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Wasser v. New York State Office of Vocational and Educational Services for Individuals with Disabilities

August 27, 2008

MICHAEL J. WASSER, PLAINTIFF,
v.
NEW YORK STATE OFFICE OF VOCATIONAL AND EDUCATIONAL SERVICES FOR INDIVIDUALS WITH DISABILITIES; LAWRENCE GLOECKLER, DEPUTY COMMISSIONER NEW YORK STATE EDUCATION DEPARTMENT, OFFICE OF VOCATIONAL AND EDUCATIONAL SERVICES FOR INDIVIDUALS WITH DISABILITIES, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; DANNA MITCHELL, BROOKLYN OFFICE MANAGER, NEW YORK STATE EDUCATION DEPARTMENT, OFFICE OF VOCATIONAL AND EDUCATIONAL SERVICES FOR INDIVIDUALS WITH DISABILITIES, IN HER OFFICIAL AND INDIVIDUAL CAPACITIES, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Michael J. Wasser ("Wasser") commenced this action pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (the "Rehabilitation Act")and 42 U.S.C. § 1983 ("§ 1983") against the New York State Office of Vocational and Educational Services for Individuals with Disabilities ("VESID"); Lawrence Gloeckler ("Gloeckler"), the Deputy Commissioner of the New York State Education Department, in his official and individual capacities; and Danna Mitchell ("Mitchell"), VESID's Brooklyn Office Manager, in her official and individual capacities. Wasser, a beneficiary of a federally-funded vocational rehabilitation services program administered by VESID, claims that defendants denied him various benefits and services to which he is entitled under Title I of the Rehabilitation Act. The parties are presumed to be familiar with the 2003 Memorandum and Order in this case. Wasser v. N.Y. State Office of Vocational and Educ. Serv. for Individuals with Disabilities, No. 01-CV-6788, 2003 U.S. Dist. LEXIS 17496 (E.D.N.Y. Sept. 30, 2003) ("Wasser I").

Wasser is seeking review of the decision issued on July 18, 2001 by hearing officer David Marasciullo ("Marasciullo"), which denied Wasser's claims and found that VESID had provided him with adequate services as required by state and federal law. Defendants are seeking dismissal of all claims remaining after Wasser I. For the reasons explained below, Wasser's remaining claims are dismissed.

Background

(1)

Wasser is 34 years old and suffers from muscular dystrophy, which has rendered him "functionally a quadriplegic." Compl. ¶ 8. He is dependent for all activities of daily living and uses a computerized motorized wheelchair. Id. Wasser became a VESID client in 1992, and in collaboration with VESID staff he developed an Individualized Written Rehabilitation Program ("IWRP") that listed his career goal as "corporate lawyer." See Wasser IWRP, attached as Ex. B to Affidavit of Frank Stechel in Support of Defendants' Supplemental Submission on Motion to Dismiss ("Stechel Aff."), at 62. In furtherance of his IWRP, Wasser received counseling services and benefits from VESID, including adapted computer systems, transportation and tuition for his undergraduate education, and transportation and partial tuition at Brooklyn Law School. See Record of Goods and Services Authorized and Vouchered for Payment by VESID on Behalf of Wasser, 1991-2001, attached as Stechel Aff. Ex. A. From 1992 until VESID closed Wasser's case in March 2000, VESID spent approximately $132,000 on Wasser's vocational rehabilitation. Rehabilitation Closure Case Note (Mar. 17, 2000), submitted as Wasser Hearing Ex. 21.*fn1

Wasser's relationship with VESID has been contentious from the start. As a VESID client, Wasser has challenged VESID's provision of services on numerous occasions and initiated four separate agency hearings. In 1993, while Wasser was a student at Brooklyn College, he initiated (and won) a hearing challenging VESID's refusal to provide him with a desktop computer equipped with speech-recognition software. Declaration of Michael Wasser, dated Jun. 7, 2006 ("Wasser Decl.") at ¶¶ 37-41. The hearing officer reversed the agency's decision, finding the VESID technology expert and the VESID evaluator to be "evasive and not credible." Id. ¶ 40. Despite the finding in his favor, Wasser did not receive the requested technology until the spring of 1995. Id. Wasser contends that after this hearing, "the entire VESID agency began to act vindictively and abusively towards [him]." Compl. ¶ 10.

In 1997, after graduating from Brooklyn College and just prior to commencing his studies at Brooklyn Law School, Wasser sought assistance from VESID in acquiring a laptop computer and accessible writing surfaces. Wasser contends that he wanted to create "an environment of cooperation with VESID," in order to allow him to be "ready to compete with [his] peers in law school." Wasser Decl. ¶ 42. VESID denied this request, explaining that he had succeeded at Brooklyn College without a laptop and that Brooklyn Law School was responsible for providing the tables. Id. Wasser initiated a fair hearing to challenge that decision. After the first session, Wasser also requested that Defendant Danna Mitchell be removed as his caseworker and that Defendant Lawrence Gloeckler remove the presiding hearing officer, claiming the officer was "derelict in [] carrying out his responsibilities and ultimately failed to allow for an objective or open airing of [Wasser's] position." Wasser Decl. ¶ 50. VESID's Client Assistance Program also requested that the hearing officer be removed and stated that Defendant Mitchell "harbors a considerable animosity towards the Wassers [which] . . . represents a substantive barrier to [his] access to VESID's services." Id. As noted in the 2003 Order, Wasser also alleged that the hearing officer and VESID representatives engaged in misconduct during the hearing process. Wasser I at *7. Though Gloeckler refused to remove the hearing officer or reassign Wasser's case, the dispute was ultimately settled and Wasser was provided with the requested equipment. Wasser Decl. ¶¶ 50-51, 53.

Later in 1997, Wasser requested a second fair hearing to challenge VESID's failure to provide ambulette transportation and fees for summer courses at Brooklyn Law School. Wasser Decl. ¶ 56. VESID denied the request on the grounds that Wasser did not meet VESID's summer school guidelines.*fn2 Letter from Thomas J. Couto to M. Wasser (May 27, 1997), attached as Wasser Decl. Ex. 45. On May 27, 1997 the hearing officer upheld VESID's decision. Wasser Decl. ¶ 59. In the summer of 1998, Wasser again requested that VESID sponsor the cost of summer courses, and VESID again denied the request.

Wasser graduated from Brooklyn Law School in 1999, and he sat for and passed the New York State bar examination in July of that year. Wasser I at *9. Prior to commencing his career at the New York City Law Department as an Assistant Corporation Counsel in September 1999, Wasser notified VESID in a one-sentence letter that he had secured employment. Letter from M. Wasser to Danna Mitchell (Sept. 9, 1999), attached as Stechel Aff. Ex. C.*fn3 After receiving notification from Wasser that he had secured employment, Mitchell sent Wasser a letter congratulating him on his success. Mitchell also requested that Wasser provide details about his job, and invited Wasser to notify VESID should he encounter any problems in the course of his employment with which VESID could be of assistance. Letter from Danna Mitchell to M. Wasser (Sept. 20, 1999), attached as Stechel Aff. Ex. D. Wasser only responded to VESID's request for information after a second letter was sent. See Letter from Danna Mitchell to M. Wasser (Oct. 28, 1999), attached as Stechel Aff. Ex. E. In his reply to VESID's request for information, Wasser stated: "I do not give you, nor anyone from VESID permission to contact my employer, or any representative of my employer, under any circumstances. You have proved yourself untrustworthy and dishonest." Letter from M. Wasser to Danna Mitchell (Jan. 5, 2000), submitted as Wasser Hearing Ex. 1. In this same letter, Wasser requested information about transitional and other services available to him, as well as a back-up motorized wheelchair and a van modified for a driver or passenger pending the outcome of his driver evaluation. Id.

VESID closed Wasser's case on March 17, 2000 because, according to VESID, he had achieved his vocational objective and had been successfully employed for over ninety days. See Letter from Danna Mitchell to M. Wasser (Mar. 17, 2000) ["Closure Letter"], submitted as Wasser Hearing Ex. 3. Although VESID acknowledged during the hearing that it normally speaks with a client before closing a case, VESID did not discuss closure with Wasser because doing so was not required under VESID policy and because it had obtained the requisite information for case closure without such a meeting. Jan. 8, 2001 Tr. at 93:21-98:20; see also Rehabilitation Closure Case Note (Mar. 17, 2000), submitted as Wasser Hearing Ex. 21. In addition, Danna Mitchell noted in Wasser's Rehabilitation Closure Case Note that she was reluctant to inform Wasser of the decision to close his case in advance because experience tells us that the family will respond with their usual verbal abuse. I am really reluctant to invite that by giving advance notice of closure . . . .

[H]e has always made it clear that he did not value and did not want anything resembling a counseling relationship with VESID staff. VESID has provided funds for his undergraduate degree at Brooklyn College, his law degree at Brooklyn Law School, Special Transportation, several evaluations, a very comprehensive computer system for his home and a laptop for law school, major home modifications and furniture for their home, as well as a significant assortment of other items. In spite of that, Michael and his family still do not believe that VESID has served him adequately.

Rehabilitation Case Closure Note (Mar. 17, 2000), submitted as Wasser Hearing Ex. 21.

As a consequence of the closure of Wasser's vocational services case, his driving evaluation was cancelled. In the letter informing Wasser that his case had been closed, VESID noted that an evaluation to determine his potential driving capabilities, as well as any other services Wasser might require, could still be arranged through VESID's Post Employment Services and that if his needs were extensive his case could be reopened. See Closure Letter; see also Letter from Danna Mitchell to Kessler Institute for Rehabilitation, Driver Rehabilitation Program (Mar. 17, 2000), submitted as Wasser Hearing Ex. 12. The letter also directed Wasser to several resources that would answer the questions he posed in his January 5, 2000 letter, and informed Wasser of his right to request a review of the decision through mediation or an impartial hearing. See Closure Letter.

On May 20, 2000 Wasser requested that VESID reopen his case because, in his opinion, he had not completed his rehabilitation and because he still had several rehabilitative service requests pending. Letter from M. Wasser to Danna Mitchell (May 20, 2000), attached as Wasser Decl. Ex. 68. On June 8, 2000 Mitchell responded to Wasser's request by reminding him that a driver evaluation was still available through Post Employment Services and providing him information on how to complete that process. Mitchell told Wasser that his case could be reopened if necessary, pending the outcome of the driver evaluation, or if he chose to submit a new application for services. Letter from Danna Mitchell to M. Wasser (Jun. 8, 2000), attached as Wasser Decl. Ex. 70.

On June 8, 2000 Wasser again wrote to VESID - having not yet received Mitchell's letter dated the same day - requesting an administrative review to reopen his case and reinstate the driver evaluation. Wasser also asked VESID to pay for driver training, a modified van pending the outcome of the driver evaluation, full tuition reimbursement for tuition at Brooklyn Law School, reimbursement for his internship during the summer of 1998, a back-up motorized wheelchair, and reimbursement for "outstanding expenses" incurred prior to case closure. See Letter from M. Wasser to Danna Mitchell (Jun. 8, 2000), attached as Wasser Decl. Ex. 69.

Mitchell responded to Wasser's June 8, 2000 request for an Administrative Review, acknowledging that their correspondence had likely crossed in the mail. In her response, Mitchell stated that she was "interested in yielding up the adversarial relationship between [them]," suggested that mediation might be an effective and productive alternative to Administrative Review if Wasser were "genuinely interested in establishing a counseling relationship," and expressed hope that Wasser would "give serious thought to relinquishing the antagonism between [them] and moving forward in a more constructive way." Letter from Danna Mitchell to M. Wasser (Jun. 13, 2000), attached as Wasser Decl. Ex. 71. Mitchell followed up with Wasser several weeks later, again suggesting that mediation could be a productive alternative but offering to schedule an Administrative Review if Wasser was more comfortable with that option. Letter from Danna Mitchell to M. Wasser (Jun. 29, 2000), attached as Wasser Decl. Ex. 72.

Wasser responded to Mitchell's letters dated June 8, 2000, June 13, 2000 and June 29, 2000 acknowledging her offer to re-establish a counseling relationship. Rather than accept this offer, however, Wasser reiterated his request for rescission of case closure as well as other services, and stated that he wanted to proceed to an Administrative Review if VESID was unwilling to reopen his case. Letter from M. Wasser to Danna Mitchell (July 4, 2000), attached as Wasser Decl. Ex. 73. Mitchell expressed disappointment at Wasser's decision not "to proceed in a more forward-looking manner, or even to consider mediation," and scheduled an Administrative Review for July 20, 2001. Letter from Danna Mitchell to M. Wasser (July 10, 2000), attached as Wasser Decl. Ex. 74. The letter again reminded Wasser that VESID was willing to do a driver evaluation through Post Employment Services, and provided Wasser information about the Administrative Review process and the necessary documents he should bring. Id. Further, Mitchell informed Wasser that if the scheduled date was inconvenient for him that it could be rescheduled. Id.

Wasser responded with a letter in which he stated that he was "certain that [VESID's] plan was to prematurely close [his] case without notice and without meeting with [him]," and that Danna Mitchell was "an expert in manipulation, stalling, delaying tactics and misrepresenting VESID policy." Letter from M. Wasser to Danna Mitchell (Aug. 6, 2000), attached as Wasser Decl. Ex. 75. Wasser further asserted that VESID had an obligation to provide transportation even to individuals who are employed, contrary to VESID's articulation of its own policy. Id. Finally, Wasser requested that his Administrative Review be scheduled on a Friday, and that VESID "notify the person selected to preside over this administrative review of [Wasser's] scheduling needs." Id.

On August 21, 2000, in light of Wasser's demand that somebody other than Mitchell review his case, VESID declined to pursue an Administrative Review, citing VESID Policy Handbook § 105.00, which according to VESID "allows a District Office Manager to decline to do an Administrative Review." Letter from Danna Mitchell to M. Wasser (Aug. 21, 2000), attached as Wasser Decl. Ex. 76. Mitchell notified Wasser that he had several options moving forward: he could 1) reapply for VESID services and have his case reopened; 2) submit his requests through Post Employment Services; 3) participate in mediation; or 4) proceed to an Impartial Hearing. Id.

On September 20, 2000 Wasser requested an impartial hearing. Letter from M. Wasser to Danna Mitchell (Sept. 20, 2000), submitted as H.O. Ex. 1. VESID duly responded to Wasser's request, appointing David Marasciullo to serve as the hearing officer and scheduling an impartial hearing to take place in November 2000. Letter from William A. Carpenter to M. Wasser (Sept. 29, 2000), submitted as H.O. Ex. 2. Some correspondence between Wasser and VESID ensued regarding what Wasser perceived as a discrepancy between the issues he requested to be discussed at the hearing and those which VESID enumerated in its initial letter scheduling the hearing, but this discrepancy was ultimately resolved to Wasser's satisfaction. Letter from M. Wasser to William A. Carpenter (Oct. 17, 2000), submitted as H.O. Ex. 3; Letter from William A. Carpenter to M. Wasser (Oct. 23, 2000), submitted as H.O. Ex. 4. Wasser also requested that the hearing scheduled for November be postponed until January 2001. Letter from M. Wasser to David Marasciullo (Oct. 25, 2000), submitted as H.O. Ex. 5. That request was granted, and the hearing was rescheduled for January 8, 2001. VESID Notice of Postponement (Oct. 27, 2000), submitted as H.O. Ex. 6.

On December 28, 2000, Wasser again requested that the hearing be postponed so that he could obtain legal counsel and because of a conflict with his work schedule. Letter from M. Wasser to David Marasciullo (Dec. 28, 2000), submitted as H.O. Ex. 18. That request was denied and the hearing commenced as scheduled on January 8, 2001.

The hearing spanned four increasingly tense sessions over the course of six months. Wasser alleges that during the hearing sessions, Marasciullo denied him the opportunity to make an opening statement and acted with hostility toward him and his family. Compl. ¶ 24. For example, Marasciullo told Wasser that the opening remarks he had submitted in advance of the hearing were "voluminous," and requested that Wasser make his points "as briefly as possible." Jan. 8, 2001 Tr. at 9:9-9:13. Wasser argued at the hearing that "stating it as briefly as possible [would] not allow [him] to fully present all the facts and circumstances which [would] be necessary to make a decision." Id. at 9:14-9:17. In response, Marasciullo remarked that he had read the letter Wasser submitted with his opening remarks, and that it did not consist of facts but rather of "accusations, unfounded incriminations." Id. at 9:18-9:21. Nonetheless, Wasser was able to make an opening statement that outlined the basis for his complaints against the agency and the relief he sought. Id. at 11:13-12:21.

Wasser and Marasciullo also sparred over the scope of the hearing officer's authority under New York State Regulation 247.3, which outlines an individual's right to present evidence during a hearing. Id. at 10:3-11:12. Wasser maintained that the regulation permitted him to present "all relevant facts [and] advance any pertinent arguments without undue interference, . . . as determined by the hearing officer." Marasciullo, for his part, interpreted the regulation's qualifying language to allow him complete control over the direction of the hearing. Id. at 10:3-11:12.

The palpable acrimony of the hearing also extended to Wasser's parents, who accompanied him to the hearing sessions in order to serve as his "arms and legs." Id. at 21:22. Wasser required his parents' assistance for such things as retrieving documents and taking notes. However, their participation proved disruptive. For example, Wasser's mother repeatedly asked for copies of documents being submitted into evidence by VESID, and subsequently questioned Danna Mitchell during her testimony. Id. at 15:24-16:8, 18:18-19:18, 22:7-25:8. Marasciullo finally chastised Mrs. Wasser, saying: "You have already interrupted counsel, now you are interrupting me. You can't interrupt me, all right." Id. at 16:7-16:8. Mrs. Wasser's multiple requests for information about the documents being entered into the record as evidence finally prompted Marasciullo to remind Mrs. Wasser that she "[was] not a part of his hearing . . . [Wasser] has a computer in front of him, let him write it down." Id. at 24:19. Wasser stated that he was unable to type quickly and that it would be faster for his mother to take notes for him. Id. at 25:18-25:19. Ultimately, Marasciullo "rule[d] this is nonsense" and ordered that the hearing proceed. Id. at 26:8. Despite the acerbic nature of the first hearing session, however, VESID repeatedly reiterated its willingness to provide a driver evaluation through Post Employment Services. See id. at 33:4-12; Mar. 21, 2001 Tr. at 102:16-103:5, 107:4-10:8, 134:6-19.

The hearing could not be completed during the first session, and a second hearing date was scheduled for March 5, 2001. On March 2, 2001, several days before the second hearing session was scheduled to take place, Wasser's mother requested that the hearing be postponed because her daughter living upstate (Michael's sister) had a problem with her baby. Letter from E. Wasser to David Marasciullo (Mar. 2, 2001), submitted as H.O. Ex. 8. Marasciullo denied her request for a postponement. Then, on March 4, Wasser requested that the hearing be postponed due to a forecasted blizzard. Letter from M. Wasser to David Marasciullo (Mar. 4, 2001), submitted as H.O. Ex. 10. Marasciullo initially denied the request, but then on March 5, 2001 postponed the hearing until March 21, 2001. VESID Notice of Postponement (Mar. 5, 2001), submitted as H.O. Ex. 12.

Prior to the second hearing session scheduled for March 21, 2001 Wasser's father submitted a petition to have Marasciullo removed as hearing officer, alleging bias and incompetence. Letter from S. Wasser to Deputy Commissioner Lawrence Gloeckler (Mar. 14, 2001), submitted as H.O. Ex. 13. Gloeckler denied the petition and instructed that Marasciullo continue as the hearing officer. Letter from Deputy Commissioner Lawrence Gloeckler to M. Wasser (Mar. 20, 2001), submitted as H.O. Ex. 14.

The March 21, 2001 hearing proceeded as scheduled and quickly deteriorated into a dispute over what the Wassers perceived to be "a dangerous condition" involving a "severely shaking" table in the hearing room. Mar. 21, 2001 Tr. at 206:2-4. After much discussion regarding the condition of the table, Marasciullo adjourned the hearing session so that the table could be adjusted to Wasser's satisfaction. Id. at 211:10-20.

When the hearing finally reconvened, Marasciullo and Wasser engaged in a lengthy discussion as to the proper role of Wasser's parents during the hearing. Wasser asserted that his parents would "in certain circumstances, . . . act as co-counsel." Id. at 215:24-25. This prompted Marasciullo to ask Wasser a series of questions in order to determine the basis for Wasser's understanding of his parents' role. For example, Marasciullo asked whether Wasser's parents were attorneys or admitted to practice law in New York state. Id. at 216:2-18:10. Wasser was generally evasive, and Marasciullo concluded that Wasser's parents could not properly serve in that capacity. As such, Marasciullo directed them "to remain mute for the rest of this hearing." Id. at 218:7-10. In response, Wasser proclaimed: "You always seem to poison the record with accusing them of talking, accusing them of interrupting the hearing, which is absolutely untrue." Id. at 218:16-19.

In the course of the second hearing session, it was also revealed that Wasser had not yet completed a driver evaluation to determine his driving capabilities. Mar. 21, 2001 Tr. at 345:5-18. As such, at the conclusion of the session Marasciullo issued an interim decision directing Wasser to complete the driver evaluation, which was necessary to determine his needs and abilities with respect to transportation services, prior to the next scheduled hearing. Id. at 346:2-3; see also Letter from David Marasciullo to M. Wasser (Mar. 22, 2001), submitted as H.O. Ex. 30. The interim decision also accused Wasser's mother of disrupting the proceedings with inappropriate behavior including "emotional outbursts" and "slanderous character assassinations," and she was barred from attending future hearings. Wasser asserts that Marasciullo's allegations against his mother are false. Wasser Decl. at ¶ 5.

There appears to have been considerable confusion on all sides with respect to the date of the third hearing session. In a letter dated April 11, 2001 Marasciullo erroneously advised Wasser and VESID that the third hearing session was scheduled for Monday, March 21, 2001. Marasciullo corrected this error in a letter dated May 7, 2001 in which he clarified the correct date for the third hearing, actually scheduled for Monday, May 21, 2001. See Letter from M. Wasser to David Marasciullo (May 22, 2001), submitted as H.O. Ex. 25. On May 11, Kenneth Pawson, the attorney representing VESID at the impartial hearing, requested that the May 21, 2001 hearing session be postponed. Letter from Kenneth Pawson to David Marasciullo (May 11, 2001), submitted as H.O. Ex. 23. That request was granted and the hearing was rescheduled for June 5, 2001. Letter from David Marasciullo to M. Wasser (May 14, 2001), attached as Wasser Decl. ex. 54. However, this date posed a conflict for Wasser, and he requested that the hearing be postponed again. Letter from M. Wasser to David Marasciullo (May 22, 2001), submitted as H.O. Ex. 25; see also Letter from M. Wasser to David Marasciullo (May 31, 2001), submitted as H.O. Ex. 27. That request was denied, and the hearing re-convened on June 5, 2001 as scheduled. Letter from David Marasciullo to M. Wasser (May 29, 2001), attached as Wasser Decl. Ex. 56.

During the third hearing session, Wasser testified that he was unable to complete the driver evaluation at Kessler Institute pursuant to the interim order issued by Marasciullo at the previous hearing session. June 5, 2001 Tr. at 391:5-95:6. Marasciullo repeatedly asked Wasser whether he called the Kessler Institute, and if so, when those calls took place; Wasser repeatedly answered that he did call, but that he was unable to remember the date. Id. Finally, Marasciullo stated: "The record now reflects that Mr. Wasser, Jr., and Mr. Wasser, Sr., are completely out of control, unruly, disrespectful and are refusing to cooperate with the hearing officer." Id. at 396:10-14. The behavior that prompted Marasciullo's statement is unclear from the record. On the issue as to whether Wasser complied with the interim order, Marasciullo requested that Wasser confirm the date he called Kessler regarding the driver evaluation. Id. Wasser was uncooperative and responded: "If you are interested, let VESID find out. I am not responsible for Kessler's record keeping." Id. at 396:24-97:2.

Later in the hearing, another dispute erupted between Marasciullo and Wasser regarding the force of VESID policy. Marasciullo stated that "VESID policy is federal law," and Wasser took issue with Marasciullo's conflation of federal law and VESID policy. Id. at 441:10-442:18. Marasciullo has alleged that after the hearing, Wasser's mother followed him into an elevator and shouted at him, "I know where you live. I'll get you. I have your address," and "You're a 75 year old man. You'd sell yourself for $500.00 a day." Wasser I at ...


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