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DIMINO v. NEW YORK CITY TRANSIT AUTHORITY
September 14, 1999
CHRISTINE DIMINO, PLAINTIFF,
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.
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.,
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
however, that at this time Dimino gave Long two notes. The first,
a letter from Dimino herself, read as follows:
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.
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:
Please be advised that Christine Dimino is pregnant
her work should reflect this accordingly.
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 ¶
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:
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.,
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:
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.
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.
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
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.
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
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.
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 ...