Decisions of Interest

For plaintiff-appellant: Washington Square Legal Services, Inc., by Laura Sager, New York.

For defendant-appellee: New York City Transit Authority, Office of the General Counsel, by Richard Schoolman, Brooklyn.

For amicus curiae, Equal Employment Opportunity Commission, by Barbara L. Sloan, Nicholas M. Inzeo, Philip B. Sklover and Vincent J. Blackwood, Washington, D.C.

Amendment of Complaint in Age-Race Case Denied

An employee failed to establish that he had been denied a “full and fair opportunity” to litigate his claims before the State Division of Human Rights and was therefore not entitled to amend his complaint pursuant to 42 U.S.C. Section 1981. Evans v. The New York Botanical Gardens, 2003 WL 1610774 (S.D.N.Y. 3/25/03)

(Sweet, D.J.).

The employee filed a complaint of age and race discrimination with the State Division of Human Rights (SDHR) and was terminated 2 months later. After investigating the employee's claims, the State Division of Human Rights concluded that there was no probable cause to believe that the employer had committed the discriminatory acts alleged by the employee.

The employee brought suit in the Southern District. Shortly thereafter, the court granted leave to amend his complaint to add claims for discrimination and retaliation under Section 1981 if he submitted new evidence that he had not had a full and fair opportunity to litigate his claims before the SDHR. The employee advanced two arguments: that the SDHR interviewed an anonymous witness of the employer; and that the employer misrepresented to the SDHR its reason for terminating a similarly situated employee. The court denied the employee's motion because the anonymous witness did not provide any information material to SDHR's determination, and the employee's argument that the employer terminated similarly situated employee due to a reorganization but told SDHR that the reason was performance “appears to be based on semantics and snippets of deposition testimony.” The court concluded that the employee was precluded from relitigating the SDHR claims in court.

For plaintiff: Vincent I. Eke-Nweke, P.C., Brooklyn.

For defendant: Clifton Budd & DeMaria, by Michael J. Volpe and George F. Brenella, New York.

Title VII Pay Awards Reduced When Based on Incorrect Wages

An employee's initial court-ordered back and front pay awards had to be reduced where they were based on incorrect economic information. Ivernon v. The Port Auth. of New York and New Jersey, 2003 WL 1563219, (S.D.N.Y. 3/26/03) (Leisure, D.J.).

After a jury determined that the employer discriminated against its employee on the basis of his race and national origin in violation of Title VII, the court awarded him $117,550 in back pay and $118,540 in front pay based on the employee's economic report.

The employer moved for remittitur of the front and back pay awards on the grounds that the employee's economic report overstated the difference between the compensation he actually received and the compensation he would have received if he had been promoted. The court reduced the back pay award to $28,544 plus prejudgment interest because the employee's report compared his net compensation actually received with the gross compensation he would have received if promoted, which caused the court to greatly overestimate the difference in compensation caused by the employer's failing to promote. The court cancelled the front pay because the employee would be “made whole” as required by Title VII, by the employer's prospective increase of the employee's salary to the amount had he been promoted and adjustments to his pension.

For plaintiff: Thomas Bello, Staten Island.

For defendant: The Port Authority of New York and New Jersey, by Megan Lee, New York.

Sex Harassment Claim Goes to Trial

An employee established “serious issues of fact” about her employer's proffered explanation for reassigning her after she complained of sexual harassment. Signer v. Tuffey, 2003 WL 1240611, (2d Cir. 3/18/03) (Calebresi, Pooler and Sotomayor, Circuit Judges).

In overruling the district court, the Second Circuit held that the employer's admission that it had yet to even consider reorganizing the employee's unit until after she complained of sexual harassment, coupled with its failure to explain why it moved the employee's office 6 months prior to reorganizing her unit, but immediately after she complained, presented “serious issues of fact” precluding summary judgment.

For plaintiff-appellant: Hite & Savitt, by Meredith H. Savitt, Albany.

For defendants-appellees: Brennan, Rehfuss & Liguori, P.C., by John Liguori and Megan B. Van Aken, Albany.

Note: This case is an unpublished opinion subject to Second Circuit Rule '0.23

Wiretapped Employee May Proceed with Claim

An employee may proceed with his claim under the Federal Wiretap Law, 18 U.S.C. ' 2510-2522, where the employer's policy regarding treatment of personal calls and the nature of the consent given were inconclusive based on the record in that case. Devlin v. Teachers' Insurance & Annuity Association of America, 2003 WL 1738969 (S.D.N.Y. 4/2/03) (Rakoff, D.J.)

Plaintiff Devlin's job included fielding calls from clients. Devlin was informed that telephone calls could be monitored, but that management would hang up on any personal calls. A co-worker told Devlin that a manager had learned by monitoring his telephone calls that Devlin was gay, drank a lot, and was having personal problems. Devlin testified that during orientation, he was told that management would not listen in on personal calls. The court concluded that the question and scope of Devlin's consent to the monitoring of his phone calls was inconclusive and that a material issue of fact existed precluding summary judgment.

No attorneys listed.

Failure to Disclose Evidence Leads to Estoppel

A party who fails to disclose evidence on the ground that he intends to use it solely for impeachment purposes is estopped from subsequently using that evidence as substantive proof. Lomascolo v. Otto Oldsmobile-Cadillac, Inc., 2003 WL 1678783 (N.D.N.Y. 3/17/03) (Treece, M.J.).

At a deposition, the employee confronted a representative of the employer with documents that the employee had written and which memorialized his complaints of harassment. The employer's representative had signed the documents as a “witness.” The employee had not disclosed those documents to the employer either as part of his initial disclosures pursuant to Rule 26(a) of the Federal Rules of Civil Procedure or in response to the defendant's request for witness statements. The employer moved to preclude the documents and for sanctions. The employee argued that he was justified in withholding the documents because he intended to use them solely for impeachment purposes and because they were not witness statements.

The court held that the documents were the employee's own statements, and therefore not responsive to Defendant's request. The court also held that the employee was justified in excluding the documents from his initial disclosures. However, he could not expand his use of the documents to prove their substantive content to impute to the employer notice of his complaints: “Plaintiff should not be permitted to proceed at trial with an inconsistent theory for these documents, now that he has avoided the severe prospects of not using these documents for any reasons. Plaintiff should, and will be, held to his legal strategic elections.”

No attorneys listed.

Requested Accommodation Not Related to Disability

A subway token booth clerk's request for reassignment to a position above ground was not reasonable because she did not establish a link between her disability and the reassignment. Felix v. New York City Transit Auth. , 324 F.3d 102 (2d Cir. 3/3/1/03) (Walker, Jacobs and Leval, Circuit Judges).

The employee suffered from insomnia, a disability that limited the major life activity of sleeping. Her condition had been caused by a traumatic event; that same event also resulted in her fear of working in the subway. However, the Second Circuit held that while the employee's insomnia constituted a disability, her fear of working in the subway was merely a lesser impairment that need not be accommodated: The employee did not “argue … that she was unable to work in the subway because such work aggravated her insomnia; she told the [employer] that she could not work in the subway because she was 'terrified of being alone and closed in.'”

For plaintiff-appellant: Washington Square Legal Services, Inc., by Laura Sager, New York.

For defendant-appellee: New York City Transit Authority, Office of the General Counsel, by Richard Schoolman, Brooklyn.

For amicus curiae, Equal Employment Opportunity Commission, by Barbara L. Sloan, Nicholas M. Inzeo, Philip B. Sklover and Vincent J. Blackwood, Washington, D.C.

Amendment of Complaint in Age-Race Case Denied

An employee failed to establish that he had been denied a “full and fair opportunity” to litigate his claims before the State Division of Human Rights and was therefore not entitled to amend his complaint pursuant to 42 U.S.C. Section 1981. Evans v. The New York Botanical Gardens, 2003 WL 1610774 (S.D.N.Y. 3/25/03)

(Sweet, D.J.).

The employee filed a complaint of age and race discrimination with the State Division of Human Rights (SDHR) and was terminated 2 months later. After investigating the employee's claims, the State Division of Human Rights concluded that there was no probable cause to believe that the employer had committed the discriminatory acts alleged by the employee.

The employee brought suit in the Southern District. Shortly thereafter, the court granted leave to amend his complaint to add claims for discrimination and retaliation under Section 1981 if he submitted new evidence that he had not had a full and fair opportunity to litigate his claims before the SDHR. The employee advanced two arguments: that the SDHR interviewed an anonymous witness of the employer; and that the employer misrepresented to the SDHR its reason for terminating a similarly situated employee. The court denied the employee's motion because the anonymous witness did not provide any information material to SDHR's determination, and the employee's argument that the employer terminated similarly situated employee due to a reorganization but told SDHR that the reason was performance “appears to be based on semantics and snippets of deposition testimony.” The court concluded that the employee was precluded from relitigating the SDHR claims in court.

For plaintiff: Vincent I. Eke-Nweke, P.C., Brooklyn.

For defendant: Clifton Budd & DeMaria, by Michael J. Volpe and George F. Brenella, New York.

Title VII Pay Awards Reduced When Based on Incorrect Wages

An employee's initial court-ordered back and front pay awards had to be reduced where they were based on incorrect economic information. Ivernon v. The Port Auth. of New York and New Jersey, 2003 WL 1563219, (S.D.N.Y. 3/26/03) (Leisure, D.J.).

After a jury determined that the employer discriminated against its employee on the basis of his race and national origin in violation of Title VII, the court awarded him $117,550 in back pay and $118,540 in front pay based on the employee's economic report.

The employer moved for remittitur of the front and back pay awards on the grounds that the employee's economic report overstated the difference between the compensation he actually received and the compensation he would have received if he had been promoted. The court reduced the back pay award to $28,544 plus prejudgment interest because the employee's report compared his net compensation actually received with the gross compensation he would have received if promoted, which caused the court to greatly overestimate the difference in compensation caused by the employer's failing to promote. The court cancelled the front pay because the employee would be “made whole” as required by Title VII, by the employer's prospective increase of the employee's salary to the amount had he been promoted and adjustments to his pension.

For plaintiff: Thomas Bello, Staten Island.

For defendant: The Port Authority of New York and New Jersey, by Megan Lee, New York.

Sex Harassment Claim Goes to Trial

An employee established “serious issues of fact” about her employer's proffered explanation for reassigning her after she complained of sexual harassment. Signer v. Tuffey, 2003 WL 1240611, (2d Cir. 3/18/03) (Calebresi, Pooler and Sotomayor, Circuit Judges).

In overruling the district court, the Second Circuit held that the employer's admission that it had yet to even consider reorganizing the employee's unit until after she complained of sexual harassment, coupled with its failure to explain why it moved the employee's office 6 months prior to reorganizing her unit, but immediately after she complained, presented “serious issues of fact” precluding summary judgment.

For plaintiff-appellant: Hite & Savitt, by Meredith H. Savitt, Albany.

For defendants-appellees: Brennan, Rehfuss & Liguori, P.C., by John Liguori and Megan B. Van Aken, Albany.

Note: This case is an unpublished opinion subject to Second Circuit Rule '0.23

Wiretapped Employee May Proceed with Claim

An employee may proceed with his claim under the Federal Wiretap Law, 18 U.S.C. ' 2510-2522, where the employer's policy regarding treatment of personal calls and the nature of the consent given were inconclusive based on the record in that case. Devlin v. Teachers' Insurance & Annuity Association of America, 2003 WL 1738969 (S.D.N.Y. 4/2/03) (Rakoff, D.J.)

Plaintiff Devlin's job included fielding calls from clients. Devlin was informed that telephone calls could be monitored, but that management would hang up on any personal calls. A co-worker told Devlin that a manager had learned by monitoring his telephone calls that Devlin was gay, drank a lot, and was having personal problems. Devlin testified that during orientation, he was told that management would not listen in on personal calls. The court concluded that the question and scope of Devlin's consent to the monitoring of his phone calls was inconclusive and that a material issue of fact existed precluding summary judgment.

No attorneys listed.

Failure to Disclose Evidence Leads to Estoppel

A party who fails to disclose evidence on the ground that he intends to use it solely for impeachment purposes is estopped from subsequently using that evidence as substantive proof. Lomascolo v. Otto Oldsmobile-Cadillac, Inc., 2003 WL 1678783 (N.D.N.Y. 3/17/03) (Treece, M.J.).

At a deposition, the employee confronted a representative of the employer with documents that the employee had written and which memorialized his complaints of harassment. The employer's representative had signed the documents as a “witness.” The employee had not disclosed those documents to the employer either as part of his initial disclosures pursuant to Rule 26(a) of the Federal Rules of Civil Procedure or in response to the defendant's request for witness statements. The employer moved to preclude the documents and for sanctions. The employee argued that he was justified in withholding the documents because he intended to use them solely for impeachment purposes and because they were not witness statements.

The court held that the documents were the employee's own statements, and therefore not responsive to Defendant's request. The court also held that the employee was justified in excluding the documents from his initial disclosures. However, he could not expand his use of the documents to prove their substantive content to impute to the employer notice of his complaints: “Plaintiff should not be permitted to proceed at trial with an inconsistent theory for these documents, now that he has avoided the severe prospects of not using these documents for any reasons. Plaintiff should, and will be, held to his legal strategic elections.”

No attorneys listed.