-WDW Wallace v. Suffolk County Police Department et al
Filing
123
ORDER re: PLAINTIFF'S MOTION FOR ADDITIONAL FINANCIAL DAMAGES: SEE ATTACHED ORDER: The Court finds that plaintiff is entitled to damages compensating him for one hundred and forty-four accrued sick days for which he would otherwise have been compensated upon his retirement. As stipulated, the parties shall confer to calculate the precise monetary amount of this damages award. The Court further finds that plaintiff is not entitled to damages for any measure of lost income up to age 62 or for any lesser period, or to damages in connection with any federal award. Ordered by Judge Roslynn R. Mauskopf on 8/15/2011. (Mauskopf, Roslynn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------X
THOMAS C. WALLACE,
Plaintiff,
- against SUFFOLK COUNTY POLICE DEPARTMENT,
COUNTY OF SUFFOLK, JOHN GALLAGHER,
PHILLIP ROBILOTTO, and JAMES ABBOTT,
Individually and in their Official Capacities,
FINDINGS OF FACT AND
CONCLUSIONS OF LAW ON
BENCH TRIAL ON FINANCIAL
DAMAGES
04-CV-2599 (RRM)(WDW)
Defendants.
------------------------------------------------------------X
MAUSKOPF, United States District Judge.
Plaintiff Thomas C. Wallace seeks certain additional financial damages, to be determined
by bench trial, following a jury’s verdict finding defendants liable for First Amendment
retaliation pursuant to 42 U.S.C. § 1983, and awarding emotional distress and punitive damages.
After considering the record on the bench trial, and for the reasons set forth below, the Court
finds that plaintiff is entitled to damages compensating him for the loss of one hundred and fortyfour accrued sick days for which he would otherwise have been compensated upon his
retirement, and that plaintiff is not entitled to the other additional financial damages he seeks.
PROCEDURAL HISTORY
Plaintiff brought this action under 42 U.S.C. § 1983 against the County of Suffolk
(“County”), the Suffolk County Police Department (“SCPD”), former SCPD Commissioner John
Gallagher, former Chief of Department Phillip Robilotto, and former SCPD Deputy
Commissioner James Abbott (together, “defendants”), alleging violations of his First and
Fourteenth Amendment rights. (See Compl. (Doc. No. 1).)
In July 2009, the Court held a jury trial on plaintiff’s First Amendment claim. The jury
found that the three individual defendants, Gallagher, Abbott, and Robilotto, had each taken
various adverse actions against plaintiff in retaliation for the exercise of his First Amendment
free speech rights. The jury did not find the County liable. (Jury Special Verdict Form (Doc.
No. 64.))1
Specifically, the jury found the individual defendants liable for the following adverse
employment actions: (1) the premature submission of plaintiff’s retirement papers (all individual
defendants); (2) the omission of and/or failure to correct certain information in the retirement
papers (Gallagher); (3) the failure to correct plaintiff’s Injured Employee Report (Gallagher,
Abbott); (4) the determination that plaintiff was fit for light duty (Robilotto); (5) the assignment
of plaintiff to the First Precinct (Robilotto); (6) the failure to investigate plaintiff’s complaints
regarding training, equipment, staffing, supervision, morale, and/or other deficiencies in the
Emergency Services Unit (“ESU”) (all individual defendants); (7) the failure to prevent, stop, or
redress the violation of plaintiff’s First Amendment rights (Abbott); and (8) a pattern of
harassment (Abbott). (Id.)
The jury awarded Plaintiff $200,000 in compensatory damages for emotional distress as
to all defendants, and a total of $675,000 in punitive damages, or $225,000 each, against the
three individual defendants. (Id.) On September 24, 2010, the Court denied defendants’ posttrial motion for judgment as a matter of law, but found the punitive damages award excessive,
ordering a new trial on damages unless plaintiff accepted a remittitur of the punitive damages
award to $100,000 against each individual Defendant. (Doc. No. 83.) On October 13, 2010,
plaintiff accepted the remittitur. (Doc. No. 84.)
Prior to trial, the parties stipulated that, once the issues of liability, emotional distress
1
Claims against the SCPD were not submitted to the jury as it is not an entity subject to suit.
2
damages, and punitive damages were decided by the jury, the Court would determine in a bench
trial plaintiff’s entitlement to several additional categories of financial damages. (Trial Tr.
(“Tr.”) at 53–54.) By stipulation (see Minute Entry of July 7, 2011 (Doc. No. 116)), the parties
agreed that no live testimony was required, and that the record for this bench trial consists of:
(1) the trial record, including all admissible testimony, exhibits and the jury’s special verdict; (2)
all papers and exhibits submitted in connection with Plaintiff’s Application for Financial
Damages (“Application”) (Doc. Nos. 89, 91 and 92); and (3) supplemental letters and all exhibits
attached thereto further amplifying the evidence and arguments made in connection with
plaintiff’s Application (Doc. Nos. 101, 102 and 110). At multiple status conferences, held in
person and by phone, all parties were given opportunities to orally address the issues raised by
the Application (see Minute Entries of May 19, 2011 (Doc. No. 100), June 9, 2011 (Doc. No.
107), and July 7, 2011 (Doc. No. 116).) It is these additional damages, on the record outlined
above, that the Court herein decides.
FINDINGS OF FACT2
Plaintiff began working for the Suffolk County Police Department (“SCPD”) as a police
officer in July 1986, and was transferred to the ESU in June 1997. (Tr. at 32, 35.) On March 11,
1998, plaintiff responded to an emergency involving a person who had barricaded himself on a
boat carrying propane gas tanks. (Tr. at 38.) After plaintiff boarded the boat, it exploded and he
sustained severe injuries. (Tr. at 39–40.) Plaintiff was hospitalized and underwent numerous
surgeries to treat his injuries. (Tr. at 40–42, 44.) As of the date of the accident, plaintiff was
placed on what is known in the SCPD as “401 injury leave status,” during which plaintiff
performed no police duties while continuing to receive his full salary and benefits, pursuant to
2
These findings of fact are solely those necessary to determine plaintiff’s request for additional financial damages.
3
Municipal Law 207-c. (Tr. at 135–36, 325.)
Between the summer of 1999 and early 2004, plaintiff spoke out on issues of public
concern relating to the accident through a series of correspondence, conversations, and meetings
with high-ranking members of the SCPD. For example, in the summer of 1999, plaintiff met
with then Deputy Commissioner Abbott and raised issues regarding training, supervision,
equipment, morale, staffing, failure to adhere to rules and regulations, and other deficiencies that
affected the performance and safety of the ESU. (Tr. at 56–60.) Plaintiff also discussed personal
issues, such as difficulties he faced in attempting to correct his Injured Employee Report. (Tr. at
56–57.) The Injured Employee Report, filed by the SCPD after the boat explosion, did not
contain some of the injuries plaintiff received during the explosion. (Tr. at 44–45.) When
Abbott advised that there would be no investigation into any of plaintiff’s allegations, adding
that “nothing is going to be done to make the police department look bad,” plaintiff told Abbott
that the only recourse he would have was to go public and to Newsday. (Tr. at 61.) Abbott
further advised “[t]here’s people in this police department will not take kindly to any kind of
effrontery,” adding, “[y]ou’ll do something now and you will lament it for a lifetime.” (Id.)
Plaintiff testified that during this meeting, Abbott promised, instead, to keep him on 401 injury
leave until he was 62 years old, at which time he would retire. (Id.)
About a year later, plaintiff communicated again with Abbott and raised many of the
same concerns he had raised in the summer 1999 meeting. (Tr. at 65–66, 210–11.) Plaintiff also
reiterated his demand for an investigation into the failings of the ESU. (Tr. at 65–66.) On
August 20, 2001, plaintiff sent a letter to Gallagher, then Commissioner of the SCPD, in which
he voiced these same concerns and expressed his frustration that no investigation had yet been
conducted. (Tr. at 69–71; Pl.’s Tr. Ex. 26.)
4
In October 2001, plaintiff met with Robilotto, then SCPD Chief of Department, to discuss
the contents of plaintiff’s August 20, 2001 letter to Commissioner Gallagher. (Tr. at 71–72, 172,
321–23, 344–49.) Plaintiff testified that Robilotto threatened him, insinuating that he should
refrain from voicing his concerns, and offered to make him a detective – an offer that plaintiff
rejected. (Tr. at 72–74.) At the meeting, plaintiff requested an official letter that “spelled out all
of [his] injuries and that [he was] injured as a result of an attempted murder of a police officer,
an assault” because the Injured Employee Report failed to specify that plaintiff’s injuries were
the result of an “assault” or “federal crime.” (Tr. at 172–73; Pl.’s Tr. Ex. 13.) This omission,
plaintiff testified, precluded him from eligibility for a federal award given to officers seriously
injured in the line of duty. (Tr. at 172–73, 374.)3
On April 9, 2002, plaintiff sent a letter to Deputy Commissioner Abbot reiterating his
complaints and concerns. (Tr. at 76–77; Pl.’s Tr. Ex. 27.) On March 11, 2003, plaintiff filed a
complaint with the Public Integrity Bureau of the Suffolk County District Attorney’s Office. (Tr.
at 79–80.) In April 2003, plaintiff made a complaint to the SCPD Internal Affairs Bureau and
demanded an investigation into the problems he identified with the ESU and the handling of the
boat explosion. (Id.)
On December 4, 2002, the SCPD filed for plaintiff’s retirement. (Tr. at 77–78, 154; Pl.’s
Tr. Ex. 42.) Before December 2002, the SCPD instituted a policy that permitted a supervisor to
involuntarily retire any police officer who had been on 401 injury leave for longer than a year.
3
As discussed more fully below, the record contains almost no information about the specific nature and amount of
the federal award. At trial, Sergeant Ward testified that he believed the federal award was a “monetary” or “cash”
benefit, “in the neighborhood of a hundred thousand.” (Tr. at 374.) The record contains no additional evidence
describing the federal award in any detail.
5
(Tr. at 277–80.)4 Gallagher and Robilotto drafted eligibility criteria and selected forty-six
officers, including plaintiff, for involuntary retirement. (Tr. at 280–82, 293–96, 356–57.)
According to Robilotto, a chief criterion was the unlikelihood that the officer on 401 injury leave
would return to work. (Tr. at 357.) Another factor considered was whether the officer had
refused to return to work after being found fit for light duty. (Tr. at 281–82.)
The forty-six officers selected for involuntary retirement had been on 401 injury leave for
approximately three years to more than five years. (Tr. at 354–55.) By December 4, 2002,
plaintiff had been on 401 injury leave for over four years. (Tr. at 135–36, 325.) At least some
SCPD officers had been maintained on 401 injury leave for ten years or longer before retiring.
(Tr. at 353–55, 400.) Robilotto testified that a police officer named Michael Milwort had been
on 401 injury leave for ten years. (Tr. at 353–54.) Sergeant Ward testified that another officer,
Kenny Tuthill, had been on 401 injury leave for “probably a twelve or thirteen year period,” and
that other unidentified officers were on 401 injury leave for over ten years. (Tr. at 400.)
Plaintiff learned that the SCPD had filed for his retirement in January 2003. (Tr. at 78;
Pl.’s Tr. Ex. 40.) In their initial application to retire plaintiff, the SCPD omitted certain
information, including some of the injuries he had sustained during the boat explosion. (Tr. at
171–72.) On June 19, 2003, plaintiff filed his own application for retirement. (Tr. at 79, 155–
56; Defs.’ Tr. Ex. H.) Plaintiff retained an attorney to help him file his retirement papers, and his
attorney told the state to disregard the County’s application. (Tr. at 155.) The state then denied
the retirement application that had been filed by the SCPD. (Tr. at 172.) The state ultimately
approved the application that plaintiff submitted on his own behalf, and he retired on June 7,
2004. (Tr. at 156, 396.) Plaintiff’s disability pension from the state amounts to approximately
4
General Municipal Law § 207-c permits, but does not require, the police department to retire an officer who has
been on 401 injury leave for longer than a year. (Tr. at 351.)
6
three quarters of his former salary. (Tr. at 157.)
Throughout the period plaintiff was on 401 injury leave status, plaintiff reported to the
SCPD Medical Evaluation Unit (“MEU”) for periodic examinations. (Tr. at 88.) Between
March 1998 and September 2003, each evaluation recommended that plaintiff remain on 401
injury status. (Defs.’ Tr. Exs. B1–B8.) On September 2, 2003, plaintiff hand delivered a letter to
Commissioner Gallagher that reiterated his concerns. (Tr. at 89; Pl.’s Tr. Ex. 28.) On the same
day, plaintiff was examined by a SCPD physician and, for the first time since the boat explosion,
was found fit for light duty, allowing him to return to work, albeit in a limited duty capacity.
(Tr. at 89–90, 146.) Plaintiff contested the finding that he was fit for light duty and opted for an
independent medical examination by MEDSCOPE, pursuant to the police officers union’s
collective bargaining agreement. (Tr. at 148, 384–85; Defs.’ Tr. Ex. D.) Because plaintiff opted
for the MEDSCOPE examination, he was not immediately reinstated to active duty. (Tr. at 384,
424.)
The MEDSCOPE physician found that plaintiff was fit for light duty, but he
recommended extensive restrictions on the activities plaintiff could be expected to perform. (Tr.
at 392–93, 428–30; Defs.’ Tr. Ex. E.) On October 21, 2003, the police department reinstated
plaintiff and assigned him to the First Precinct. (Tr. at 91, 395; Pl.’s Tr. Ex. 21.) Because of the
physician’s restrictions on plaintiff’s ability to work (e.g., that plaintiff sit and stand only for
brief periods of time) and plaintiff’s own concerns about exposure to “combative prisoners,
people walk[ing] in from the street injured, people [being] assaulted in the lobby,” plaintiff did
not report to active duty in the First Precinct. (Tr. at 91–92.) Instead, plaintiff used one hundred
and forty-four sick days to remain out of work from October 21, 2003 until he retired on June 7,
2004. (Tr. at 407.) When he retired, plaintiff was compensated for his remaining, unused sick
7
days. (Tr. at 152.)
In December 2004, plaintiff filed a grievance through arbitration arguing that the County
had violated the procedures required under collective bargaining agreement to find him fit for
light duty. On February 16, 2005, the arbitrator denied his grievance.
CONCLUSIONS OF LAW
Plaintiffs must prove every element of a Section 1983 claim by a preponderance of the
evidence, “including those elements relating to damages.” Miner v. City of Glens Falls, 999 F.2d
655, 660 (2d Cir. 1993); see also Public Adm’r of Queens Cnty. v. City of N.Y., No. 06-CV-7099
(LBS), 2010 U.S. Dist. LEXIS 118175, at *24 (S.D.N.Y. Nov. 2, 2010) (citing S. Nahmod, Civil
Rights & Civil Liberties Litigation: The Law of Section 1983 § 3.4 (4th ed. 1998)).5 The “basic
purpose” of Section 1983 damages is “to compensate persons for injuries that are caused by the
deprivation of constitutional rights.” Carey v. Piphus, 435 U.S. 247, 254 (1978).
“To recover compensatory damages under Section 1983, a plaintiff must prove that his
injuries were proximately caused by the constitutional violation.” Gibeau v. Nellis, 18 F.3d 107,
110 (2d Cir. 1994) (citation omitted); see also Sloup v. Loeffler, 745 F. Supp. 2d 115, 143
(E.D.N.Y. 2010) (same) (citations omitted); Tatum v. City of N.Y., 668 F. Supp. 2d 584, 598
(S.D.N.Y. 2009) (same) (citation omitted). Section 1983 defendants are “‘responsible for the
natural consequences of [their] actions,’” and may “‘be held liable for those consequences
attributable to reasonably foreseeable intervening forces, including the acts of third parties.’”
Kerman v. City of N.Y., 374 F.3d 93, 126 (2d Cir. 2004) (quoting Warner v. Orange Cnty. Dep’t
of Probation, 115 F.3d 1068, 1071 (2d Cir. 1997)). However, a defendant “‘whose initial act is
the ‘but for’ cause of some ultimate harm (i.e., the harm would not have happened but for the
5
At a status conference held on June 9, 2011, the parties agreed that this standard applied.
8
initial act) is not legally liable for the harm if an intervening act is a ‘superseding cause’ that
breaks the legal chain of proximate cause.’” Higazy v. Templeton, 505 F.3d 161, 181 (2d Cir.
2007) (quoting Zahrey v. Coffey, 221 F.3d 342, 351 n.7 (2d Cir. 2000)). One example of a
superseding cause that breaks the chain of proximate cause is the “intervening exercise of
independent judgment.” Townes v. City of New York, 176 F.3d 138, 147 (2d Cir. 1999) (internal
citation omitted) (in Section 1983 due process claim, court’s refusal to suppress evidence was
intervening exercise of independent judgment that broke chain of proximate cause between
defendant police officer’s unlawful search and seizure and plaintiff’s injury).
“Damages in a section 1983 case are generally determined according to principles
derived from the common law of torts.” BD v. DeBuono, 193 F.R.D. 117, 139 (S.D.N.Y. 2000)
(citing Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305–06 (1986)); see also Townes,
176 F.3d at 148 (same). In New York, “[t]he damages recoverable in tort actions cannot be
contingent, uncertain, or speculative; but if the fact is established that the plaintiff has sustained
an actionable injury as the direct result of the defendant’s wrongful act, reasonable certainty as to
the amount of that injury is all that is required.” 36 N.Y. Jur. 2d Damages § 17; see also
Fiederlein v. N.Y. City Health & Hosp. Corp., 56 N.Y.2d 573, 574 (1982) (“Mere conjecture,
surmise or speculation is not enough to sustain a claim for damages.”). However, “the rule
which proscribes the recovery of uncertain and speculative damages applies where the fact of
damages is uncertain, not where the amount is uncertain.” Toporoff Eng’rs, P.C. v. Fireman’s
Fund Ins. Co., 371 F.3d 105, 109 (2d Cir. 2004) (citations omitted); see also 36 N.Y. Jur. 2d
Damages § 16 (“The uncertainty which prevents a recovery is uncertainty as to the fact of the
damage and not as to the amount of damage, and where it is certain that damage has resulted,
mere uncertainty as to the amount will not preclude the right of recovery.”).
9
Plaintiff now seeks compensation for three categories of economic loss specifically
flowing from four adverse employment actions found by the jury. (Pl.’s Mem. Supp. Fin.
Damages (Doc. No. 89) at 2.) First, plaintiff seeks damages for lost income, arguing that the
SCPD’s premature submission of his retirement papers resulted in the “unexpected financial loss
of a quarter of his salary annually from approximately November 2002 until [plaintiff] reaches
the age of sixty-two.” (Id. at 8.) This sum represents the differential between the amount that
plaintiff receives under the state’s pension plan and his prior salary as a police office. Plaintiff
claims he is entitled to this amount because, as plaintiff testified, Abbott promised to keep him
on 401 injury leave until he reached the age of 62. Plaintiff argues alternatively that he is
entitled to such lost income for a lesser period, for example, for ten years, relying on testimony at
trial that certain other injured police officers were maintained on 401 injury leave for up to ten
years.6 (Id.) Second, plaintiff seeks payment for 144 sick days he used as a result of defendants’
retaliatory actions. (Id. at 12.) Plaintiff asserts that defendants’ (1) omissions of, and failure to
correct, information in his retirement papers, and (2) determination that he was fit for light duty,
proximately caused plaintiff to use accumulated sick days, for which he would otherwise have
been compensated upon his retirement. (Id. at 9, 12.) Finally, plaintiff argues that defendants’
failure to correct omissions in his Injured Employee Report precluded him from receiving a
6
The Court notes that plaintiff seeks damages beginning in November 2002, when the SCPD involuntarily
submitted his retirement application. (Pl.’s Mem. Supp. Fin. Damages at 8.) Plaintiff, however, did not experience
a salary reduction in November 2002. Plaintiff’s salary was not reduced to three quarters’ pay until the state
accepted his own retirement application on June 7, 2004. (Tr. at 157.) “[T]o collect compensatory damages in an
action brought pursuant to 42 U.S.C. § 1983, a plaintiff must prove more than a mere violation of his constitutional
rights. He must also demonstrate that the constitutional deprivation caused him some actual injury.” Miner, 999
F.2d at 660 (internal quotation marks omitted). Thus, plaintiff cannot claim damages for any salary loss prior to
June 7, 2004.
10
federal disability award. 7 (Id. at 10–11.) The Court now addresses each category in turn.
1. Lost Income Flowing from Defendants’ Premature Submission of Plaintiff’s Retirement
Papers
To recover damages for lost income, plaintiff must prove by a preponderance of the
evidence that the causal connection between defendants’ retaliatory action and his injury is
“sufficiently direct.” Gierlinger v. Gleason, 160 F.3d 858, 872 (2d Cir. 1998) (citations
omitted). Put another way, plaintiff must prove that the SCPD’s premature submission of his
retirement papers proximately caused him to retire. See Gibeau, 18 F.3d at 110; Miner, 999 F.2d
at 660. There has been no such showing here.
Although the jury found that defendants retaliated against plaintiff by prematurely
submitting his retirement papers on December 4, 2002, that application was ultimately denied by
the state. (Tr. at 77–78, 154, 172; Jury Special Verdict Form.) As such, he suffered no
diminution of salary as a direct result of this action. After defendants submitted plaintiff’s
retirement application, plaintiff retained an attorney and, on June 19, 2003, he independently
filed his own separate retirement application. (Tr. at 155–56.) Indeed, plaintiff’s attorney “told
the state to disregard the county’s application,” which defendants had submitted approximately
seven months earlier. (Tr. at 155.) The state then denied the retirement application that had been
submitted by defendants. (Tr. at 172.) Ultimately, the state approved plaintiff’s own retirement
application, and he retired on June 7, 2004. (Tr. at 156.) Thus, the Court finds that no direct
7
Plaintiff’s memorandum in support of his application for financial damages mentions in passing that defendants’
failure to correct omissions of certain injuries in his Injured Employee Report also resulted in the denial of health
insurance coverage for treatment of plaintiff’s left knee injury. (Pl.’s Mem. Supp. Fin. Damages at 10.) Plaintiff’s
later submission to the Court, however, omitted any mention of this purported economic loss. (See Pl.’s Letter of
June 2, 2011 (Doc. No. 102).) When confronted with this issue at a hearing on July 7, 2011 plaintiff withdrew this
claim for damages. (See Minute Entry of July 7, 2011 (Doc. No. 116).)
11
harm resulted from the SCPD’s premature submission of plaintiff’s retirement papers.8
Plaintiff could still demonstrate proximate causation were he able to show that his
decision to file a separate retirement application was reasonably foreseeable. See Higazy, 505
F.3d at 177 (“Defendants . . . may be liable for consequences caused by reasonably foreseeable
intervening forces.”); Deskovic v. City of Peekskill, 673 F. Supp. 2d 154, 161 (S.D.N.Y. 2009)
(“[A]n actor may be held liable for those consequences attributable to reasonably foreseeable
intervening forces, including the acts of third parties.” (citation and internal quotation marks
omitted)). To do so, plaintiff would need to show, for example, that defendants somehow
deceived him or that defendants could reasonably foresee that their misconduct would cause
plaintiff to file his own retirement application. See Higazy, 505 F.3d at 177 (despite intervening
act, the “chain of causation need not be considered broken if [the defendant] deceived the
subsequent decision maker, or could reasonably foresee that his misconduct [would] contribute
to an independent decision . . . .”)). Put another way, plaintiff has the burden to show that his
decision to file his own application for retirement is a “natural consequence[]” of defendants’
initial submission of his retirement application. Id. at 175 (citation and internal quotation marks
omitted); see also Zahrey v. Coffey, 221 F.3d 342, 349–50 (2d Cir. 2000) (“section 1983 ‘should
be read against the background of tort liability that makes a man responsible for the natural
consequences of his actions’” (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961))). Here,
however, plaintiff has failed to meet that burden.
Plaintiff has provided no evidence or explanation for why he chose to file his own
retirement application. The only evidence in the record on this point is plaintiff’s testimony that
8
As Judge Seybert held in her decision denying defendants’ motion for summary judgment, “because the SCPD’s
retirement paperwork was rejected Plaintiff never experienced any material change in his employment
circumstances due to the submission.” Wallace v. Suffolk Cnty. Police Dep’t, No. 04-CV-2599 (JS), 2007 U.S. Dist.
LEXIS 98745, at *29 (E.D.N.Y. Feb. 5, 2007).
12
he found errors in the SCPD’s application and that he subsequently retained an attorney and filed
his own retirement application. (Tr. at 79, 155–56.) This evidence does not demonstrate that
plaintiff’s decision to file his own separate retirement application was a natural consequence of
defendants’ actions. Plaintiff did not demonstrate in any way that he was unable to correct errors
in the defendants’ application without filing his own. Nor is there any evidence in the record as
to whether plaintiff’s position (financial or otherwise) would have been affected had the SCPD’s
incorrect application been accepted as opposed to his own. In fact, the only explanation for
plaintiff’s decision to file for retirement was provided by his attorney, who argued in summation
that plaintiff decided to file his own retirement application because defendants had failed to
correct errors in the application they submitted and he “wanted them to be right.” (Tr. at 562.)
Of course, “[a] summation is not evidence.” United States v. Aggrey-Fynn, No. 04-CR-1148
(RWS), 2006 U.S. Dist. LEXIS 6157, at *12 (S.D.N.Y. Feb. 16, 2006) (citation and internal
quotation marks omitted).9
Having failed to put forth any evidence of his reasons for filing his own retirement
application, plaintiff has not established by a preponderance of the evidence that his decision to
retire was a natural and foreseeable consequence of defendants’ actions, and not an independent,
9
Even were the Court to consider this statement as evidence, plaintiff still would not have satisfied his burden of
showing by a preponderance of the evidence that his decision to file a separate retirement application was a natural
and foreseeable consequence of defendants’ premature submission of his retirement application. The Court would
still be forced to speculate about why he “wanted” the retirement application “to be right” -- for example., whether it
would have impacted him financially -- and whether there was another way to challenge defendants’ paperwork
directly. Such impermissible speculation is fatal to plaintiff’s claim.
13
superseding cause of his own retirement.10 See Townes, 176 F.3d at 147; Stagl v. Delta Airlines,
52 F.3d 463, 473 (2d Cir. 1995) (citation and internal quotation marks omitted); Jeffries v.
Harleston, 52 F.3d 9, 14 (2d Cir. 1995) (reversing judgment for professor in First Amendment
retaliation case because superseding cause broke the causal chain between the defendants’
retaliatory acts and the plaintiff’s injury); Caraballo v. United States, 830 F.2d 19, 22 (2d Cir.
1987) (“where the plaintiff’s intervening actions are not a normal and foreseeable consequence
of the defendant’s conduct, the plaintiff’s conduct becomes a superseding cause which absolves
the defendant of liability”); Barmapov v. Barry, No. 09-CV-3390 (RRM), 2011 U.S. Dist.
LEXIS 768, at*18 (E.D.N.Y. Jan. 3, 2011) (“Plaintiff’s decision to plead guilty constitutes an
independent, superseding cause of his conviction and incarceration.”); Martinez v. City of New
York, No. 06-CV-5671 (WHP), 2008 U.S. Dist. LEXIS 49203, at *11–12 (S.D.N.Y. June 27,
2008) (arresting officer not responsible for detainment possibly amounting to due process
violation because judge’s independent decision broke chain of proximate cause).
Accordingly, the Court finds that plaintiff has failed to show that SCPD’s premature
submission of his retirement application proximately caused him economic damages in the form
10
The Court notes that plaintiff has also failed to present sufficient evidence to show that his decision to submit his
own retirement papers was involuntary or coerced. “Constructive discharge occurs when the employer, rather than
acting directly, deliberately makes an employee’s working conditions so intolerable that the employee is forced into
an involuntary resignation.” Morris v. Schroder Capital Mgmt. Int’l, 481 F.3d 86, 88 (2d Cir. 2007) (citation and
internal quotation marks omitted). Plaintiff did not (1) plead constructive discharge in his complaint, (2) argue
constructive discharge in previous submissions to the Court, (3) present evidence of constructive discharge to the
jury, or (4) ask the jury to consider whether he had been constructively discharged. Indeed, as discussed above,
plaintiff has not even explained why he filed a separate retirement application, much less proven that he was forced
to do so. Thus, plaintiff has failed to show by a preponderance of the evidence that he was “forced into an
involuntary resignation.” Id.; see also Less v. Nestle Co., 705 F. Supp. 110, 113–14 (W.D.N.Y. 1988) (plaintiff in
ADEA case precluded from claiming damages for lost income when facts were insufficient to demonstrate his
choice to accept early retirement option was truly involuntary).
14
of lost wages.11
2. Compensation for Lost Sick Days
Plaintiff also seeks compensation for the loss of accrued sick days on two grounds:
defendants’ omission in and/or failure to correct information in plaintiff’s retirement papers and,
alternatively, the determination that plaintiff was fit for light duty. (See Pl.’s Mem. Supp. Fin.
Damages at 9, 11–12.) The Court finds plaintiff is entitled to recover such damages on both
grounds.
a. Omissions In and Failure to Correct Plaintiff’s Retirement Application
As noted above, on December 4, 2002, the SCPD filed plaintiff’s retirement application.
(Tr. at 77–78, 154; Pl.’s Tr. Ex. 42.) On June 19, 2003, plaintiff filed his own separate
retirement application and told the County to disregard the SCPD’s application. (Tr. at 155.) On
October 21, 2003, while both retirement applications were pending, plaintiff was reinstated to
light duty. (Tr. at 396; Pl.’s Tr. Ex. 21.) However, because of the restrictions placed on him as
well as his own concerns about returning to duty, plaintiff used accumulated sick days to remain
out of work until the effective date of his retirement on June 7, 2004. (Tr. at 407.)
As the record makes clear, it took the state approximately eleven to twelve months to
approve plaintiff’s own application. (Tr. at 156.) Based on this measure, the Court reasonably
concludes that the approval process for an error-free SCPD application would have taken no
longer than the process for approving plaintiff’s own error-free application. Therefore, had
11
This is not to say that defendants are not liable at all for damages related to the retaliatory act of prematurely
submitting plaintiff’s retirement application. “In an action brought pursuant to Section 1983, even when a litigant
fails to prove actual compensable injury, he is entitled to an award of nominal damages upon proof of violation of a
substantive constitutional right.” Gibeau, 18 F.3d at 110 (citation and internal quotation marks omitted). It is not
necessary to award nominal damages here, however, because the jury awarded $200,000 in emotional damages to
compensate plaintiff for the emotional harm he suffered from this and other retaliatory actions taken by the
defendants.
15
defendants submitted an error-free retirement application on December 4, 2002, or corrected it
promptly thereafter, plaintiff likely would have retired on or before October 21, 2003, the date on
which he was found fit for light duty. If plaintiff had retired before he was found fit for light
duty, he would have been compensated for all the sick days he had accrued up to that point.12
While it is impossible to know with mathematical certainty whether the state would have
approved the SCPD’s omission-free retirement papers by October 21, 2003, “the rule of certainty
as applied to the recovery of damages does not require mathematical accuracy or absolute
certainty or exactness, but only that the loss or damage be capable of ascertainment with
reasonable certainty.” Sloup, 745 F. Supp. 2d at 137 (citation and internal quotation marks
omitted). Here, plaintiff has established with reasonable certainty that, had defendants not
omitted information from his initial retirement application, plaintiff would have been paid out for
the full measure of sick days to which he was entitled on October 21, 2003.13
b. Determination that Plaintiff was Fit for Light Duty
The Court also finds that plaintiff is entitled to compensation for these sick days on the
alternative ground that such damages were proximately caused by defendants’ retaliatory
determination that he was fit for light duty. Of course, had this determination not been made,
plaintiff would not have used any of these sick days. However, defendants contend that plaintiff
is collaterally estopped from claiming financial damages for these sick days because he has
already litigated and lost in arbitration this very issue. (Defs.’ Letter of May 26, 2011 (Doc. No.
12
In her decision on summary judgment, Judge Seybert noted the failure to include certain information “precluded
Plaintiff from obtaining his retirement benefits in a timely manner and required Plaintiff to use 142 of his own
accumulated sick days . . . . Arguably, had Plaintiff’s retirement papers been correct, they would have been
approved initially” and he would have been paid for his “unused sick days upon his retirement.” Wallace, 2007 U.S.
Dist. LEXIS 98745, at *30.
13
The parties agreed to work collaboratively to calculate, based on the collective bargaining agreement and the
SCPD compensation system, the specific amount due to plaintiff in the event that the Court awarded such damages.
16
101) at 4.) Under federal law, the doctrine of collateral estoppel precludes a party from
relitigating an issue when: “(1) the identical issue was raised in a previous proceeding; (2) the
issue was actually litigated and decided in the previous proceeding; (3) the party had a full and
fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a
valid and final judgment on the merits.” Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir.
1998) (citations and internal quotation marks omitted). Applying this standard, the Court finds
the doctrine of collateral estoppel inapplicable to plaintiff’s claim of First Amendment
retaliation.
First, the Court finds that the issues litigated in the arbitration proceeding are not
identical to the issue in plaintiff’s Section 1983 action. In the arbitration proceeding, the issue
was whether the County had violated the terms of the collective bargaining agreement by
requiring plaintiff to be examined by MEDSCOPE. (Arbitration Decision at 2.) In contrast, the
issue here is whether the determination that plaintiff was fit for light duty constituted an act of
First Amendment retaliation that caused plaintiff to use accrued sick days. (Tr. at 160.) These
issues are not identical, and the rights vindicated in the arbitration and those at issue here are
fundamentally different. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 49–50 (1974).
The issue at arbitration involved the interpretation of a contractual right – namely, the County’s
right under the collective bargaining agreement to require plaintiff to submit to an independent
medical examination by MEDSCOPE. Here, plaintiff’s damages claim for lost sick days arises
from his constitutional right to be free from retaliation for exercising his First Amendment rights.
The County’s right to enforce the collective bargaining agreement has no bearing on whether
defendants’ retaliatory act proximately caused plaintiff economic loss. Second, it was not
necessary for the arbitrator to decide that plaintiff was properly found fit for light duty. In order
17
to resolve the dispute at arbitration, the arbitrator needed only to determine whether the County
violated the terms of the collective bargaining agreement by requiring plaintiff to be examined
by MEDSCOPE.
Finally, the record belies the notion that plaintiff had a full and fair opportunity to litigate
his claims. The arbitrator’s opinion is laced with allusions to plaintiff’s “conspiracy” theories
regarding the SCPD’s efforts to retaliate against him for “his unrelenting struggle to right several
wrongs he maintains were done to him.” (Arbitration Decision at 10.) Such dismissive remarks
concerning plaintiff’s allegations of retaliation seriously call into question whether plaintiff had a
full and fair opportunity to litigate factual issues pertaining to his Section 1983 claim in the
arbitration proceeding.
Even assuming that plaintiff had a full and fair opportunity to litigate the very same
issues as central to his grievance, the Supreme Court has counseled that federal courts “should
not afford res judicata or collateral estoppel effect to an award in an arbitration proceeding
brought pursuant to the terms of a collective-bargaining agreement.” McDonald v. City of West
Branch, 466 U.S. 284, 292 (1984); see also Fayer v. Town of Middlebury, 258 F.3d 117, 121 (2d
Cir. 2001) (“[T]he Supreme Court ruled . . . that the determinations of labor arbitrators pursuant
to collective bargaining agreements do not preclude subsequent federal actions to vindicate
18
certain federal statutory and constitutional rights.” (citing McDonald, 466 U.S. 284)).14 In
McDonald, the Supreme Court refused to accord preclusive effect to an award in an arbitration
proceeding brought pursuant to the terms of a collective-bargaining agreement in the context of a
Section 1983 claim for First Amendment retaliation. 466 U.S. at 292; see also Rolon v. Ward,
No. 05-CV-168 (WCC), 2008 U.S. Dist. LEXIS 86781, at *60 (S.D.N.Y. Oct. 24, 2008) (same);
Henneberger v. Cnty. of Nassau, 465 F. Supp. 2d 176, 189 (E.D.N.Y. 2006) (same) (collecting
cases). As the Court explained, “although arbitration is well suited to resolving contractual
disputes, . . . it cannot provide an adequate substitute for a judicial proceeding in protecting the
federal statutory and constitutional rights that § 1983 is designed to safeguard.” 466 U.S. at 290.
In arriving at this conclusion, the Court noted important differences between the two
proceedings: (1) arbitrators lack “the expertise required to resolve the complex legal questions
that arise in § 1983 actions”; (2) “an arbitrator’s authority derives solely from the contract . . .
[and thus] an arbitrator may not have the authority to enforce § 1983”; (3) the interests of the
union, which usually “has exclusive control over the manner and extent to which . . . [a]
14
Although aspects of the McDonald decision have been called into question by subsequent cases, the Second
Circuit expressly has not decided whether, in light of these newer Supreme Court decisions, district courts should
now afford arbitration decisions preclusive effect. See Burkybile v. Bd. of Educ., 411 F.3d 306, 310 (2d Cir. 2005)
(“we need not decide here whether arbitrations have preclusive effect”). As a result, district courts continue to
follow McDonald when faced with requests to give preclusive effect to awards in arbitration proceedings brought
pursuant to the terms of collective-bargaining agreements in the context of Section 1983 First Amendment
retaliation cases. See, e.g., Giglio v. Derman, 560 F. Supp. 2d 163, 173 (D. Conn. 2008) (“the Court denies the
Plaintiff’s invitations to impose the doctrine of collateral estoppel and to adopt the facts found by the Arbitration
Award”); Henneberger, 465 F. Supp. 2d at 190 (“[B]ecause the instant action closely mirrors the facts of McDonald
itself – involving a public employee’s post-arbitration claim under Section 1983 for First Amendment retaliation –
that holding controls the preclusive effect to be accorded the Arbitrator’s decision in this case.”). An arbitral
decision, however, may be admitted as evidence in a Section 1983 action, and accorded such weight as the court
deems appropriate with regard to the facts and circumstances of each case. See McDonald, 466 U.S. at 292 n.13
(“We adopt no standards as to the weight to be accorded an arbitral decision, since this must be determined in the
court’s discretion with regard to the facts and circumstances of each case.” (citations and internal quotation marks
omitted)); see also Henneberger, 465 F. Supp. 2d at 190 (same); Bollenbach v. Board of Education, 659 F. Supp.
1450, 1470 (S.D.N.Y. 1987) (“The Supreme Court specifically adopted no standards as to the weight to be accorded
an arbitral decision, leaving it to the discretion of district courts.”).
19
grievance is presented,” are not always “identical or even compatible” with those of an
employee; and (4) “arbitral factfinding is generally not equivalent to judicial factfinding.” 466
U.S. at 290–91. These considerations are equally compelling here. For example, the arbitrator’s
decision at issue here in no way focused on the complexities of unconstitutional retaliation.
Instead, it focused on narrow issues relating to the propriety of procedural steps undertaken
pursuant to the collective bargaining agreement that, traditionally, fall within the core authority
and expertise of labor arbitrators. Moreover, the arbitrator rejected – indeed ridiculed – the very
same evidence and arguments that the trial jury here found by a preponderance of the evidence
gave rise to a First Amendment violation. (Arbitration Decision at 10 (stating that to believe
plaintiff’s allegations, one had to accept the (presumably unbelievable) premise that police
officers “were all in cahoots” and agreed amongst themselves, “Let’s get this guy, we’ll show
him, put him back to work.”) (quotations in original).) The Court finds that the arbitrator’s
decision here, when viewed against the backdrop of McDonald, should not be accorded
preclusive effect, or, for that matter, given even minimal weight.15
For all of these reasons, “the Court denies [defendants’] invitations to impose the doctrine
of collateral estoppel and to adopt the facts found by the [a]rbitrat[or].” Giglio, 560 F. Supp. 2d
at 173. Accordingly, the Court finds that defendants’ retaliatory determination that plaintiff was
fit for light duty proximately caused him to use one hundred and forty-four sick days, and
plaintiff is entitled to damages for the amount he would have received as compensation for these
sick days had they been part of his sick leave accruals at the time he retired.
15
In fact, Judge Seybert, too, relied on McDonald in rejecting defendants’ preclusion arguments on summary
judgment. See Wallace v. Suffolk Cnty. Police Dep’t, No. 04-CV-2599 (JS), 2007 U.S. Dist. LEXIS 98745, at *32
n.6 (E.D.N.Y. Feb. 5, 2007) (“The Court notes, however, that in McDonald v. City of West Branch, the Supreme
Court held that when considering a Section 1983 First Amendment retaliation claim, federal courts should not afford
preclusive effect to an arbitration proceeding pursuant to the terms of a collective bargaining agreement.”).
20
3. Federal Disability Award
Plaintiff claims that defendants’ failure to correct the Injured Employee Report,
specifically the omission that his injuries were the result of an assault, precluded him from being
eligible for a federal disability award. (Tr. 172–73, 374.) Plaintiff’s claim to this federal award,
however, is entirely speculative.
The law proscribing recovery of uncertain and speculative damages is well-settled in
New York. See Toporoff Eng’rs, 371 F.3d at 109; Mandal v. City of New York, No. 02-CV-1367
(WHP), 2007 U.S. Dist. LEXIS 83642, at *8 (S.D.N.Y. Nov. 13, 2007) (applying doctrine to
Section 1983 claim). It is therefore plaintiff’s burden to prove by a preponderance of the
evidence that he suffered economic losses with specific and clear documentation or expert
testimony. See Sloup, 745 F. Supp. 2d at 138. Here, plaintiff has failed to produce sufficient
evidence to establish that he would have received the federal disability award with reasonable
certainty. Thus, any damages compensating him for the loss of the federal award would be
“merely speculative or contingent.” Dockery v. Tucker, No. 97-CV-3584 (ARR), 2006 U.S.
Dist. LEXIS 97826, at *103 (E.D.N.Y. Sept 6, 2006) (“plaintiff must prove damages with
sufficient certainty, such that damages are not merely speculative or contingent . . . [and] [a]s
part of this burden, a plaintiff must also provide a reasonable means of and basis for calculating
damages” (citations and internal quotation marks omitted)).
There is virtually no evidence in the record concerning this federal award. The only
witness who described the award in any detail was Sergeant Ward, who believed it was a
“monetary” or “cash” benefit, “in the neighborhood of a hundred thousand.” (Tr. at 374.)
Plaintiff has presented no evidence about the specific statute, regulation or other authority
governing such an award. Nor has he presented evidence of the criteria for eligibility beyond the
21
vague assertion that the police officer’s injuries must result from an “assault” or “federal crime.”
(Tr. at 172–73; Pl.’s Tr. Ex. 13.) Thus, there is no evidence from which the Court can determine
what federal award is at issue, or whether plaintiff would have met any or all eligibility
requirements for any such award had plaintiff’s Injured Employee Report been completed
properly. There is also no evidence in the record regarding the application or approval process
for the award, and it is impossible to ascertain with any degree of certainty whether any applicant
who does, in fact, meet all the eligibility criteria will automatically receive such an award.
Finally, there is nothing in the record to indicate how much plaintiff could have or would have
received, other than Sergeant Ward’s loose estimate. Accordingly, plaintiff has entirely failed to
meet his burden of proving by a preponderance of the evidence that he in fact suffered any such
loss. As such, any damage award with regard to any federal benefit would be wholly speculative
and inappropriate. See Toporoff Eng’rs, 371 F.3d at 109.
22
CONCLUSION
For the foregoing reasons, the Court finds that plaintiff is entitled to damages
compensating him for one hundred and forty-four accrued sick days for which he would
otherwise have been compensated upon his retirement. As stipulated, the parties shall confer to
calculate the precise monetary amount of this damages award. The Court further finds that
plaintiff is not entitled to damages for any measure of lost income up to age 62 or for any lesser
period, or to damages in connection with any federal award.
SO ORDERED.
Roslynn R. Mauskopf
Dated: Brooklyn, New York
August 15, 2011
______________________________
ROSLYNN R. MAUSKOPF
United States District Judge
23
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