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July 25, 2002


The opinion of the court was delivered by: Scullin, Chief Judge.



Plaintiff commenced the present action against Defendants on February 5, 1999. On April 26, 1999, Defendants brought a motion to dismiss, which the Court granted in part and denied in part. See generally Memorandum-Decision and Order, dated March 29, 2000. The only causes of action remaining involve claims under the Americans With Disabilities Act ("ADA") and the Rehabilitation Act against Defendant Central Square Central School District (the "District").*fn1

Presently before the Court are the District's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure or, in the alternative, to amend its answer to plead the affirmative defense of collateral estoppel, and its motion to disqualify Plaintiff's counsel. The Court heard oral argument in support of, and in opposition to, these motions on July 10, 2002. At that time the Court reserved decision and advised the parties that a written decision would be forthcoming. The following constitutes the Court's determination with respect to the pending motions.


Plaintiff began working for the District on September 1, 1973. In October 1994, the District concluded that Plaintiff was having some problems and that she might be disabled. Therefore, the District required her to see a neuropsychologist, Dr. Anthony Blumetti. Although Dr. Blumetti is not a medical doctor, he concluded that Plaintiff might have some form of demyelinating disease that could affect both motor and cognitive functioning as well as result in personality alterations.

In December 1995, Plaintiff consulted Dr. Wolf, a neurologist, who diagnosed her with multiple sclerosis ("MS"). See Affidavit of Eugene Young, sworn to April 19, 2002 ("Young Aff."), Plaintiffs Exhibit "A," at ¶ 6. At the time that she was diagnosed, Plaintiffs primary symptom was that she tired easily and became fatigued. See id. at ¶ 8. Dr. Wolf advised her that this symptom was easily managed with intermittent rest periods during the day.

In June 1995, Plaintiff told her building principal, William McKee, that she had been diagnosed with MS. See id. at ¶ 9. Two months later, then-Superintendent Dale Hesser wrote to Plaintiff and acknowledged that the District had an obligation to provide her with reasonable accommodations to help her cope with her disability. See Declaration of Byron J. Babione, dated April 1, 2002 ("Babione Decl."), at Exhibit "7." At that time, Plaintiff did not request any accommodation from the District. See Young Aff. at ¶ 9.

On January 3, 1996, Plaintiff gave the District a medical release to obtain her medical records and information from her treating physicians. See id. at I 10. Using this release, the District obtained Dr. Wolfs records, which were prepared in the form of letters, and sent them to Dr. Freeman, the District's physician. See id.; Babione Decl. at Exhibit "13."

Due to Plaintiffs continued problems with fatigue, a meeting was held on May 21, 1996, to discuss Plaintiffs disability and the accommodations that she needed to perform her job in spite of her disability. At the meeting, Dr. Wolf confirmed that Plaintiff suffered from MS and suggested several accommodations to help her cope with this disability.

In August 1996, the District transferred Plaintiff to Cleveland Elementary School. Plaintiff alleges that this transfer significantly increased her commuting time and exacerbated the chronic fatigue that she was experiencing as a result of the MS. See Young Aff. at ¶ 20. On September 6, 1996, Plaintiff wrote to David Redmore, the District's Executive Director for Personnel Services, and formally requested that the District transfer her to the District's Intermediate School ("CSI"), which was much closer to her home. See Babione Decl. at Exhibit "20." Mr. Redmore responded to this request twice. On September 9, 1996, he sent a memo to Plaintiff, informing her that her request had been forwarded to Dr. Doherty, the District's Superintendent, for his consideration. Three days later, Mr. Redmore sent a second memo to Plaintiff in which he referred to a telephone conversation that he claimed to have had with Plaintiff on September 2, 1996, in which he claimed that Plaintiff had withdrawn a previous request for such a transfer.*fn2 See id. at Exhibit "20." Mr. Redmore asked Plaintiff to confirm that she was withdrawing that request in writing. See id. Plaintiff did not do so.

On November 1, 1996, the District's lawyers sent Plaintiff a letter, indicating that the District could no longer allow her to continue to serve in her position as a Reading Teacher because her level of performance for the past three years had been unacceptable. See Babione Decl. at Exhibit "24." The District's attorneys also informed Plaintiff that if she did not file an application for disability retirement by November 25, 1996, the District would present disciplinary charges to the Board of Education on December 2, 1996. See id. Plaintiffs husband alleges that, as a result, he revoked the medical authorization that Plaintiff had previously given to the District because he no longer believed that the District would work with Plaintiff in good faith. See Young Aff. at ¶ 30.

On November 27, 1996, Plaintiffs attorney made a written request that the District accommodate Plaintiff by transferring her to a school closer to her home, by providing her with a teacher's aide to assist her and by taking affirmative steps to improve the communication channels between Plaintiff and the classroom teachers. See Babione Decl. at Exhibit "25." The District did not respond to this letter. On December 14, 1996, Plaintiffs attorney made another written request for these accommodations. See Babione Decl. at Exhibit "27." In response, the District agreed to meet with Plaintiff to discuss her requests. See Babione Decl. at Exhibit "28."

On January 9, 1997, a meeting was held to discuss accommodations. See Babione Decl. at Exhibit "31" and Exhibit "33." The parties reached an agreement that the following accommodations were reasonable and necessary: (1) the District would transfer Plaintiff to CSI as a Reading Teacher effective January 31, 1997; (2) the District would hire a part-time teaching assistant to work with Plaintiff from 12:00 to 3:00 p.m. daily, beginning January 31, 1997; (3) the District would prepare a written "ADA-504" plan illustrating Plaintiffs condition and the accommodations; (4) the District would insure that Plaintiff had at least two meetings with the teacher she replaced at CSI during "Regents Week" to arrange for transfers and to discuss students, planning and related matters; and (5) the District would schedule regular meetings involving Plaintiff, Ms. Costello and CSI principal, Joann Tharrett, to discuss the situation and to help evaluate the placement and accommodations. See Babione Decl. at Exhibit "31."

District officials presented the agreed-upon accommodations to the Board of Education as "suggestions" that Plaintiff had made to assist her with her disability. See id. At the same time, the District's attorneys informed the Board that they did not have any medical information to support Plaintiffs claimed disability. The Board did not approve the agreed-upon accommodations. On January 23, 1997, the District's attorneys wrote to Plaintiffs attorney and informed him that the Board had decided that, without additional medical information, it would not provide the accommodations because of its concerns about "the potential costs of your proposed accommodations and their potential impact on employees and students." See Babione Decl. at Exhibit "33."

Approximately a month later, the District requested a medical release. See id. at Exhibit "42" at 112. Plaintiff promptly signed the release and returned it to the District. See Plaintiffs Exhibit "D." Thereafter, in March 1997, the District required Plaintiff to undergo another neuropsychological evaluation with Dr. Blumetti. See Babione Decl. at Exhibit "35." On April 25, 1997, Dr. Blumetti provided the District with his report, in which he recommended very similar accommodations to those that Dr. Wolf had requested in May 1996. See Babione Decl. at Exhibit "36." Specifically, Dr. Blumetti advised the District to take steps to reduce Plaintiffs fatigue and stress, which exacerbated her cognitive disruption.

On May 5, 1997, the District approved the hiring of a part-time teaching assistant to help Plaintiff for the few weeks remaining in the school year. See Babione Decl. at Exhibit "38." On May 7, 1997, the District relieved Plaintiff of her bus supervision duties and gave her a second rest period at the end of the school day. See id. The District did not implement Dr. Blumetti's other recommendations that school year. However, in August 1997, the District approved Plaintiffs transfer to CSI and appointed a full-time teacher's aide to assist her. See Babione Decl. at Exhibit "44" at 57.

Plaintiff began teaching at CSI in August 1997. According to Plaintiff, the District continued to require her to "push-in" to a number of classrooms and did not provide extra time for her to move between classrooms. See Tr. at 2264.*fn3 She also contends that the District expanded her duties to require that she teach a full classroom of students, including special education students, who were not eligible for the remedial program. See id. at 2170-71. Plaintiff received a negative evaluation for her perceived shortcomings in conducting the full-class instruction. See id. at 216465.

On January 26, 1998, the Board of Education voted to bring disciplinary charges against Plaintiff pursuant to § 3020-a of New York Education Law. There were fifty-three specifications in Charge One (Incompetence and/or inefficiency) and seven specifications in Charge Two (Mental and/or physical incapacity to teach). See Babione Decl. at Exhibit "3." Initially, Plaintiff was suspended with pay and directed not to report to work pending determination of the charges. On May 27, 1998, the District assigned Plaintiff to a position in CSI's library, where she was assigned to stack books. See Young Aff. at ¶ 41.

The District commenced a hearing under § 3020-a, and a hearing officer convened a pre-hearing conference on April 20, 1998. At that conference, he identified several problems with the District's charges and sent the District back to reformulate the charges. He held a second conference on September 15, 1998, and the hearing commenced on October 19, 1998. Sworn testimony was taken from thirty-eight witnesses over the course of the next twelve months and approximately 160 exhibits were entered into evidence. The hearing closed on October 19, 1999.

On July 19, 2000, the Hearing Panel issued its determination, finding that the District had proven the charges, see Babione Decl. at Exhibit "3" at ¶ 36, and concluded that Plaintiff was not able to do her job and imposed a conditional dismissal; i.e., a six-month unpaid leave period to allow her to apply for disability retirement, at the end of which she would be dismissed from service. See id. at 52.*fn4

Plaintiff challenged that determination pursuant to Education Law § 3020-a(5). On December 26, 2000, the New York Supreme Court, Onondaga County (Murphy, J.), held that under the limited grounds set forth in § 7511 of the New York Civil Practice Law and Rules he could not vacate the Hearing Panel's determination. On July 27, 2001, the Fourth Department affirmed that decision.

Based upon these facts, Defendants move for summary judgment, in part on the ground that the doctrine of collateral estoppel requires dismissal of this action. As noted, Defendants have also moved to disqualify Plaintiffs counsel. The Court will address each of these motions in turn.


A. Collateral ...

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