Opinion
No. 02 Civ. 1089 (DFE)
August 1, 2003
Bonnie Mussman, Esq., Mussman Northey, 475 Park Avenue South, 16th Floor, New York, New York 10016, (also by fax to 212-685-3773)
Norma A. Cote, Esq., Senior Counsel, Law Department of the City of New York, 100 Church Street, New York, New York 10007-2601, (also by fax to 212-788-0940)
OPINION AND ORDER
Plaintiff Martin Varone brings several federal and state law claims against defendants City of New York, New York City Human Resources Administration ("HRA"), Dennis Fecci, Meyer Elbaz, and Lynn Bresler. The Amended Complaint, dated June 27, 2002, asserts claims against all defendants under the New York State Human Rights Law and the New York City Human Rights Law. It also asserts claims against the City and HRA under the Rehabilitation Act of 1973 (the "Rehab Act") and the Americans with Disabilities Act of 1990 ("ADA"). Finally, it asserts claims for violation of Varone's Fourteenth Amendment right to equal protection of the laws, and for intentional infliction of emotional distress ("IIED")
In August 2002, the parties consented to have all proceedings before me pursuant to 28 U.S.C. § 636 (c). On February 26, 2003, the defendants filed a motion for summary judgment. On March 21, 2003, Varone filed opposition papers. On April 4, 2003, the defendants filed reply papers, which included a motion to strike certain evidence submitted by Varone. On April 7, Varone filed a sur-reply.
STATUTES OF LIMITATIONS
1. The ADA claim. The statute of limitations goes back 300 days prior to the date when Varone filed his charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC"), which was December 21, 2001. However, I will grant equitable tolling back to September 11, 2001, when the EEOC's New York office was destroyed in the attack on the World Trade Center. On August 29, 2001, the New York State Division of Human Rights ("NYSDHR") dismissed Varone's state charges, for administrative convenience; after that, Varone had 30 days to file with the EEOC, and he could have filed with any regional office, for example the one in Newark. Nevertheless, equitable tolling is appropriate in view of the September 11 attack. I rule that the ADA claim goes back 300 days before that date, to November 15, 2000.
On the other claims, the statutes of limitations run from the date when Varone filed his first Complaint in our Court, which was February 11, 2002.
2. The claim for IIED. The statute of limitations is only one year. The IIED claim goes back only to February 11, 2001. Varone has not shown any bad acts on or after that date. Accordingly, I dismiss the IIED claim.
3. The claim under 42 U.S.C. § 1983 (denial of equal protection). The statute of limitations is three years. The § 1983 claim goes back to February 11, 1999.
4. The Rehabilitation Act claim. The statute of limitations is three years. This claim goes back to February 11, 1999.
5. The claim under the New York City Human Rights Law. The statute of limitations is three years. Varone argues that it should be tolled because of his 1989 and 1990 filings with the NYSDHR. I reject this argument; the City law did not allow a private civil action for disability discrimination until September 16, 1991. See N.Y.C. Administrative Code § 8-502, enacted by Local Law 39/1991, § 4(6), which said that § 8-502 "shall apply to causes of action arising on or after such effective date," which was September 16, 1991. Accordingly, the City claim goes back to February 11, 1999.
6. The claim under the New York State Human Rights Law. The statute of limitations is three years. The question is whether the statute is tolled for the period from December 27, 1989 (when he filed a charge of disability discrimination, Pl. Exh. 4, followed seven months later by a charge of retaliation, Pl. Exh. 5) until August 29, 2001 (when the NYSDHR dismissed those charges for administrative convenience). Defendants' Reply Mem., at pages 15-16, argues that the NYSDHR acted ultra vires because it may not dismiss on grounds of administrative convenience after a hearing has begun. N.Y. Executive Law § 297(3)(c). But "the sole forum for appellate review of an SDHR decision to dismiss a complaint on the ground of administrative convenience is the State Supreme Court — — a federal district court has no such jurisdiction." Rivers v. Standard Poor's Corp., 764 F. Supp. 54, 56 (S.D.N.Y. 1991) (Leisure, J.) (citing cases). On the other hand, where a plaintiff requests and receives an administrative convenience dismissal, N.Y. Executive Law § 297(9) makes clear that "any judicial proceedings are subject to New York's general three-year statute of limitations, measured from the occurrence of the discrimination, with no tolling for the period in which the claim was pending in the administrative process." New York State Nat. Org. for Women v. Pataki, 261 F.3d 156, 161 (2d Cir. 2001), citing Sprott v. N.Y. City Hous. Auth., 1999 WL 1206678, at *23 (S.D.N.Y. Dec. 16, 1999) (Leisure, J.). Accordingly, Varone' s claim under the State Human Rights Law goes back to February 11, 1999.
FACTUAL AND PROCEDURAL BACKGROUND
In the following summary, I view the evidence in the light most favorable to Varone, since he is the party opposing summary judgment. I will allow the jury to hear the entire story. The portions prior to February 11, 1999 are admissible solely as background. At the trial, I will require the parties to present those portions succinctly.
1. Varone's Sleep Disorder
Varone has been suffering from Delayed Sleep Phase Syndrome for most of his life. He states that this disorder prevents him "from maintaining a fixed schedule for any significant length of time. (Varone Decl. ¶ 2.) One of Varone's treating physicians, Dr. Paul Glovinsky, described the nature of this disorder in a September 2000 letter. (Pl. Exh. 9.) He stated that Delayed Sleep Phase Syndrome:
is a circadian rhythm disturbance characterized by difficulty initiating sleep at a typical nocturnal bedtime, with consequent difficulty arising in the morning. This difficulty is physiologically based: It has been found that the sleep/wake cycle is regulated by an internal pacemaker located in the suprachiasmatic nuclei of the hypothalamus; it is hypothesized that this pacemaker tends to run slow or is more subject to phase delays in individuals exhibiting Delayed Sleep Phase Syndrome.
* * *
In general, individuals with Delayed Sleep Phase Syndrome are alert and able to function without impairment if allowed to obtain a full quotient of sleep during the morning to early afternoon while working evenings. Many patients with this disorder do in fact end up working an afternoon or night shift, or finding a job that can be fulfilled with more flexible scheduling. . . .
(Pl. Exh. 9.)
Dr. Glovinsky described the effect of treatment on Varone as "[t]ypical of severe cases of this disorder" in that only limited success was possible and only "with great effort." ( Id.) He went on to state:
After reviewing Mr. Varone's history and current sleep logs, I estimate that his sleep phase is now situated between about 6 am and 3 pm, and that his most productive hours for work would be between 5 pm and 2 am.
He would be able to accommodate occasional earlier work times in order to attend meetings with co-workers. For example, he might set an alarm clock at 12 noon in order to make a 2 pm meeting on an as-needed basis. The disruption would be similar to that experienced by those of us who occasionally set a 4 am alarm to make the first flight out of LaGuardia: It can be done, but the resultant sleep debt will have to be paid back sooner or later. Unlike most individuals, however, Mr. Varone must also contend with his propensity to follow a day that is substantially longer than 24 hours, so these occasional disruptions to his delayed schedule (as well as those triggered by unplanned intrusions) would necessitate some flexibility in work scheduling as he re-establishes a regulated pattern.
( Id.)
2. Varone's Initial Work Experience at HRA
Varone began working at HRA in 1973 and, with the exception of a brief period of time in 1974, he remained there until June 1995. Varone was assigned to the Application Systems Development Unit of the Office of Management Information Systems ("MIS"). Defendant Elbaz was Varone's supervisor until 1991 or 1992. During his 22 year tenure at HRA, Varone worked solely as a mainframe computer programmer.
When he was hired, Varone advised HRA about his sleep disorder. Thus, despite the fact that Varone's official work schedule was 8:30 a.m. to 4:30 p.m., HRA permitted him to work a flexible schedule. Varone asserts that he was allowed to work 35 hours per week at any time of the day. (Varone Decl. ¶ 6.) Under this flexible schedule, Varone, while working primarily at night, was nonetheless "generally able to arrange to be present in the office for scheduled meetings or other business when necessary." (Id. at ¶ 7.) Varone states that he was permitted to maintain this schedule for 15 years. ( Id. at 6.)
Varone performed well under these conditions. His evaluations for 1986, 1987, and 1988 were "superior." (Pl. Exh. 14.) The New York City Civil Service Commission described his work record as "impressive," stating:
During his tenure, [Varone] created the Unduplicating Program which, as a report prepared by Sheldon Cohn, P.R.A., indicated, saves the City millions of dollars by ensuring more than one check is not sent to the same address. In 1981 he also scored the highest on the Computer Specialist exam. [Varone] also developed the Check Staggering System that ensures efficient and secure distribution of checks. He received commendations in 1983, 1985, and 1988.
(Pl. Ex. 2 at 6 (citations omitted).) Despite his record, Varone was continually denied merit raises and promotions. (Varone Decl. ¶ 10.)
In 1988, Varone asked HRA to formalize the flexible schedule he had been working under for 15 years. HRA agreed, subject to medical documentation of his disability. (Varone Decl ¶ 11.) Varone consulted Dr. Michael Thorpy of the Montefiore Sleep/Wake Disorders Clinic. Varone then provided HRA with a letter from Dr. Thorpy, dated March 22, 1989, which stated that Varone required "unconventional working hours" and suggested that Varone "be permitted to put in a 35 hour work week with flexible hours." (Pl. Exh. 3.) Varone states that his request for formal recognition of his work schedule "was procedurally mishandled, and effectively denied." (Varone Decl. ¶ 13.) However, despite HRA's refusal to formalize the flexible schedule, HRA continued its pattern of informally permitting Varone to work a very flexible schedule even though his official work schedule was from 4 p.m. to midnight. ( Id. at ¶ 14.)
Varone claims that HRA's attitude changed after he filed his first charge with the SDHR on December 27, 1989. (Pl. Exh. 4.) This first charge alleged that HRA discriminated against him on the basis of his disability by (a) refusing to formalize his work schedule and (b) failing to promote him or give him merit raises. It also alleged that HRA "has accelerated their harassment, for example, I am the only person in my department who is being denied advanced training." Within weeks after filing this SDHR charge, Varone was forced to work on a fixed work schedule for the first time. (Varone Decl. ¶ 16.) When he proved unable to work this schedule, Varone was served with disciplinary notices, threatened with termination, and forced to take an extended sick leave. ( Id.) In July 1990, Varone filed his second charge with SDHR, alleging that these acts were retaliation against his first charge. ( Id. at ¶ 18; Pl. Exh. 5.)
In May 1990, Varone took the sick leave in order to find a sleep disorder specialist who could help him to work a fixed schedule. (Varone Decl. ¶ 17.) In June 1990, his search led him to Dr. Paul Glovinsky of the Insomnia Treatment Center, who treated Varone from 1990 to 1994. Varone returned to work in November 1990. He asserts that Dr. Glovinsky wrote several letters to HRA on Varone's behalf, beginning with a letter dated June 28, 1990. (Varone Decl. ¶ 19; Pl. Exh. 6.) Varone returned to work in November 1990. On May 31, 1991, he signed a Memorandum of Agreement (Def. Exh. KK), which set out a "transition work schedule" and said that if it was unsuccessful then he would provide additional medical documentation prior to July 4. He provided additional letters from Dr. Glovinsky dated July 1 and August 5, 1991. (Def. Exh. LL.) HRA's weekly time records for Varone for July 15 through December 27, 1991 appear at Def. Exh. MM; they show that HRA gave him what might be called a sliding schedule, and they also show the times that Varone actually worked.
3. Varone's First Termination and Subsequent Appeal
HRA filed disciplinary charges against Varone, charging him with being AWOL during much of the time in May and June 1990 and much of the time in May to October 1994. A hearing was conducted by the Office of Administrative Trials and Hearings ("OATH") on November 28, 1994. The crux of the charges was that Varone failed to follow proper leave procedures. Varone invoked the ADA as a defense.
In a Report and Recommendation dated March 17, 1995 (Def. Exh. Y), Administrative Law Judge John B. Spooner sustained the charges against Varone. The ALJ considered Varone's ADA defense, but found that HRA had offered him a reasonable accommodation. ALJ Spooner wrote:
. . . in January 1990, [Varone] was given a choice among three different alternative work schedules: (1) a regular 5-day week schedule with set hours; (2) a 5-day week schedule with a 2-hour arrival float; or (3) a compressed 4-day week schedule with a 2-hour arrival float. With the arrival float, [Varone] could report as late as 11:00 a.m. and leave as late as 7:00 p.m.
The four-day schedule offered to [Varone] in 1990 constituted a reasonable accommodation for his sleep disorder. Although [Varone] was generally vague about the matter, he did suggest two work schedules, neither of which would appear to be reasonable. First, [Varone's] insistence that he should have been entitled to come to work approximately two hours later each day would have meant, in fact, that he could report to work at virtually any hour of the day or night when he happened to wake up. Second, his suggestion that the only acceptable accommodation would be a flexible schedule whereby he could report to work as early as 2 p.m. or as late as 6 p.m. was likewise unacceptable.
(Def. Exh. Y at 11.)
Nonetheless, in light of Varone's good employment record, ALJ Spooner recommended that Varone be demoted instead of terminated as HRA had sought. ( Id. at 13-14.) Despite this recommendation, HRA terminated Varone on June 9, 1995. (Def. Exh. Z.) Two months later, on August 14, 1995, the SDHR found probable cause to believe that HRA had discriminated and retaliated against Varone. (Pl. Exh. 7.)
Varone, acting pro se, appealed his termination to the Civil Service Commission (the "Commission"). Due to medical problems, Varone twice postponed the hearing, which finally occurred on April 1, 1999. (Pl. Exh. 2 at 1.) In a 3-1 decision dated July 20, 1999, the Commission modified the HRA's decision. Disagreeing with the ALJ and the HRA, the Commission found that Varone's disability constituted "a valid underlying substantive justification" for his infractions. ( Id. at 5.) It also noted "the highly flexible schedule to which [Varone] had become accustomed." ( Id. at 6.) In light of these factors, and due to his impressive work history, the Commission found that the penalty of termination was excessive; it held that Varone was entitled to:
. . . reinstatement to his position which 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.
( Id. at 7.) It is important to note that the Civil Service Commission could have ordered backpay; instead, it converted the 1995 termination into a suspension of more than four years without pay. (2/3/03 Fecci Decl. ¶ 3.) As to the future, HRA's duty to offer reasonable accommodation was now required, not only by the ADA, but also by the New York Human Rights Law, which had been amended in this respect effective January 1, 1998.
4. Varone's Reinstatement
Varone was not reinstated to the same position within MIS. As Varone puts it: "For the first time in my adult work life, I was not assigned to do mainframe computer programming." (Varone Decl. ¶ 33.) Deputy Commissioner Dennis Fecci, the head of MIS, was responsible for deciding where to assign Varone. Since he knew that Varone had been a computer programmer, Fecci consulted Meyer Elbaz, Benjamin Low, and Bob Pajvani, the heads of the three programming divisions in MIS, prior to Varone's reinstatement. (Fecci Reply Decl. ¶ 3.) Elbaz and Low had supervised Varone during his prior stint as a mainframe computer programmer at HRA (Elbaz from the early 1980's to 1991, and Low from 1991 to 1995). Fecci says that both Elbaz and Low told him that, due to their prior experiences with Varone, they did not want Varone in their units. ( Id.; confirmation is supplied by Elbaz Decl. ¶¶ 4-8 and Low Decl. ¶¶ 4-6, both dated 4/1/03.) Fecci says that Pajvani, too, said that he did not want Varone, even though he had not had any personal experience with Varone. (Fecci Reply Decl. ¶ 3.) Fecci asserts that, because of these preferences and the time-sensitive nature of programming work, he decided that Varone should not be reinstated as a programmer. (Id. at ¶¶ 3-5.) He made this decision even though MIS was hiring new programmers. (Fecci Dep. 66:14-22.) Instead, Fecci decided to assign Varone to the Strategic Planning Unit, a nonprogramming unit of the Office of Strategic Integration and Service Delivery. The head of the Strategic Planning Unit was Lynn Bresler.
HRA reinstated Varone on the last of the 90 days allowed by the Commission's order, namely October 18, 1999. On that day, Varone met with Fecci, who told him, "You are not welcome here." (Varone Decl. ¶ 27; Fecci Dep. 85:17-25.) With respect to Varone's work schedule, Fecci informed Varone that he would have a fixed schedule with a two hour "float" while all other employees had only a one hour "float." Prior to Varone's reinstatement, Fecci did not attempt to determine Varone's prior work schedules at HRA. (Fecci Dep. 55:16-56:22, 153:12-15.) The two hour "float" meant that Varone was allowed one hour both before and after his official arrival time in which to begin work. However, Varone had to choose 8, 9, or 10 a.m. to be his official start time. He selected the latest possible arrival time, 10 a.m. Thus, with the two hour "float," his work day could vary from 9-5 to 11-7. Varone asserts that this was the same schedule that he had been unable to follow in 1995. (Varone Decl. ¶ 29.) Varone claims that he told Fecci that he could not work this schedule and that it violated the Commission's order. Fecci "s response was: "Take it up with your lawyer. I'm not interested. End of discussion!" ( Id. at ¶ 30.)
5. Varone's Inability to Work His Assigned Schedule
It is undisputed that Varone did not comply with his assigned work schedule. He consistently arrived several hours late and frequently left work early. In addition, he was repeatedly absent, sometimes for days at a time. Varone almost never worked a complete workday, usually putting in no more than a couple hours a day. (See Def. Exh A, his time and attendance records from 10/18/99 to 3/23/01. See also Def. Exh BB, Bresler's secretary's list describing calls made by Varone to the secretary from 12/15/99 to 2/22/01.)
Varone attributes his inability to comply with his schedule to his sleep disorder. (Varone Decl. ¶ 36.) In addition, Varone states that his sleep disorder occasionally prevented him from calling in and notifying Bresler that he would be late or absent. ( Id. at ¶ 37.)
Varone's poor attendance prevented him from attending staff meetings with Bresler and his co-workers on any sort of regular basis, even after they were moved from 11 a.m. to 2 p.m. to accommodate his late arrivals. (Bresler Decl. ¶ 14.) Since he was not in the office during the day, Varone was unable to attend hastily scheduled meetings; he says he did not receive messages or emails requesting that he attend such meetings until after they had already taken place. (Varone Decl. ¶ 37.)
"On the 22d 23rd and 24th work days after his reinstatement [which I take to mean November 17, 18 and 19, 1999], Mr. Varone was absent for the entire day because of his sleep disorder." (56.1 St. ¶ 24. I treat Varone's 56.1 Response as an admission.)
On November 22, 1999, Bresler told Varone that she was going to start disapproving his absences and that he would have to submit current medical documentation of his sleep disorder. (Bresler Decl. ¶ 15; Def. Exh. D.) In November and December, Bresler requested that disciplinary charges be brought against Varone because of his attendance record. (Bresler Decl. ¶ 37.) Varone says that, in support of these charges, she falsely claimed that the lateness of his first assignment was due to his attendance problems, when she knew that the fault had been a delay by an HRA contractor. (Varone Decl. ¶¶ 38-39.)
Varone did not submit any medical documentation in response to Bresler's request until February 2000. He submitted a letter, dated February 15, 2000, from his psychiatrist, Dr. Steven Newman, which stated, in its entirety:
To whom it may concern:
Martin Varone is suffering recurring anxiety attacks as a result of his current working conditions.
He needs a flexible schedule (open window arrival) to accommodate his sleep disorder, as ordered by the NYC Civil Service Commission.
Giving his lifelong disorder, disciplinary action for lateness is highly inappropriate.
(Pl. Exh. 8.) The HRA found this information inadequate and, as a result, by letter dated March 3, 2000, requested that Varone and Dr. Newman submit information regarding Varone's diagnosis, prognosis, and length of treatment. (Def. Exh. I.) No further information from Dr. Newman was ever submitted. (Bresler Decl. ¶ 17.)
6. Varone's Requests for Alternate Work Schedules
Varone says: "Since my reinstatement I had repeatedly asked Bresler to schedule a meeting with Fecci to discuss a modification of my schedule. But no meeting was scheduled for almost seven months."
On May 8, 2000, Varone made a concealed tape recording of his meeting with Fecci, Bresler and three union officials. The transcript of the tape is Def. Exh. K. Near the end, the following was said:
Fecci: I need people to interface with my users and to bring the systems up on time . . .
Varone: I've got a long history of doing exactly that.
* * *
Fecci: Well, how did you talk to the users?
Varone: Like I said, when I had to be here in the daytime to talk to the users, that was easy to accomplish. I would come in at 3:00 o'clock in the morning and stay until 11:00. Then I'd get to see the user from 9:00 till 11:00, and if he's late I stay till 1:00. I have no problem with doing that. The problem now is I can't do that. I can't come in at 7:00 in the morning. I can't come in at 8:00 in the morning. Why can't I come in at 8:00 in the morning?
Fecci: (Unclear). You can change your 2-hour flex time any time you want.
[interrupted]
Varone: . . . . Now in order to come in at 7:00, I have to give up the ability to come at 11:00. You're not making any sense.
(Def. Exh. K, Tr. 64-65.) A finder of fact might question exactly what Fecci meant when he said, "You can change your 2-hour flex time any time you want." How much advance notice was needed for such a change? Was there any limit on the number of changes? It is also unclear whether Fecci was willing to tolerate Varone's example of working a 10-hour day if the user was late (and then presumably working fewer hours on the next day).
Bresler says: "At no time while he worked for me did Mr. Varone ask me to consider any alternative to a full-flex schedule as an accommodation for his disability." (Bresler Decl. ¶ 36.) But this is contradicted by Def. Exh. II (which should be pronounced "Eye-Eye"). This is a transcript of part of Varone's tape of his meeting with Bresler on September 5, 2000:
Varone: Um, although Fecci has adamantly refused to discuss the matter, I made several proposals, uh, through the union attorneys, uh, that 50% of my work week [be] between the hours of 10 and 4, come up with a number of different schemes that I put forth to address the problem.
Bresler: The only ones I'm aware of are that you should be allowed to work whenever suits your sleeping time. I haven't seen any that you're — you're claiming that — half day, half day 10-4, half day some other time. * * * I don't remember a proposal of half and half.
Varone: Uh, well, it's out there, and any time Dennis wants to talk about it, . . . . It's not me that's been adamant about it.
(Def. Exh. II, Tr. 3-4.) The defendants cite the portion I have omitted from the above excerpt; they charge Varone with giving a false recap of the meeting four months earlier and of subsequent proposals by Varone. (Cote Reply Decl. ¶¶ 8-9; Fecci Reply Decl. ¶¶ 8-9.) But a finder of fact may find that Bresler was obliged to consider Varone's September 5 proposal, and to give Varone a response to it.
At Bresler's request, Varone submitted a letter from Dr. Glovinsky dated September 18, 2000. (Varone Decl. ¶¶ 48-49.) At pages 3-4 of this opinion, I quoted extensively from Dr. Glovinsky's letter (Pl. Exh. 9). It ended as follows:
In summary, it is my opinion that if provided with a flexible work schedule that is primarily evening-based, allowing for occasional daytime appearances, Mr. Varone could function as a Computer Specialist despite having a chronic circadian rhythm disturbance. I would be happy to discuss this further upon authorization from Mr. Varone.
On October 23, 2000, Bresler wrote to Varone, acknowledged Dr. Glovinsky's letter, and said:
reasonable accommodation" does not include that your schedule should put an unreasonable burden on the Agency. The Agency will not be reevaluating your work schedule.
(Pl. Exh. 13.) It seems clear that this was HRA's definitive response to Varone's requests for accommodation.
In October 2000, Bresler and Fecci again pressed the disciplinary charges for unauthorized latenesses and absences of November and December 1999. (Varone Decl. ¶ 51.) Bresler writes: "Since I expected the relevant issues concerning what is a reasonable accommodation to be brought out at the disciplinary hearing, I did not request AWOL charges to be pressed for any of his subsequent latenesses and absences, although they were just as bad as his earlier record if not worse." (Bresler Decl. ¶ 37.)
7. The Hearinqs before OATH and before NYSDHR; Varone's Resiqnation and Subsequent Developments
Bresler, Varone and others testified at the disciplinary hearing on January 12, 2001, before Administrative Law Judge Donna R. Merris of the City's Office of Administrative Trials and Hearings ("OATH"). Beginning before his post-hearing brief, Varone wrote to HRA that he it was his "intention to terminate my city employment effective on or about 2/23/01." (Def. Exh. Q, e-mails by Varone dated 1/22/01 and 3/6/01.) His resignation became effective on March 23, 2001.
After many delays, the NYSDHR held hearings on March 12 and 13, 2001 on Varone' s charges of discrimination and retaliation. On March 13, Varone did not appear, but made the following statement on the record, by telephone:
I wish to inform this court that I have no confidence of receiving a fair hearing under the current circumstances and at the very least I will ask the appellate court for a retrial. It seems pointless to waste time and resources in continuing this trial.
In light of the above, I ask that this court and/or this agency cancel the remainder of the present proceeding. . . .
(Pl. Exh. 11, p. 3.) The hearing was discontinued, and five months later the NYSDHR issued a five-page opinion ordering that Varone' s administrative complaint be "dismissed for administrative convenience." ( Id., p. 5.)
On December 26, 2001, based on the January OATH hearing, ALJ Merris issued a 20-page Report and Recommendation. She concluded: "Respondent [Varone] has established that the latenesses with which he was charged are not sanctionable under the Civil Service Law because they were caused by a disability which petitioner [HRA] failed to reasonably accommodate as required by the ADA." Therefore, she recommended that the disciplinary charges be dismissed. (Pl. Exh. 12, p. 20.) On January 7, 2002, an Associate General Counsel of HRA wrote to ALJ Merris that, "as the respondent resigned prior to the issuance of the RR, no final action will be taken in this matter." (Def. Exh. DD.)
DISCUSSION
I. Defendants' Evidentiary Motions
As a threshold matter, I address certain evidentiary issues raised in defendants' reply brief. They argue that (1) portions of Varone's Declaration should be stricken, (2) the doctors' notes submitted by Varone to me are hearsay, (3) the December 26, 2001 Report and Recommendation by OATH should be stricken, (4) Varone's Local Civil Rule 56.1 statement of facts should be stricken, and (5) an adverse inference should be drawn against Varone because of his destruction of his secret tape recording of his October 18, 1999 meeting with Fecci.
A. Varone's Declaration Dated March 17. 2003
Defendants' Reply Memorandum, at pages 1-5, italicizes several portions of Varone's Declaration, and moves to strike them.
Paragraph 6 of Varone's Declaration says:
When I was hired [in 1973], I advised HRA of my sleep disorder. Although my official schedule was from 8:30 a.m. to 4:30 p.m., HRA accommodated me informally, by allowing me to work a flexible schedule for many years.
Defendants argue: "At the time he was hired, there was no legal requirement whatsoever in this jurisdiction that an employer accommodate an employee's disability." I will allow the defendants to present this argument to the jury, if they believe that it will soften the impact of the background evidence prior to the 1990 passage of the ADA. Defendants also argue: "[Varone] cannot claim personal knowledge of why HRA allowed him to keep these hours. There could have been numerous other reasons, such as its own staffing or operational needs at the time. If so, I will allow the defense to present such reasons to the jury. But Varone draws a logical inference that he was allowed to work this schedule because of his sleep disorder. I decline to strike the italicized portion.
Paragraph 21 of Varone's Declaration says:
In or about 1991, I attempted to file another SDHR complaint for retaliation, but the SDHR said it wouldn't accept any more complaints because all subsequent retaliation was covered by my earlier filing.
Defendants argue that the italicized portion is inadmissible hearsay. At least part of it seems to be SDHR's statement of its intent. And even if this is not admissible for its truth, it appears to be admissible for the purpose of providing a reason why Varone did not file a third complaint with SDHR (alleging further instances of retaliation)
Paragraphs 25, 41, and 54 contain Varone's characterizations of a tape-recorded meeting and two written decisions. The Reply Memorandum, at pages 5-6, reminds me that the transcript and the written decisions are the best evidence. Varone agrees, and says that he merely included summary characterizations "for the Court's convenience in the interest of providing a full chronology in one document." (Pl. Sur-Reply at 2.)
At Paragraph 31, Varone says:
Fecci also refused to reinstate me to my former position in Applications Systems Development, doing mainframe computer programming. Because of impending Y2K issues, Applications Systems Development was very busy, and HRA had hired additional staff and consultants to work there. Given my years of experience in that unit, and the fact that I had written many of the programs now being examined for potential vulnerability, there was an obvious and urgent use for my expertise in this area.
The Reply Memorandum, at pages 2-3, argues that the italicized portion is simply Varone's baseless opinion about the needs of HRA and should be stricken. Varone's statement that there was an "obvious and urgent" need for his "expertise" is perhaps an overstatement, but I see no need to strike this statement, given that HRA does not seem to dispute that Varone had written many of the programs being examined for Y2K vulnerability.
Finally, defendants move to strike Varone's statement that "email was the standard method of communication in Bresler's unit and among HRA personnel in general." (Varone Decl ¶ 45.) Defendants argue that Varone didn't spend enough time in the office to know what the standard method of communication was. They also submit the Reply Declaration of Lynn Bresler who states that it was "not true . . . that business was usually conducted by e-mail." (Bresler Reply Decl. ¶ 2.) This dispute can be resolved at trial.
B. Doctors' Notes
The defendants argue that Plaintiff's Exhibits 3 (a March 22, 1989 letter from Dr. Michael Thorpy), 6 (two letters from Dr. Glovinsky), 8 (Dr. Newman's February 15, 2000 letter which is also contained in Def. Exh. 8), 9 (Dr. Glovinsky's September 18, 2000 letter which is also contained in Def. Exh. P), and 10 (Dr. Brodsky's psychiatric report, portions of which are also contained in Def. Exh. 5) are hearsay and admissible only to show what HRA knew. Varone states that the doctors notes are not being offered for their truth, since HRA has not disputed that Varone suffered from the sleep disorder described in the notes. This limitation adequately addresses defendants' concerns.
C. ALJ Merris' s Report and Recommendation
The defendants also move to exclude Plaintiff's Exhibit 12 (the December 26, 2001 Report and Recommendation) because it was not the "final decision" of the HRA and because it "is a product of false testimony." (Def. Reply Memo. at 6-7.)
ALJ's Merris's Report and Recommendation was issued after Varone had resigned, and after the NYSDHR dismissed Varone' s charges for administrative convenience, and after Varone made a follow-up filing of those charges with the EEOC.
As far as I can see, Varone submitted Pl. Exh. 12 simply for the purpose of opposing summary judgment — — to show that a reasonable person could find, at least, that HRA, Fecci and Bresler failed to make reasonable accommodation in violation of the State Human Rights Law. I do not believe that Varone has stated any intention to show Pl. Exh. 12 to the jury. Two reasons counsel against mentioning it to the jury. First, it would usurp the jury's function. See United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994) (citing cases). Second, it would force the jury to consider collateral issues such as the quantity and quality of the evidence heard by ALJ Merris, and possibly differences between the discovery required before an OATH hearing and the discovery required before a federal trial.
D. Varone's Local Civil Rule 56.1 Statement
The defendants also argue that parts of Varone's Local Civil Rule 56.1 Statements are improper and should be stricken. (See Def. Exh. NN.) Varone argues that the "omission of context and critical facts" from Defendants' Local Civil Rule 56.1 Statement made it necessary to include these facts in his response. (Pl. Sur-Reply at 3.)
I deem that Varone has admitted Paragraphs 24 and 54-61 of Defendants' Rule 56.1 Statement. I see no need to take any further action with respect to Varone's Rule 56.1 Response.
E. Adverse Inference
Finally, the defendants argue that an adverse inference should be drawn against Varone for his destruction of his secret tape recording of his October 18, 1999 meeting with Fecci. They say: "All of his statements about that meeting should be viewed with extreme skepticism or else discounted entirely." (Def. Reply Memo. at 11) (citations omitted). I disagree.
Varone correctly points out that Fecci has not disputed very much of Varone's version of that meeting. In any event, on a motion for summary judgment, I draw all inferences in favor of the non-moving party. If the defendants want me to give an adverse inference instruction to the jury, they must include it in their requests to charge (due September 3).
Having disposed of defendants' various evidentiary arguments, I shall now discuss their motion for summary judgment.
II. Defendants' Motion for Summary Judgment
A motion for summary judgment is properly granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute as to a material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). In making this determination, a court must view the evidence in the light most favorable to the nonmoving party, resolving all ambiguities and drawing all reasonable inferences in its favor. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000); Gross v. National Broadcasting Co., Inc., 232 F. Supp.2d 58, 67 (S.D.N.Y. 2002) (Scheindlin, J.).
However, a party resisting a properly supported summary judgment motion may not simply rely on mere allegations, denials or speculation. See Weinstock, 224 F.3d at 41; Dorrilus v. St. Rose's Home, 234 F. Supp.2d 326, 331 (S.D.N.Y. 2002) (Berman, J.). Instead, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial.'" Weinstock, 224 F.3d at 41 (quoting Anderson, 477 U.S. at 256). This standard is equally applicable to discrimination cases. See Weinstock, 224 F.3d at 41; Cross, 232 F. Supp.2d at 67-68.
Nonetheless, "summary judgment is a "drastic device, since its prophylactic function, when exercised, cuts off a party's right to present his case to the jury.' Accordingly, the moving party bears a heavy burden of demonstrating the absence of any material issues of fact." Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985) (citations omitted), quoted in Nationwide Life Ins. Co. v. Bankers Leasing Assoc., Inc., 182 F.3d 157, 160 (2d Cir. 1999).
The defendants have moved for summary judgment on all of Varone's claims. I shall now discuss their arguments in more detail.
A. The ADA Claim
At the start of this Opinion, I ruled that, even with maximum equitable tolling, the ADA claim goes back only to November 15, 2000. On October 23, 2000, Bresler's memorandum to Varone gave him HRA's definitive response to his requests for accommodation: "The Agency will not be reevaluating your work schedule." (Pl. Exh. 13.) The ADA's 300-day statute of limitations bars Varone's ADA claim to the extent it asserts a failure to accommodate. Fol v. City of New York, 2003 WL 21556938, at *5 (S.D.N.Y., July 9, 2003) ( Katz, M.J.), citing Elmenayer v. ABF Freight System, Inc., 318 F.3d 130, 133-35 (2d Cir. Jan. 22, 2003).
B. The Claim for Back Pay prior to October 18, 1999
The claims under the Rehab Act and § 1983 go back to February 11, 1999. On the other hand (unlike the ADA) the Rehab Act and § 1983 do not incorporate the portion of Title VII that was the subject of Univ. of Tenn. v. Elliott, 478 U.S. 788, 795-96, 106 S.Ct. 3220, 3224-25 (1986). Accordingly, the New York law of collateral estoppel will govern the claims under the Rehab Act and § 1983, as well as the claims under State and City law. Kosakow v. New Rochelle Radiology Associates, 274 F.3d 706, 727-30 (2d Cir. 2001)
Under New York law, the proponent of collateral estoppel has the burden to show an "identity of issue which has necessarily been decided in the prior action and is decisive of the present issue," and the opponent bears the burden to show that he did not have a full and fair opportunity to contest the decision now said to be controlling." Schwartz v. Public Administrator, 24 N.Y.2d 65, 71-71, 298 N.Y.S.2d 955, 960-62 (1969). 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.
On the other hand, it appears that the Civil Service Commission did not have the power to award money damages for emotional suffering. Varone can seek such damages for acts taken by the defendants from February 11, 1999 forward, under his State Human Rights Law claim, his City law claim, his Rehab Act claim, and his § 1983 claim. Under his ADA claim he may seek such damages, but limited to any acts of retaliation or disparate treatment occurring on or after November 15, 2000.
The State Human Rights Law claim appears to cover all the defendants, and to have the same essential legal standards as the other claims, and to offer at least as much relief. Accordingly, I propose to simplify the jury instructions by presenting only the claims under the State Human Rights Law. If any party objects to this, it must serve and file a memorandum of law by August 15, 2003, with Opposing papers due by August 22.
C. The Claim for Lost Wages after March 23, 2001
Under the liberal standards set forth in Terry v. Ashcroft, ___ F.3d ___, 2003 WL 21666141, at *16-19 (2d Cir. July 17, 2003), Varone has shown enough evidence for a rational jury to find a constructive discharge. But the defendants point out that Varone announced his resignation within a few days after the completion of his hearing before ALJ Merris, and about seven weeks before commencing his hearing before the NYSDHR. The defendants argue that no rational jury could find a constructive discharge when Varone had these two remedies at hand. They cite Spence v. Maryland Cas. Co., 995 F.2d 1147, 1157 (2d Cir. 1993). See also Katz v. Beth Israel Medical Center, 2001 WL 11064, at *13 (S.D.N.Y. Jan. 4, 2001) (Schwartz, J.). I am unpersuaded, but the defendants may renew this argument at the close of the plaintiff's case.
D. The Claim for Retaliation
Varone has presented enough evidence to take his claim of retaliation to the jury. See Terry, 2003 WL at *7.43
E. The Claim for Disability Discrimination
In order to establish a prima facie case of discrimination based on disability, Varone must show (1) that he is disabled; (2) that a defendant covered by the relevant statute had notice of his disability; (3) that with a reasonable accommodation, he could perform the essential functions of the position; and (4) that the defendant has refused to make such an accommodation. Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 216 (2d Cir. 2001). For the purposes of this motion, the defendants do not dispute that Varone is disabled. In addition, they do not dispute that all defendants are covered by one or more of the statutes and had notice of Varone's disability.
Therefore, Varone can defeat summary judgment by producing evidence that a given defendant (a) refused to enter into an interactive process of negotiation, or (b) refused to provide Varone with a reasonable accommodation that would have allowed him to perform the essential functions of his job. I find that he has produced evidence of both, subsequent to February 11, 1999 (except as to Elbaz)
Defendants argue that no reasonable accommodation existed that would have enabled Varone to perform the essential functions of his job. Furthermore, the defendants assert that the only accommodation that Varone ever indicated he would accept was a fully flexible schedule, which they say would be ineffective and unreasonable as a matter of law. I find that genuine issues of fact exist which preclude the granting of summary judgment on Varone' s reasonable accommodation claims.
The defendants argue that the only accommodation which Varone would have accepted is a fully flexible schedule. They assert that such a schedule cannot be a reasonable accommodation because it would prevent Varone from performing the essential functions of his job, namely keeping regular and predictable hours. Accordingly, they argue that this schedule is unreasonable as a matter of law. For support, the defendants cite cases where courts found that a fully flexible schedule was not a reasonable accommodation. Aquinas v. Federal Express Corp., 940 F. Supp. 73, 79 (S.D.N.Y. 1996) (Stein, J.) (holding that customer service agent with shoulder impairment was not entitled to flexible work schedule); Keck v. New York State Office of Alcoholism, 10 F. Supp.2d 194 (N.D.N.Y. 1998) (employer was not required to allow plaintiff to come to work only when no one else was present); see also Misek-Falkoff v. I.B.M. Corp., 854 F. Supp. 215, 225-27 (S.D.N.Y. 1994) (Broderick, J.) (working from home would not be reasonable where job required "intensive cooperation" and training with other staff members).
However, the question of whether a particular schedule would permit a disabled employee to perform the essential functions of his job is one that must be answered by examining the particular facts and circumstances of each case. See Borkowski v. Valley Central Sch. Dist., 63 F.3d 131, 140 (2d Cir. 1995) ("a fact-specific inquiry" is required to determine an accommodation's effect on the essential functions of a given position). Varone has cited cases holding that a jury ought to determine the reasonableness of an accommodation that would allow an employee to work an unconventional schedule. Humphrey v. Memorial Hospitals Assoc., 239 F.3d 1128, 1137 (9th Cir. 2001) (summary judgment not warranted where "physical attendance at the [defendant's] offices is not an essential job duty"); Hernandez v. City of Hartford, 959 F. Supp. 125, 131-32 (D. Conn. 1997) (fact that plaintiff's duties included interacting with other employees did not establish that physical presence in the office was an essential function precluding a work-at-home schedule).
The defendants have not provided enough evidence to permit me to rule, as a matter of law, that allowing Varone to work a fully flexible schedule would prevent him from performing the essential functions of his job. Indeed, the contrary is indicated by the fact that Varone operated under just such a schedule for 15 years as a mainframe computer programmer.
Moreover, there is a genuine dispute as to whether Varone suggested other schedules that could have served as a reasonable accommodation. The defendants argue that he always insisted on a fully flexible schedule, but Varone has introduced evidence showing that he was willing to consider other less flexible alternatives.
F. Varone's Claims Aqainst Elbaz
Defendant Elbaz has moved for summary judgment of all claims against him, on the grounds that Varone has not come forth with any evidence sufficient to hold Elbaz liable on any claim. Varone has not made any opposing argument. Indeed, in his opposition brief, Varone seems to indicate that Fecci and Bresler are the only individual defendants. ( See Pl. 3/21/03 Mem. at 23, 25.)
In any event, there is almost no evidence pertaining to Elbaz after February 11, 1999. Elbaz was Varone's supervisor until 1991 or 1992. As the October 1999 reinstatement approached, Elbaz told Fecci that he did not want Varone to be reinstated to Elbaz's unit. (Elbaz Decl. ¶¶ 2-8.) It appears that Varone felt the same way. In his May 8, 2000 meeting with Fecci, Varone said:
I don't want to work for Mr. Elbaz. I want Mr. Elbaz fired on charges of filing a false report.
(Def. Exh. K at 47.)
Varone has put forth no factual basis on which Elbaz could be held liable on any claim. Accordingly, Elbaz's motion for summary judgment is granted.
CONCLUSION
I grant Elbaz's motion for summary judgment. Except to the extent stated above, I deny the motions of the other defendants. As I noted at page 19, I propose to simplify the jury instructions by presenting only the claims under the State Human Rights Law. If any party objects to this, it must serve and file a memorandum of law by August 15, 2003, with opposing papers due by August 22.
On May 15, I set a firm trial date of September 8, 2003, commencing a 1:30 p.m. with jury selection. I enclose a copy of my one-page instruction on jury selection. By August 20, 2003, each party must serve and file a list of all trial witnesses (with an asterisk identifying each witness who will definitely be called). By September 3, 2003, 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 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.