Colon v. City Of New York

Background

Sibyl Colon sued the City of New York, the New York City Housing Authority, Melissa Mark-Viverito, Michael Kelly, and Brian Clarke. Her claims included employment retaliation under federal, New York State, and New York City law; constitutional claims; and related aiding-and-abetting claims. The court dismissed Colon’s claims against Mark-Viverito in 2018, but in 2019 it reinstated Colon’s aiding-and-abetting claim under the New York State Human Rights Law.

In May 2021, the court granted Mark-Viverito’s motion for summary judgment. Summary judgment is a decision entered when the evidence shows there is no genuine dispute about a fact important to the case and the moving party is entitled to judgment as a matter of law. The court found that the record lacked evidence that Mark-Viverito participated in the alleged retaliation against Colon. Colon did not appeal that decision or seek reconsideration within 14 days.

Colon’s Motion

Colon later moved under Federal Rule of Civil Procedure 54(b) to reinstate Mark-Viverito as a defendant. She relied on a later Second Circuit decision in a related case involving Allison Williams. In that case, the appeals court held that the evidence could allow a jury to decide whether Mark-Viverito and New York City Housing Authority defendants helped create a hostile work environment.

Colon argued that the claims in the two cases were similar in all material respects and that the later decision justified restoring Mark-Viverito to this case. Mark-Viverito opposed the motion.

Court’s Analysis

The court denied the motion. It explained that the two cases involved different plaintiffs and different claims against Mark-Viverito. Williams’s claim concerned aiding and abetting a hostile work environment. Colon’s claim concerned aiding and abetting retaliation based on Colon’s alleged retaliatory demotion and constructive discharge.

The court had previously found no evidence that Mark-Viverito knew Colon opposed the New York City Housing Authority’s transfer of Williams, or that Mark-Viverito participated in decisions to take adverse employment actions against Colon. The later appeals-court decision addressed whether a hostile work environment existed in Williams’s case; it did not address Mark-Viverito’s involvement in the retaliatory acts alleged by Colon.

Under the law-of-the-case doctrine, a court generally does not revisit a decision already made unless there has been an intervening change in controlling law, new evidence, clear error, or a need to prevent manifest injustice. The court found that Colon had not established any of those grounds.

Disposition

Judge Vernon S. Broderick denied Colon’s motion to reinstate Mark-Viverito and directed the Clerk of Court to terminate the motion at docket entry 259.