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Marracco v. Kuder

January 30, 2009

MARIAN R. MARRACCO, PLAINTIFF,
v.
ROBERT KUDER AND, REHABILITATION PLANNING, INC., DEFENDANTS.



The opinion of the court was delivered by: Hillman, District Judge

OPINION

Before the Court is plaintiff's motion for reconsideration of this Court's Order dismissing her claim brought pursuant to New Jersey's Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 et seq. For the reasons explained below, plaintiff's motion is denied.

I. Standard for Motion for Reconsideration

Motions for reconsideration are not expressly recognized in the Federal Rules of Civil Procedure. United States v. Compaction Sys. Corp., 88 F.Supp.2d 339, 345 (D.N.J. 1999). Generally, a motion for reconsideration is treated as a motion to alter or amend judgment under Fed.R.Civ.P. 59(e), or as a motion for relief from judgment or order under Fed.R.Civ.P. 60(b) Id. In the District of New Jersey, Local Civil Rule 7.1(i) governs motions for reconsideration. Bowers v. Nat'l. Collegiate Athletics Ass'n., 130 F.Supp.2d 610, 612 (D.N.J. 2001).

Local Civil Rule 7.1(i) permits a party to seek reconsideration by the Court in matters "which [it] believes the Court has overlooked" when it ruled on the motion. L.Civ.R. 7.1(i); see NL Industries, Inc. v. Commercial Union Insurance, 935 F.Supp. 513, 515 (D.N.J. 1996). The standard for reargument is high and reconsideration is to be granted only sparingly. See United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994). The movant has the burden of demonstrating either: "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court [issued its order]; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Max's Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)(citing N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). The Court will grant a motion for reconsideration only where its prior decision has overlooked a factual or legal issue that may alter the disposition of the matter. U.S. v. Compaction Sys. Corp., 88 F.Supp.2d 339, 345 (D.N.J. 1999); see also L.Civ.R. 7.1(g). "The word 'overlooked' is the operative term in the Rule." Bowers v. Nat'l. Collegiate Athletics Ass'n., 130 F.Supp.2d 610, 612 (D.N.J. 2001)(citation omitted); see also Compaction Sys. Corp., 88 F.Supp.2d at 345.

Ordinarily, a motion for reconsideration may address only those matters of fact or issues of law which were presented to, but not considered by, the court in the course of making the decision at issue. See SPIRG v. Monsanto Co., 727 F.Supp. 876, 878 (D.N.J.), aff'd, 891 F.2d 283 (3d Cir. 1989). Thus, reconsideration is not to be used as a means of expanding the record to include matters not originally before the court. Bowers, 130 F.Supp.2d at 613; Resorts Int'l. v. Greate Bay Hotel and Casino, Inc., 830 F.Supp. 826, 831 n. 3 (D.N.J. 1992) Egloff v. New Jersey Air National Guard, 684 F.Supp. 1275, 1279 (D.N.J. 1988). Absent unusual circumstances, a court should reject new evidence which was not presented when the court made the contested decision. See Resorts Int'l, 830 F.Supp. at 831 n. 3. A party seeking to introduce new evidence on reconsideration bears the burden of first demonstrating that evidence was unavailable or unknown at the time of the original hearing. See Levinson v. Regal Ware, Inc., No. 89-1298, 1989 WL 205724, at *3 (D.N.J. Dec. 1, 1989).

Moreover, L.Civ.R. 7.1(i) does not allow parties to restate arguments which the court has already considered. See G-69 v. Degnan, 748 F.Supp. 274, 275 (D.N.J. 1990). Thus, a difference of opinion with the court's decision should be dealt with through the normal appellate process. Bowers, 130 F.Supp.2d at 612 (citations omitted); Florham Park Chevron, Inc. v. Chevron U.S.A., Inc., 680 F.Supp. 159, 162 (D.N.J. 1988); see also Chicosky v. Presbyterian Medical Ctr., 979 F.Supp. 316, 318 (D.N.J. 1997); NL Industries, Inc. v. Commercial Union Ins. Co., 935 F.Supp. 513, 516 (D.N.J. 1996) ("Reconsideration motions ... may not be used to re-litigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment."). In other words, "[a] motion for reconsideration should not provide the parties with an opportunity for a second bite at the apple." Tishcio v. Bontex, Inc., 16 F.Supp.2d 511, 533 (D.N.J. 1998) (citation omitted).

II. Plaintiff's Motion for Reconsideration

In its earlier Opinion, the Court found that plaintiff did not allege facts that taken as true could raise a reasonable expectation that discovery would reveal evidence that she suffered an adverse employment action in support of the third element of her CEPA claim. Marracco v. Kuder, No. 08-713, 2008 WL 4192064, at *8 (D.N.J. Sept. 9, 2008).

A plaintiff who brings a CEPA claim must demonstrate that: (1) she reasonably believed that her employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3c; (3) a retaliatory employment action was taken against her; and (4) a causal connection exists between the whistle-blowing activity and the retaliatory employment action. Id. at *6 (citing Dzwonar v. McDevitt, 828 A.2d 893, 900 (N.J. 2003)). Defendants did not dispute that plaintiff met elements two and four, and the Court found that plaintiff alleged sufficient facts in support of the first element. Id. (finding that plaintiff alleged sufficient facts that could show that she reasonably believed that her employer had engaged in fraudulent billing practices).

The Court concluded, however, that plaintiff did not allege facts that could show that a retaliatory employment action was taken against her as required by element three. Id. at *8. Plaintiff alleged that a probationary period and productivity standard were imposed. The Court held that "[t]o qualify as an adverse employment action under CEPA, the employer's action must have a significant impact on the employee's compensation or rank." Id. (citing Noto v. Skylands Community Bank, 2005 WL 2362491, at *4 (N.J.Super.A.D. Sept. 28, 2005); Hancock v. Borough of Oaklyn, 790 A.2d 186 (N.J.Super.A.D. 2002)).

The Court found that the plaintiff had not alleged that the imposition of the probationary period or productivity standard had a significant impact on her compensation or rank; that plaintiff had not alleged that her pay or benefits were reduced or that any conditions of her employment were altered; and that plaintiff did not allege facts indicating that the productivity goals imposed as part of her probation were objectively unrealistic or unattainable. Id. The Court found that the facts showed that plaintiff voluntarily resigned. Id. Accordingly, the Court held that a probationary period, without any other significant impact on rank, pay or benefits, does not amount to an adverse employment action. Id. at *8. In making this decision, the Court reviewed as persuasive authority the decisions in Noto, 2005 WL 2362491, at *4 and Swanson v. Northwestern Human Services, Inc., No. 06-4923, 2008 WL 1823423, at *1 (3d Cir. 2008) which held that extending a probationary period does not equal an adverse employment action under CEPA.

Plaintiff asks this Court to reconsider its decision based on the argument that Noto and Swanson were not published opinions and because in those cases the probationary period had been extended and not imposed.*fn1

Citation to unpublished opinions is not only permitted under Federal Rule of Appellate Procedure 32.1*fn2 and 1 NJPRAC R.1:36-3*fn3 , but is widely used. In re Grand Jury Investigation, 445 F.3d 266 (3d Cir. 2006) (acknowledging the rise of non published opinions ("NPOs") on-line and in the Federal Appendix series published by West Publishing and stating that the Third Circuit does not prohibit citation to NPOs but regards them only as the opinion of three members of the court in a particular case). Even though Swanson is an unpublished opinion and does not have precedential authority, it is a Third Circuit opinion and, therefore, carries considerable persuasive authority. See Evans v. Chichester School Dist., 533 F.Supp.2d 523, 535 (E.D.Pa. 2008)(stating "[a]lthough I recognize that unpublished opinions lack precedential value, I cite to them in this memorandum as persuasive authority when I find their reasoning convincing and their facts analogous to the situation before me)(citing City of Newark v. U.S. Dep't of Labor, 2 F.3d 31, 33 n. 3 (3d Cir. 1993) ("Although we recognize that this unpublished opinion lacks precedential authority, we nonetheless consider persuasive its evaluation of a factual scenario virtually identical to the one before us in this case.")); Linden v. Sap America, Inc., No.03-3125, 2004 WL 1047719, at *4 (E.D.Pa. May 6, 2004) ...


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