ralph Oldsmobile Inc. v. General Motors Corp., 2001 WL 55729, at *2 (S.D.N.Y. Jan. 23, 2001) (striking affidavit that was filed in support of motion to reconsider without court's permission); Primavera Familienstifung v. Askin, 137 F. Supp.2d 438, 442 (S.D.N.Y. 2001) (party may not "advance new facts, issues or arguments not previously presented to the Court") (quoting Morse/Diesel Inc. v. Fidelity Deposit Co. of Md., 768 F. Supp. 115, 116 (S.D.N.Y. 1991).
Rule 6.3 must be narrowly construed and strictly applied so as to avoid duplicative rulings on previously considered issues, and may not be employed as a substitute for appealing a final judgment. Lopez, 2002 U.S. Dist. LEXIS 5091, at *3; Shamis v. Ambassador Factors, 187 F.R.D. 148, 151 (S.D.N.Y. 1999). The decision to grant or deny the motion rests in the discretion of the district court. ATT Corp. v. Community Network Servs., Inc., 2000 WL 1174992, at *1 (S.D.N.Y. Aug. 18, 2000).
II. April 5, 2002 Opinion
As an initial matter, defendants correctly point out that Sank relies entirely on factual allegations that were not submitted as part of or in opposition to the motion for summary for judgment to support her motion for reconsideration of the April 5 Opinion. A motion to reconsider "is limited to the record that was before the Court on the original motion." Frankel v. ICD Holdings, S.A., 939 F. Supp. 1124, 1126 (S.D.N.Y. 1996) (refusing to consider affidavits not submitted as part of underlying summary judgment motion on motion for reargument).
However, courts may consider the entire record before it, in addition to papers submitted on summary judgment. 28 Fed. Proc., L.Ed. § 62:590; see also In re Baumbilt, 229 B.R. 50, 59 (Bankr. E.D.N.Y. 1999) ("Rule 56 permits a court to consider the entire record and does not limit a court's review to that portion highlighted by the motion.").
Sank points out in her reply memorandum that the allegations above — among others — were made part of the record, beginning as early as 1996. Therefore, they are not "new" facts and may be considered for the purposes of Local Rule 6.3.
The April 5 Opinion held that Sank had failed to allege any actions occurring after the effective date of the Civil Rights Act of 1991 and therefore was not entitled to a jury trial and damages. The addition of these facts show that Sank has alleged that some retaliatory actions occurred after the effective date of the Civil Rights Act. As a result, Sank is entitled to a jury trial and damages on at least a portion of her retaliation claim.
Sank appears to suggest, however, that she should be entitled to a jury trial on the entirety of her retaliation claim, even though some retaliatory acts took place prior to the effective date of the Civil Rights Act, because the actions constitute a "continuing violation."
The Second Circuit has not addressed the issue of whether a party may seek retroactive application of the Civil Rights Act of 1991, which has been held not to apply retroactively, if she alleges a continuing violation that straddles the effective date. Other circuits that had addressed the issue are split. Place v. Abbott Laboratories, 215 F.3d 803, 807 (7th Cir. 2000) (discussing circuit split). The Court of Appeals for the District of Columbia and the Eight Circuit Court of Appeals have rejected this notion. Tomasello v. Rubin, 167 F.3d 612, 620 (D.C. Cir. 1999) ("an award of compensatory damages for preenactment conduct would have an impermissible effect"); Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1220 n. 1 (8th Cir. 1997) ("We are not familiar with any Eighth Circuit law where the concept of continuing violation, ordinarily associated with statutes of limitations issues, has been employed to overcome a non-retroactivity rule"). The Seventh Circuit has refrained from deciding the issue despite suggestive language from prior opinions. Place, 215 F.3d at 807 (citing Taylor v. Western and S. Life Ins. Co., 966 F.2d 1188, 1196 (7th Cir. 1992) (continuing violation theory "is utilized only in the context of a challenge to the timeliness of a cause of action"), but finding that "[r]esolving this nettlesome legal issue is unnecessary to resolving this appeal"). The First Circuit allows the theory. DeNovellis v. Shalala, 124 F.3d 298, 307 n. 4 (1st Cir. 1997) ("a continuing violation theory could be applied to any time requirement imposed by Title VII, whether it be the effective date of an amending statute, as here, or a statute of limitations"). District courts in the Southern District of New York have rejected the theory. E.g., Peele v. New York City Dep't of Social Servs.\Human Resources Admin., 1995 WL 110085, at *4 (S.D.N.Y. March 14, 1995) (rejecting continuing violation theory and holding that right to jury trial applies only for post-enactment claims); Tillman v. St. Vincent's Hosp. and Medical Center of New York, 1993 WL 426882, at *3 (S.D.N.Y. Oct. 18, 1993) (rejecting use of continuing violation theory to recover for acts which, when performed by St. Vincent's employees, were not forbidden by that law as inconsistent with ruling that statute did not apply retroactively).
This Court agrees with the weight of authority. Even if Sank could demonstrate that the acts she complains of constitute a "continuing violation" she may only have a jury trial and damages on the events detailed above that occurred after the effective date of the Civil Rights Act.
The defendants argue that Sank's motion for reconsideration should not be granted because the acts complained of are not adverse acts and should be dismissed.
Adverse employment actions include "discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand." Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999) (citations omitted). The Second Circuit has also held that lesser actions may qualify, but has not provided a bright-line rule with regard to such lesser actions. Id. In Bernheim v. Litt, 79 F.3d 318, 327 (2d Cir. 1996), the Second Circuit has found in the case of a plaintiff teacher such lesser actions to include negative evaluation letters, express accusations of lying, assignment of lunchroom duty, reduction of class preparation periods, failure to process the teacher's insurance forms, transfer from library to classroom teaching, and assignment to a classroom on the fifth floor which aggravated the teacher's disabilities. Id. However, "[blecause there are no bright line rules as to which employment actions meet the threshold for `adverse,' courts must make this determination on a case-by-case basis." Wilburn v. Fleet Fin. Group, Inc., 170 F. Supp.2d 219, 237 (D. Conn. 2001) (quoting Richardson v. New York State Dep't of Correctional Servs., 180 F.3d 426, 446 (2d Cir. 1999)).
To sustain an adverse employment action, a plaintiff must "endure a `materially adverse change' in the terms and conditions of employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (quoting Richardson, 180 F.3d at 446). In order for the action to be "`materially adverse,' a change in working conditions must be `more disruptive than a mere inconvenience or an alteration of job responsibilities.'" Id. (quoting Crady v. Liberty Nat'l Bank and Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993)). A "`material adverse change' is one that `has an attendant negative result, a deprivation of a position or an opportunity.'" Campbell v. Grayline Air Shuttle, Inc., 930 F. Supp. 794, 802 (E.D.N.Y. 1996) (citing Medwid v. Baker, 752 F. Supp. 125, 136-37 (S.D.N.Y. 1990)). While adverse employment actions extend beyond readily quantifiable losses, "not everything that makes an employee unhappy is an actionable adverse action." Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002) (stating that employee's "trivial complaints about an unpleasant working environment" do not constitute adverse employment actions).
Sank has asserted several adverse actions in her motion for reconsideration of the Court's April 5 Opinion. The defendants specifically address the following: (1) the denial of a half-year, full-pay sabbatical in 1991 and 1992; (2) the aborted attempt to retrench the Department in 1995; and (3) mistakes in the course catalog in 2001. The defendants argue that none of these actions rise to the level of an adverse employment action.
Sank discusses more than the four instances listed above in her reply memorandum in support of her motion for reconsideration. The additional instances will not be discussed as the defendants did not challenge them.
The defendants appear to liken Sank's denial of sabbatical to a case where the fact that an employee was denied vacation time was held not to be an adverse employment action. Boyd v. Presbyterian Hosp. in City of New York, 160 F. Supp.2d 522, 537-38 (S.D.N.Y. 2001). Sank is persuasive in arguing, however, that a sabbatical is a central, longstanding and essential aspect of academic life. Moreover, Sank was denied such a sabbatical after 22 years without one and in express violation of the terms of a collective bargaining agreement. As a result, Sank was supposed to have received "special consideration," and she did not.
The defendants further argue that Sank could have received a different type of sabbatical — a full-year, half-pay sabbatical — than the half-year full-pay sabbatical that she requested. Further, during the relevant time, only three one-semester full-pay sabbaticals were given out, as opposed to thirty full-year half-pay sabbaticals. While this may be the case, Sank raises a material issue of fact by pointing out that at the same time that she was denied the half-year full-pay sabbatical, one was awarded to a male, John Harbeson ("Harbeson"), even though he had not met what Sank claims was a minimum six-year employment requirement. Moreover, Harbeson was the head of the Faculty Senate committee that had investigated the taking of Sank's laboratory in July 1989 and eventually exonerated the institution. Sank claims that Harbeson refused to consider Sank's charge that the laboratory had been taken from her in retaliation for her protesting and complaining of discrimination, and Harbeson also lost key evidence such as tape recordings of meetings with key administrators. This is sufficient to raise an issue of fact.
CUNY's Board of Trustees eventually overruled the award of the sabbatical to Harbeson.
With regard to the "retrenching" of the Department, Sank argues that it "was nothing more than a subterfuge for eliminating Plaintiff" and that all the members of the Department except for her were secretly promised transfers to other posts. Further, the action had to be rescinded entirely after the Faculty Senate became aware of the plan. However, Sank was not actually terminated, nor was the Department "retrenched." This therefore does not constitute an adverse employment action as no such action was consummated.
Finally, defendants fail to persuade that the mistakes in the 2001 course catalogue were more of an "inconvenience" than an adverse employment action. First, the circumstances under which the mistake occurred (and was allowed to occur) raise a material issue of fact. Sank sought to get the defendants to correct the mistake in the course catalog for months and was unsuccessful until a few days prior to the end of registration. Then the defendants cancelled the course, while several other low-enrolled courses in the Department remained open for registration. As a result of the underenrollment, Sank claims that the defendants disparaged her and made it a matter of record that not enough students had been attracted to one of her courses. Further, she had to add on an additional class to her spring semester to make up for the one that was cancelled. The confluence of these facts raise a material issue of fact as to whether the mistakes in the 2001 course catalog were an adverse employment action.
The April 5 Opinion is modified to state that Sank is not entitled to a jury trial or damages on events occurring prior to the effective date of the Act but is entitled to a jury trial and damages on any retaliatory actions occurring after that date.
III. April 12 Order
In her motion for reconsideration, Sank seeks to overturn the April 12, 2002 Order and to enjoy untrammeled discovery: the "Defendants should finally be compelled to identify all the relevant personnel from among both their Faculty and Administration ranks, and then identify the race and gender of each, as well as each's full employment history." Pl.'s Mem. of Law at 13. Further, she suggests that the case be referred to a magistrate judge who can closely supervise the discovery process.
Because Local Rule 6.3 is to be narrowly construed to avoid repetitive arguments on issues that have been considered fully before the Court, motions for reargument should be denied where the movant simply repeats arguments made earlier. Stoner v. New York Ballet Corp., 2002 U.S. Dist. LEXIS 5921, at *8 (S.D.N.Y. April 8, 2002) (denying motion for reargument where movant simply "rehashes the arguments he made" earlier); Hamilton v. Garlock, 115 F. Supp.2d 437, 439 (S.D.N.Y. 2000) (denying motion for reargument where movant failed to identify authority that was overlooked by the Court, but simply reiterates arguments that were previously considered and rejected).
Sank has utilized the same arguments that she most recently made and which were rejected at the hearing on April 10, 2002. Sank continues to argue that CUNY has failed to produce the requested records that indicate employee race and gender information. The April 12, 2002 Order specifically acknowledged Sank's claim that she has "still not receiv[ed] what she feels she needs to make her case," but ultimately determined, upon the submission of an affidavit by CUNY, that the defendants had in fact complied with her requests to the best of their abilities. Moreover, Sank's efforts to expand discovery to a seemingly boundless extent in the eight-year-old lawsuit were rejected: "This lawsuit has stretched for almost eight years, and it is time to end discovery, continue on to summary judgment and, if warranted, a trial on the merits." April 12, 2002 Order, at 9.
Sank points out that she has presented "controlling authority" to the contrary, as the April 5 Opinion and April 12 Order appear to be contradictory. It is true, as Sank points out, that the April 5 Opinion dismissed the defendants' summary judgment motion with regard to her Title VII claim. However, the Court treated the defendants' arguments at the April 10 hearing as an effective request to reopen the summary judgment motion, given their representations about the discovery that they had produced. Furthermore, based upon the representations of the parties at the hearing, the April 12 Order granted the defendants' request to reopen the summary judgment motion with regard to the Title VII claim if they affirmed that they had indeed produced all the discovery they were able to.
Sank presents no facts or controlling case law that would merit granting her motion for reconsideration of the April 12 Order pursuant to Local Rule 6.3.
Conclusion
For the foregoing reasons, Sank's motion for reconsideration is granted in part and denied in part.
It is so ordered.