Bertuzzi v. Copiague Union Free School District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ROSARY BERTUZZI,

Plaintiff, MEMORANDUM & ORDER

17-CV-4256 (JS)(ARL)

-against-

COPIAGUE UNION FREE SCHOOL

DISTRICT; BOARD OF EDUCATION OF

COPIAGUE UNION FREE SCHOOOL

DISTRICT; DR. KATHLEEN BANNON;

TODD ANDREWS; and MICHELLE

BUDION,

Defendants.

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APPEARANCES

For Plaintiff: Jason A. Gilbert, Esq.

Alexander R. Gilbert, Esq.

Howard E. Gilbert, Esq.

Gilbert Law Group

425 Broadhollow Road, Suite 405

Melville, New York 11747

For Defendants: Deanna L. Collins, Esq.

Caroline B. Lineen, Esq.

Karen C. Rudnicki, Esq.

Lewis R. Silverman, Esq.

Silverman & Associates

445 Hamilton Avenue, Suite 1102

White Plains, New York 10601

SEYBERT, District Judge:

Presently before the Court is Defendants’ Motion in

Limine (“Defendants’ Motion”) seeking eight separate forms of

relief, including, inter alia, a court order “[p]recluding

Plaintiff from seeking as damages lost wages, benefits, and pension

at trial” (“Request One”) and “[p]recluding Plaintiff from

offering any evidence of alleged lost wages, benefits, and pension

at trial” (“Request Two”, and collectively, with Request One, the

“Requests”). (Defs.’ MIL, ECF No. 141; Defs.’ Support Memo, ECF

No. 143.) Upon review of Defendants’ Motion, Plaintiff’s

Opposition thereto (Pl.’s Opp’n, ECF No. 147), and Defendants’

Reply in Further Support of their Motion (Defs.’ Reply, ECF No.

150), the Court hereby GRANTS Defendants’ Motion only as to Request

One and Request Two, and reserves decision on the remaining six

requests for relief.1

1 The Court, in its discretion, limits its decision herein to

Defendants’ Requests One and Two based upon its “inherent authority

to manage [its] docket[] and courtroom[] with a view toward the

efficient and expedient resolution of [this] case[].” Dietz v.

Bouldin, 579 U.S. 40, 47 (2016). At the Pretrial Conference held

on December 11, 2024, the parties represented to the Court that

they had engaged in settlement discussions which were hindered by

the parties’ dispute as to whether Plaintiff could recover damages

based upon her purported loss of pension. The Court therefore

issues this Order resolving such dispute on an expedited basis in

an effort to permit the parties to engage in settlement discussions

prior to trial. The Court expects the parties will notify the

Court immediately if a settlement materializes. (See J.S. Ind.

Rule I(G) (“Notification of Settlement. Any time a settlement is

reached, including prior to jury selection or during trial, the

parties are required to immediately notify the Court by filing a

notice letter to ECF. The notice letter shall indicate when the

parties expect to execute a formal Stipulation of Settlement or

Dismissal.”).)

BACKGROUND2

Plaintiff Rosary Bertuzzi commenced this employment

discrimination action against Defendants Copiague Union Free

School District, Board of Education of Copiague Union Free School

District, Dr. Kathleen Bannon, Todd Andrews, and Michele Budion

(collectively, “Defendants”), alleging violations of the Americans

with Disabilities Act (hereafter, “ADA”), 42 U.S.C. § 12101, et

seq., violations of the Fifth and Fourteenth Amendments pursuant

to 29 U.S.C. §§ 1983, and 1988, New York State Human Rights Law

(hereafter, “NYSHRL”), and the New York State Constitution. (See

generally, Am. Compl., ECF No. 26.) In her Amended Complaint,

Plaintiff alleged that Defendants’ “[r]efusal to [pr]rovide

Plaintiff [w]ith the [p]rescribed [m]edical [r]easonable

[a]ccommodation” for the 2017-2018 school year amounted to a

“[c]onstructive [d]ischarge.” (Id. at 24.)

On March 9, 2020, upon briefing from the parties and

referral from then-presiding District Judge Sandra J. Feuerstein,

Magistrate Judge A. Kathleen Tomlinson issued a Report and

Recommendation recommending, inter alia, Plaintiff’s constructive

discharge claims be dismissed. (See Report and Recommendation,

ECF No. 38 at 52 (concluding, because “[t]he [c]ourt has already

2 The Court presumes the parties’ familiarity with the factual and

procedural background of the case and recites the facts only as

necessary to adjudicate the pending motion.

found that Plaintiff has failed to state a claim for hostile work

environment[,] [l]ogically then, Plaintiff has necessarily failed

to state the more demanding claim for constructive discharge”).

Notwithstanding Plaintiff’s Objections (see ECF No. 44), Judge

Feuerstein adopted Judge Tomlinson’s Report and Recommendation to

dismiss the constructive discharge claim (see ECF No. 48), thereby

dismissing such claim from this action. The parties agree that

Plaintiff’s only remaining claim is for failure to accommodate

during the 2017-2018 school year pursuant to the ADA and NYSHRL.

(See Joint Pretrial Order, ECF No. 138 at 3-4.)

ANALYSIS

I. The Parties’ Arguments

Defendants request the Court preclude Plaintiff from

seeking damages in the form of lost wages, benefits, and pension

and introducing any evidence of such damages at trial (Requests

One and Two). (Defs.’ Support Memo at 7.) In support of such

Requests, Defendants argue: (1) Plaintiff’s claims for

constructive discharge and hostile work environment have been

dismissed, and therefore, Plaintiff “cannot seek to recoup lost

wages or benefits or emotional distress for her voluntary choice

to retire” (id. at 9); (2) “the only damages Plaintiff can seek to

recover at trial are those proximately caused by the limited

alleged failure to accommodate her” for 88.5 days (id.);

(3) Plaintiff cannot seek job restatement because the Court has

already determined Plaintiff was not constructively discharged and

instead voluntarily retired from her position (see id.); and

(4) because Plaintiff cannot seek lost wages, benefits, and

pension damages, the Court should preclude testimony and evidence

concerning such damages so as not to confuse the jury (see id. at

11).

In opposition to Defendants’ Motion, Plaintiff argues

she is entitled to recover lost wages, benefits, pension, and

emotional distress damages notwithstanding the Court’s dismissal

of Plaintiff’s constructive discharge claim because:

(1) “Plaintiff maintains a claim for failure to accommodate, which

is an independent and plenary ground for relief under the ADA and

New York Human Rights Law” (Pl.’s Opp’n at 6); (2) there is

persuasive authority from the Northern District of New York

indicating it is an open issue whether a plaintiff is entitled to

seek “post-resignation backpay” in the absence of a claim for

constructive discharge (id. at 7), see Bailey v. N.Y.S. Dep’t of

Corr. & Cmty. Supervision, No. 20-CV-155, 2023 WL 8530298, at *1

(N.D.N.Y. Dec. 8, 2023), appeal withdrawn No. 24-98, 2024 WL

1554873 (2d Cir. Feb. 27, 2024); and (3) Defendants seek a bright-

line rule barring claims for backpay in the absence of a viable

constructive discharge claim, which ignores case law that requires

such determination to be made following a “fact-specific” inquiry

(id.).

In their Reply, Defendants argue: (1) Bailey is

distinguishable from the case at bar because the plaintiff in

Bailey did not plead constructive discharge, nor was that claim

dismissed (Reply at 6); (2) there is case law suggesting the

“prevailing view of the appellate courts is that ‘in order for an

employee to recover back pay for lost wages beyond the date of his

[employment], the evidence must establish that the employer

constructively discharged the employee’” (id. at 7 (citing Tse v.

UBS Fin’l Serv., Inc., 568 F. Supp. 2d 274, 300 (S.D.N.Y. 2008)

(further citations omitted)); and (3) Plaintiff failed to mitigate

her damages (id. at 8-9).

II. The Court’s Decision

Defendants’ Requests One and Two require the Court to

address a question unanswered thus far by the Second Circuit:

Whether “a plaintiff who has been subjected to discriminatory

conditions on the job, and thereafter . . . resigns her

employment, may nevertheless receive post-employment economic

damages.” Tse, 568 F. Supp. 2d at 300. In the absence of Second

Circuit guidance on this issue, following the “prevailing view of

the appellate courts” and fellow district courts, and in light of

the facts and circumstances presented in this case, the Court

answers this question in the negative.3 Id.; see also Townsend v.

3 Notwithstanding the Court’s decision in the instant case, the

Court declines to opine as to whether a blanket “constructive

Exch. Ins. Co., 196 F. Supp. 2d 300, 308 (W.D.N.Y. 2002)

(collecting cases from the Fifth, Eighth, and Tenth Circuits which

concluded “in order for an employee to recover back pay for lost

wages beyond the date of his retirement or resignation, the

evidence must establish that the employer constructively

discharged the employee”).

While Plaintiff argues she should be able to recover

post-resignation back pay, including purported lost pension,

because there is no rule “categorially barring post-resignation

back pay in the absence of constructive discharge,” (see Pl.’s

Support Memo at 7) (relying upon persuasive authority in Bailey),

the Court disagrees. See 2023 WL 8530298, at *1. The Bailey

Court’s decision permitting plaintiff to seek backpay damages is

distinguishable for two reasons: first, the plaintiff in Bailey

failed to plead constructive discharge and thus, there was no

prior-issued court order barring such a claim and consequently,

the damages that flow from such claim; and second, the Bailey Court

ultimately decided plaintiff could recover backpay based upon

defendants’ failure to allege the affirmative defense of

mitigation. Id. at *4.

The Court is mindful of the procedural posture of this

case, which provides a unique set of facts for the Court to

discharge” rule should be adopted. The Court’s decision here is

based solely upon the facts and circumstances of this case.

consider. Indeed, courts in this Circuit have recognized “that

‘the fact-specific nature of back pay determinations’ may justify

certain ‘exceptions and distinctions’ which are consistent with

‘the general, well-established principle that an employee may not

receive backpay damages where she could have mitigated her economic

harm.’” E.E.O.C. v. Bloomberg L.P., 29 F. Supp. 3d 334, 341

(S.D.N.Y. 2014) (citing Tse, 568 F. Supp. 2d at 302). However,

upon review of the most pertinent facts, including that Plaintiff’s

constructive discharge claim was thoroughly evaluated by two

judges of this District, Judge Tomlinson and Judge Feuerstein, and

in accordance with the well-established law-of-the-case doctrine,

which militates against revisiting prior rulings absent “cogent

and compelling reasons,” the Court finds the facts here compel the

conclusion that Plaintiff be prohibited from seeking lost wages,

benefits, and pension damages at trial. In re Peters, 642 F.3d

381, 386 (2d Cir. 2011) (“The law of the case doctrine, although

not binding, ‘counsels a court against revisiting its prior rulings

in subsequent stages of the same case absent “cogent” and

“compelling” reasons,’ including, inter alia, ‘the need to correct

a clear error or prevent manifest injustice.’”) (quoting Ali v.

Mukasey, 529 F.3d 478, 490 (2d Cir. 2008)); see also D’Iorio v.

Winebow, Inc., 68 F. Supp. 3d 334, 359 (E.D.N.Y. 2014).4

Plaintiff’s Motion in Limine as to Request One is therefore

GRANTED.

Moreover, in light of the Court’s ruling precluding

Plaintiff from seeking lost wages, benefits, and pension damages,

the Court agrees with Defendants that any evidence of such damages

shall not be submitted to the jury. See Hannah v. Wal-Mart Stores,

Inc., No. 3:12-CV-01361, 2017 WL 690179, at *2 (D. Conn. Feb. 21,

2017), aff’d sub nom. Hannah v. Walmart Stores, Inc., 803 F. App’x

417 (2d Cir. 2020) (“Where claims have been dismissed on summary

judgment, therefore, it is generally appropriate to preclude

testimony or evidence regarding those same previously dismissed

claims during a jury trial.”). Therefore, Defendants’ Motion in

Limine as to Request Two is also GRANTED.

CONCLUSION

For the stated reasons, IT IS HEREBY ORDERED:

Plaintiff’s Motion in Limine as to Requests One and Two is GRANTED.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: March 28, 2025

Central Islip, New York

4 Because the Court concludes Plaintiff may not seek lost wages,

benefits, and pension damages at trial, the Court declines to

address the parties’ arguments on mitigation.