Opinion
02 Civ. 1089(DFE)
September 25, 2003
OPINION AND ORDER
The parties have submitted further briefs in response to my previous Opinion and Order, Varone v. City of New York, 2003 WL 21787475 (S.D.N.Y. Aug. 4, 2003).
At *13, I proposed to simplify the jury instructions by presenting only the claims under the State Human Rights Laws. Plaintiff's August 12 memorandum agrees that "the jury instructions should be simplified and should not be presented to the jury separately under each statute." He requests that I give the definition of "disability" under the City Human Rights Law. In their August 22 memorandum, the defendants agree, but they go on to say:
. . . He is not entitled to create a pastiche by grafting on the more favorable parts of other statutes, if there are any. . . . If there is a provision in another statute that he regards as more favorable to him and he wishes to take advantage of it, then he must meet all of the requirements under that statute, including those less favorable to him, and the jury must be charged under both statutes.
I agree. But plaintiff has not yet identified any such provision. Therefore, I am operating on the assumption that it will not be necessary to tell the jury anything about the State Human Rights Law, the Rehabilitation Act of 1973, 42 U.S.C. § 1983, or the Americans with Disabilities Act of 1990 ("ADA"), except as follows. I think the parties should stipulate to the jury that, whenever anyone referred to the ADA, the parties generally understood the reference to include the City Human Rights Law provisions about disability discrimination.
My previous Opinion, at *13, said:
The Civil Service Commission gave Varone a full and fair hearing, and denied his request for any back pay through October 18, 1999. Varone had a full and fair opportunity to contest that part of the decision, but he did not. As a result, Varone is estopped from seeking any back pay prior to October 18, 1999 under the Rehab Act, or § 1983, or State and City law.
I noted that this collateral estoppel does not apply to the ADA claim, but this has no practical effect since the ADA claim is governed by a shorter statute of limitations and does not reach back to 1999.
Plaintiff's next memorandum, dated August 14, asks for (1) reciprocal estoppel based on the same July 20, 1999 decision by the Civil Service Commission, and (2) collateral estoppel based on the December 26, 2001 Report and Recommendation of Administrative Law Judge Donna R. Merris. The defendants submitted opposing papers on September 14, and plaintiff submitted reply papers on September 19.
At the end of their response to the first request, the defendants write (Def. Mem. at 18):
Finally, if any portion of the Civil Service Commission decision should be granted preclusive effect, it should only be against defendant HRA, and not against the individual defendants Dennis Fecci and Lynn Bresler, neither of whom was a party to the disciplinary proceedings reviewed by the Commission or were in privity with HRA, the respondent therein.
It appears that Fecci and Bresler never met plaintiff until October 1999. But they were the two officials whom HRA delegated to supervise plaintiff and to comply with the Commission's July 1999 directive:
. . . [R]einstatement to his position . . . shall occur within 90 days of this decision. The parties are to determine a work schedule for appellant that takes into account both the needs of the agency and appellant's right to a reasonable accommodation per the ADA.
Fecci and Bresler do not claim that they were uninvolved in HRA' s decision not to appeal the Commission's decision. In any event, they were delegated by the HRA as stated above. Hence, I find that they were sufficiently in privity with the HRA so that it would be unfair to allow them to do what the HRA cannot do, namely relitigate the Commission's decision.
With respect to all of Varone's claims (except his ADA claim), I hereby estop the defendants from contesting that:
As of July 20, 1999, "[Varone]'s sleep disorder constitute[d] a disability which require[d] reasonable accommodation under the ADA [and under the State and City Human Rights Laws]."
The portion in quotation marks is from page 5 of the Commission's decision on July 20, 1999. The defendants protest (Def. Mem. at 6-7):
Plaintiff has not carried his burden of proving that that issue was necessary to the Civil Service Commission's judgment. . . . 10 Weinstein, Korn Miller, New York Civil Practice, ¶ 5011.28, p. 50-181 [says:] "When a finding of fact is not essential to the final judgment, no preclusion will be permitted."
The defendants argue that Varone raised the ADA defense only to the 1990 AWOL charge and not to the 1994 AWOL charge. They now argue that the Commission was wrong to entertain the ADA defense. They note that the ADA did not become effective until July 26, 1992, and that it ought not to be applied retroactively. Powell v. State of New York, 869 F. Supp. 106, 112 (N.D.N.Y. 1994). But they do not claim that HRA made any such argument to the Commission. Moreover, the Commission's quoted finding was essential to its 1999 final judgment, which ordered HRA to reinstate Varone and to "determine a work schedule . . . that takes into account . . . [his] right to a reasonable accommodation per the ADA."
Finally, the defendants argue (Def. Mem. at 11-12):
. . . HRA did not have a full and fair opportunity to litigate the issue in the disciplinary arena. . . . Varone raised [the ADA] as a defense and forced HRA to deal with it blind (except for the conclusory doctors' notes he had submitted).
Before the 1994 hearing, however, HRA could have sought discovery (including depositions "for good cause shown," Rules of the City of New York, Title 48, § 1-33). HRA does not claim that it made any such effort.
On the other hand, I note that the defendants are free to offer any evidence that Varone's disability lessened after the Commission's 1999 decision, or that Varone exaggerated his disability, or that the disability was not the real reason for his absences and latenesses.
I decline to order estoppel on two other Commission statements, which were noted in plaintiff's moving papers but not in his reply papers. Those statements were:
. . . HRA permitted [Varone] to keep a flexible schedule until approximately 1990 at which point he was required to keep a regular schedule.
. . . [T]he actions of the Agency, via his supervisor, contributed to his absence. . . . [I]f the Agency wanted to dismiss or suspend [Varone,] [it] was required to notify him that such steps would be taken. Having failed to do so, and especially given the highly flexible schedule to which [he] had become accustomed after two decades of employment, such ad hoc actions by the Agency were . . . inappropriate and thus contributed to the circumstance leading up to [his] AWOL.
New York law on collateral estoppel contains an additional requirement: the issue that was raised previously must be "decisive of the present action." Curry v. City of Syracuse, 316 F.3d 324, 331 (2d Cir. 2003). The Second Circuit construes this to mean that the issue must "prove or disprove, without more, an essential element of any of the claims set forth in the complaint [in the case at bar]." Id. at 332. The Commission's finding about Varone's flexible schedule from 1973 to 1990 concerns events that occurred prior to the statute of limitations in the case at bar; they are relevant background, but they do not "prove or disprove, without more, an essential element of any of the claims" in the case at bar.
I now turn to the other part of plaintiff's August 14 memorandum, which requests collateral estoppel based on the December 26, 2001 Report and Recommendation of ALJ Merris (the "RR").
The RR was not a final determination. Many months earlier, Varone had submitted his written resignation. Even if the jury finds that the resignation was the result of a constructive discharge, it was reasonable as a matter of law for HRA to advise the ALJ, as it did by letter dated January 7, 2002, that, in view of the resignation, HRA was taking "no final action" with respect to the RR. Varone did not press HRA to take any action on the RR. He acknowledges that HRA could have rejected the RR's findings, but he says he could then have sought a reversal from the Civil Service Commission. Very belatedly, he now requests me to rule that (a) "the Commissioner [of HRA] should be deemed to have decided the proceeding in accordance with the Report," or (b) "the OATH judge's findings should be deemed final in this case." (9/19/03 Reply Mem. at 5, 7.)
On the contrary, I refuse to give any collateral estoppel effect to ALJ Merris's RR. I direct the parties and the attorneys to make no mention to the jury concerning ALJ Merris's RR.
On September 3, at plaintiff's request and for good cause, I adjourned the firm trial date to December 2, 2003, commencing at 10:00 a.m. with jury selection. By November 10, the parties will exchange their trial exhibits. By November 18, each party must submit to me a binder with a courtesy copy of all trial exhibits (pre-marked, and with a list of exhibits), all further motions in limine, requested voir dire questions, requests to charge, and a proposed verdict sheet. I do not need anything further in the nature of a joint pretrial order.