I have been attempting to post this for the past few days without success in a more concise format. I believe it is important to continue to monitor the transgressions of the former mayor. These are the first 4 pages of 20. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK _____________________ No 10-cv-3660 (JFB) (WDW) _____________________ DEBBIE ZAGAJA Plaintiff, VERSUS VILLAGE OF FREEPORT and ANDREW HARDWICK, Defendants. ___________________ MEMORANDUM AND ORDER June 3, 2013 ___________________ JOSEPH F. BIANCO, District Judge: The Village of Freeport (“Village”) and Andrew Hardwick (“Hardwick”) (collectively, “defendants”) bring the instant motion for reconsideration, pursuant to Local Civil Rule 6.3, of the Court’s November 20, 2012 Memorandum and Order, granting in part and denying in part the defendants’ motion for summary judgment.1 Specifically, defendants argue that the Court erroneously denied them summary judgment on plaintiff’s discrimination claim related to defendants’ decision not to renew her Deputy Chief contract because (1) plaintiff did not suffer an adverse employment action under the discrimination 1 See Zagaja v. Village of Freeport, No. 10-cv-3660 (JFB)(WDW), 2012 WL 5989657 (E.D.N.Y. Nov. 20, 2012), hereinafter, “November 20 Memorandum and Order.” laws, and (2) plaintiff failed to put forth sufficient evidence to prove that, more likely than not, defendants’ reasons for not reappointing plaintiff were pretextual. In addition, defendants contend that they are entitled to summary judgment on plaintiff’s discrimination and retaliation claims related to defendants’ failure to promote plaintiff to Police Chief because (1) defendants had no legal obligation to canvass candidates to determine whether they were interested in the position; (2) there is no evidence that the Police Chief examination requirements were changed on account of race; and (3) defendants were not motivated by retaliatory animus in their decision not to appoint plaintiff to Police Chief. Defendants also argue that, in concluding that they were not entitled to summary judgment on plaintiff’s discrimination claim related to their failure to promote plaintiff to Assistant Chief, the Court overlooked two legitimate, nondiscriminatory reasons for the decision Case 2:10-cv-03660-JFB-WDW Document 87 Filed 06/03/13 Page 1 of 20 PageID #: 2179 2 proffered by defendants. Finally, defendants argue that Mayor Hardwick is entitled to summary judgment on his qualified immunity defense because plaintiff had no clearly established right to a command staff position. Defendants also point to pieces of evidence in the record that they contend the Court either misconstrued or improperly relied upon in its November 20 Memorandum and Order. For the reasons set forth below, the Court denies defendants’ motion for reconsideration in its entirety.2 After carefully considering the arguments and the supplemental briefing, the Court concludes that, for the reasons set forth in the November 20 Memorandum and Order and below, summary judgment is not warranted in defendants’ favor on plaintiff’s discrimination and retaliation claims, and with respect to Hardwick on qualified immunity grounds. In particular, defendants point to no evidence or arguments that alter the Court’s previous analysis. Similarly, with respect to the qualified immunity issue, although defendants attempt to label the issue as a pure legal one, defendants are unquestionably challenging this Court’s determination that disputed issues of fact prevent consideration of the qualified immunity issue at this juncture of the case. At oral argument for the motion for reconsideration, counsel for defendants took 2 Although an appeal is pending in connection with the Court’s decision on the summary judgment motion, it is well settled that this Court may still entertain and deny a motion for reconsideration while the appeal is pending. See Toliver v. Cnty. of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992); Ryan v. U.S. Lines Co., 303 F.2d 430, 434 (2d Cir. 1962); Barton v. Troy Annual Conference, No. 09-CV-0063, 2011 WL 5325623, at *1 (N.D.N.Y. Nov. 3, 2011) (“In light of the pending appeal and the Second Circuit’s denial of Plaintiff’s motion to remand, this Court possesses jurisdiction to deny, but not grant, the Rule 60(b) motion.” (citations omitted)). the position that the Mayor’s hiring decisions for these positions are unreviewable by a judge or jury if the persons selected by the Mayor are qualified. (See Oral Arg. Tr. 27, Feb. 6, 2012 (when questioned by the Court about the qualifications of plaintiff versus Bermudez for the Deputy Chief position, defendants’ counsel argued, “Here’s where I believe your Honor is making a mistake. . . . It doesn’t matter. So long as he was qualified for the position and the mayor thought that he was the one who could best carry out his plans for his administration – you don’t start measuring the qualifications of Zagaja versus Bermudez and you decide whether that was a good decision the mayor made or wasn’t a good decision the mayor made. The mayor made a decision. It was his decision to make, not the Court’s decision, not the jury’s decision. It was his decision to make.”).) The Court simply disagrees with this argument. The Mayor’s hiring decisions are not immune from scrutiny under the discrimination laws, even assuming arguendo that he selected a qualified person for every position at issue (which plaintiff disputes). The Second Circuit has emphasized that, although a court should not function as a super-personnel committee in reviewing job qualifications in discrimination cases, there are circumstances where the qualifications are so disparate that an inference of discrimination can be drawn: When a plaintiff seeks to prevent summary judgment on the strength of a discrepancy in qualifications ignored by an employer, that discrepancy must bear the entire burden of allowing a reasonable trier of fact to not only conclude the employer’s explanation was pretextual, but that the pretext served Case 2:10-cv-03660-JFB-WDW Document 87 Filed 06/03/13 Page 2 of 20 PageID #: 2180 3 to mask unlawful discrimination. In effect, the plaintiff’s credentials would have to be so superior to the credentials of the person selected for the job that “no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001) (quoting Deines v. Tex. Dep’t of Protective & Regulatory Servs., 164 F.3d 277, 280-81 (5th Cir. 1999)). If plaintiff’s evidence is fully credited and all reasonable inferences are drawn in her favor, this is precisely one of those cases. There is substantial evidence in the record which, if credited, would allow a rational jury to conclude that plaintiff’s qualifications for various supervisory positions in the Village of Freeport Police Department were so far superior to those who were given the positions that such hiring decisions could not possibly have been the result of an exercise of impartial judgment. Moreover, unlike in Byrnie, plaintiff is not simply relying on the alleged gross disparity between her qualifications and the qualifications of those who obtained the positions. There is also other evidence in the record (summarized in the Court’s November 20 Memorandum and Order and infra) which, if credited, would allow a rational jury to conclude that the reasons given for these hiring decisions were, in fact, a pretext for discrimination. For example, with respect to the Assistant Chief position, the Chief of Police selected by Mayor Hardwick (Miguel Bermudez) testified that the person Hardwick wanted for Assistant Chief (Zina Leftenant) was “grossly unqualified” for the position, and that he informed Hardwick of that fact.3 (Valli Decl. Ex. 4, Bermudez Dep. at 111.) When asked if the reason Hardwick wanted to promote Leftenant was because of her race, the Chief said that, although he could not know all the reasons Hardwick wanted Leftenant in the position, he suspects that her race was one of the reasons, as Hardwick announced at a social gathering that “he was promoting a Black female.” (Id. at 111-14.) This is one illustration of a record that contains several categories of evidence from which a rational jury, if the evidence is credited and viewed collectively, could find a discriminatory motive in the employment decisions relating to plaintiff. Accordingly, the disputed issues of fact on these claims preclude summary judgment in defendants’ favor on any grounds, including qualified immunity as to defendant Hardwick. I. BACKGROUND A. Procedural History Plaintiff filed the complaint in this action on August 11, 2010. Defendants answered on October 20, 2010. On January 23, 2012, defendants moved for summary judgment. Plaintiff submitted her opposition to defendants’ motion for summary judgment on March 7, 2012. Defendants submitted their reply on March 21, 2012. The Court held oral argument on defendants’ motion for summary judgment on May 15, 2012. The Court fully considered the submissions of the parties and, on August 13, 2012, issued a detailed oral ruling granting in part, and denying in part, defendants’ motion. At 3 At oral argument on the motion for reconsideration, when asked whether there is a disputed issue of fact as to whether Leftenant was even qualified for the Assistant Chief position, defendants’ counsel stated, “That’s certainly a closer question with regard to Zena Leftenant, I’ll admit that, Judge.” (Oral Arg. Tr. 33.) Case 2:10-cv-03660-JFB-WDW Document 87 Filed 06/03/13 Page 3 of 20 PageID #: 2181 4 the conference, the Court indicated that a written opinion may follow. On September 10, 2012, defendants filed a Notice of Appeal. The Court issued a written Memorandum and Order on November 20, 2012 granting in part, and denying in part, defendants’ motion for summary judgment. On December 10, 2012, defendants again filed a Notice of Appeal. On December 12, 2012, defendants filed a motion for reconsideration. Plaintiff filed her opposition to defendants’ motion for reconsideration on January 11, 2013. Defendants replied on January 22, 2013. On February 6, 2013, the Court held oral argument on the motion for reconsideration. Pursuant to the Court’s February 7, 2013 Order, on February 13, 2013, the parties submitted supplemental letters to address issues raised at oral argument. The Court has fully considered all the submissions of the parties. B. The November 20, 2012 Memorandum and Order On August 13, 2012, the Court orally granted in part and denied in part defendants’ pending motion for summary judgment. The Court subsequently issued a written Memorandum and Order, on November 20, 2012, further explaining, in great detail, its reasons for granting in part and denying in part defendants’ motion. In particular, the Court granted defendants’ motion with respect to (1) plaintiff’s claim of gender discrimination as it relates to the female superior officers’ locker room, and (2) plaintiff’s hostile work environment claim. The Court denied defendants’ motion for summary judgment with respect to (1) plaintiff’s employment discrimination claims regarding her demotion from Deputy Chief, defendants’ failure to promote plaintiff to Assistant Chief, and defendants’ failure to promote plaintiff to Chief of Police, and (2) plaintiff’s retaliation claim. The Court also denied the portion of defendants’ motion that sought summary judgment with respect to Hardwick on qualified immunity grounds. II. STANDARD OF REVIEW Under Local Civil Rule 6.3, reconsideration is appropriate only if “the court overlooked matters or controlling decisions which, had they been considered, might reasonably have altered the result reached by the court.” United States v. U.S. Currency in the Sum of Ninety Seven Thousand Two Hundred Fifty-Three Dollars, No. 95-CV-3982 (JG), 1999 U.S. Dist. LEXIS 1421, at *3-4 (E.D.N.Y. Feb. 11, 1999) (citation and quotation marks omitted); see also Shrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir. 1995) (“The standard for granting [a motion for reconsideration] 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 alter the conclusion reached by the court.” (citation omitted)); Medoy v. Warnaco Emps.’ Long Term Disability Ins. Plan, No. 97 Civ. 6612 (SJ), 2006 U.S. Dist. LEXIS 7635, at *4 (E.D.N.Y. Feb. 15, 2006) (“The standard for granting a motion for reconsideration is strict in order to dissuade repetitive arguments on issues that have already been considered fully by the Court.” (citation omitted)); Davis v. The Gap, Inc., 186 F.R.D. 322, 324 (S.D.N.Y. 1999) (stating that “the court must not allow a party to use the motion to reargue as a substitute for appealing from a final judgment”). The decision to grant or deny a motion for reconsideration is within the sound discretion of the district court, see U.S.
Posted on: Sun, 09 Jun 2013 13:38:48 +0000
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