nor presented evidence, that this action was publicized. Nor has
she asserted of what right she was deprived. Dimino was not
actually fired; she was not deprived of the right to carry
weapons; nor is there any evidence that Long's actions would have
prevented her from obtaining a job elsewhere. In short, while
Dimino alleges that, in the parlance of the liberty interest, she
suffered "stigmatization plus," there is no evidence of the
stigma, nor the plus. Finally, the process arguments made above
would be equally applicable to this claim.
Defendants additionally, and convincingly, contend that
grievance procedures available under the collective bargaining
agreement provided a post-deprivation "due process" of which
Dimino never availed herself. Indeed, other courts have held that
"dispute resolution created by a collective bargaining agreement
can satisfy due process requirements." DeClara v. Metropolitan
Transp. Auth., 748 F. Supp. 92, 96 (S.D.N.Y. 1990) (quoting
Parrett v. City of Connersville, 737 F.2d 690, 696 (7th Cir.
1984)). Dimino does not dispute that such procedures were
available; nor does she assert that they were inadequate.
Instead, Dimino contends that "because the union agreement 1)
does not pertain to pregnancy matters insofar as the issues
addressed herein; and 2) was not negotiated with . . . [pregnant
women] in mind," she was not obligated to limit her claims to
those procedures. Pl. Mem. at 27 n. 14. In support of this
contention, Dimino cites this court's decision in Fox v.
Northwest Airlines, No. 96-CV-0940, 1998 WL 178874, at *4-5
(E.D.N.Y. Feb.26, 1998) (Trager, J.). There, in addressing a
Title VII complaint brought by a flight attendant who claimed
that she had been wrongfully fired because she was a woman, it
was recognized that, pursuant to the Supreme Court's holding in
Alexander v. Gardner-Denver Co., 415 U.S. 36, 49, 94 S.Ct.
1011, 39 L.Ed.2d 147 (1974), the fact that plaintiff had pursued
her grievance to final arbitration did not preclude her from
bringing a private cause of action. This ruling in no way
suggests that grievance procedures do not provide due process.
While Dimino may not have been obligated to limit her action to
the procedures available, having chosen to ignore them, she
cannot then rely on her choice to allege a lack of due
process.*fn18 Accordingly, defendants' motion for summary
judgment on Count Seven, Dimino's due process claim, is granted.
This is one of those rare cases where a ruling on an
evidentiary issue might be determinative either of the motion for
summary judgment or, if the record remains essentially unchanged,
for judgment as a matter of law at trial. Defendants have
contended that the events surrounding the September 27 statement,
as well as the statement itself, should be excluded from evidence
pursuant to Rule 408 of the Federal Rules of Evidence. As is
obvious from the preceding discussion, such an exclusion might
have a significant effect on plaintiff's sex and pregnancy
discrimination claims because, without that evidence, plaintiff
has almost nothing with which to
contradict defendants' non-discriminatory justifications,
although Long's ambiguous statements remain.
Rule 408 of the Federal Rules of Evidence states as follows:
Rule 408. Compromise and Offers to Compromise
Evidence of (1) furnishing or offering or promising
to furnish, or (2) accepting or offering or promising
to accept, a valuable consideration in compromising
or attempting to compromise a claim which was
disputed as to either validity or amount, is not
admissible to prove liability for or invalidity of
the claim or its amount. Evidence of conduct or
statements made in compromise negotiations is
likewise not admissible. This rule does not require
the exclusion of any evidence otherwise discoverable
merely because it is presented in the course of
compromise negotiations. This rule also does not
require exclusion when the evidence is offered for
another purpose, such as proving bias or prejudice of
a witness, negativing a contention of undue delay, or
proving an effort to obstruct a criminal
investigation or prosecution.
The primary purpose of this rule is to further the policy of
promoting settlements and honesty in settlement negotiations.
See Fed.R.Evid. 408 advisory committee's notes. If an offer to
settle a dispute could be used as evidence of the weakness of the
offeror's claim or defense, parties would seldom come to the
negotiating table. Therefore, the rule provides wide protection
to both the fact of the settlement or offer to settle and to
negotiations and conduct associated with settlement or offer to
settle. The rule also protects admissions of facts made by
parties during settlement negotiations, in order to allow parties
a greater degree of honesty and, therefore, a greater ability to
reach a compromise. A secondary purpose of the rule is to
acknowledge that statements made during settlement negotiations,
as well as the fact that settlement was proposed or consummated,
may be prejudicial towards the settler while holding little
probative value. See id. In this role, the rule is one
governing relevance. The rule's protective umbrella is not,
however, absolute. Evidence relating to settlement negotiations
may be admissible if the party's intention is not that the
evidence be probative of the validity or amount of the disputed
claim at issue in the negotiations. See Fed.R.Evid. 408.
Whether or not the rule bars the admission of the facts
surrounding the September 27 statement, or the statement itself,
is a close question. What makes the issue difficult is that,
unlike the usual case where the alleged discriminatory events
occur before litigation arises, here, the key events unfolded
simultaneously with the prospect of litigation. Thus, it is
difficult to distinguish between the events themselves and
discussions relating to, or attempting to resolve, the issues
raised by the purported discriminatory actions.
The first issue in Rule 408 exclusion is whether or not there
was a dispute at the time that the purported settlement offer or
negotiations took place. In Pierce v. F.R. Tripler & Co.,
955 F.2d 820 (2d Cir. 1992), the Court of Appeals for the Second
It is often difficult to determine whether an offer
is made "in compromising or attempting to compromise
a claim" . . . However, where a party is represented
by counsel, threatens litigation and has initiated
the first administrative steps in that litigation,
any offer made between attorneys will be presumed to
be an offer within the scope of Rule 408. The party
seeking admission of an offer under those
circumstances must demonstrate convincingly that the
offer was not an attempt to compromise the claim.
Id. at 827 (citations omitted). In this case, it cannot be
questioned that a dispute existed. Dimino had filed an EEOC
complaint. The September 27 letter came about through discussions
for Dimino and SIRTOA, and counsel for Dimino effectively
threatened legal action in her September 24 letter to Long.
The second issue is whether SIRTOA proposed to furnish a
valuable consideration; in other words, was there an "offer"?
See Weinstein's Federal Evidence § 408.03. The term
"valuable consideration" should be interpreted broadly. See id.
An apology has been accepted as valuable consideration. See id.
SIRTOA presumably would claim that allowing Dimino to return to
work was a valuable consideration.*fn19 While offering an
employee his or her job back is certainly valuable consideration,
in this case Dimino had never lost her job. According to SIRTOA,
Dimino could not work because she had been sent to TMed and TMed
had not evaluated her as qualified for full work. Therefore, the
valuable consideration ostensibly offered to Dimino could only be
SIRTOA's waiver of its policy requiring TMed to evaluate a
possibly infirm employee as qualified for full work before
allowing an employee to return to work following a visit to the
There has been no evidence, however, that this is the
consideration SIRTOA intended to offer. While Dreyfus attests
that he made the offer available to Dimino "after speaking with
high-level SIRTOA personnel," Dreyfus Decl. ¶ 4, he does not
describe who those personnel were, what positions they held, or
what consideration they authorized Dreyfus to offer. To the
contrary, it is not clear that Dreyfus offered Dimino anything to
which she did not already have a right under SIRTOA's policies.
The clearest expression of the problem facing Dimino, as
Dreyfus saw it, and, thus, the best evidence of what it was
Dreyfus was offering, is found in the message he left on the
answering machine for Dimino's counsel, the evening of September
26, 1997, after he and plaintiff's counsel had exchanged drafts
of the statement.
This is Richard Dreyfus of the Transit Authority .
I am faxing you a response to your memo. I don't find
it appropriate. I would like her to sign the memo
which I have drafted. I think it protects her in all
respects. That memo has been given to her department.
If she will sign it she can come to work tomorrow. If
she is not going to sign it then she is not going to
be allowed to work since she hasn't withdrawn her
request that she is medically incapable of performing
her duties and wants restricted duty. . . .
Dreyfus Decl. ¶ 7 (emphasis added).