United States District Court, D. Massachusetts
ORDER ON PLAINTIFF'S MOTION FOR
Gail Dein United States Magistrate Judge.
matter is presently before the court on
“Plaintiff's Motion for the Court to Reconsider its
Rulings and Order of September 26, 2018 (Doc. 84) Granting
Defendants [sic] Summary Judgment in this Case” (Docket
No. 86). After consideration of the parties' submissions
and their oral arguments, this court concludes that the
plaintiff's motion for reconsideration must be DENIED.
factual background relevant to the present motion is fully
described in this court's September 26, 2018 Memorandum
of Decision and Order on Cross-Motions for Summary Judgment
(“Order”). Familiarity with the substance of that
Order, including both the facts and legal analysis, is
assumed and will not be repeated here.
motion for reconsideration is premised primarily on her
contention that the existence of surveillance cameras in
relevant areas of the hospital is a disputed issue of
material fact, and that the court erred in concluding that
the plaintiff had not created a genuine dispute by denying
the accuracy of the defendant's evidence that the cameras
had not been installed until several years after the relevant
time period. Despite being given various opportunities to do
so, the plaintiff has not identified any additional discovery
she believes would enable her to challenge the
defendant's facts. After reviewing the summary judgment
record and considering all of the arguments made in
connection with the motion for reconsideration, this court
finds no basis to disturb its earlier Order. Even assuming,
arguendo, that the existence of surveillance cameras
is a material fact, the court confirms its prior ruling that
the plaintiff has failed to create a genuine factual dispute
sufficient to defeat the defendant's motion for summary
for reconsideration are appropriate only in a limited number
of circum-stances: if the moving party presents newly
discovered evidence, if there has been an intervening change
in the law, or if the movant can demonstrate that the
original decision was based on a manifest error of law or was
clearly unjust.” United States v. Allen, 573
F.3d 42, 53 (1st Cir. 2009). In addition, “a motion for
reconsideration should be granted if the court has patently
misunderstood a party or has made an error not of reasoning
but apprehension.” Ruiz Rivera v. Pfizer Pharms.,
LLC, 521 F.3d 76, 82 (1st Cir. 2008) (quotations,
punctuation and citations omitted). However, such motions
“are not to be used as ‘a vehicle for a party to
undo its own procedural failures [or] allow a party to
advance arguments that could and should have been presented
to the district court prior to judgment.'”
Allen, 573 F.3d at 53 (quoting Iverson v. City
of Boston, 452 F.3d 94, 104 (1st Cir. 2006)). “The
granting of such a motion is ‘an extraordinary remedy
which should be used sparingly.'” Galanis v.
Szulik, 863 F.Supp.2d 123, 124 (D. Mass. 2012) (quoting
Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir.
motion for reconsideration, the plaintiff argues, inter
alia, that the existence of surveillance cameras in the
plaintiff's workplace was a disputed issue of material
fact, and that this court improperly made a credibility
determination on that issue. The plaintiff asserts that
surveillance cameras were installed and operational when the
alleged conduct occurred and would support her claims.
However, the evidence in the record did not support the
existence of the cameras as being in dispute. The defendant
attested that surveillance cameras were not installed in the
plaintiff's unit until years after the events at issue.
(Docket No. 79-1; see Docket No. 81 at 31).
Specifically, both an Electronics Technician at the Bedford
VA and the VA Police Chief confirmed that no surveillance
cameras existed in the plaintiff's unit during the
relevant period. (Docket No. 79-1). By contrast, the
plaintiff did not provide any evidence in support of her
contention - she simply speculated that the defendant was
lying and refusing to hand over footage in its possession.
(Docket No. 70 ¶¶ 57-58). On motions for summary
judgment, courts “afford no evidentiary weight to
conclusory allegations, empty rhetoric, [or] unsupported
speculation.” Tropigas de Puerto Rico, Inc. v.
Certain Underwriters at Lloyd's of London, 637 F.3d
53, 56 (1st Cir. 2011) (quotations omitted) (quoting
Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir.
2001)). Such unsupported speculation does not create a
genuine issue as to a material fact. See Medina-Munoz v.
R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
court recognizes that the plaintiff did not receive the
defendant's evidence as to the existence of surveillance
cameras until the defendant belatedly supplemented an
interrogatory answer in connection with its motion for
summary judgment. (See Docket No. 79; see
also Docket No. 81 at 31). However, the plaintiff has
failed to articulate what additional discovery she would have
requested had this supplemental answer been provided sooner.
When the plaintiff first received the defendant's
supplemental answer, she had the opportunity to file a Rule
56(d) motion to take additional discovery on the existence of
the surveillance cameras. See Fed.R.Civ.P. 56 (d).
The plaintiff failed to do so. During oral arguments on the
instant motion, this court also provided the plaintiff with
the opportunity to explain what additional discovery she
would have requested on the existence of the cameras if she
had received the defendant's answer sooner. When the
plaintiff failed to identify anything specific at the hearing
that she would have sought, this court asked the plaintiff
“to submit something that says what discovery, if any,
you would take on the issue of the cameras” by January
7, 2019. The plaintiff again failed to avail herself of this
same hearing, this court also provided the defendant with the
opportunity to submit additional relevant documentation, if
any, as to the existence of the cameras by January 7, 2019.
Due to the government shutdown, on December 26, 2018 the
defendant requested an extension as to “the time by
which Defendant must file evidence regarding the existence of
video cameras in Plaintiff's unit from January 7, 2019,
to January 21, 2019.” (Docket No. 94 at 1 (emphasis
omitted)). This court granted the extension. (Docket No. 95).
However, the plaintiff is not affected by the government
shutdown, has not requested, nor was she granted, an
extension of the filing deadline, and has failed to provide
the court with any supplemental documentation. In light of
the plaintiff's repeated failure to specify how the
belated submission of the defendant's supplemental
interrogatory answer could have potentially affected the
record available to the court on the parties'
cross-motions for summary judgment, this court need not wait
for the defendant to provide its own supplemental filings in
order to rule on the plaintiff's motion.
carefully reviewed both the motion to reconsider and the
plaintiff's supplemental arguments on the motion to
reconsider, this court concludes that the plaintiff has
failed to present an adequate basis for granting her motion
for reconsideration. Mere speculation, without any
evidentiary support, does not create a genuine issue of
material fact. For the reasons detailed in the Order, the
defendant is entitled to summary judgment on all of the
reasons detailed herein, “Plaintiff's Motion for
the Court to Reconsider its Rulings and Order of September
26, 2018 (Doc. 84) Granting Defendants Summary ...