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DIMINO v. NEW YORK CITY TRANSIT AUTHORITY
64 F.Supp.2d 136 (1999)
Christine DIMINO, Plaintiff,
v.
NEW YORK CITY TRANSIT AUTHORITY, John M. Long, individually and in his official capacity as General Superintendent of the SIR/SIRTOA Police Department, Richard Dreyfus, individually and in his capacity as Deputy Executive Assistant General Counsel of the New York City Transit Authority, Staten Island Railway, Staten Island Rapid Transit Operating Authority, Staten Island Railway/Staten Island Rapid Transit Operating Authority, Defendants.
No. 97-CV-5927(DGT).
United States District Court, E.D. New York.
September 14, 1999.
Patricia Weiss, Sag Harbor, NY, for Plaintiff.
Richard Schoolman, Office of the General Counsel, New York City Transit Authority, Brooklyn, NY, for Defendants.
MEMORANDUM AND ORDERTRAGER, District Judge. Plaintiff, Christine Dimino ("Dimino") brings a twelve count complaint against defendants, Staten Island Railway/Staten Island Rapid Transit Operating Authority ("SIRTOA"), New York City Transit Authority ("TA"), and John Long individually and in his capacity as General Superintendent of the SIRTOA police department, alleging various charges of discrimination and retaliation based on employment disputes she, a SIRTOA Police Officer, had with her employers when she became pregnant and requested light or restricted duty. Dimino seeks damages as well as declaratory and injunctive relief. Defendants move for summary judgment dismissing all counts. Defendants move separately to strike critical portions of the evidence Dimino has submitted. BackgroundIn 1997, Dimino was one of sixteen commissioned SIRTOA police officers. See Defs.' Local Rule 56.1 Statement (herein R.56.1) ¶ 1. SIRTOA police officers, commissioned by New York State's Superintendent of Police, carry weapons and have the authority to arrest people. See id. ¶ 2. Their basic duties, however, are to patrol and protect SIRTOA properties. See id. ¶ 3. The position can be hazardous, and plaintiff herself has been injured on the job. In June of 1996, she was struck in the lower abdomen by a falling or dislodged "ballast" while pursuing or apprehending a suspect. See Dimino Accident Report dated 6/20/96, Long Decl., Ex. A. On September 17, 1997, Dimino approached her supervisor, John Long ("Long"), the Chief and General Superintendent of the SIRTOA police department, and requested that she be placed on "restricted duty" because she was pregnant. See Second Am. Compl. (herein "Compl.") ¶¶ 19-21. There is some dispute as to what was actually said in this conversation, as well as disagreement over what was meant by what was said. It is not disputed,
however, that at this time Dimino gave Long two notes. The first, a letter from Dimino herself, read as follows: Dear Chief Long,
1. The only "above questions" are those referred to in the note itself. 2. Apparently the legal department for the New York City Transit Authority also provided legal services for SIRTOA. 3. The Second Circuit has held that it will "borrow" the Title VII burden shifting analysis in determining whether conduct was unlawfully discriminatory pursuant to 42 U.S.C. § 1983. See Annis v. County of Westchester,136 F.3d 239, 245 (2d Cir.1998). Similarly, discrimination claims brought under New York State or City Human Rights law also face the same standard as those brought pursuant to Title VII. See Ferrante v. American Lung Assoc.,90 N.Y.2d 623, 629, 665 N.Y.S.2d 25, 28, 687 N.E.2d 1308 (1997); Sowemimo v. D.A.O.R. Security, Inc.,43 F.Supp.2d 477, 483 (S.D.N.Y.1999). This is also true for retaliation claims brought under New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-107(7) et seq. See Milonas v. Rosa,217 A.D.2d 825, 629 N.Y.S.2d 535 (3d Dept. 1995). Thus, the following analysis is decisive for all of Dimino's sex and pregnancy discrimination claims. 4. Long has asserted that Dimino said she would not perform her duties. See Long Dep. at 40. 5. A third possible motive for SIRTOA's actions, i.e., it determined that Dimino could not "do the job," is rejected by SIRTOA's actions. Although Long asserted during deposition that he was concerned that Dimino "would not get involved," Long Dep. at 132, Long's statements are inconsistent. More importantly, defendants were later willing to allow Dimino to return to work on her own say so. This implies that defendants were confident she could actually perform her duties. 6. Dreyfus' attempts to protect SIRTOA from such liability do not violate any clearly established right of Dimino's so as to provide grounds for personal liability on his part pursuant to 42 U.S.C. § 1983. See Dimino v. Staten Island Railway/Staten Island Rapid Transit Authority et al., No. 97-CV-5927, 1998 WL 760341 (E.D.N.Y. Sept. 18, 1998). 7. Evidence that the September 27 statement was actually a settlement agreement in which SIRTOA waived its requirement of a medical exam in return for Dimino's signing of the statement would certainly undermine the above reasoning and lend credence to SIRTOA's contention that a neutral policy prevented Dimino from returning to work. 8. In a letter dated August 13, 1999, defendants contend that it is relevant that at the time the Dinkles were given restricted duty, SIRTOA employees recovered for injuries under the Federal Employers Liability Act ("FELA"), 45 U.S.C. §§ 51 et seq., rather than Workman's Compensation. To have allowed Dinkle to work while subject to FELA would have substantially enhanced SIRTOA's exposure to damages if Dinkle had been hurt as a result of SIRTOA's or a co-workers negligence. Therefore, while there may have been a willingness to give "restricted duty" in 1985, that need did not exist in 1997. 9. Dimino appears to argue that the fact that she did not obtain an affidavit from P.O. Grant should not be held against her because "[t]he first amendment may not be so broad as to encompass police officers gratuitously volunteering to give statements to assist a co-worker who is suing the Police Chief." Letter from Plaintiff's Counsel to Court dated 5/27/99. In support of this contention she refers to Hansen v. Soldenwagner,19 F.3d 573 (11th Cir.1994). There, a police officer, in the course of a deposition relating to the prosecution of another police officer for burglary, used foul language and made gratuitous criticisms of his superiors within the department. See id. at 574. In response, the city's chief of police ordered an Internal Affairs investigation which cumulated in the testifying officer's suspension. See id. The Eleventh Circuit held that the chief was entitled to qualified immunity from the officer's § 1983 suit because "in April 1990, [it] was [not] clearly established in this circuit that it was unconstitutional for police officials to investigate and to suspend an officer for making vulgar, insulting, and defiant criticisms of the department while giving testimony at a deposition pursuant to a subpoena." Id. at 575. It is difficult to see how these facts could be equated with an officer's willingness to admit that he was placed on restricted duty. Furthermore, Regina Dinkle, who is still employed by SIRTOA testified in deposition as to her experience with restricted duty without any problems. Therefore, there is little to suggest that Dimino could not have deposed Grant to support her contention. 10. Dimino does not claim actual disability. Nor would such a claim be fruitful. Courts have consistently held that, while complications arising from a pregnancy may create a disability, a normal pregnancy does not. See Moawad v. Rx Place, No. 95-CV-5243, 1999 WL 342759, at *6 n. 3 (E.D.N.Y. May 27, 1999) (and cases cited therein). 11. Dimino also contends at one point that SIRTOA retaliated against her by not assigning her to the restricted duty recommended by the TMed doctors, who do not appear to have been aware of SIRTOA's policy. Since no restricted duty was available, this could not constitute retaliation. 12. Defendants contend that, because Dimino had already stopped working at the time the EEOC complaint was filed, the opportunity to return to work was the beneficial result of settlement negotiations. Therefore, according to defendants, the withdrawal of that opportunity was not an adverse employment action, but rather, was either a failure of negotiations or the recission of an offered benefit.
In Penny v. Winthrop-Univ.,883 F.Supp. 839 (E.D.N.Y.1995) the district court addressed a similar, but not identical, situation. There, a nurse had filed a grievance against a hospital based on her having been terminated by that hospital. At the final stage of the grievance procedure, after the discharge had been upheld throughout the prior three stages, the hospital's president wrote the nurse a letter in which he offered to reinstate her in return for, inter alia, her dropping the charges of discrimination alleged in her grievance complaint. The court ruled that the president's act was not retaliatory: "if anything, the [] letter constitutes the opposite of an adverse action, because it conditionally offers the plaintiff reinstatement of her already terminated position." Id. at 845. Defendants' attempt to characterize this case in the same light is unconvincing. There is no question that Dimino had not lost her job; defendants' own theory posits that she was merely placed on medical leave because SIRTOA was unable to establish that she was fit for "full work." Furthermore, defendants specifically assert in relation to a separate claim that Dimino was not the subject of any disciplinary action. Thus, Penny is not on point because the offer in the September 27th statement did not give Dimino anything which had been taken away; it merely changed her work status. 13. It should be noted that Dimino's EEOC complaint alleged that defendants were discriminating against her by refusing to assign her to restricted duty when they had assigned other officers to such duty. If Dimino had provided evidence that restricted duty assignments were available in 1997, it might be plausible to argue that by requiring Dimino to withdraw her request for such an assignment, defendants were retaliating against her for her accusations. However, because Dimino has not provided any evidence that such an assignment was available, defendants' insistence that she withdraw her request cannot be considered to have been retaliatory. 14. It should be noted that the district court in Lehmuller specifically stated that the background in that case was especially convincing. The plaintiff in that case "was the first female police officer ever hired by the Village and it was the first time that the Village had ever confronted a request like the plaintiff's to be placed on `light duty' status due to her pregnancy." Lehmuller, 982 F.Supp. at 138. Dimino alleges that she was the first female officer to make such a request "in writing." Compl. ¶ 104. This codicil may be a reference to Regina Dinkle who allegedly was placed on medical leave because of her pregnancy. 15. Dimino's additional assertions that the job descriptions or placement policies have disparate impact are not supported by evidence at all. Furthermore, there is no evidence that a pregnant woman has ever been placed on medical leave because she was unable to meet specific job requirements, as opposed to because of defendants' general concerns regarding pregnancy and its impact on a police officer's ability to perform her duties. 16. In the following paragraphs of her memo, Dimino returns to the theme that male officers, like P.O. Romano, have been given restricted duty when injured. See Pl. Mem. at 25-26. This allegation relates to a disparate treatment theory of recovery, not a disparate impact theory. 17. It appears from the materials that there is some sort of maternity leave available. See Joseph Decl. ¶ 3. 18. Dimino appears to allege an additional ground for her due process complaint in her Memorandum in Opposition to the Motion. There, Dimino claims that "TA and SIRTOA did not follow their own procedures [which] led to a wrongful deprivation of [a] property right." Pl. Mem. at 27. Dimino does not specifically allege which procedures were not followed, nor how the failure to follow procedures resulted in a deprivation. Furthermore, the case she cites for support, Vitarelli v. Seaton,359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959), dealt not with a due process claim, but with "the legality of [the] discharge [of] an employee of the Department of the Interior" when the manner of the discharge was not in keeping with the department's regulations, or the statutory mandates concerning sensitive positions. Id. at 536, 79 S.Ct. at 971. Thus, it is entirely irrelevant. 19. While defendants have not directly asserted that allowing plaintiff to return to work was a benefit, they have implicitly so stated by repeatedly contending that not allowing plaintiff to return to work was not an adverse employment action. 20. The comprehensiveness of the dispute addressed during the negotiations may also be a determinative factor with respect to the admissibility of the evidence with regard to these claims. For instance, it is undisputed that the negotiations did not relate to Dimino's back-pay claim. Courts have held that where settlement negotiations were not intended to address certain claims, they may be admitted as evidence in the litigation of those other claims. See, e.g., Thomas v. Resort Health Related Facility,539 F.Supp. 630, 638 (E.D.N.Y.1982) (where settlement is related to dispute over employment and not to dispute over back-pay, offer of employment is not excluded on back-pay issue). 21. Of course, defendant is not precluded from making such a showing at trial and having this issue revisited. 22. Insofar as the § 1983 claims are brought against SIRTOA they may or may not be vulnerable to defenses that there was no policy or practice supporting Long's actions. See Monell v. Department of Soc. Svcs.,436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Because SIRTOA has not raised such a defense at this time, it need not be addressed here, but may still become relevant at trial.
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