Mcavey v. Orange-Ulster Boces et al, No. 1:2007cv11181 - Document 55 (S.D.N.Y. 2012)
Court Description: OPINION re: 50 MOTION for Reconsideration re; 49 Memorandum & Opinion. filed by Colleen Mcavey. Based on the conclusions set forth above, the Plaintiffs' motion for reconsideration is denied. IT IS SO ORDERED. (Signed by Judge Robert W. Sweet on 1/17/2012) (ama)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -X COLLEEN McAVEY 1 07 Civ. 11181 OPINION Plaintiff 1 -against BOCES 1 JEFFREY SMITH 1 , former Deputy Superintendent/ JAKE ~~ McHALE 1 of Flannery High School~~ : .l. 1 ¢ ¢ ¢ and MARGUERITE FLOOD Execut rector . 1 ¢ 'C for Personnel 1 sued in their individual ' capacit S 1 ORANGE~ULSTER 1 Defendants. ----------X A P P E A RAN C E S: At for Pla iff SUSSMAN & WATKINS 55 Main Street 1 Suite 6 P.O. Box 1005 Goshen/ NY 10924 By: Christopher Dale Watkins 1 Michael Howard Sussman 1 Esq. Attorneys for Defendants LAMB & BARNOSKY 1 LLP 534 Broadhollow Road 1 Suite 210 P.O. Box 9034 Melville 1 NY 11747 By: Sharon N. Berlin/ Esq. Matthew John Mehnert, Esq. ( 1 RO:'~IC 1· '\LLY Sweet, D.J. Plaintiff Colleen McAvey ("McAvey" or the "Plaintiff") has filed a motion for reconsideration of the Court's August 15, 2011 opinion (the "August 15 Opinion"), which granted in part and denied in part the Defendants' motion for summary judgment. The Plaintiff's motion for reconsideration was filed on August 26, 2011, and it was considered fully submitted on September 28, 2011. For the following reasons, the Plaintiff's motion for reconsideration is denied. The Applicable Standard The Plaintiff requests reconsideration of the August 15 Opinion pursuant to Local Civil Rule 6.3. The standards governing motions under Local Rule 6.3 along with Fed. R. Civ. P. 59 are the same, and a court may grant reconsideration where the party moving for reconsideration demonstrates an "intervening change in controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Henderson v. Metro. Bank & Trust Co., 502 1 F. Supp. 2d 372, 375-76 (S.D.N.Y. 2007) (quotation marks and citations omitted); Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003) ("Reconsideration may be granted to correct clear error, prevent manifest injustice or review the court's decision in light of the availability of new evidence.") Vi (citing Ltd. V. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)); Catskill Dev., L.L.C. v. Park Place (granting reconsideration due to the court's erroneous application a statute) . The moving party must demonstrate controlling law or factual matters put before the court on the underlying motion that the movant believes the court overlooked and that might reasonably be expected to alter the court's decision. See Linden v. District Council 1707-AFSCME, 415 Fed. Appx. 337, 338-39 (2d Cir. 2011) (affirming dismissal of reconsideration motion as movant did not identify any relevant facts or controlling authority that the lower court overlooked); Lichtenberg v. Besicorp Grp. Inc., 28 Fed. Appx. 73, 75 (2d 2002) (affirming dismissal r. reconsideration motion where movant "failed to demonstrate that the [lower] court overlooked any fact of consequence or controlling legal authority at the time the court decided [the case]"). 2 The reason for the rule confining reconsideration to matters that were "overlooked" is to "ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps with additional matters. ¢ Pol v. St. Mart a lost motion 's Press Inc., ------~------------------------~------ No. 97 Civ. 690(MBM), 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000) (citation and quotation marks omitted) . A court must narrowly construe and strictly apply Local Rule 6.3, so as to avoid duplicative rulings on previously considered issues, and to prevent the rule from being used as a substitute for appealing a final judgment. See In re Bear Stearns Cos., Inc. Sec., Derivative and ERISA Litig., 08 M.D.L. No. 1963, 2009 WL 2168767, at *1 {S.D.N.Y. Jul. 16, 2009) ("A motion for reconsideration is not a motion to reargue those issues already considered when a party does not like the way the original motion was resolved.") (quoting Davey v. Polan, 496 F. Supp. 2d 387, 389 (S.D.N.Y. 2007)); .com v. Lansa Inc., No. 01 Civ. 3578, 2008 WL 4376367, at *2 (S.D.N.Y. Sept. 25, 2008) ("The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, other words, that might reasonably be expected to alter the conclusion reached by the court.") 3 (citations and quotation marks omitted) i Ballard v. Parkstone Energy, LLC, No. 06 Civ. 13099, 2008 WL 4298572 1 at *1 (S.D.N.Y. Sept. 19, 2008) ("Local Rule 6.3 is to be narrowly construed and strictly applied in order to avoid repetitive arguments on issues that the court has fully considered.") (quoting Abrahamson v. Bd. of Educ., 237 F. Supp. 2d 507, 510 (S.D.N.Y. 2002) . Motions for reconsideration "are not vehicles for taking a second bite at the apple, . and [the court] [should] not consider facts not in the record to be facts that the court overlooked." 769 (2d Cir. 2008) Rafter v. Liddle, 288 Fed. Appx. 768, (citation and quotation marks omitted). The Plaintiff's Motion For Reconsideration Is Denied McAvey led r complaint on December 12, 2008, alleging that the Defendants retaliated against r for exercising her First Amendment rights when they (1) admonished her both verbally and in writing; BOCES' P.M. hours program; (2} denied a position in (3} removed her as a presenter at BOCES professional conference; (4} failed to discipline employees for making derogatory remarks about her; 4 (5} reviewed her emails; (6) denied her a 2006 summer school position; and (7) transferred her in December 2006. included in the August 15 Opi The facts of the case are on in which t Court granted in part and denied in part the Defendants' motion for summary judgment. In the August 15 Opinion, Court ld that because the Plaintiff's Freedom of Information Law ("FOIL") request was protected speech and the denial of the Plaintiff's application for the after-hours counseling position may have been causally connected to her protected speech, the Defendants' motion for summary judgment on the claim of retaliation with respect to the denial of the part-time counselor position was deni However, the Defendants' motion for summary judgment on the remaining retaliation claims was granted, with the Court holding that the Plaintiff's interactions with a journalist did not constitute protected speech, that an administrator's failure to punish the Plainti 's co-workers for derogatory remar did not establish a retaliation claim and that the Plaintiff's various other allegations, including the verbal reprimands and admonishing letter the Plaintiff received, the Plainti 's removal as a conference presenter, BOCES' review of the Plaintiff's emails, the aintiff's inability to obtain summer work and the 5 Plainti 's transfer to another school, were not caus connected to the inti 's protected speech. ly The August 15 Opinion also held that the individual Defendants were not entitled to qualified immunity. In her motion, McAvey requests reconsideration of the Court's decision to the extent that the Court found that the letter of reprimand the Plaintiff recei on November 8 ("the November 8 Letter") was not actionable. According to McAvey, the November 8 Letter she received was an adverse action and a reasonable jury could have found a causal connection between the Plaintiff's FOIL request and the November 8 Letter. the Supreme Court With respect to retaliation claims, held that "actionable retaliation" is behavior that "might have dissuaded a reasonable worker from making or supporting a charge of Northern & Santa Fe R.R. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006); see also Zelnik v. Fashion Institute of Technology, 464 F.3d 217 {2d Cir. 2006) {"actionable retaliation" in the First Amendment context is "that which 'well might have dissuaded a reasonable worker [from asserting his Burli rst Amendment-protected rights] '") on Northern, 548 U.S. at 68). R.R. Co. The Plaintiff, citing 658 F.3d 154 6 (quoting (2d Cir. 2011), contends that one week fore the August 15 Opinion was issued, the Second Circuit ruled that a letter of reprimand is an adverse action for purposes of a retaliation claim under the standard set forth in Burlington Northern. The Plaintiff also contends that, notwithstanding the Court's ruling that the verbal reprimand and November 8 Letter were not causally connected to the Plaintiff's FOIL request but "(r]ather, these admonishments were related to her contact with the press, confidentiality concerns, and other conduct not luding the FOIL request,u Op. at 29, there is direct evidence of a causal connection between the letter of reprimand and the Plaintiff's protected activity. This evidence includes the fact that the November 8 Letter expressly references the Plaintiff's conversations with the police, that the Deputy Superintendent who authored the November 8 Letter knew that the Plainti 's "involvement with the policeu consisted of making FOIL requests for the relevant reports, and that the Deputy Superintendent was angry with the Plaintiff for her having made the requests. McAvey contends that the Court overlooked this evidence in ruling there to be no evidence of a causal connection between the Plaintiff's protected speech and the November 8 Letter. 7 The Plaintiff is correct in that the Second Circuit's opinion in Millea v. Metro-North R.R. Co. establishes the November 8 Letter to const ute actionable retaliation. facts of Millea involve a Metro-North employee who aga The led suit st his employer, asserting claims for alleged violations of the Family Medical Leave Act (FMLA) and infliction of emotional distress. intentional Millea claimed that in response to his decision to take days off under t FMLA, Metro- North retaliated by placing a formal letter of reprimand in his file. At trial, the district court instructed the jury that a "material adverse action" under the FMLA is restricted solely to changes in the employee's terms and conditions of employment. On appeal, the Second Circuit adverse action" in re d that the term "material tion to a FMLA claim is defined using the standa Northern. Millea, 658 F.3d at 164. Applying the Burl on Northern standard, the Second Circuit held that a letter of reprimand could deter a reasonable employee from exercising his FMLA rights: The Burl on Northern materiality standard is intended to "separate s ificant from trivial harmsu so that employee protection statutes such as Title VII and the FMLA do not come to create "a general civility code for the Arne can workplace.u Bu Northern 548 U.S. at 68 (internal quotation mar ) . To separate the significant from 8 trivial, the Burlington Northern standard employs an "objective" test, which considers whether the action would deter a "reasonable empl from exercising his r s. Id. "[P]etty slights, minor annoyances, and simple k of good manners will not" give rise to actionable retaliation claims. Id. In this objective light, we think (and conclude that a reasonable jury could decide) a letter of reprimand would deter a reasonable emplo from exercising his FMLA rights. A formal reprimand is by an employer is not a "petty slight," "minor annoyance," or "trivial" punishment; can reduce an employee's likelihood of rece ng future bonuses, raises, and promotions, and may lead the employee to believe (correctly or not) that his job is in jeopa A reasonable jury could conclude as much even when, as here, the letter does not ly or immediately result in any loss of wages or bene ts, and does not remain in the employment file permanently. Millea, 658 F.3d at 165. Because the test for actionable retaliation in the First Amendment context is derived from the same Burlington Northern standard the Second Circuit appl ln Millea, see Zelnik, 464 F.3d at 227, the November 8 Letter the Plaintiff received represents an adverse action upon which aintiff can base retaliation claim. However, in the August 15 Opinion, the Court did not base its ision concerning the November 8 Letter entirely on the basis that letters of not rimand were not actionable. As was in the August 15 Opinion, the Plaintiff has not present evidence demonstrating how Amendment rights caused exercise of the s letter to be fil 9 aintiff's As noted rst above, the only First Amendment protected speech in this case involves the Plaintiff's FOIL request, which the November 8 Letter does not address. Reproduced in its entirety, the body of the November 8 Letter reads: Please accept this letter as a representation of our conversation which took place my office on October 14, 2005. Also present were Dr. Vaughan, Mrs. Flood, Mr. McHale and Mr. Zwick. We had an extensive discussion about your role in reporting a situation that might possibly have involved abuse in the educational setting. You indicated that you had made s report to Mr. McHale. rst, let me reiterate that I find your reporting such a suspicion the correct thing to be done by a school counselor. My concern however, is about your subsequent involvement with the Goshen Town Police and the Times Herald Record. Given the nature of our students, I believe the best course of action for a counse is to report the issue to his or her school administrator and let the investigation go through its process. I do not believe it is bene cial or appropriate for individual staff members to be involved directly with the police and/or newspapers in instances surrounding student matters. In the future, should these circumstances a se again, I am directing that you stay in process and work directly with your school administrator. As noted in the August 15 Opinion, N.Y. Education Law§ 1127 establishes New York State policy that reports of abuse in an educational setting must remain confidential, making it a misdemeanor offense for a school offi contents of a written report of abuse. 10 al to disclose the Additionally, the Family Educational Rights and Privacy Act, 20 U.S.C. §§ 1232g protects complainants' confidentiality rights in their educational records. While the November 8 Letter does include references to the "Goshen Town Police" and "the police," there is no indication that the letter is in reference to the Plaintiff's FOIL request. Inst , the letter re s twice to the "process" used to investigate abuse complaints and expresses concern over the Plaintiff's ilure to abide by these procedures. As such, the November 8 Letter establishes that factors other than the McAvey's protected speech, including McAvey's contact press and confidential to be sent. has y concerns, caus th t the November 8 Letter With respect to the causation issue, the Plaintiff led to carry her burden of demonstrating that the Court overlooked factual matters or controlling precedent that would have changed s decision. See Ambac Assurance Co . v. EMC Mortgage Corp., No. 08 Civ. 9464 (RMB) (THK), 2011 WL 308276, at *2 (S.D.N.Y. Jan. 28, 2011) motion [for recons ("The standard for granting such a ration] is strict, and reconsideration 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 11 alter the conclusion reached by the court.") (citing Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). Because sufficient evidence of causation has not been provided, the Plaintiff's motion for reconsideration must be denied. Conclusion Ba on t conclusions set forth above, the aintiff's motion for reconsideration is denied. It is so ordered. New York, NY January ( 2012 '7 , ROBERT W. SWEET U.S.D.J. 12
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