Brown v. Montefiore Medical Center

USDC SDNY

UNITED STATES DISTRICT COURT DOCUMENT

SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED .

2 ET . 12/17/2019

JASMINE BROWN, DATE FILED: __—__—_—

Plaintiff, :

: 15-CV-724 (VSB)

- against - :

: OPINION & ORDER

MONTEFIORE MEDICAL CENTER, et al., :

Defendants. :

Appearances:

Joseph J. Ranni

Ranni Law Firm

Florida, New York

Counsel for Plaintiff

Jean L. Schmidt

Joshua D. Kiman

Jennifer Lynn Taiwo

Sean A. Malley

Littler Mendelson, P.C.

New York, New York

Counsel for Defendants

VERNON S. BRODERICK, United States District Judge:

Before me is Defendant Montefiore Medical Center’s (“Defendant”) motion for

reconsideration, (Doc. 103), requesting reconsideration of my Opinion & Order denying

Defendant’s motion for summary judgment, (Doc. 102). Because I neither overlooked

controlling decisions or data that would cause me to alter my original decision, Defendant’ s

motion is DENIED.

Procedural History

Plaintiff Jasmine Brown (“Plaintiff”) brought this action against Defendant, alleging

discrimination on the basis of race and national origin in violation of Title VII of the Civil Rights

Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq. On September 28, 2018, Defendant filed a

motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Doc. 88.) In

support of the motion, Defendant submitted a Local Rule 56.1 Statement, (Doc. 89), a

memorandum of law, (Doc. 90), and two declarations with exhibits, (Docs. 91, 92). On October

31, 2018, Plaintiff opposed the motion by filing a memorandum of law, (Doc. 97), a Local Rule

56.1 Counterstatement, (Doc. 95), and a declaration with exhibits, (Doc. 96). On November 16,

2018, Defendant filed a reply memorandum, (Doc. 100), and an affirmation, (Doc. 101).

On September 29, 2019, I entered my Opinion & Order denying Defendant’s motion.

(Doc. 102.) I found that Plaintiff met her burden under the McDonnell Douglas framework to

state a prima facie case of employment discrimination and also presented sufficient evidence for

a reasonable jury to conclude that Defendant’s proffered legitimate non-discriminatory reasons

for Plaintiff’s termination were pretext. (See generally Doc. 102.) On October 14, 2019,

Defendant filed a motion for reconsideration supported by a memorandum of law, (Docs. 103,

104), which Plaintiff opposed on November 13, 2019, (Doc. 108). This motion was fully briefed

when Defendant filed its reply memorandum on December 3, 2019. (Doc. 111.)

Legal Standard

Federal Rule of Civil Procedure 60(b) and Local Civil Rule 6.3 allow reconsideration or

reargument of a court’s order in certain limited circumstances. “Rule 60(b) provides

‘extraordinary judicial relief’ and can be granted ‘only upon a showing of exceptional

circumstances.’” Kubicek v. Westchester Cty., No. 08 Civ. 372(ER), 2014 WL 4898479, at *1

(S.D.N.Y. Sept. 30, 2014) (quoting Nemaizer v. Baker, 793 F.3d 58, 61 (2d Cir. 1986)). This

necessarily means that the standard 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.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).

A motion for reconsideration is “neither an occasion for repeating old arguments previously

rejected nor an opportunity for making new arguments that could have been previously

advanced.” Associated Press v. U.S. Dep’t of Def., 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005). Nor

is a motion for reconsideration a time to “advance new facts, issues or arguments not previously

presented to the Court.” Polsby v. St. Martin’s Press, Inc., No. 97 Civ. 690(MBM), 2000 WL

98057, at *1 (S.D.N.Y. Jan. 18, 2000) (citation omitted).

The decision of whether to grant or deny a motion for reconsideration is “within ‘the

sound discretion of the district court.’” Premium Sports Inc. v. Connell, No. 10 Civ. 3753(KBF),

2012 WL 2878085, at *1 (S.D.N.Y. July 11, 2012) (quoting Aczel v. Labonia, 584 F.3d 52, 61

(2d Cir. 2009)). Generally, a party seeking reconsideration must show either “an intervening

change of controlling law, the availability of new evidence, or the need to correct a clear error or

prevent manifest injustice.” In re Beacon Assocs. Litig., 818 F. Supp. 2d 697, 702–03 (S.D.N.Y.

2011) (quoting Catskill Dev., L.L.C. v. Park Place Entm’t Corp., 154 F. Supp. 2d 696, 701

(S.D.N.Y. 2001)).

Discussion

A. Application of the Second Circuit’s Vasquez Decision

Defendant’s first three arguments hinge on the application of the Cat’s Paw standard of

liability articulated in the Second Circuit’s decision in Vasquez v. Empress Ambulance Serv.,

Inc., 835 F.3d 267 (2d Cir. 2016). Defendant argues that I overlooked this decision, and was

required to find that Plaintiff presented some evidence that Ms. Dyer-Crewe played a

“meaningful role in the decisionmaking process,” as well as evidence that Defendant’s “own

negligence [gave] effect to [Ms. Dyer-Crewe’s discriminatory] animus.” (Doc. 104, at 8

(quoting Vasquez, 835 F.3d at 276).) Defendant further argues that the meaning of

“decisionmaking process” in this context requires “evidence of the individual’s role in the

employment decision in particular, rather than a more general ‘process.’” (Id. at 10.) These

arguments are improperly presented for the first time in Defendant’s motion for reconsideration,

and, in any case, are unpersuasive.

As noted, a party is barred from making an argument for the first time in a motion for

reconsideration when it readily could have raised the argument when the underlying issue was

initially briefed. See, e.g., Associated Press, 395 F. Supp. 2d at 20. In its motion for summary

judgment, Defendant made no mention of the Second Circuit’s Vasquez decision or the theory of

Cat’s Paw liability discussed in Vasquez. (See generally Docs. 90, 100.) I therefore reject

Defendant’s first three arguments as improper as they were raised for the first time in its motion

for reconsideration.

In any case, I find that the Cat’s Paw theory of liability articulated in Vasquez does not

apply to the instant case. Vasquez involved a Title VII retaliation claim, not a Title VII

discrimination claim like the one brought here. The Vasquez decision itself recognizes that these

two types of Title VII claims produced distinct, albeit similar, theories of liability when the

ultimate decisionmaker involved in an adverse employment decision is not the same individual

as the individual alleged to have a discriminatory animus:

[P]ermitting “cat’s paw” recovery in retaliation cases accords with longstanding

precedent in our Court, in the employment-discrimination context, that “a Title VII

plaintiff is entitled to succeed, ‘even absent evidence of illegitimate bias on the part

of the ultimate decision maker, so long as the individual shown to have the

impermissible bias played a meaningful role in the [decisionmaking] process.’”

Holcomb v. Iona Coll., 521 F.3d 130, 143 (2d Cir. 2008) (quoting Bickerstaff v.

Vassar Coll., 196 F.3d 435, 450 (2d Cir. 1999)).

Vasquez, 835 F.3d at 272. The reason for drawing a distinction between Cat’s Paw liability in

the retaliation context and similar liability in discrimination cases is obvious. Although

retaliation cases require a plaintiff to prove but-for causation, a plaintiff in a discrimination suit

is only required to show that “his race, color, religion, sex, or national origin was a motivating

factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86

(2d Cir. 2015); see also Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013) (“Title

VII retaliation claims require proof that the desire to retaliate was the but-for cause of the

challenged employment action.”). The Second Circuit recently emphasized this distinction in

Naumovski v. Norris, 934 F.3d 200 (2d Cir. 2019), and explicitly mentioned the different

standard of liability in retaliation cases:

A Title VII plaintiff can succeed on a discrimination claim against an employer

“even absent evidence of illegitimate bias on the part of the ultimate decision

maker, so long as the individual shown to have the impermissible bias played a

meaningful role in the [decision-making] process.” Even in Title VII retaliation

cases (which require a higher standard of causation than disparate treatment cases),

we have held that if an employee “manipulates an employer into acting as a mere

conduit for his retaliatory intent,” the employee’s intent can be imputed to the

employer under a “negligence” (i.e., a “knew or should have known”) standard.

Naumovski, 934 F.3d at 220.1 Thus, the standard applied in my Opinion & Order denying

1 A few courts in this district have applied Vasquez to Title VII discrimination claims. See Rotger v. Montefiore

Med. Ctr., 1:15-CV-7783-GHW, 2019 WL 1429556, at *7 (S.D.N.Y. Mar. 29, 2019); Jacobson v. Capital One Fin.

Corp., No. 16-CV-06169 (CM), 2018 WL 6817064, at *25 (S.D.N.Y. Dec. 12, 2018); Boston v. Taconic

Eastchester Mgmt. LLC, 12 Civ. 4077 (ER), 2016 WL 5719751, at *7 (S.D.N.Y. Sept. 30, 2016). However, I do not

read Vasquez any broader than the holding itself. See Vasquez, 835 F.3d at 272–73 (“Accordingly, we now hold that

the ‘cat’s paw’ theory may be used to support recovery for claims of retaliation in violation of Title VII.”); Id. at 269

(“We hold, however, that an employee’s retaliatory intent may be imputed to an employer where, as alleged here,

the employer’s own negligence gives effect to the employee’s retaliatory animus and causes the victim to suffer an

adverse employment decision.”). Although portions of the Vasquez opinion could be construed as having

application beyond retaliation claims, the opinion acknowledged that the “meaningful role in the [decisionmaking]

Defendant’s motion for summary judgement was appropriate.2

Defendant’s view that the meaning of “decisionmaking process” in this context requires

“evidence of the individual’s role in the employment decision in particular, rather than a more

general ‘process,’” (Doc. 104, at 10), is too narrow. As the Second Circuit stated in Bickerstaff,

“the impermissible bias of a single individual at any stage of the promoting process may taint the

ultimate employment decision in violation of Title VII.” Bickerstaff, 196 F.3d at 450 (emphasis

added). The Second Circuit has since reiterated its broad reading of this standard. See Holcomb,

521 F.3d at 143 (“The college contends that there is nothing in the record to show that Brennan

or Petriccione played a role in the decision to select Holcomb for termination, and points to

evidence in the record that it was Brother Liguori, rather than Brennan or Petriccione, who

actually made the decision. But a Title VII plaintiff is entitled to succeed, ‘even absent evidence

of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to

have the impermissible bias played a meaningful role in the . . . process.’” (quoting Bickerstaff,

196 F.3d at 450).)

process,” Bickerstaff, 196 F.3d at 450, standard applied in discrimination cases is “established Title VII caselaw in

our Circuit,” id. at 275, and “longstanding precedent in our Court,” id. at 272. The quoted language from the

Second Circuit’s Naumovsky opinion bolsters this reading of Vasquez, and supports the conclusion that Vasquez did

not abrogate the standard articulated in Bickerstaff.

2 The Bickerstaff standard applied in my Opinion and Order denying Defendant’s motion for summary judgement

read as follows:

“The Second Circuit has concluded . . . that even when the ultimate decisionmaker has no record of

discriminatory animus, a plaintiff may prove discrimination based on evidence that an ‘individual shown to

have [an] impermissible bias played a meaningful role in the . . . process.’” Kenchi v. Hanesbrands Inc.,

No. 10 Civ. 1662(PKC), 2011 WL 4343418, at *5 (S.D.N.Y. Aug. 12, 2011) (quoting Bickerstaff v. Vassar

Coll., 196 F.3d 435, 450 (2d Cir. 1999)); see also Bickerstaff, 196 F.3d at 450 (noting that “the

impermissible bias of a single individual at any stage of [an employment] process may taint the ultimate

employment decision in violation of Title VII”); Edrisse v. Marriott Int’l, Inc., 757 F. Supp. 2d 381, 389–

90 (S.D.N.Y. 2010) (“Unlawful discriminatory bias on the part of anyone meaningfully involved in the

process leading to an adverse employment action suffices to support an inference of discriminatory

intent.”).

(Doc. 102, at 14.)

B. The Court Did Not Overlook Defendant’s Proffered Legitimate Non-

discriminatory Reasons for Plaintiff’s Termination

In my Opinion & Order, I observed that Defendant offered two non-discriminatory

reasons “for Plaintiff’s termination: (1) Plaintiff’s act of working shifts during the leave she had

been granted on December 5 and 6, 2013; and (2) Plaintiff’s failure to punch out when she left

her shift on December 6, 2013.” (Doc. 102, at 16.) Defendant now argues that when denying its

motion for summary judgment I “overlooked the proffered evidence of the actual reason for

Plaintiff’s termination, and misstated those reasons [sic] in [my] analysis.” (Doc. 103, at 16.)

Reexamining Defendant’s memorandum of law in support of its motion for summary judgment, I

find that Defendant is incorrect.

When articulating the alleged non-discriminatory reasons for Plaintiff’s termination,

Defendant’s memorandum of law unambiguously stated the following:

Plaintiff’s act of working shifts elsewhere during her requested bereavement

period, standing alone, constitutes a terminable offense. (56.1 Stmnt. ¶ 41.) But

Plaintiff also failed to punch out timely when she left her shift on December 6,

causing further expense to the department. This too constituted a violation of

Montefiore policy. (Policy Number VII-I, attached to Malley Decl. as Exhibit O

(“Dishonesty, including falsification of records, reports, documents or

time/attendance records.”)

(Doc. 90, at 20.) Contrary to Defendant’s motion, these are the exact proffered reasons for

Plaintiff’s termination that I analyzed in my Opinion & Order. Defendant is wrong to now argue

that I should have read more into its memorandum than the quoted language posits, particularly

when the burden was on Defendant to proffer legitimate, non-discriminatory reasons for the

adverse employment action. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468–69

(2d Cir. 2001). Such an argument is not the proper subject of a motion for reconsideration.

IV. Conclusion

For the reasons stated above, it is hereby:

ORDERED that Defendants’ motion for reconsideration is DENIED.

ORDERED that the parties are directed to appear for a status conference on January 10,

2020 at 11:00 a.m.

The Clerk of Court is respectfully directed to terminate the open motion at Document

103.

SO ORDERED.

Dated: December 17, 2019

New York, New York i

Vernon 8. Broderick

United States District Judge