Gibson v. American Broadcasting Companies, Inc., No. 82 Civ. 5249 (RWS).

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Citation: 700 F. Supp. 707
• Docket Number: No. 82 Civ. 5249 (RWS).
• Parties: David Leslie GIBSON, Angelo Rios and Ronald O. Hope, Plaintiffs, v. AMERICAN BROADCASTING COMPANIES, INC., Robert Benson, Peter Flannery, Richard Dressel and Jeffrey Sprung, Defendants.
• Decision Date: 10 November 1988

700 F. Supp. 707

David Leslie GIBSON, Angelo Rios and Ronald O. Hope, Plaintiffs,
v.
AMERICAN BROADCASTING COMPANIES, INC., Robert Benson, Peter Flannery, Richard Dressel and Jeffrey Sprung, Defendants.

No. 82 Civ. 5249 (RWS).

United States District Court, S.D. New York.

November 10, 1988.

700 F. Supp. 708

Warren J. Bennia, New York City, for plaintiffs.

Epstein Becker & Green, P.C., New York City, Philip M. Berkowitz, Rhonda J. Falk, of counsel, for defendants.

OPINION

SWEET, District Judge.

Plaintiffs David Leslie Gibson ("Gibson") and Ronald O. Hope ("Hope") have moved pursuant to Local Civil Rule 3(j) for reargument of the May 3, 1988 opinion of the Honorable Richard J. Daronco granting summary judgment in favor of defendant American Broadcasting Companies, Inc. ("ABC"), Robert Benson ("Benson"), Peter Flannery ("Flannery"), Richard Dressel ("Dressel") and Jeffrey Sprung ("Sprung"), and for an order granting reconsideration and a trial on the issue of liability with respect to the aforesaid claims pursuant to Rules 59 and 60 of the Federal Rules of Civil Procedure. Defendants have moved for reargument of the opinion denying their motion for summary judgment of the claims of plaintiff Angelo Rios ("Rios"). For the reasons set forth below, both plaintiffs' and defendants' motions are denied.

The facts of this case are set forth in the May 3, 1988 Memorandum Order (the "Order") of the Honorable Richard J. Daronco, Gibson v. American Broadcasting Cos., Inc., 687 F.Supp. 786 (S.D.N.Y.1988) familiarity with which is assumed.

Discussion

In order to grant a motion to reargue pursuant to Rule 3(j), the moving party "must demonstrate that the court overlooked controlling decisions or factual matters that were put before the court on the underlying motion." Ashley Meadows Farm, Inc. v. American Horse Shows Association, Inc., 624 F.Supp. 856, 857 (S.D.

700 F. Supp. 709

N.Y.1985) (Sweet, J.). See also Caleb & Co. v. E.I. DuPont De Nemours & Co., 624 F.Supp. 747, 748 (S.D.N.Y.1985) (Sweet, J.) ("The standard for granting a motion for reargument is strict in order to dissuade repetitive arguments on issues that have already been considered fully by the court. Such motions, therefore, may be granted only where the court has overlooked matters or controlling decisions....")

Hope

Hope alleged that he was the object of discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1982) ("Title VII") because his assignment to editorial duties was unfairly delayed by defendants because of his race. Judge Daronco granted summary judgment for defendants on the grounds that Hope failed to establish that he was qualified to receive acting editor duties sooner. Therefore, Hope failed to meet his burden of establishing a prima facie case of discrimination. Further, Judge Daronco held that even if Hope did establish a prima facie case of discrimination, he did not offer evidence that the defendants' articulated reason for delaying Hope's editing duties — "that editorial positions are awarded based on a consideration of the needs of ABC Radio News at the time, a determination by ABC as to who would best fill that need, and the schedule of available personnel," Order at 15, was pretextual.¹

Hope asserts that Judge Daronco overlooked material facts in his Order. Specifically, Hope claims that the evaluation by defendants of his performance in 1982 as average to below average did not reflect a level of performance indicating that he was not qualified to receive acting editing assignments sooner, that the discreet criticisms which he received were no worse and in many cases better than those given to Caucasian newswriters who received editing duties sooner, and that he did not receive any criticism on his performance in editorial assignments between November 1976 and August 1981. Thus, contrary to the May Order, Hope argues that he established that he was qualified to take on editorial responsibilities and was similarly situated to Caucasians who received acting editor duties at an earlier date. Furthermore, Hope maintains that he addressed the issue of pretext by showing that the Caucasians who were promoted also received criticisms of their work, thus denying Flannery's claim that his work was the weakest of all newswriters in his class.

There are no grounds for reargument of summary judgment on Hope's claim. Even if Hope has established a prima facie case of discrimination, he has failed to present an issue of fact that defendants' reasons for delaying his editorial assignments are pretexts for discrimination. Defendants' grounds for delaying Hope's assignments are that Hope was less qualified than other candidates, and that ABC assigns jobs to people based upon ABC's scheduling needs. In his attempt to establish that these reasons are pretextual, Hope presents as evidence only that the performance of Caucasians who were promoted earlier was criticized in a manner similar to his performance.

This case presents the...