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September 14, 1999


The opinion of the court was delivered by: Trager, 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.


In 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,

    Attached is a letter from my physician indicating I
  am pregnant. It is at this time I request to be
  placed on restricted duty to avoid complications in
  my pregnancy. I am sure you would agree it would be
  unwise for me to take on work that would involve
  danger to my abdomen or an exposure to falling which
  could result in losing my unborn child. There is also
  a risk of danger to the public I protect, my fellow
  officers and not to mention a serious liability
    Thanking you in advance for your prompt reply
  regarding this important matter.


P.O. Christine Dimino

Pl.Ex. In Opp'n (herein "Pl.Ex.") 6.

The second note was from Dr. Arbucci, Dimino's OB/GYN. It was handwritten, but reasonably legible:

To whom it may concern:

    Please be advised that Christine Dimino is pregnant
  her work should reflect this accordingly.

Frank Arbucci, M.D.

Pl.Ex. 7.

Defendants have represented that SIRTOA's official policy is that no "restricted" or "light" duty is available for medically limited personnel. Plaintiff contends, however, that SIRTOA's actual policy is not as defendants assert. In any case, in response to Dimino's request, Long called SIRTOA's Assistant Director of Personnel, (who was actually the head of personnel because there was no Director) AnnMarie T. Joseph ("Joseph"), who advised Long that Dimino should be sent to Transit Medical ("TMed"), a clinic operated by the TA, for an evaluation. TMed conducts medical evaluations of SIRTOA employees. See R.56.1 ¶ 8.

Dimino visited TMed the following day, September 18, 1997, where she was seen by Dr. Johnson who completed a "G-46" medical evaluation form. See Schoolman Decl., Ex. H. The form has spaces where the physician may indicate that an employee is medically qualified to perform "Full Work," "Full Work in Current Job," "Restricted Work," or "No Work." Id. There is evidence that TMed had been instructed not to recommend either of the middle two work categories. Joseph testified at her deposition that she and an assistant periodically go through stacks of unused G-46 forms crossing out those spaces. See Joseph Dep. at 23-24. Indeed, those spaces had been crossed out on the form Dr. Johnson used September 18. Dr. Johnson made no specific recommendations nor any evaluation of Dimino's work status. In the space reserved for the physician's comments, Dr. Johnson stated that he required additional information. In addition Dr. Johnson wrote a note to Dr. Arbucci:

Dear Dr. Arbucci:

    Please give us a diagnosis What in your opinion the
  work status must be?  the basis for this. If the
  above client may not work — why? Please write a
  note completely answering all the above
  questions.[*fn1] Give all diagnoses.

The employee's next scheduled visit is 9/25/97 Schoolman Decl., Ex. H.

On September 19, 1997, Dimino brought the G-46 form back to Long who put her on "medical leave." Long Decl. ¶ 4(b). Medical leave is unpaid. Long has represented that he was required to do this because: (1) Dimino had represented she was unfit for duty; (2) she had been sent to TMed and not been deemed ready for "Full Work" by a TA doctor; and (3) it was his understanding that SIRTOA did not assign officers restricted duty. See id. At that time, Dimino apparently requested a description of her duties from Long so that she could be evaluated pursuant to that job description. See Pl. Counsel Letter to Long dated 9/24/97, Pl.Ex. 10. This request was repeated in letter form by Dimino's attorney on September 24, 1997. See id. On September 25, 1997, or September 30, 1997, Long delivered such a description, See Pl.Ex. 8, but the source of the listed requirements is not clear. Plaintiff contends that the job's actual, and less onerous requirements, are laid out in a separate description. See Pl.Ex. 9. As far as the record shows, however, neither job description reached Dr. Arbucci before the critical events that form the basis of this lawsuit took place. Certainly, neither job description influenced a diagnosis or recommendation from Dr. Arbucci.

On September 24, 1997, Dimino presented Long and TMed with an additional handwritten note from Dr. Arbucci which was presumably in response to Dr. Johnson's note of September 18, 1997:

To whom it may concern:

    Please be advised that [C]hristine may function as
  a Police officer I do not want her to have duties
  which could [unintelligible] in physical trauma to
  her abdomen. All other work is fine.

Frank Arbucci


Pl.Ex. 7.

That same day, September 24, 1997, TMed filled out a G-46 form establishing that Dimino was qualified for "No Work" for one week and scheduling another examination on October 1, 1997. Schoolman Decl., Ex. H at 4. This form appears to have been completed by a Dr. Gensor. On September 26, 1997, however, Dr. Gensor filled out an "amended copy" of the G-46 on which he checked the "Restricted Work" box. Id. at 5. It is not clear what prompted the need for this amendment, but it may have been in response to Dr. Arbucci's note of September 24. Dr. Gensor's diagnosis was applicable again for only one week. It should be noted that this G-46 is the only one in the record on which the "Restricted Work" box does not have a line through it. In the space for physician comments, Dr. Gensor wrote: "Restricted duty as per private MD: Employee should avoid duties which could result in physical trauma to her abdomen." Id. On October 15, 1997, Dr. Gensor filled out a third G-46 form on which he repeated his restricted duty diagnosis, extended it for one month, and scheduled another visit for November 13, 1997. Id. at 6.

Enter the Legal System

In the midst of Dimino's interactions with Long, SIRTOA personnel, and TMed, Dimino initiated legal action. It is not clear at what point Dimino initially retained counsel in relation to her dispute with SIRTOA; but on September 24, 1997, Dimino's counsel sent Long a letter referencing an EEOC complaint Dimino had filed two days earlier, on September 22, 1997. That complaint asserted that Dimino was able to perform all of her duties, was physically fit, would not be perceived by the public as pregnant (presumably because she was not yet "showing"), and had requested that she receive restricted duty, to which she was entitled, in the future. See EEOC Compl. ¶ 5, quoted at Compl. ¶ 58; Compl. ¶ 67. It also alleged that Dimino was being discriminated against because of her pregnancy and because she was being perceived as disabled. See id. at EEOC Compl. ¶ 4.

Counsel's letter to Long began with the statement that counsel "represent[ed] Christine Dimino in connection with her legal rights related to employment issues including, inter alia, her right to work as a police officer for [SIRTOA] while she [was] pregnant." Pl.Ex. 10, at 1. The letter advised Long of the EEOC complaint and reiterated the facts outlined supra. The letter ended as follows: "Please refer this letter to legal counsel with a request that I be contacted forthwith. This letter is written without prejudice to Officer Dimino's legal rights in the event litigation proves necessary. We sincerely hope that will not be the case here." Id. at 2.

Richard Dreyfus ("Dreyfus"), an attorney for the Transit Authority, received a copy of this letter on September 26, 1997.*fn2 See Decl. of Richard Dreyfus (herein "Dreyfus Decl.") ¶ 3. That same day he spoke with "high-level SIRTOA personnel, had telephone discussions (and exchanged [versions of a letter for Dimino to sign]) with [plaintiff's counsel] . . . in an attempt to settle substantial parts of Ms. Dimino's claims." Id. ¶ 4. After receiving a draft of the letter, or statement, Dimino was to sign, plaintiff's counsel faxed Dreyfus a proposal for a statement using different language. Dreyfus phoned plaintiff's counsel and left a message on her answering machine informing her that her changes were not "appropriate," Dreyfus Decl. ¶ 7, and that he would leave the original statement at the station for Dimino to sign.

The statement prepared by Dreyfus stated:

  I, Christine Dimino, at the present time can perform
  my full duties as a police officer for the Staten
  Island Rapid Transit Operating Authority. I am
  physically and medically capable of performing these
  duties and hereby withdraw my request for restricted
  duty due to my pregnancy. Should my condition change
  so that I am not capable of performing my full duties
  as a police officer, I may submit documentation
  concerning my medical condition at that time for
  further consideration consistent with the policies of
  the Staten Island Rapid Transit Operating Authority.

Pl.Ex. 11 at 1.

The version plaintiff's counsel had proposed read:

  I, Christine Dimino, can perform my full duties as a
  police officer for the Staten Island Rapid Transit
  Operating Authority at the present time, just as I
  have performed those same duties in the past. I
  consider myself to be physically capable to perform
  the duties to which I am now assigned.

Compl. ¶ 47. Dreyfus has asserted that he rejected the counter-proposal as ambiguous because it referred to the duties to which Dimino was "now assigned" as opposed to all of the duties of a police officer. See Dreyfus Decl. ¶ 7.

The following day, Saturday, September 27, 1997, Dimino showed up for work. Long had called her the previous evening and informed her that she could return to work but that there would be a statement for her to sign when she arrived. Dimino does not recall whether she spoke to her counsel regarding the statement prior to arriving at work Saturday. See Dimino Dep. at 63. When Dimino arrived at work, Sergeant Lane, the ranking officer on duty, presented her with the statement. Dimino refused to sign it as written. Instead, Dimino crossed out all but the first sentence of the statement and, thus, signed a statement asserting:

  I, Christine Dimino, at the present time can perform
  my full duties as a police officer for the Staten
  Island Rapid Transit Operating Authority.

Pl.Ex. 11 at 2. Sergeant Lane then called Long and informed him that Dimino had refused to sign the statement as written. Long talked with Dimino on the phone and told her that if she did not sign the statement as written she could not work. Dimino continued to refuse to sign more than the first sentence, and Long ordered her to leave work.

A little more than nine months later, on June 11, 1998, Dimino apparently returned to work following what Joseph characterized as "maternity leave." Joseph Decl. ¶ 3. Defendants have asserted that, at some point in the intervening time, Dimino apparently received Unemployment Insurance Benefits and Short Term Disability benefits. See Schoolman Decl. ¶ 3. It is not clear whether Dimino is presently working for SIRTOA.


The parties submitted this motion for summary judgment, fully briefed, on May 21, 1999. The record was later supplemented by a letter motion to strike various portions of plaintiff's evidence. Parties presented oral argument on the motion on June 8, 1999. At oral argument, the conclusions the court had tentatively reached on the basis of the papers then submitted by the parties were explained. The parties were then allowed time to dispute the conclusions with which they disagreed.

As will become evident from the following discussion, the events surrounding the statement SIRTOA provided to Dimino on September 27, 1997, are critical to many of the court's conclusions on particular counts. Defendants have argued that those events should be excluded from evidence, pursuant to Fed.R.Evid. 408, because they related to negotiations to settle or compromise a dispute and, thus, could not form the basis for a denial of summary judgment. The parties were permitted to file supplemental letter briefs on this issue. Additional evidence on this and, at the request of the court, one other issue was allowed. The evidentiary issue is addressed infra, part (7). The supplemental material has been considered, and the following conclusions have been reached.


Counts One, Eight, Nine, and Twelve — Pregnancy Discrimination

In Count One, Dimino alleges that defendants violated Title VII and the Pregnancy Discrimination Act either by not allowing Dimino to work at her job, despite the fact that she was capable of so working, or by not assigning to her to "restricted duty," when such had been available for other employees. In Count Eight, brought pursuant to 42 U.S.C. § 1983, Dimino alleges that defendants violated the Equal Protection Clause through the same behavior which, she alleges, was motivated by an animus toward pregnant women. See Compl. ¶ 126. In Count Nine, Dimino alleges that, through these same actions, defendants violated New York State Human Rights Law, New York Executive Law §§ 290-301. And, finally, in Count Twelve, Dimino alleges that defendants violated Title 8 of the New York City Administrative Code §§ 8-107, 8-107(6), 8-107(7) et seq. which ...

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