Opposition Brief — Colwell v. Suffolk County Police Department

Supreme Court, U.S.

,y ££ ti Ep

FEB 18 1999

No. 98-1164

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

coetnenenttteseatnnntaniinnnieninns

ROBERT N. COLWELL, CHARLES R. ELLINGER

ne and RICHARD H. ABRAMS, JR

A Pana 12

Petitione?

SUFFOLK COUNTY POLICE DEPARTMEN|]!

and THE COUNTY OF SUFFOLK,

Re sponde ni

ON PETITION FOR WRIT OF CERTIORARI

rO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUTII

RESPONDENTS’ BRIEF IN OPPOSITION

ROBERT J. CIMINO

Suffolk County Attorne\

RANDY BERLER*

Assistant County Alttorne)

FHEODORE D. SKLAR

Assistant County Altorne\

Attorneys for Respondents

H. Lee Dennison Building

100 Veterans Memonal Highway

P.O. Box 6100

Hauppauge, NY 11787-0099

* Counsel of Record (516) 853-4049

@J Counsel Press LLC

i

QUESTION PRESENTED

Have the Petitioners established that “compelling reasons”

exist for this Court to grant the writ where the gravamen of the

Petition is that the United States Court of Appeals for the Second

Circuit erred when it concluded that there was insufficient

evidence to support the jury’s finding that the Petitioners were

disabled within the meaning of the Americans with Disabilities

Act?

il

TABLE OF CONTENTS

Question Presented ...........-- eee ee erect eeeees

Table of ComtemlS ....ccsccecceeeese esse eeneeee

Table of Cited Authorities .............-ceeeeeees

Statement of the Case .......-scccccccvcceseevess

Perceived Misstatements Made in the Petition .......

Reasons for Denying the Writ ..........-02+-++0+5

4

II.

If.

IV.

Petitioners Have Failed To Establish Jurisdiction

For Review Of The Order Appealed From As

Required By Rule 10 Of This Court. ........

The Second Circuit Applied The Proper Standard

Of Review In Determining That The Petitioners

Had Not Produced Sufficient Evidence Of A

Disability Under The A.D.A. ...........-.--

A Police Officer’s Assignment To Long Term

Light Duty Is Not Evidence Of A Record Of

Disability Under The A.D.A. ..........+-.+---

This Court’s Decision In School Board Of Nassau

County v. Arline Did Not Establish That A

Temporary Period Of Hospitalization Creates A

Per Se Record Of Disability Under The A.D.A.

a a a a ee ee ae ee ee ee se ee ee ee

Petitioners Failed To Produce Any Evidence That

The Suffolk County Police Department Perceived

Them As Substantially Limited In Performing

Any Major Life Activities. .......-.es+eee-

Conclusion .....0cseseeesse0e eee eee

10

15

17

19

23

25

lil

TABLE OF CITED AUTHORITIES

Page

Cases:

Boyce v. New York City Mission Society, 963 F. Supp.

Ce . SNe cis h esse ed beeees eave ewe?s 22

Bradway v. Gonzales, 26 F.3d 313 (2d Cir. 1994) .... 15

Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196, 141

ee | eee ere ree 12, 13, 14

Braxton v. United States, 500 U.S. 344, 111 S. Ct. 1854,

SP RUUOD ocescceceveveovecendees i0

Burch v. Coca-Cola, Co., 119 F.3d 305 (Sth Cir. 1997),

cert.denied, _U.S.__, 118 S. Ct. 871, 139 L. Ed. 2d

IRS ee rene ee re ry 19, 20

Colwell v. Suffolk County Police Dept., 158 F.3d 635 (2d

| 12, 13, 14, 15, 17, 20, 21, 22, 23

David Curran v. All Waste Systems, Inc., 1997 U.S. Dist.

LEXIS 22110 (S.D.N.Y. 1997), aff'd, 133 F.3d 906

ee Lo ae Wak b va .e sa o> 00a <4 22

Foreman v. The Babcock & Wilcox Co., et al., 117 F.3d

800 (Sth Cir. 1997), cert. denied, U.S. __, 1185S.

cy seen, 140 L. Bd. 246 113 (1998) ............. 24

Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997)

lv

Cited Authorities

Graaf v. North Shore University Hospital, | F. Supp. 2d

tie) 88 ee. | rrr ere ee

Halperin v. Abacus Technology Corp., 128 F.3d 191 (4th

‘¢ 2,3) ae ee reer ee eee

Heilweil v. Mount Sinai Hospital, 32 F.3d 718 (2d Cir.

1994), cert. denied, 513 U.S. 1147, 115 S. Ct. 1095,

130 L.. Ed. 26 1063 (1995) .. 2... cnceevcecess:

Joyce v. Suffolk County, 911 F. Supp. 92 (E.D.N.Y. 1996)

eee es eee ea Oe ee oe ee ee oe ee ee ee er i ile

Layne & Bowler Corp. v. Western Well Works, Inc., 261

U.S. 387, 43 S. Ct. 422, 67 L. Ed. 712 (1923) .....

Reeves v. Johnson Controls World Services, Inc., 140 F.3d

COG CROW. TORR yo 5 on soccer ccevcerneueses

Rice v. Sioux City Memorial Park Cemetery, 349 U.S.

70, 75 S. Ct. 614, 99 L. Ed. 897 (1955) ..........

Richard F. Murray v. Sysco Corp., 1998 U.S. Dist LEXIS

SSCS CM TEW.Y.. 19GB) onc enc ccc ccc cweesenonens

Ryan v. Grae & Rybicki, P.C., 135 F.3d 867 (2d Cir. 1998)

ES ERMEN ERED ARE MERE GONE es Ned Deen eee 12, 13,

Sanders v. Arneson Products, 91 F.3d 1351 (9th Cir.

1996), cert. denied, 520 U.S. 1116, 117 S. Ct. 1247,

hye Me Re. 00 yy eee

Page

22

22

17, 18

23

10, 11

12

10

22

16, 17

22

—

FAD ba 18 RI Ee os

Cited Authorities

Page

School Board of Nassau County v. Arline, 480 U.S. 273,

107 S. Ct. 1123, 94 L. Ed. 2d 307 (1987) .... 19, 20, 21, 22

Tudyman vy. United Airlines, 608 F. Supp. 739 (C.D. Ca.

1 IAPR eater amir rae tae Parry any canara try ALE eye > 23

Wernick v. Federal Reserve Bank of New York, 91 F.3d

ye gt .& Ae. | Ep er ee ey ern 18

Williams v. Kerr-McGee Corp., 1997 U.S. App. LEXIS

6366, aff'd, 110 F.3d 74 (10th Cir. 1997) ........ 18

Statutes:

hth OY oe Br |. A ner eka mares. 3 |

G2 UBS BTR) kn 66a a aenannaeeeav ees 17

N.Y. Exec. L. § 835(7) (McKinney 1996) .......... 18

N.Y. General Municipal Law § 207-c (McKinney 1986)

) edd ewe erieanes ts be UE RES ee l

N.Y. General Municipal Law § 207-c(1) (McKinney

PODS). « 6acdccsesesnewes eae ee 23

N.Y. General Municipal Law § 207-c(3) (McKinney

ee er er rey RAT 23

vi

Cited Authorities

Rules:

| Re mS Brrr rr rere et

® Re & S| PPererrerrerr rrr ee

Dod. Btw: FSR vce cc dtcovcecicoteeeeverie

J @ Ge A A, PPro re ee

Supreme Court Rule 10 ..........- eee eee ences

Supreme Court Rule Rule 10(c) ...........---.-5--

Supreme Court Rule 15.2 ...........-- eee eee eeee.

Other Authorities:

29CER. & IO) oo.) eset eee

29 CER. § 1600) oo ss ccc evcdvceaeeeee |

29 C.F.R. § 1630, App. § 1630.2(j) .........-2.005-

29 C.F.R. § 1630, App. § 1630.2(k) .........2.006.

21

18

|

STATEMENT OF THE CASE

The Petitioners in this case are three veteran police officers,

two sergeants and one lieutenant, who are employed by the

County of Suffolk, New York. They claimed that they were

denied promotions to higher ranks in February 1993, as a result

of unlawful discrimination under the Americans with

Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (hereinafter

referred to as the “A.D.A.”). Each police officer spent a

substantial part of his career assigned to “limited” or “light”

duty under N.Y. General Municipal Law § 207-c (McKinney

1986) as a result of injuries sustained while performing his

duties. Two of the officers complained of back pain. The third

was afraid of stressful situations even though he had long since

recovered from a subarachnoid hemorrhage sustained in 1984.

In fact, this officer had been found fit for full duty in 1992 by

Dr. Leonard Weitzman, a physician for the Respondent Suffolk

County Police Department (hereinafter referred to as the

“County” or the “SCPD”). Despite their alleged maladies, each

of the police officers got up, got dressed and went to work every

day. Each officer failed to present any evidence that he suffered

from a condition which substantially limited one or more of

the major activities of life.

The extent of the evidence of Petitioner Robert N. Colwell’s

(hereinafter referred to as “Colwell”) physical limitations

consisted of an inability: to stand around the mall while his

wife tries on dresses; to work on his daughter’s car; to golf or

ski; to sit for two days (during the course of the trial) without

discomfort; to stand at attention (military style) for a long period

of time and to drive for more than a couple of hours without

stretching.

Petitioner Charles R. Ellinger (hereinafter referred to as

“Ellinger”) described his physical limitations by stating that

2

he needs to do heavy work, like digging and planting in the

summer time, at a slow pace, and that he needs to wear hats

and avoid physical exercise in the winter time. The only other

evidence of physical limitations that Ellinger produced

consisted ofa letter from Dr. Steven Friedling dated December

1, 1992, which stated that Ellinger needed to avoid stress,

confrontation, late tours and rotating shifts. Dr. Friedling’s letter

indicated that Ellinger was capable of working indoors and days

as well as overtime between the hours of 8:00 a.m. - 8:00 p.m.

Petitioner Richard H. Abrams, Jr. (hereinafter referred to

as “Abrams’) testified that his physical limitations amounted

to an inability: to do tune-ups, brake jobs and mechanical work

on his automobiles; to bend over for long periods; to

continuously reach up when painting or plastering; to lift heavy

objects; and to move furniture. He also testified that he has

trouble doing yard work, like raking, and that he cannot drive,

sit or stand in one position for long periods of time without

stretching.

Abrams was the only Petitioner to offer testimony of a

treating physician. Dr. Donald Holzer, a neurologist, testified

merely that Abrams was capable of doing sedentary work and

that:

[hje can certainly infrequently reach over his

shoulder, bend, twist, he can lift objects maybe ten

to twenty pounds infrequently. He can stand and

walk for short periods of time, maybe a half an hour

to an hour-at a time. He certainly is capable of

working an 8 hour day with limitations.

Despite this glaring lack of proof, the police officers were

able to persuade the jury, and the District Court, that they were

disabled. Essentially, each police officer successfully parlayed

Ne ————eE=

2

his light duty status, and the fact he was not promoted, into a

finding of discrimination under the A.D.A. There was, however,

no evidence that the conditions which sometimes prevented the

Petitioners from performing the full duties of a police officer,

also substantially limited them from performing one or more

of the major activities of life.

Upon the close of Petitioners’ case, the County moved for

judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a).

On March 18, 1997, following submission of the case to the

jury, a verdict was returned in favor of the Petitioners.

On June 26, 1997, the District Court issued a memorandum

and order which denied the County’s Rule 50(a) motion. The

District Court entered judgment on June 27, 1997.

On August 4, 1997, the District Court issued a memorandum

and order which denied the County’s motion pursuant to Fed. R.

Civ. P. 50(b), for judgment notwithstanding the verdict or for a

new trial pursuant to Fed. R. Civ. P. 59.

The County appealed the District Court’s denial of

judgment as a matter of law to the United States Court of

Appeals for the Second Circuit (hereinafter referred to as the

“Second Circuit”). The Second Circuit, by decision dated

October 15, 1998, held that “there was insufficient evidence to

support the jury’s finding that the officers were disabled within

the meaning of the A.D.A.” This Petition for a Writ of Certiorari

ensued.

PERCEIVED MISSTATEMENTS

MADE IN THE PETITION

Colwell, Ellinger and Abrams have mischaracterized the

evidence that was adduced at trial in many significant respects.

In accordance with Supreme Court Rule 15.2, the following

4

represents a list of the perceived misstatements and

mischaracterizations in the order that they appear in the Petition

for a Writ of Certiorari.

Colwell, Ellinger and Abrams claim that each suffered from

“chronic debilitating impairments”, that each “had a long record

of disability” and that each of them was “perceived by Respondents

as being disabled.” See Petition for a Writ of Certiorari at page r

These conclusory allegations are unsupported by the record. In

fact, the medical documentation offered at trial by Colwell, Ellinger

and Abrams did not der..onstrate that any of them was substantially

limited in the performance of one or more major life activities.

The only records produced by Colwell, Ellinger and Abrams

consisted of forms of the SCPD’s Medical Evaluation Unit, the

Suffolk County Department of Health Services and the Office of

Employee Medical Review. Those forms reflected the fact that

each of the Petitioners’ had been placed on light duty status with

the following limitations: no confrontation, no heavy lifting, no

rotating shifts, no strenuous exertion, day shifts and desk work

(plaintiffs’ exhibits “29” (R. 1267)’, “58-8” (S.A. 23)°, “58-9”

(S.A. 24), “58-10” (S.A. 25), “58-11” (S.A. 26), “58-12” (S.A.

27), “58-13” (S.A. 28), “58-18” (S.A. 30), “58-18.2” (S.A. 31),

“58-18.3” (S.A. 32), “58-18.4” (S.A. 33), “58-20” (S.A. 34), “59-

11” (S.A. 42), “59-18” (S.A. 43), “60-8” (S.A. 46), “60-10” (S.A.

47), “60-13” (S.A. 49), “60-14” (S.A. 50), “60-15” (S.A. 51), “60-

18” (S.A. 53), “60-19” (S.A. 54), “60-20” (S.A. 20), “60-21” (S.A.

56), “60-22” (S.A. 57), “60-22” (S.A. 58), “60-23” (S.A. 59), “60-

24” (S.A. 60), “60-25” (S.A. 61), “60-26” (S.A. 62), “60-27” (S.A.

63), “60-28” (S.A. 64), “60-29” (S.A. 65), “60-30” (S.A. 66), “60-

|. Hereinafter references to the Petition for a Writ of Certiorari will

be referred to as “Petition”.

2. References preceded by “R.” are to pages in the Joint Appendix

filed with the Second Circuit Court of Appeals.

3. References preceded by “S.A.” are to pages in the Supplemental

Appendix filed with the Second Circuit Court of Appeals.

5

31” (S.A. 67), “60-32” (S.A. 68), “60-33” (S.A. 69), “60-34” (S.A.

70), “60-35” (S.A. 71), “60-36” (S.A. 72), “60-37” (S.A. 73), “60-

38” (S.A. 74), “60-39” (S.A. 75), “60-42” (S.A. 76)].

The only other record of limitations produced were forms

from the Suffolk County Department of Health Services, Office

of Employee Medical Review. According to those forms, Abrams

was restricted from “bending” and “prolonged sitting or standing”

[plaintiffs’ exhibit “59-22” (S.A. 44)], and Colwell was restricted

from “bending”, “prolonged driving”, and “prolonged sitting”

[plaintiffs’ exhibit “59-22” (S.A. 44), “60-11” (S.A. 48)].

None of the documentary evidence cited above demonstrated

that any of the Petitioners suffered from an impairment that

substantially limited them in the performance of any major life

activities. That evidence, and the testimony at trial, simply showed

that each of the Petitioners, at one time or another, was restricted

from performing the full duties of a police officer.

An»ther example of Petitioners’ embellishment of the record

is the description of Ellinger’s hospital stay for a cerebral

he aorrhage he sustained in 1984. According to the Petition, “He

[Ellinger] was rushed to the hospital by ambulance and was

confined to an intensive care unit for approximately 30 days.”

See Petition at page 2. While Ellinger testified that he was

hospitalized for approximately thirty days following his cerebral

hemorrhage, the only reference to “the intensive care unit”

appeared in an injured employee report submitted by Sergeant

John Byrnes, dated October 12, 1984 [plaintiffs’ exhibit “58-17”

(S.A. 29)]. This report indicated that Ellinger was in the intensive

care unit of St. John’s Episcopal Hospital on October 12, 1984,

three days after the hemorrhage.

6

Similarly, Ellinger’s description of the six month period

following his temporary hospital stay also mischaracterizes the

evidence. According to the Petition, “After leaving the hospital

he [Ellinger] was treated by his family physician, a neurologist

and neurosurgeon, and confined to six months of bed rest.”

See Petition at page 2. Although Ellinger testified that he was

out of work for approximately six months, he did not offer any

evidence that he was confined to bed for six months or that any

of his doctors had recommended bed rest for six months.

Ellinger states that “Although his [Ellinger’s] physical

condition stabilized, it continued to be debilitating and chronic

and he always had to compensate for it.” See Petition at page

2. Ellinger, however, fails to describe the evidence that showed

how he compensated for this so called “debilitating” condition.

According to Ellinger’s testimony, he did heavy work, like

digging and planting in the summertime, at a slow pace, he

wore hats and avoided physical exercise in the wintertime

(R. 377), and in stressful situations, he practiced “thinking good

thoughts” (R. 377) and “picturing the sun coming through the

clouds to erase all [his] fears.” (R. 381).

Additionally, Ellinger’s various complaints of pain which

appear in the Petition, are not in the trial record. Ellinger alleges

that “he used biofeedback techniques to try to calm down to

control the pressure and pain.” See Petition at page 3. Ellinger

testified at trial that he used biofeedback for a “sensation that

would begin at the top of my head and spread out towards the

back and the front.” (R. 377). He did not mention any pressure

or pain when he testified before the jury.

Another example of Ellinger’s mischaracterization of the

trial record is his claim that “he could not do any type of heavy

physical work” and “if he had to do something physical, he

would have to do it very slowly to avoid the pain in his head.”

7

See Petition at page 3. Ellinger actually testified at trial that,

“If | were going to do heavy work, either I wouldn't do it, or |

would do it very slowly.” (R. 378). Once again, he did not testify

about any pain in his head or about a complete inability to do

heavy work.

Still another example of Ellinger’s reference to pain not

found in the record is his allegation that “[e]xposure to the

elements, such as cold in the winter, could also cause him to

react with pain.” See Petition at page 3. Although Ellinger

testified that he needed to wear hats in the winter time, he did

not testify that this was done in reaction to pain (R. 377).

Although Ellinger states that he “was only able to work

within the light duty parameters established by the

Respondents” (see Petition at page 3), this is misleading because

the evidence shows that Dr. Weitzman, a physician employed

by the SCPD, found Ellinger fit for full-duty on December 1,

1992 (R. 338). The record shows that Ellinger chose to ignore

the police surgeon and decided instead that he would follow

the restrictions that were recommended by his personal

physician (R. 380).

The following excerpt is among the most glaring examples

of Ellinger’s unfair depiction of his alleged limitations:

Sergeant Ellinger is substantially limited in

performing manual tasks and can tolerate very little

exertion compared to the average person of the

general population.

See Petition at page 3.

Ellinger’s limitations with respect to manual tasks were

previously addressed herein and amounted to: doing heavy

work, like digging or planting in the summer time, at a slow

pace and wearing hats and avoiding physical exercise in the

winter time (R. 377). The only other limitation that Ellinger

testified to with respect to a manual task was shoveling snow;

“If I was to shovel a driveway in the snow, if I was to push, I

would feel it.” (R. 377).

Not only does Ellinger omit material facts contained in

the record, but he also adds facts not in evidence when he claims

that, “{t]he original cerebral hemorrhage was very severe; and

its residual effects will be of life time duration.” See Petition

at page 3. There was no evidence produced at trial regarding

the severity of Ellinger’s subarachnoid hemorrhage or any

prognosis. In fact, the only medical evidence submitted by

Ellinger was that of the SCPD’s physician, Dr. Weitzman, who

found that Ellinger’s hypertension was under control and that

he was fit for full duty status (R. 339).

Like Ellinger, Colwell also omits pertinent details in his

statement of the case. Colwell states in the Petition that “he is

only able to drive for short periods of time and is limited in the

type of manual task that he can perform.” See Petition at page

4. Colwell fails to explain, however, that his definition of a

short period of time was, “If I’m going for a two or three or

four hour drive, I have to stop and stretch my legs and walk

around...” (R. 255).

While Colwell states in the Petition that he cannot do

general work around the house (see Petition at page 4), he

testified at trial that he does basic chores (R. 255) and that he

has no problem with normal, everyday activities (R. 302).

Although Colwell claims that he is limited in “his ability

to lecture for any length of time” (see Petition at page 4), he

testified specifically that “it becomes a problem in instructing

9

for more than an hour at a time.” (R. 257). Colwell’s purported

difficulty with shopping and going on vacation (see Petition at

page 4), were qualified in his trial testimony as “I can’t go

shopping in the mall and stand around while [my wife] tries on

dresses”, (R. 257) and “I have a hard time again going on a

vacation in driving situations.” (R. 257).

Additionally, Colwell claims that he had difficulty doing

“any of the things which he did prior to his disability.”

See Petition at page 4. The only other activities, however, that

Colwell testified to at trial and that were not mentioned in the

Petition were his inability to ski or golf (R. 257). Colwell also

asserts in the Petition that his doctors prohibited him from

performing “the manual tasks he once performed.” See Petition

at page 4. The only evidence of any limitations placed upon

Colwell by any medical professional were the light duty

limitations on confrontation, heavy lifting, prolonged sitting,

prolonged standing, prolonged bending and prolonged driving,

which were recommended by the physicians employed by the

SCPD.

Abrams has also embellished the record. Abrams claims

that he cannot do yard work. See Petition at page 6. He testified,

however, that he has trouble with yard work (R. 535). Abrams

also claims that he cannot reach up. See, Petition at page 6.

Abrams testified that, “If I spend any time reaching up as far

as painting or plastering or anything like that, then it affects

me.” (R. 535). Abrams states that he has difficulty with driving.

See Petition at page 6. At trial he simply explained that he had

to “stop and get out and walk around and stretch out a little

bit” when driving for periods of time (R. 536).

SL Sa oe ee, Oe ee eee

10

REASONS FOR DENYING THE WRIT

I.

PETITIONERS HAVE FAILED TO ESTABLISH

JURISDICTION FOR REVIEW OF THE ORDER

APPEALED FROM AS REQUIRED BY

RULE 10 OF THIS COURT.

In Braxton v. United States, 500 U.S. 344, 347, 111 S. Ct.

1854, 1857, 114 L. Ed. 2d 385, _ (1991), this Court stated that:

[a] principal purpose for which we use our certiorari

jurisdiction . . . is to resolve conflicts among the United

States Courts of Appeals and state courts concerning

the meaning of provisions of federal law.

In Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70, 74.

75S. Ct. 614, 616, 99 L. Ed. 897, _ (1955), this Court, in

considering the meaning of the phrase “special and important

reasons” within the context of the former version of Rule 10 of

the Supreme Court Rules, noted that it does not sit for the “benefit

of the particular litigants”, and declared that the issue presented

must involve “a problem beyond the academic or the episodic.”

The Court stressed that:

it is very important that we be consistent in not granting

the writ of certiorari except in cases involving

principles the settlement of which is of importance to

the public, as distinguished from that of the parties,

and in cases where there is a real and embarrassing

conflict of opinion and authority between Circuit

Courts of Appeals.

Id. at 79, 75S. Ct. at 620,99 L. Ed. at__, quoting Layne & Bowler

Corp. v. Western Well Works, Inc., 261 U.S. 387, 393, 43 S. Ct.

1]

422, 423, 67 L. Ed. 712 (1923). Under Rule 10, “[a] petition fora

writ of certiorari is rarely granted when the asserted error consists

of erroneous factual findings or the misapplication of a properly

stated rule of law.”

None of the considerations specified in Rule 10 are in any

way legitimately implicated by the issues presented in this Petition.

In tacit recognition of this obstacle to the granting of the writ, the

Petitioners argue instead that juries, and not the Courts, should

have plenary power to decide what impairments do or do not

“substantially limit one or more major life activities”. See Petition

at page 8. This proposition, however, ignores the authority of the

federal courts under Fed. R. Civ. P. 50 to protect a party from a

verdict that has no legally sufficient evidentiary basis. Moreover,

the Petition advances no authority for the unique propositions that

the federal courts are without authority to determine what evidence

is Or is not legally sufficient to demonstrate the existence of an

impairment that “substantially limits a major life activity” and

that juries should be left to arbitrarily decide that question as they

see fit.

The Petitioners also argue, without any authority, that

Congress’ intent to enact remedial legislation has been thwarted

by the Second Circuit and by other Courts of Appeals who have

refused to allow every impairment, no matter how insubstantial,

to lead to a plaintiff's verdict. The Petitioners do not argue in any

inciteful manner that the Second Circuit in this case, or any of the

other Courts of Appeals in the cited cases, applied an erroneous

standard when reviewing A.D.A. cases in which the phrase

“substantially limits” was at issue. Moreover, the Petitioners do

not suggest what the governing rule of law should be. Instead, the

Petitioners’ only solution to the alleged problem is, again, a ruling

from this Court that the phrase “substantially limits” means

whatever a jury decides that it should mean. It is respectfully

submitted that certiorari should not be granted for this purpose.

12

The Petitioners also claim that the decision of the Second

Circuit, and of the other Courts of Appeals, “goes against the

spirit of the Court’s holding in the recent case of Bragdon v.

Abbott, _ U.S. __, 118 S. Ct. 2196 (1998).” See Petition at

page 10. By the use of the undefined and uncited “spirit”

standard, the Petitioners attempt to evade the need to address

and to meet the standard for granting review on certiorari set

forth in Rule 10(c) of the Rules of the Supreme Court: “... a

United States court of appeals ... has decided an important

federal question in a way that conflicts with relevant decisions

of this Court.” (emphasis added). In fact, the Second Circuit

carefully and correctly applied Bragdon in its decision in this

case.

In Bragdon, the respondent suffered from asymptomatic

HIV infection. After an analysis of the dangers and risks

associated with transmission of the disease to a partner or an

offspring, this Court held that respondent was substantially

limited in the major life activity of reproduction, Bragdon,

supra, 524 U.S. at__, 118 S. Ct. at 2202-2207, 141 L. Ed. 2d

at _. Petitioners fail to point out any conflict between this

Court’s decision in Bragdon and the Second Circuit’s decision

in the case at bar. The Second Circuit relied on Bragdon in

finding that the evidence failed to show that the Petitioners

were substantially limited in the performance of one or more

major life activities. The Second Circuit held that:

[t]he third step in the Bragdon analysis is to

determine whether the plaintiff's impairment

“substantially limits” the major life activities that

are properly deemed major. This inquiry is

individualized and fact-specific.

Colwell v. Suffolk County Police Dept., 158 F.3d 635, 643

(2d Cir. 1998), citing Reeves v. Johnson Controls World

Services, Inc., 140 F.3d 144, 152 (2d Cir. 1998); Ryan v. Grae

13

& Rybicki, 135 F.3d 867, 872 (2d Cir. 1998); see also Bragdon,

1188S. Ct. at 2206; (A. 13a)*. The Second Circuit then carefully

reviewed the evidence adduced by each of the Petitioners,

[Colwell, supra, 158 F.3d at 639-647; (A. 15a-17a)] and

concluded “that each of the [Petitioners] failed to advance

evidence sufficient to show that the limitation he suffered with

respect to a major life activity was substantial.” Co/well, 158

F.3d at 645; (A. 17a). The Petition for a Writ of Certiorari

should be denied because its primary purpose is to simply have

this Court review the sufficiency of the evidence determinations

made by the Second Circuit.

This Court, in finding that the Respondent in Bragdon was

substantially limited in the major life activity of reproduction,

commented that “[t]he Act addresses substantial limitations of

major life activities, not utter inabilities.” Bragdon, supra, 524

U.S. at ___, 118 S. Ct. at 2206, 141 L. Ed. 2d at _.. The

Petitioners grasp onto this one line, in an attempt to show that

the Second Circuit applied a stricter standard for establishing a

disability than the standard applied by this Court in Bragdon.

The Second Circuit did not require the Petitioners to show

“utter inabilities” in the performance of major life activities,

but rather it correctly utilized the definition of “substantially

limits” as set forth by the EEOC:

«.) Unable to perform a major life activity that the

average person in the general population can

perform; or is

(11) Significantly restricted as to the condition

manner or duration under which an individual

4. References preceded by “A” are to the appendix of the Petition

for Writ of Certiorari.

14

can perform a particular major life activity as

compared to the condition, manner, or duration

under which the average person in the general

population can perform that same major life

activity. 29 C.F.R. §1630.2G)(1).

Colwell, supra, 158 F.3d at 643, (A. 13a-14a).

The Second Circuit also properly utilized the following

factors recommended by the regulations in its determination

that the Petitioners were not substantially limited in a major

life activity:

(i) the nature and severity of the impairment;

(ii) the duration or expected duration of the

impairment; and

(iii) the permanent or long term impact or the

expected permanent or long term impact of or

resulting from the impairment. 29 C.F.R.

§ 1630(j)(2).

Colwell, supra, 158 F.3d at 643; (A. 14a).

For these reasons, the Petitioners’ argument that the Second

Circuit somehow ran afoul of this Court’s decision in Bragdon

is without merit. Accordingly, the Petition for a Writ of

Certiorari should be denied.

15

Il.

THE SECOND CIRCUIT APPLIED THE PROPER

STANDARD OF REVIEW IN DETERMINING THAT THE

PETITIONERS HAD NOT PRODUCED SUFFICIENT

EVIDENCE OF A DISABILITY UNDER THE A.D.A.

Petitioners also contend that the Second Circuit improperly

substituted its judgment for that of the trier of fact and the trial

judge. See Petition ai pages 10-16. This contention is not

supported by the record or by legal precedent.

The Second Circuit applied the proper standard for review

when it reversed the District Court’s denial of Respondents’

motion for judgment as a matter of law:

In reviewing the denial of judgment as a matter of

law, we view the evidence in the light most favorable

to the nonmoving party and will reverse “only if

[we] can conclude that, with credibility assessments

made against the moving party and all inferences

drawn against the moving party, a reasonable juror

would have been compelled to accept the view of

the moving party.”

Colwell, 158 F.3d at 641, citing Bradway v. Gonzales, 26 F.3d

313, 317 (2d Cir. 1994); (A. 7a-8a).

Colwell and Abrams claim that the Second Circuit departed

from the above standard and improperly assessed their

credibility when the Court found that their descriptions of their

limitations were “marked throughout by hedging and a studied

vagueness” and were “carefully qualified” and that Dr. Holzer’s

testimony was “vague and qualified.” See Petition at pages 14

16

and 16. By using that terminology, the Second Circuit was

merely articulating its evaluation of the sufficiency of the

evidence as revealed by the transcript of the Petitioners’ and

Dr. Holzer’s testimony. This is a far cry from rejecting

testimony that is legally sufficient on its face, but is nevertheless

rejected because it is not credible. Therefore, Petitioners’

contention that the Second Circuit improperly assessed their

credibility is erroneous.

Petitioners, in further support of their argument that the

Second Circuit substituted its judgment for that of the District

Court, state that the District Court credited the medical

testimony of Dr. Robert Reiss, a police surgeon, as

“corroborating Colwell’s claims and supporting ‘the jury's

conclusion that Colwell was disabled at the time he was not

promoted.’ ” See Petition at page 14. On appeal to the Second

Circuit, Respondents pointed out that at trial, the District Court

specifically instructed the jury not to consider the testimony of

Dr. Reiss as evidence of Colwell’s physical condition because ©

Dr. Reiss did not conduct any medical examinations of his own

(R. 466). Clearly, the District Court erred in crediting Dr. Reiss’

testimony as evidence of a disability when it had instructed the

jury to disregard that same testimony. Therefore, no reasonable

juror could have found that Dr. Reiss’ testimony supported

Colwell’s claim of disability.

Ellinger also claims that the Second Circuit usurped the

findings of the judge and jury when it held that there was

insufficient evidence to find that he was substantially limited

in the major life activity of work. Ellinger argues that the

restrictions on his work schedule could apply to “any position”

and “[(t]herefore there was no need for specific evidence about

‘the kinds of jobs from which an impaired individual is

disqualified.’ ” See Petition at page 15. The case law, however,

unequivocally holds to the contrary. Ryan v. Grae & Rybicki,

17

P.C., 135 F.3d 867, 872 (2d Cir. 1998); Heilweil v. Mount Sinai

Hospital, 32 F.3d 718, 723-724 (2d Cir. 1994), cert. denied,

513 U.S. 1147, 115 S. Ct. 1095, 130 L. Ed. 2d 1063 (1995).

The Second Circuit correctly held that neither Colwell,

Ellinger nor Abrams were substantially limited in the major

life activity of work. Colwell, supra, 158 F.3d at 643-645;

(A. 14a-15a). In so finding, the Second Circuit applied the

proper standard of review and rendered a decision that was

supported by the evidence of record and was entirely consistent

with the A.D.A. and the case law. Accordingly, the Petition for

a Writ of Certiorari should be denied.

Il.

A POLICE OFFICER’S ASSIGNMENT TO LONG TERM

LIGHT DUTY IS NOT EVIDENCE OF A RECORD OF

DISABILITY UNDER THE A.D.A.

In an effort to invoke this Court’s jurisdiction, Petitioners

argue that their “long term” assignment to light duty created a

record of disability under the A.D.A. See Petition at pages 16-

18. The Second Circuit, however, did not err in its decision on

this issue either. In fact, the Second Circuit noted that it would

be anomalous to find that an employer, like the County, that

“accedes to minor and potentially debatable accommodations”,

like the assignment of a police officer to light duty, “thereby

stipulate[s] to the employee’s record of a chronic and endless

disability.” Colwell, supra, 158 F.3d at 646; (A. 21a).

In order for Colwell, Ellinger and Abrams to have

established a disability under the A.D.A. by demonstrating a

record of impairment, each of them was required to prove “a

record of a physical or mental impairment that substantially

limits one or more major life activities.” 42 U.S.C. § 12102(2);

18

Williams v. Kerr-McGee Corp., 1997 U.S. App. LEXIS 6366,

aff'd, 110 F.3d 74 (10th Cir. 1997); 29 C.F.R. Part 1630

Appendix, Section 1630.2(k).

Colwell, Ellinger and Abrams point to their personnel files,

performance reports and duty assignments in an attempt to claim

that they established evidence of a disability through a record

of an impairment. As addressed in Point I above, they failed to

produce any specific record or document which indicated that

any of them was substantially limited in the performance of

one or more major life activities. All of the evidence

demonstrated that Colwell, Ellinger and Abrams were able to

work light-duty assignments on a full-time basis.

Petitioners further claim that “evidence of a record of a

substantial limitation for an extensive period is independently

probative of whether the Petitioners were disabled within the

meaning of the A.D.A.” See Petition at page 17. Petitioners,

however, were unable to establish any record of a substantial

limitation of a major life activity, let alone a record of a long

term substantial limitation of a major life activity.

While work is a “major life activity” under the A.D.A.,

“an impairment that disqualifies a person from only a narrow

range of jobs is not considered a substantially limiting one.”

Heilweil, supra, 32 F.3d at 723 (2d Cir. 1994); Wernick v.

Federal Reserve Bank of New York, 91 F.3d 379, 383-384 (2d

Cir. 1996). It necessarily follows that the inability to perform

all of the duties of a police officer in the State of New York,

and in the County of Suffolk [see N.Y. Exec. L.

§ 835[7] (McKinney 1996)], does not mean that a police officer

who is on light duty assignment has an impairment that

substantially limits the major life activity of working. A history

of injuries which resulted in minor impairments and the

19

assignment of a police officer to light duty, as here, is simply

not a history of a disability as defined by the A.D.A. The

Petitioners have failed to demonstrate how the Second Circuit’s

decision on this issue implicates any of the considerations

governing review on certiorari. Accordingly, the Petition for a

Writ of Certiorari should be denied.

IV.

THIS COURT’S DECISION IN SCHOOL BOARD OF

NASSAU COUNTY v. ARLINE DID NOT ESTABLISH THAT

A TEMPORARY PERIOD OF HOSPITALIZATION

CREATES A PER SE RECORD OF DISABILITY

UNDER THE A.D.A.

Ellinger misconstrues this Court’s decision in School Board

of Nassau County v. Arline, 480 U.S. 273, 107 S. Ct. 1123,

94 L. Ed. 2d 307 (1987), when he claims that his temporary

hospitalization for the cerebral hemorrhage that he sustained

in 1984 established a “record of impairment” under the A.D.A.

In Burch v. Coca-Cola, Co., 119 F.3d 305 (Sth Cir. 1997),

cert. denied, _ U.S. _, 118 S. Ct. 871, 139 L. Ed. 2d 768

(1998), the Fifth Circuit rejected an identical argument in which

the plaintiff relied on School Board of Nassau County v. Arline,

supra, to allege that his alcoholism, which resulted in his

eventual hospitalization, amounted to a substantial limitation

of major life activities.

The Second Circuit cited the Fifth Circuit’s decision in

Burch which held that:

The quoted language from Arline cannot be

construed to obviate the requirements, explicit in

the A.D.A. and its implementing regulations, that

purported conditions be examined to ascertain

20

whether a specific condition substantially limited a

major life activity. The A.D.A. requires an

individualized inquiry beyond the mere existence of

a hospital stay.

(Emphasis added). Burch, supra, 119 F.3d at 317; Colwell,

supra, 158 F.3d at 645-646, (A. 19a-20a). The Fifth Circuit

further explained that:

(a]lthough the court in Arline noted that the

plaintiff's hospitalization established a record of

impairment, the defendant had conceded that

[plaintiff's] acute tuberculosis had been

substantially limiting.

Burch, 119 F.3d at 317; Colwell, 158 F.3d at 646; (A. 19a-20a).

As the Second Circuit found in the instant case, Ellinger

failed to show any substantially limiting condition and the

County does not and did not concede that he suffered from such

a condition. Accordingly, Ellinger’s attenuated hospitalization

back in 1984 did not establish a record of impairment that

substantially limited a major life activity.

Arline is also distinguishable from the instant case. The

Petitioner in Arline argued that the respondent was discharged

from employment because of the danger posed to others by a

possible relapse of her tuberculosis, and not because of any

record of disability. Hence, this Court’s focus in Arline was on

the effect of public perception on an individual’s ability to work

when that individual has suffered from a contagious disease.

[A]n impairment might not diminish a person’s

physical or mental capabilities, but could

nevertheless substantially limit that person’s ability

21

to work as a result of the negative reactions of others

to the impairment.

Arline, supra, 480 U.S. at 283, 107 S. Ct. at 1128-1129, 94

L. Ed. 2dat__.

Few aspects of a handicap give rise to the same level

of public fear and misapprehension as

contagiousness.

Arline, 480 U.S. at 284, 107 S. Ct. at 1129, 94.L. Ed. 2dat__.

Ellinger did not suffer from a contagious disease nor was

there any evidence that the SCPD perceived that Ellinger was

substantially limited in the major life activity of work.

The Second Circuit recognized that Arline could not be

construed to mean that a temporary hospitalization creates a

per se disability under the A.D.A. The Second Circuit correctly

held that such a reading “would work a presumption that any

condition requiring temporary hospitalization is disabling -- a

presumption that runs counter to the very goal of the A.D.A.”

Colwell, supra, 158 F.3d at 646; (A. 20a).

Ellinger further argues that his temporary hospitalization,

coupled with his six month absence following his cerebral

hemorrhage, should be factored into the determination of

whether the limited restrictions to his work schedule constitute

a disability under the A.D.A. See Petition at page 19. Although

Ellinger’s hospitalization may have temporarily impaired his

ability to work, an impairment that is “transitory or temporary

does not constitute a substantially limiting condition under the

A.D.A.” 29 C.F.R. § 1630, App. § 1630.2()).

[cJourts within this circuit and the vast majority of

courts elsewhere which have considered the question

22

have held that temporary disabilities do not trigger

the protections of the A.D.A. because individuals

with temporary injuries are not disabled persons

within the meaning of the act.

Graaf v. North Shore University Hospital, | F. Supp. 2d 318,

321 (S.D.N.Y. 1998), citing Boyce v. New York City Mission

Society, 963 F. Supp. 290, 296-297 (S.D.N.Y. 1997);

see Richard F. Murray v. Sysco Corp., 1998 U.S. Dist LEXIS

4503, *19 (N.D.N.Y. 1998); David Curran v. All Waste Systems,

Inc., 1997 U.S. Dist. LEXIS 22110, *15 (S.D.N.Y. 1997), aff'd,

133 F.3d 906 (2d Cir. 1997).

The Second Circuit was in accordance with other circuits

when it held that:

[A] seven-month impairment of [Ellinger’s] ability

to work, with the non-particularized and unspecific

residual limitations described on his police work,

is of too short a duration and too vague an extent to

be “substantially limiting.”

Colwell, supra, 158 F.3d at 646, citing Sanders v. Arneson

Products, 91 F.3d 1351, 1354 (9th Cir. 1996), cert. denied, 520

U.S. 1116, 117 S. Ct. 1247, 137 L. Ed. 2d 329 (1997); Halperin v.

Abacus Technology Corp., 128 F.3d 191, 200 (4th Cir. 1997);

(A. 20a-21a).

There is no support in the A.D.A. or in Arline, supra, for

the proposition that a temporary period of hospitalization

constitutes a per se disability under the A.D.A. In fact, the

federal courts have consistently and correctly held that

temporary impairments are not substantial limitations. For these

reasons, the Petition for a Writ of Certiorari should be denied.

23

i

PETITIONERS FAILED TO PRODUCE ANY EVIDENCE

THAT THE SUFFOLK COUNTY POLICE DEPARTMENT

PERCEIVED THEM AS SUBSTANTIALLY LIMITED IN

PERFORMING ANY MAJOR LIFE ACTIVITIES.

Petitioners also argue that a perception of disability was

established by the SCPD’s knowledge of their “long term” light-

duty status. See Petition at pages 22-25. The Second Circuit

correctly disposed of that argument by noting that in order to

establish the element of disability under a perception theory,

the employer must perceive the employee as having an

impairment which substantially limits the performance of major

life activities within the meaning of the A.D.A. Colwell, supra,

158 F.3d at 646, citing Francis v. City of Meriden, 129 F.3d

281 (2d Cir. 1997); (A. 21a). The Second Circuit then analyzed

the record and correctly concluded that the evidence adduced

by the Petitioners was “insufficient to permit the inference that

the County perceived the officers as having impairments that

substantially limited them in one or more major life activities.”

Colwell, supra, 128 F.3d at 647; (A. 22a).

General Municipal Law § 207-c(3) (McKinney 1986)

specifies the right of the SCPD to place police officers injured

in the line of duty on light-duty status at full salary, if they are

deemed capable of performing light-duty by municipal health

authorities. Additionally, General Municipal Law § 207-c(1)

(McKinney 1986) specifies that a police officer who is injured

in the line of duty and who is deemed unfit for light-duty

assignment, is entitled to receive full salary. See Joyce v. Suffolk

County, 911 F. Supp. 92, 95 (E.D.N.Y. 1996) (“Being declared

unsuitable for the particular position of police officer is not a

substantial limitation of a major life activity.”); Tudyman v.

United Airlines, 608 F. Supp. 739, 746 (C.D. Ca. 1984) (“[F]or

24

the same reason that failure to qualify for a single job does not

constitute a limitation on a major life activity, refusal to hire

someone for a single job does not in and of itself constitute

perceiving the plaintiffas a handicapped individual.”),; Foreman

y. The Babcock & Wilcox Co., et al., 117 F.3d 800, 806 (Sth

Cir. 1997), cert. denied, __ U.S. _, 118 S. Ct. 1050, 140 L.

Ed. 2d 113 (1998), (“[A]n employer does not necessarily regard

an employee as having a substantially limiting impairment

simply because it believes that she is incapable of performing

a particular job... .”).

On this final point, as on the previous points, the ultimate

purpose of the Petition for a Writ of Certiorari is to have this

Court review the Second Circuit’s findings on the sufficiency

of the evidence under Fed. R. Civ. P. 50. Again, it is respectfully

submitted that the Petition should not be granted for that

purpose.

25

CONCLUSION

The United States Court of Appeals for the Second Circuit

correctly found upon its review of the record that there was

insufficient evidence to support the jury’s finding that the

Petitioners were disabled within the meaning of the A.D.A.

A writ of certiorari should not be granted for the purpose of

reviewing that determination. Petitioners have failed to show

any compelling reasons for granting the Petition based upon

the considerations governing review on certiorari. For all the

reasons set forth above, it is respectfully requested that the

Petition for a Writ of Certiorari from the Order of the United

States Court of Appeals for the Second Circuit, dated October

15, 1998, be denied in its entirety.

Respectfully submitted,

ROBERT J. CIMINO

Suffolk County Attorney

RANDY BERLER*

Assistant County Attorney

THEODORE D. SKLAR

Assistant County Attorney

Attorneys for Respondents

H. Lee Dennison Building

100 Veterans Memorial Highway

P.O. Box 6100

Hauppauge, NY 11787-0099

(516) 853-4049

* Counsel of Record