Petition for Writ of Certiorari — Monahan v. New York City Department of Corrections
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(7 Supreme Gourt, IS
LL) FILED
00-370 SEP 62000
No. 00- OFFICE OF THE CLERK
IN THE 2 ‘
Supreme Court of the Hnited States
DANIEL MONAHAN, et ai.,
Petitioners,
v.
NEW YORK CITY DEPARTMENT OF CORRECTIONS, et ai.,
Respondents.
ON PtTITION FOR A WRIT OF CERTIORARI TO THE .
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
LENARD LEEDS
Counsel of Record
FREDRIC OSTROVE
LeeEDsS More. & Brown, P.C.
Attorneys for Petitioners
One Old Country Road
Suite 347
Carle Place, NY 11514
(516) 873-9550
ar NS
161935 @ Counsei Press LLC
(800) 274-3321 + (800) 359-6859
ee ee er ee re ts mse cess
i
QUESTIONS PRESENTED
1. Does the Second Circuit’s application of the
res judicata doctrine, which is different from other circuits,
unduly prejudice litigants?
2. Did the courts below abuse their discretion in
allowing defendant-respondents to amend their Answer to
include the affirmative defense of res judicata a year after
the close of the disclosure period to determine if the defense
was proper?
3. Did the Second Circuit err in holding that a stipulation
agreement is an adjudication on the merits capable of
precluding further challenges to the constitutionality of the
policies underlying the agreement?
il
LIST OF PARTIES
The parties to to proceedings below were the petitioners:
Daniel Monahan, Evelyn S. Rodriguez, Cecilia Lorde, Luis
Almodovar, Fred Silva, Thomas Basil, Robert Netell, Daniel
Foynes, Harvey Ball, Daniel Aponte, Gary Nardiello, Vincent
Rebecca, Ora! Beckford, Alice Bresloff, Irwin Cohen, Jose
Cuevas, Dennis Deniro, Ingrid Griffin, Dennisse Ilarraza,
Theodore Israel, Sabrina Keyes-Alston, Julie Knowles,
Tanya Mann, Michael Messina, John Mickel, Nzingha
Moses, Noah Norfleet, Joseph Palermo, Garfield Parkison,
Hilda Reyes, Kevin Riley, Ruben Rodriguez, Luis Santiago,
Wendy Tyson, Linda Varbero, Willie Wallace, Johnny
Watford, Anthony White, Denise Whyte-Phillips and
Martine Whyte. And the respondents: New York City
Department of Corrections, City of New York, Michael
Jacobson, Acting Commissioner, City of New York
Department of Correction, Terrance Skinner, Deputy Warden
and Commanding Officer of the Health Management
Division of the City of New York Dept. of Correction,
Johnston, Supervisor Civilian (ID NO. 25835), Peter Mahon,
former Deputy Warden and Commanding Officer of the
Health Management Division of the City of New York
Department of Correction, James Bird, Deputy Warden and
Commanding Officer of the Health Management Division
of the City of New York Department of Correction and Carol
L. Bishop, Assistant Deputy Warden of the City of New York
Department of Correction.
Oe ee eS
iil
TABLE OF CONTENTS
Page
Questions Presented ......................... i
A a okeseannee il
TER rere ill
Table of Cited Authorities .................... Vv
POPP OC AGPOREICES 6 2... ccc ce cvnneee Vili
Opinions SFE UND Se Sa oe a 1
Statement of Jurisdiction ..................... |
ee en 2
Directive 2262 or the “Sick Leave Policy” ..... 2
Reasons for Granting the Writ ................. 4
I. The Second Circuit’s Application Of The
Doctrine Of Res Judicata Conflicts With This
Court’s And Those Of Other Circuits. This
Conflict Has Resulted In Undue Prejudice
For Litigants In The Instant Matter And
Requires Review By This Court. ......... 4
A. The Second Circuit’s application of the
doctrine of res judicata conflicts with
this Court’s and those of other Circuits.
As aresult, the Second Circuit is in need
of guidance from this court in the proper
application of res judicata doctrine. .. +
iv
Contents
Page
B. The Second Circuit’s application of res
judicata has resulted in undue prejudice
for litigants in the instant matter, and
requires review by this Court. ....... |
Il. The Lower Court Abused Its Discretion,
Allowing An Amendment To Pleadings
Under Fed. R. Civ. P. 15(a), More Than A
Year After Defendants’ Original Answer. The
Result Of Which, Was The Wrongful
Dismissal Of Petitioner’s Claims. This
Court’s Review Is Required To Correct This
Mistake And Prevent Future Injustice. .... 8
III. The Second Circuit Holding That Stipulation
Agreements Can Have Preclusive Effects
Conflicts With Other Circuits. This Holding
Resulted In Petitioners’ Claims Being
Wrongly Dismissed, And The Decision
Should Be Reversed By This Court. ...... 1]
CID oo o's oho weed cs Kee eek nes 13
Vv
TABLE OF CITED AUTHORITIES
Cases:
Aerojet-General Corp. v. Askew, 511 F.2d 710
(Sth Cir.), cert. denied, 423 U.S. 908, 96 S. Ct.
OF Eee 6 kui dees ocak e ee eee
Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411,
ODE. HG, DRDO CII cc cvixivcvceviccceves
Block v. First Blood Associates, 988 F.2d 344
SD WUE winkpéu ducucdacsscbsue cee
Chase Manhattan Bank, N.A. v. Celotex Corp.,
ee eee
Chesapeake & Potomac Telephone Co. v. NLRB,
687 F.2d 633 (2nd Cir. 1982) ................
Evans v. Syracuse City School District, 704 F.2d 44
ee SO ons co can sd 605 00h 000% eeaals
Expert Elec. Inc. v. Levine, 554 F.2d 1227 (2d Cir.)),
cert denied, 434 U.S. 903, 98 S. Ct. 300 (1977)
CO PO OSH © CTH AREDP ESA EOO FHS HOC TO 8 Oe 8 eS OS
SCS See e sO CBee ecse ese cverasesvet SR aeew ee vee se tew 6 we ewe ef
Gall v. South Branch National Bank of South Dakota,
783 F.2d 125 (8th Cir. 1986) ...:.....,:.....
Page
vi
Cited Authorities
Page
Metropolitan Edison Co. v. NLRB, 460 U.S. 693,
1035 S. Ct. 1467, 75 L. Ed. 2d 387 (1983) ..... 12, 13
Mullane v. Central Hanover Bank & Trust Co.,
DOF We SOEEMOED Coc seecareeeresvinxates 6
Nwosun v. General Mills Restaurant, Inc., 124 F.3d
RSS CECE Ce, BOGE cc cv ciediakiseuviwees 4,5,7
Petromanagement Corp. v. Acme-Thomas Joint
Venture, 835 F.2d 1329 (10th Cir. 1988) ...... 5
Pirela v. Village of North Aurora, 935 F.2d 909
Lo B. j eererrererrr ore r sy rrr ry es 4,5
Precision Air Parts, Inc. v. Avco Corp., 736 F.2d
1499 (11th Cir. 1984) ...... peers bene eeees 5
Seabrook, et al. v. Jacobson, et al., 153 F.3d 70
eis | Beer rrr es ere 6, 7, 10, 11, 12, 13
Tokio Marine & Fire Ins. Co. v. Empl. Ins. Of
Wausau, 786 F.2d 101(2d Cir. 1986) ......... 8
Totalplan Corporation of America, 14 F.3d 82
+ te | Sperry ere pe pre rs ee 9
The Virginia Hospital Assn. v. Baliles, 830 F.2d 1308
(Gib CAP. FEST 6 oc ad ete tienes 5, 6,7
United States of America v. Robert E. Young, 804
Pe CBG Glee Cae, FO vicar uuseecacveswines 12
‘NI a ti ae ii
vii
Cited Authorities
Page
Rule:
i eNO e 8
Other Authorities:
Moore's Federal aie para .0411 [6] ........ 6
THE RESTATEMENT SECOND OF JUDGEMENTS § 5 1(4) (1982)
PERRET CTs RA WAVER RAE S Ook CRS Ce eee Cie kL 11
Statutes:
ewe TERED Ss ccdokk ouGhusonbteeeeke ck l
ee Pe Fas ae eer 1
Vili
TABLE OF APPENDICES
Page
Appendix A — Opinion Of The United States Court |
Of Appeals For The Second Circuit Dated And
SS PUG UD bcc euwvbeccddeweceeves la :
Appendix B — Opinion And Order Of The United
States District Court For The Southern District
Of New York Dated July 7,1998 ............ 37a
|
The petitioners Daniel Monahan, et al., respectfully pray
that a writ of certiorari be issued to review the judgment and
opinion of the Unites States Court of Appeals for the Second
Circuit, entered in the entitled proceeding on July 8, 2000.
OPINIONS BELOW
The opinion of the Court of Appeals for the Second
Circuit is reported at 214 F.3d 275 and is reprinted in the
appendix hereto, p. 1a, infra.
The opinion of the United States District Court for the
Southern District of New York is reported at 10 F. Supp. 2d
420 and is reprinted in the appendix hereto, p. 37a, infra.
STATEMENT OF JURISDICTION
- Invoking federal jurisdiction under 42 U.S.C. § 1983,
the petitioners brought this suit in the Southern District of
New York. On July 7, 1998, the Southern District: (1) granted
respondents’ motion for summary judgment; and (2) denied
petitioners’ motion for summary judgement. See p. 5la, infra.
On appeal, the Second Circuit on July 8, 2000, entered
a judgment and an opinion affirming the Southern District’s
orders. See p. 36a, infra. No petition for rehearing was
sought.
The jurisdiction of this court to review the judgment of
the Second Circuit is invoked under 28 U.S.C. § 1254(1).
2
STATEMENT OF THE CASE
Directive 2262 or the “Sick Leave Policy”
Petitioners are, or were, formerly New York City
corrections officers or captains for the New York City
Department of Corrections. Corrections officers have daily
contact with arsonists, murderers, rapists, and other violent
criminals; it is documented that many officers have been
savagely beaten and attacked by prisoners. Of the officers
in this case, a significant majority utilized sick leave as a
result of injuries which they susiained in the line of duty.
The nature of their job is hazardous, and places a level of
stress on officers that is exceptionally high; therefore, it is
essential that all officers be in shape, both physically and
mentally, in order to carry out their normal duties. As a result
of the job’s dangers (e.g. facing killers and rapists on a daily
basis), the Department allows its injured or sick corrections
officers to have, what the respondents now characterize as,
“unlimited” sick leave.
Generally, the sick leave policy requires that an officer,
who has reported in sick, must remain in his/her residence
for, at least, twenty (20) hours a day, seven (7) days a week,
except to receive medical treatment or to obtain prescription
medication. Officers typically are assigned four (4) hours of
time out-of-residence per day (hereinafter referred 10 as
“recreation hours’’). Officers are expected to take care of all
of their personal needs during their recreation hours. Officers
may leave their place of confinement to visit a health care
professional or to obtain prescription medication outside
recreation hours as long as the officers notify the Department
when they leave their home and when they return home, to
ensure that the officers are at their place of confinement. If
3
an officer is aot home when an unannounced visit is
conducted, or if an officer does not hear the knock on his
door, he/she may lose his/her salary for a one (1) month
period. Officers can request to have their recreation hours
expanded or shifted; such requests must be made in writing,
to the commanding officer of the Health Management
Division (“HMD”) of the Department. The commanding
officer of HMD had the absolute discretion to grant or deny
said requests. In certain instances, other supervisory
personnel had the authority to grant or deny these requests.
Such decisions were made without any written or verbal
guidelines. Although this policy has changed over time, these
general principles have remained intact throughout the
relevant time period.
As was set forth in petitioners’ Verified Complaints, the
sick leave regulations substantially impaired petitioners’
fundamental rights to free exercise of religion, to vote, to
travel, to privacy, to their personal liberty, to freely associate,
to care for their health and person, and freedom from bodily
restraint.
4
REASONS FOR GRANTING THE WRIT
I.
THE SECOND CIRCUIT’S APPLICATION OF THE
DOCTRINE OF RES JUDICATA CONFLICTS WITH
THIS COURT’S AND THOSE OF OTHER CIRCUITS.
THIS CONFLICT HAS RESULTED IN UNDUE
PREJUDICE FOR LITIGANTS IN THE INSTANT
MATTER AND REQUIRES REVIEW BY THIS COURT.
A. The Second Circuit’s application of the doctrine of
res judicata conflicts with this Court’s and those of
other Circuits. As a result, the Second Circuit is in
need of guidance from this court in the proper
application of res judicata doctrine.
In the Second Circuit, for res judicata to apply, three
criteria must be met: (1) the prior action must have been an
adjudication on the merits; (2) the party to be precluded must
have been a party to, or in privity with, a plaintiff in the
prior action; and, (3) the claims to be precluded must have
been raised, or could have reasonably been raised in the prior
suit. Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d
343, 345 (2d Cir. 1995).
In contrast to the Second Circuit’s test, other Circuits,
including the Fourth, Seventh, Tenth and Eleventh, require
an additional element. Before a plaintiff's claim can be
precluded, in each of these circuits, the court must determine
that the prior suit afforded plaintiff with a full and fair
opportunity to litigate their claims. Nwosun v. General
Mills Restaurant, Inc., 124 F.3d 1255, 1257 (10th Cir. 1997);
Pirela v. Village of North Aurora, 935 F.2d 909, 913
5
(7th Cir. 1991); The Virginia Hospital Assn. v. Baliles, 830
F.2d 1308, 1311 (4th Cir. 1987); Precision Air Parts, Inc. v.
Avco Corp., 736 F.2d 1499, 1504 (11th Cir. 1984) (emphasis
added). This Court has éxpressed a similar view, “[T]he
Court has repeatedly recognized ... that the concept of
collateral estoppel cannot apply when the party against whom
the earlier decision is asserted did not have a full and fair
opportunity to litigate ... in the earlier case.” Allen v.
McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 414, 66 L. Ed. 2d
308 (1980).
Circuit courts have used different standards to determine
if this requirement, of a full and fair opportunity to litigate
has been met. In the Fourth Circuit, resolution of this issue
is dependent upon the plaintiff having a “direct financial or
proprietary interest in the [prior litigation] and whether [the
plaintiff] assumed control over that litigation.” Virginia
Hospital Association, 830 F.2d at 1312.
The Tenth Circuit asserts that a failure to provide a party
with a full and fair opportunity to litigate is evidenced by,
‘a deficiency that would undermine the fundamental fairness
of the original proceedings.” Nwosun, 124 F.2d at 1257
(quoting Petromanagement Corp. v. Acme-Thomas Joint
Venture, 835 F.2d 1329, 1334 (10th Cir. 1988)).
With its decisions in the instant action and previous
cases, the Second Circuit has created a precedent that is
confusing, prejudicial to litigants, and clearly in conflict with
this Court and other Circuits. Only intervention by this Court
can ensure future litigants, in the Second Circuit, will receive
a full and fair opportunity to litigate their claims.
6
B. The Second Circuit’s application of res judicata has
resulted in undue prejudice for litigants in the instant
matter, and requires review by this Court. -
The lower court’s failure to include this fourth element
(i.e. a full and fair opportunity to litigate claims) in its
evaluation of the res judicata defense, has materially
prejudiced the petitioners. This prejudice is particularly
troubling when a party’s right to be heard is disregarded as a
result. As this Court has explained, the right to be heard,
“has little reality or worth unless one is informed of the matter
pending and can choose for himself whether to appear or
default, acquiesce or contest.” Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306.(1950). This is even more
troubling when it is the right to be heard concerning the
constitutionality of the deprivation of the fundamental rights
of 40 people in this action and the thousands of others who
are subject to this unconstitutional policy.
As petitioners in this case have not had the opportunity
to be heard, regarding the outrageous deprivations of their
fundamental constitutional rights. The petitioners here,
however, were not plaintiffs in Seabrook, et al. v. Jacobson,
et al., 153 F.3d 70 (2d Cir. 1998). It was the settlement in
the Seabrook action, which the Second Circuit held,
precluded the claims in the instant action. Without
participation in the Seabrook action, petitioners can not be
said to have had a financial or proprietary interest, as is
required by the Fourth Circuit. Virginia Hospital Assn., 830
F.2d at 1312; See also Moore's Federal Practice, para .0411
[6], at 446.
7
Additionally, according to the Fourth Circuit, contro!
of litigation is said to exist when a person or persons can
choose the legal theories and proofs used in representing a
party to an action. Virginia Hospital Assn., 830 F.2d at 1313.
Testing this requirement in light of petitioners’ original
claims, it is clear that because petitioners had no such control
in the Seabrook action, they should not have been precluded
from having their claims heard.
The Tenth Circuit’s test states that a failure to provide a
party a full and fair opportunity to litigate is evidenced by,
“a deficiency that would undermine the fundamental fairness
of the original proceedings.” Nwosun, 124 F.2d at 1257.
Applying this test the facts of the instant matter, it is clear
that this fourth element of res judicata is not met. First, the
facts indicate that plaintiffs in this case were never informed
of the Seabrook action and did not discover it until after the
filing of this suit. As a result, they had no opportunity to
either join in the suit or to intervene on their own behalf.
Second, the individual plaintiffs who were included in the
Seabrook action were exempted from the stipulation, and
their claims were allowed to proceed. Presumably, if
petitioners had knowledge of the Seabrook action, and had
chosen to intervene, they too would have been exempted from
the stipulation. This failure to notify petitioners that an action
that might preclude their future claims exists, “undermines
the fundamental fairness” of the Seabrook action, such that
res judicata should not have been applied.
Only proper guidance from this Court can ensure that,
in the future, the doctrine of res judicata will be properly
applied and that litigants will not be subject to the undue
prejudice caused by the Second Circuit’s present
interpretation of the doctrine of res judicata.
8
THE LOWER COURT ABUSED ITS DISCRETION,
ALLOWING AN AMENDMENT TO PLEADINGS
UNDER FED. R. CIV. P. 15(a), MORE THAN A YEAR
AFTER DEFENDANTS’ ORIGINAL ANSWER. THE
RESULT OF WHICH, WAS THE WRONGFUL
DISMISSAL OF PETITIONER’S CLAIMS. THIS
COURT’S REVIEW IS REQUIRED TO CORRECT THIS
MISTAKE AND PREVENT FUTURE INJUSTICE. .
The respondents failed to raise the affirmative defense
of res judicata in a timely manner and have failed to show
good cause for such delay. Not only did the respondents fail
to assert res judicata in their Answers, but they did not make
a motion to amend their Answers to include the defense.
Rather, respondents ignored the Federal Rules of Civil
Procedure, simply proceeding with a motion for summary
judgment based upon res judicata. The District Court then
construed the summary judgment motion as a motion to
amend under Fed. R. Civ. P. 15(a).
Rule 15(a) provides that leave to amend “shall be freely
given when justice requires.” This liberality of pleading or
freedom of amendment, however, is limited when there is,
“undue delay, bad faith or dilatory motive on the part of the
moving party, and undue prejudice to the opposing party.”
Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962).
A District Court’s decision to grant a party leave to amend
under Rule 15 can be reviewed for abuse of discretion and
should be, in this case. Block v. First Blood Associates, 988
F.2d 344, 349 (2d Cir. 1993); Tokio Marine & Fire Ins. Co.
v. Empl. Ins. Of Wausau, 786 F.2d 101, 103 (2d Cir. 1986).
9
When raising the defense of res judicata the party
wishing fo raise it is obliged to plead it at the earliest possible
moment. Evans v. Syracuse City School District, 704 F.2d
44, 47 (2d Cir. 1983); see also Totalplan Corporation of
America, 14 F.3d 82 (2d Cir. 1994). In Evans, the Second
Circuit reversed the District Court’s holding to grant
defendant’s motion to amend its answer based on plaintiff's
showing of prejudice, and the absence of any good cause
shown for defendant’s delay in asserting the defense of
res judicata. Id. In Block, the Second Circuit reinforced this
requirement by specifically citing Evans, and stated,
“the longer the period of an unexplained delay, the less will
_ be required of the non-moving party in terms of a showing
of prejudice.” 988 F.2d 344, 350 (2d Cir. 1993).
As a result of respondents’ failure to timely assert
'_ res judicata, the petitioners have suffered material prejudice.
First, as the respondents did not mention the possibility of
raising the defense until after discovery was closed,
petitioners were unable to conduct any discovery relating to
the issue of res judicata. In dispute, are issues of whether or
not privity of parties between the union and the officers
exists. Whether there is privity, between a party against
whom claim preclusion is asserted and a party to prior
litigation, is a functional inquiry in which the formalities of
legal relationships provide clues but not solutions; some
courts have held that the inquiry is a factual issue. Chase
Manhattan Bank N.A., 56 F.3d at 345, (citing Expert Elec.
Inc. v. Levine, 554 F.2d 1227, 1233 (2d Cir.)), cert denied,
434 U.S. 903, 98 S. Ct. 300 (1977); Aerojet-General Corp.
v. Askew, 511 F.2d 710, 719 (Sth Cir.), cert. denied, 423
U.S. 908, 96 S. Ct. 210 (1975). Hence, this issue is for a
trier of fact to determine, and respondents were unable to
conduct any discovery with respect to this issue.
10
Most alarming is the fact that the lower court found that
the Seabrook action precluded plaintiffs Irwin Cohen and Julie
Knowls (neither of whom is a member of C.O.B.A., and could
therefore not be in privity with Norman Seabrook or C.0.B.A..,
and should never have been precluded by the Seabrook action)
from bringing their claims. Others may not have paid union
dues at times and, therefore had not been in privity. Had
petitioners known this was an issue, petitioners would have
subpoenaed records from the union during discovery.
Raised below is the argument that the stipulation, on its
face, indicates that all parties intended that there would be further
litigation with respect to the sick leave policy. If petitioners
had known of the respondents plan to raise the defense of res
judicata, discovery relating to the intent of the parties would
have been conducted. The people who negotiated the settlement
could have been deposed, and all documents relating to the
Seabrook action and the settlement thereof would have been
demanded and produced. Additionally, the extent of the union’s
disclosure of the stipulation to its members and the individual
members’ knowledge and understanding of the stipulation could
have been more thoroughly ascertained from union officials
and documents. Discovery would have been conducted relating
to Seabrook’s true intent in settling the matter. For example,
was it related to his own political ambitions? Did he settle the
case to the benefit of some officers to the detriment of others
who whose interests were not truly or adequately represented
by Seabrook? Did he have anv bias? Did he act improperly in
any way? If he was biased or acted improperly, his decision
cannot be binding upon the union members as it could not be
deemed to establish privity of the parties. Petitioners were
prejudiced, as they were unable to conduct discovery with
respect to these and other issues.
ee ee ee me ene
1]
Additionally, had the petitioners known about the
res judicata defense, they might have decided to sue the
union for failure to properly represent them. Such suits are
now time-barred.
The lower court appears to have abused its discretion in
a manner that has materially prejudiced the petitioners and
its application of the law should be corrected.
Il.
THE SECOND CIRCUIT HOLDING THAT STIPULATION
AGREEMENTS CAN HAVE PRECLUSIVE EFFECTS
CONFLICTS WITH OTHER CIRCUITS. THIS HOLDING
RESULTED IN PETITIONERS’ CLAIMS BEING
WRONGLY DISMISSED, AND THE DECISION SHOULD
BE REVERSED BY THIS COURT.
The courts below held that the stipulation agreement
entered into by the parties in the Seabrook action was an
adjudication on the merits. There is support for the notion
that a stipulation agreement should not be treated this way
for purposes of res judicata and collateral estoppel scholars
suggest:
Judgment by consent . . . does not operate as issue
preclusion or as claim preclusion against one not
party to the agreement even where that person
stands in an employer/employee or principal/
agent relationship with a party to the consent
judgment.
THE RESTATEMENT OF JUDGEMENTS § 51(4) (1982). The Eighth
Circuit has adopted this view, holding, “these doctrines
12
[res judicata and collateral estoppel] do not apply where, as
here, the issues or causes of action sought to be precluded in
a subsequent proceeding were allegedly determined in a
stipulation.” Gall v. South Branch National Bank of South
Dakota, 783 F.2d 125, 127 (8th Cir. 1986).
The Eighth Circuit, in holding that issues and claims
resolved by stipulation had not been actually litigated, noted
a critically important policy reason for this view. If parties
believed their compromises would preclude future litigation
by themselves or others, they would be less iikely to
choose this more efficient method of resolving disputes.
United States of America v. Robert E. Young, 804 F.2d 116,
118 (8th Cir. 1986).
The stipulation in the Seabrook action read “Whereas,
the parties now desire to resolve the issues arising from this
litigation without further proceedings.” (emphasis added).
The courts below took this to show that the parties intended
their agreement to have a preclusive effect on any and all
future claims related to the facial or as applied
constitutionality of the sick leave policy that affects
thousands of officers. This reading cannot be correct. This
statement simply indicated that the parties sought to end the
Seabrook action.
In holding that the stipulation agreement is an
adjudication on the merits, the Second Circuit sets a
disturbing precedent. It in effect, allows a party to waive the
constitutional rights of another without providing any notice
of such waiver. This violates national labor policy and is
contrary to decisions of this Court and the Courts of Appeals
which have concurred that the waiver of a protected right
must be clearly expressed and unmistakable. Metropolitan
|
13
Edison Co. v. NLRB, 460 U.S. 693, 708 & n.12, 1035S. Ct.
1467, 75 L. Ed. 2d 387 (1983); Chesapeake & Potomac
Telephone Co. v. NLRB, 687 F.2d 633, 636 (2d Cir. 1982).
Nowhere in the Seabrook action, or in the agreement that
followed is there mention, express or implied of an intention
by the parties to waive or even limit the constitutional rights
of members of the Correctional Officers Benevolent
Association, of which Norman Seabrook was the President.
The courts ruling that the stipulation agreement was
intended to be binding is facially incorrect. The lower court
erred in this holding, and their decision should be reviewed
and reversed by this Court.
CONCLUSION
Petitioners reiterate that the lower court’s misapplication
of the principles of res judicata has resulted in material
prejudice, that the court abused its discretion in treating
respondents’ motion for summary judgment as a motion to
amend their answer, and finally, that their reading of the
stipulation was simply incorrect. For the reasons stated
above, this petition for certiorari should be granted.
Respectfully submitted,
LENARD LEEDS
Counsel of Record
FREDRIC OSTROVE
Leeps More! & Brown, P.C.
Attorneys for Petitioners
One Old Country Road
Suité 347
Carle Place, NY 11514
(516) 873-9550
APPENDIX
la
APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
DATED AND DECIDED JUNE 8, 2000
Daniel MONAHAN, Evelyn S. Rodriguez, Cecilia Lorde,
Luis Almodovar, Fred Silva, Thomas Basil, Robert Netell,
Daniel Foynes, Harvey Ball, Daniel Aponte, Gary Nardiello,
Vincent Rebecca, Oral Beckford, Alice Bresloff, Irwin
Cohen, Jose Cuevas, Dennis Deniro, Ingrid Griffin, Dennisse
llarraza, Theodore Israel, Sabrina Keyes-Alston, Julie
Knowles, Tanya Mann, Michael Messina, John Mickel,
Nzingha Moses, Noah Norfleet, Joseph Palermo, Garfield
Parkison, Hilda Reyes, Kevin Riley, Ruben Rodriguez,
Luis Santiago, Wendy Tyson, Linda Varbero,
Will’e Wallace, Johnny Watford, Anthony White,
Denise Whyte-Phillips and Martine Whyte,
Plaintiffs-Appellants,
Vv.
NEW YORK CITY DEPARTMENT OF CORRECTIONS,
City of New York, Michael Jacobson, Acting Commissioner,
City of New York Department of Correction, Terrance
Skinner, Deputy Warden and Commanding Officer of
the Health Management Division of the City of New York
Dept. of Correction, Johnston, Supervisor Civilian (ID
NO. 25835), Peter Mahon, former Deputy Warden and
Commanding Officer of the Health Management Division
of the City of New York Department of Correction, James
Bird, Deputy Warden and Commanding Officer of the
Health Management Division of the City of New York
2a
Appendix A
Department of Correction and Carol L. Bishop, Assistant
Deputy Warden of the City of New York
Department of Correction,
Defendants-Appellees.
Docket No. 98-9067
Argued March 31, 1999
Decided June 8, 2000
* * *
Before: LEVAL and SACK, Circuit Judges, and
MORAN, * Senior District Judge.
MORAN, Senior District Judge.
Plaintiffs-appellants are current and former New York
City correction officers and captains. They appeal from a
judgment of the District Court for the Southern District of
New York (Rakoff, J.) dismissing with prejudice their
consolidated challenge to the sick leave policy of the New
York City Department of Correction (“DOC”). Embodied
in DOC Directive 2262, the policy permits an eligible officer
continuous sick leave for up to one year provided the officer
remains at home. Appellants claim the home confinement
provision of Directive 2262 is facially violative of the First,
* Honorable James B. Moran, Senior United States District
Judge for the Northern District of Illinois, sitting by designation.
3a
Appendix A
Fourth, Fifth and Fourteenth Amendments of the Constitution
and has been unconstitutionally applied to individual DOC
employees.
The district court found that most of plaintiffs’
constitutional claims were res judicata based on an earlier
lawsuit by the president of the Correction Officers’
Benevolent Association (““COBA”), the exclusive bargaining
agent for New York City correction officers. The remaining
counts were dismissed by the court pursuant to Rule 56 for a
failure to aver admissible evidence in support of each claim.
On appeal, the officers contend that the prerequisites for res
judicata are not present here and, in any event, the district
court abused its discretion when it allowed defendants to
assert the defense “in the eleventh hour of litigation.”
Because we conclude that the former suit by COBA president
Norman Seabrook barred the subsequent relitigation of
plaintiffs’ claims and that plaintiffs were not prejudiced by
the late assertion of res judicata, we affirm.
BACKGROUND
New York City correction officers regularly confront
dangerous and stressful working conditions. Many are injured
in the line of duty. Because it is difficult to recruit and retain
qualified individuals for these positions, COBA has
successfully bargained and secured for its members a
generous benefits package, including the “unlimited” sick
leave policy at issue here. First implemented in 1987, DOC
Directive 2262 generally permits a correction officer to report
in sick for periods of up to one year provided he or she stays
at home except for authorized medical departures. In 1988,
4a
Appendix A
the policy was amended to permit certain officers taking sick
leave to be 24 hours out-of-residence so long as certain
reporting requirements were fulfilled. Those officers
ineligible for the full-day permit were granted a four hour
“recreation” period (known as “rec” hours) to attend to their
personal needs and were relieved of the obligation to log in
and out when leaving home.
By 1993, DOC officials suspected that the liberalized
sick leave policy was being widely abused. An audit found
that much of the documentation submitted by officers for
their authorized departures did not substantiate their
participation in the reported activity. The audit team
recommended that officers on sick leave be limited to their
four “rec” hours for all personal activities and that additional
hours out-of-residence not be granted. When Terrence
Skinner became commanding officer of the Health
Management Division (“HMD”) in 1995, he implemented
many of the auditors’ recommendations, tightening up
encorcement of Directive 2262 and limiting 24 hour out-of-
residence privileges to officers injured in the line of duty.
According to the DOC, the new enforcement mechanisms
reduced daily sick rates by 35% and allowed the department
to more evenly distribute the work load across the uniformed
work force.
Correction officers subject to the revised policy were
not so enthusiastic. On October 13, 1995, COBA President
Norman Seabrook and two individual officers filed a civil
action in the Eastern District of New York, challenging the
constitutionality of Directive 2262’s home confinement
provisions. See Seabrook v. Jacobson, No. 95 Civ. 4194(FB)
|
Sa
Appendix A
(E.D.N.Y.) (the “Seabrook” action). The complaint, brought
by Seabrook “inNbis capacity as President of the Correction
Officers’ Benevolent Association,” sought compensatory
damages for plaintiffs, punitive damages, a declaratory
judgment finding Directive 2262 facially unconstitutional,
and equitable relief on behalf of “correction officers entitled
to sick leave.” On April 9, 1996, the Seabrook suit settled,
resulting in a “Stipulation and Order of Settlement and
Discontinuance” (“stipulation”) approved by the district
court. The complete text of the stipulation is as follows:
WHEREAS, plaintiffs, NORMAN SEABROOK,
in his capacity as President of the Correction
Officers’ Bengyolent Association, PATRICIA
TAYLOR and BELINDA RUDDER, commenced
this action alleging that Section VII of defendants’
sick leave policy, Directive 2262, is unconstitutional
on its face and as applied, and violated their
constitutional rights and the rights of similarly
situated sick employees in violation of 42 U.S.C.
§ 1983, and;
WHEREAS, defendants assert that the
Department of Correction sick leave policy is
patently constitutional and justified by a variety
of constitutionally sufficient state interests, and
deny any and all liability arising out of plaintiffs’
allegations; and .
WHEREAS, the parties now desire to resolve
the issues arising from this litigation without
further proceedings;
6a
Appendix A
IT IS HEREBY STIPULATED AND
AGREED, by and between the undersigned as
follows:
1. The above-referenced action is hereby
dismissed, with prejudice, and without costs,
expenses and fees;
2. Within five days of the Court’s signing of
this order, defendants agree to amend Section VII
of Directive 2262, in the form as annexed hereto
as Exhibit “A”.
3. This Court retains jurisdiction over this
action. If the Department of Correction intends
to modify Section VII of Directive 2262, 30 days
notice of any such change must be provided to
the Correction Officers’ Benevolent Association
(“COBA”), and either party may move to reopen
this matter. This paragraph’s requirement of
notice to COBA expires on January 1, 1998.
A fourth paragraph stipulating to the dismissal with
prejudice of two related suits' was crossed out before the
parties signed the stipulation. 4
Pursuant to the parties’ agreement, Directive 2262 was
amended effective April 22, 1996, consistent with Exhibit A.
The Directive now provides that unless officers are classified
1. Ball v. Sielaff, 90 Civ. 4456(FB) (E.D.N.Y.); Palozzolo v.
Abate, 92 Civ. 3305(FB) (E.D.N.Y.).
BEER Presa
7a
Appendix A
as “sick leave abusers” they will not be confined to their
residence for the first eight days of leave. Beyond this initial
grace period, the leave policy differentiates between officers
injured in the line of duty and those who are “otherwise out
on sick leave.” Officers who report sick as the result of a
verified line-of-duty injury and who have a definite return-
to-duty date within two weeks of the date they visit an HMD
physician are not confined to their residences. An officer
injured in the line of duty without a definite return date is
subject to home confinement, but may apply to HMD for
additional time out-of-residence so long as the officer has a
sick leave history of 8 days or less per year {or 3 years, has
not been classified as a “sick leave abuser,” has a violation-
free sick leave history, and can document an objective finding
of injury or illness.”
Officers otherwise out on sick leave are required to
remain in their residences at all times except for “time out-
of-residence authorized by HMD.” Officers may log out at
any time for medical appointments, hospital visits or physical
therapy ordered by a physician. All other personal business,
however, including civic, educational and religious duties,
must be conducted during an officer’s daily four-hour block
of “rec” time. This is often difficult given that officers must
designate either the 8:00 a.m.-12:00 p.m. block or the
1:00-5:00 p.m. block for a thirty day period; there is no
evening option. AMD will only entertain individual requests
for additional time out-of-residence “in the event of a dire
emergency” and each such request is evaluated by the
2. On January 1, 1997, DOC instituted a pilot program which
permits officers injured in the line of duty 24 hours out-of-residence
for up to four months.
eZ
a4
=~
8a
Appendix A
commanding officer of HMD or his designee on a case-
by-case basis.
All officers subject to the in-residence rules are also
subject to home visits by HMD staff between 9:00 a.m. and
10:00 p.m. According to the DOC, the purpose of home
visitation is to “ensure compliance with Directive 2262, deter
the abuse of sick leave benefits, evaluate medical conditions,
and investigate officers suspected ef feigning illness.” An
officer who is not at home when an unannounced visit is
conducted may be penalized one month’s salary.
. * * * * *
This case began with twelve consolidated actions filed
in 1996 and 1997 by correction officers and captains subject
to Directive 2262. According to the 223-page verified
complaint in the A/modovar action, dated October 4, 1996,
the home confinement provision of the sick leave policy is
unconstitutional, facially and as applied, because it
substantially impairs an officer’s right to practice his or her
religion, to vote, to travel, to freely associate, and to be free
from bodily restraint. The following incidents capture the
spirit of the hundreds of alleged constitutional deprivations:
Michael Messina, injured during an altercation with an
inmate, was denied extra time out-of-residence to attend
church services, to vote in the Republican primary, and to
visit his sister in the hospital; Tanya Mann, who suffered a
job-related psychiatric problem, was denied extra time
out-of-residence to attend the funerals of six members of
her church, to attend Sunday services with her husband, the
associate pastor, and to take her daughter to ballet class; Luis
9a
Appendix A
Santiago, a veteran, was not permitted to participate in the
Memorial Day parade; and Linda Varbero, injured when she
slipped in a correction facility locker room, was denied
permission to attend a hearing to determine her eligibility
for social security. Individual plaintiffs also claim
harassment, wrongful punishment, and disparate application
of the sick leave policy, and challenge various procedures
governing the classification and treatment of “sick leave
abusers.”
Plaintiffs and defendants filed cross-motions for
summary judgment in December 1997. Defendants argued,
inter alia, that the plaintiffs’ claims were barred by res
judicata in light of the court-approved stipulation in the
Seabrook action; that plaintiffs had not submitted evidence
that the policy had been applied unfairly or with an intent to
harass; that the individual defendants were entitled to
qualified immunity; and that any surviving claims should
be transferred to Judge Block, who had approved the
Seabrook stipulation. Plaintiffs argued that defendants
waived the defense of res judicata when they failed to include
it in ten of the twelve answers and filed the remaining two
answers in an untimely manner. Even if the defense was
allowed, plaintiffs argued, it failed on the merits because
the cases involved different plaintiffs, different defendants,
different incidents, and a different version of Directive 2262.
Finally, plaintiffs asserted that summary judgment was
inappropriate on the as-applied claims where there were
genuine unresolved issues of material fact.
Oral argument was held on the motions on December
23, 1997, and the parties submitted additional memoranda.
hao.
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10a
Appendix A
Defendants responded that they had raised the res judicata
defense in the Almodovar and Ball actions, which covered
thirty of the forty plaintiffs, and that those answers had been
filed with plaintiffs’ consent. Defendants also asserted that
plaintiffs’ counsel was aware of the Seabrook settlement and
should therefore be estopped from claiming prejudice.
Plaintiffs argued that their consent to the late-filed answers
was made without knowledge that they would contain new
affirmative defenses. Moreover, the significant time and
money expended by plaintiffs on depositions was sufficient
to constitute unfair prejudice, they argued, especially where
the defendants had failed to present a good cause explanation
for the late assertion.
Judge Rakoff issued his decision July 7, 1998, granting
defendants’ motion for summary judgment and dismissing,
with prejudice, the entire verified complaint. See Monahan
v. City of New York Dep't of Correction, 10 F.Supp.2d 420
(S.D.N.Y.1998). The court permitted defendants to assert
the res judicata defense in all twelve actions, concluding that
plaintiffs had failed to demonstrate any “material prejudice.”
Id. at 423. On the merits, the court found that res judicata
barred the plaintiffs’ facial challenge to Directive 2262
because (1) the voluntary dismissal with prejudice of the
claims in the Seabrook action constituted an adjudication
on the merits; (2) plaintiffs were in privity with Norman
Seabrook who brought the action in his capacity as president;
and (3) plaintiffs’ constitutional claims were, or could have
been, raised in the Seabrook action. The court also concluded
that most of plaintiffs’ as-applied claims were “either
sufficiently general or sufficiently inherent in a neutral
application” of the amended sick leave policy that they too
lla
Appendix A
were, or reasonably could have been, raised in the earlier
action. /d. at 426.
The court held in the alternative that even if the
constitutional claims were not barred by res judicata, the
DOC policy would survive a rational basis review. /d. at
424-25. The court also held that the as-applied claims
possessed insufficient factual support to overcome a motion
for summary judgment. The court rejected plaintiffs’
contention that it was “physically impossible . . . to review
forty (40) deposition transcripts and set forth each allegation
which represents a constitutional violation under a particular
amendment in a forty (40) page memorandum,” and held
that plaintiffs had “utterly failed to meet their burden to set
forth admissible evidence supporting these claims or
otherwise demonstrating that a genuine issue of material fact
exists for trial.” Jd. at 426 & n. 8. Final judgment was entered
July 14, 1998.
I]
Although res judicata is an affirmative defense that
should be raised in the defendant’s answer, the district court
has the discretion to entertain the defense when it is raised
in a motion for summary judgment, by construing the motion
as one to amend the defendant’s answer. Block v. First Blood
Assocs., 988 F.2d 344, 350 (2d Cir.1993). We review the
district court’s decision to grant a party leave to amend for
abuse of discretion. Tokio Marine and Fire Ins. Co. v.
Employers Ins. of Wausau, 786 F.2d 101, 103 (2d Cir.1986).
Rule 15 of the Federal Rules of Civil Procedure provides
that leave to amend a party’s pleading “shall be freely given
12a
Appendix A
when justice so requires.” Fed.R.Civ.Proc. 15. The Rule
reflects two of the most important principles behind the
Federal Rules: pleadings are to serve the limited role of
providing the opposing party with notice of the claim or
defense to be litigated, see Conley v. Gibson, 355 U.S. 41,
47-48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), and “mere
_technicalities” should not prevent cases from being decided
on the merits, see Foman v. Davis, 371 U.S. 178, 83 S.Ct.
227, 9 L.Ed.2d 222 (1962). See also 6 Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure: Civil 2d § 1471 (2d ed.1990). Thus, absent
evidence of undue delay, bad faith or dilatory motive on the
part of the movant, undue prejudice to the opposing party,
or futility, Rule 15’s mandate must be obeyed. Foman, 371
U.S. at 182, 83 S.Ct. 227.
The circumstances surrounding the untimely assertion
of res judicata were clarified during oral argument before
Judge Rakoff. After a personnel changeover in the Office of
the Corporation Counsel, ten of the twelve cases were
assigned to lawyers who had not worked on the Seabrook
action and were unaware of the stipulation. Consequently,
the answers they prepared and filed within the applicable
deadlines did not include the affirmative defense.’ In the
other two cases, Ball and Almodovar, the attorney assigned
to file the answers was transferred to another matter and, in
the transition, none was filed. The omission was discovered
by lead counsel after the Seabrook stipulation was brought
to his attention. Corporation Counsel requested leave to file
3. The officers point out on appeal that Assistant Corperation
Counsel! Martha Calhoun signed both the stipulation and the answer
filed in the Monahan action.
eee aati
cA DS 9 pecie aoa: ieee
13a
Appendix A
the two remaining answers and plaintiffs waived any
objection, apparently without knowledge that defendants
would for the first time include the defense of claim
preclusion. The two answers in Ball and Almodovar, covering
30 of the 40 individual plaintiffs, are dated November 12,
1997. Paragraphs 75 and 959, respectively, state that
plaintiffs’ “claims are barred, in whole or in part, by
res judicata and collateral estoppel.” The court characterized
these events at oral argument as an “organizational snafu”
and found no evidence of bad faith or dilatory motive on the
part of the Corporation Counsel.
Thus, we are asked on appeal to consider whether
plaintiffs were unduly prejudiced by the court’s decision to
allow the defense of res judicata to be asserted by defendants
for the first time on summary judgment. In determining what
constitutes “prejudice,” we generally consider whether the
assertion of the new claim or defense would “(i) require the
opponent to expend significant additional resources to
conduct discovery and prepare for trial; (ii) significantly
delay the resolution of the dispute; or (iii) prevent the plaintiff
from bringing a timely action in another jurisdiction.” Block,
988 F.2d at 350. None of these three conditions is present in
this action. The crux of appellants’ argument, however, is
that prejudice here comes in the form of misallocated
resources. The officers contend that defendants’ delay caused
them to waste time and money deposing witnesses and
preparing for a trial on the merits when they should have
been focusing their discovery on issues of privity, the breadth
of the Seabrook settlement, and the motivation of the “class
representatives” in an effort to survive the charge of claim
preclusion.
VAa.
Appendix A
As the district court correctly noted, the fact that one
party has spent time and money preparing for trial will
usually not be deemed prejudice sufficient to warrant a
deviation from the rule broadly allowing amendment to
pleadings. See Block, 988 F.2d at 351. Rather, we will be
most hesitant to allow amendment where doing so unfairly
surprises the non-movant and impedes the fair prosecution
of the claim. Thus, in Block, we permitted defendants to
assert an affirmative defense in their motion for summary
judgment four years after the complaint was filed because
plaintiffs had knowledge of the facts giving rise to the
defense. Jd. at 350-511; see also Han v. Mobil Oil Corp.,
73 F.3d 872, 877-78 (9th Cir.1995) (fact that plaintiff had
the information giving rise to the defense weighs against
argument that plaintiff was prejudiced by the delay). The
record indicates that plaintiffs’ counsel, Leeds & Morelli,
was well aware of the Seabrook stipulation.‘ The firm was
retained by James Palozzolo in 1996 and filed an action on
his behalf on January 3, 1997, to collect from COBA the
attorneys’ fees associated with prosecution of the suit referred
to in the excised paragraph of the stipulation. Thus, even
assuming that Leeds & Morelli only learned the details of
the Seabrook settlement late in 1996, that is still twelve
months before defendants’ motion for summary judgment
was filed on December 9, 1997. Defendants’ untimely
amendment did not unfairly surprise plaintiffs or impede the
fair prosecution of their claims.
4. At oral argument, counsel for plaintiffs admitted they had
notice of the Seabrook action: “We knew about it? So what? We
knew about it.” The principles that governed our decision in Evans
v. Syracuse City School Dist., 704 F.2d 44 (2d Cir.1983), have no
application here.
\Sa
Appendix A
II]
The doctrine of res judicata, or ciaim preclusion, holds
that “a final judgment on the merits of an action precludes
the parties or their privies from relitigating issues that were
or could have been raised in that action.”* Allen v. McCurry,
449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980);
Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir.1994). “Whether
or not the first judgment will have preclusive effect depends
in part on whether\the same transaction of series of
transactions is at issue, whether the same evidence is needed
to support both claims, and whether the facts essential to the
second were present in the first.” NLRB v. United
Technologies Corp., 706 F.2d 1254, 1260 (2d Cir.1983)
(citations omitted). To prove the affirmative defense a party
must show that (1) the previous action involved an
adjudication on the merits; (2) the previous action involved
the plaintiffs or those in privity with them; (3) the claims
asserted in the subsequent action were, or could have been,
raised in the prior action. Allen, 449 U.S. at 94, 101 S.Ct.
411; Burgos, 14 F.3d at 789; Chase Manhattan Bank, N.A.
v. Celotex Corp., 56 F.3d 343, 345-46 (2d Cir.1995).
5. This is separate from the related doctrine of collateral
estoppel, or issue preclusion, which “bars a party from relitigating
in a second proceeding an issue of fact or law that was litigated and
actually decided in a prior proceeding if that party had a full and
fair opportunity to litigate the issue in the prior proceeding... .”
Metromedia Co. v. Fugazy, 983 F.2d 350, 365 (2d Cir.1992), cert.
denied, 508 U.S. 952, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993).
Although both defenses were raised in the answers, the district court
dismissed the action based on claim preclusion and it is that decision
we now review.
l6a
Appendix A
On appeal, plaintiffs no longer contest that the settlement
agreement is a final judgment on the merits. See Greenberg
v. Board of Governors of Fed. Reserve Sys., 968 F.2d 164.
168 (2d Cir.1992). Rather, the officers make three principal
arguments that the Seabrook settlement cannot stand as a
bar to this action; first, Norman Seabrook cannot be said to
be in privity with the officers to the extent that he has waived
their constituticnal rights; second, the excised paragraph of
the stipulation indicates that the parties presumed continued
litigation over the Directive’s constitutionality; and third,
res judicata cannot bar as-applied claims that post-date the
settlement. We consider each of these arguments in turn.
a. Privity
It is well-settled in this circuit that literal privity is not a -
requirement for res judicata to apply. See, e.g., Chase
Manhattan, 56 F.3d at 346 (“Whether there is privity between
a party against whom claim preclusion is asserted and a party
to prior litigation is a functional inquiry in which the
formalities of legal relationships provide clues but not
solutions.”’). Instead, a party will be bound by the previous
judgment if his “interests were adequately represented by
another vested with the authority of representation.” Alpert’s
Newspaper Delivery, Inc. v. The New York Times Co., 876
F.2d 266, 270 (2d Cir.1989). This principle has been
extended to preclude workers from challenging consent
decrees entered into by their union. See, e.g., United States
v. International Bhd. of Teamsters, 905 F.2d 610, 622-23
(2d Cir.1990) (holding that union official was bound by terms
of disciplinary mechanism set in place*by consent decree
between the United States and union, notwithstanding fact
\7a
Appendix A
that official was not a party to original lawsuit nor signatory
of consent decree); United States v. International Bhd. of
Teamsters, 931 F.2d 177, 185-186 (2d Cir.1991) (concluding
that IBT subordinate entities — members, locals, joint
councils, and area conferences — were bound by consent
decree even though they were nonparties to original action
where union adequately represented the interests of the
collective membership). It is clear that Norman Seabrook
brought the earlier action in “his capacity as President of the
Correction Officers’ Benevolent Association” in an effort
to protect the rights of COBA members subject to Directive
2262. Each plaintiff here belonged at all relevant times to
COBA, the “sole and exclusive collective bargaining
representative for the unit consisting of employees of New
_ York City in the titles of Correction Officer. ...” There is
no evidence that individual union members sought to
intervene in the first lawsuit or that Norman Seabrook was
not authorized to proceed on their behalf. The second
prerequisite for res judicata is present here.
Appellants contend, however, that they cannot be
considered in privity with Norman Seabrook because he had
no authority to waive their constitutional rights. They direct
our attention to a series of cases insulating due process rights
from state encroachment: Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494
(1985); Logan v. Zimmerman Brush Co., 455 U.S. 422, 102
S.Ct. 1148, 71 L.Ed.2d 265 (1982); and Vitek v. Jones, 445
U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980). Those
cases, they argue, read in conjunction with Justice Powell’s
declaration in Abood v. Detroit Board of Education, 431 U.S.
209, 253, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977) (Powell, J.,
18a
Appendix A
concurring in judgment), that a collective-bargaining
agreement to which a state is a party is “fully subject to the
constraints that the Constitution imposes on coercive
governmental regulation,” establish that COBA may not
waive its members’ constitutional rights. Therefore, because
Directive 2262 “substantially impairs” the officers’
“fundamental constitutional rights,” Norman Seabrook had
no authority to sign the stipulation and it cannot be said that
the interests of COBA members were “adequately
represented.” See Alpert’s, 876 F.2d at 270.
The officers misconceive the res judicata inquiry. They
ask us, in effect, to reevaluate the merits of the first action
in order to assess the adequacy of their representation. The
doctrine of res judicata, however, was established as a means
to promote legal economy and certainty. Expert Electric, Inc.
v. Levine, 554 F.2d 1227, 1232 (2d Cir.), cert. denied, 434
U.S. 903, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977). The entry of
a consent judgment has a preciusive effect not simply because
it is an exercise of judicial power entitled to appropriate
respect,® but because of the policy favoring finality of
judgments. Amalgamated Sugar Co. v. NL Industries, Inc.,
825 F.2d 634, 639 (2d Cir.), cert. denied, 484 U.S. 992, 108
S.Ct. 511, 98 L.Ed.2d 511 (1987). As the Supreme Court
explained a century ago,
6. See 1B J. Moore, Moore’s Federal Practice, | 0.409(5),
p. 1030 (2d ed. 1965) (“[A consent] judgment is not an inter partes
contract; the court is not properly a recorder of contracts, but is an
organ of government constituted to make judicial decisions and when
it has rendered a consent judgment it has made an adjudication.”),
cited in Kaspar Wire Works, Inc., v. Leco Eng’g and Machine, inc.,
575 F.2d 530, 538-39 (Sth Cir.1978) (distinguishing consequences
of consent decree for claim and issue preclusion).
19a
A ee A
[E]nforcement of [res judicata] is essential to the
maintenance of social order; for the aid of judicial
tribunals would not be invoked for the vindication
of rights of person and property if, as between
parties and their privies, conclusiveness did not
attend the judgments of such tribunals in respect
of all matters properly put in issue, and actually
determined by them.
Southern Pacific R. Co. v. United States, 168 U.S. 1, 48-49,
18 S.Ct. 18, 42 L.Ed. 355 (1897), quoted in Teltronics Servs.,
Inc. v. L M Ericsson Telecomms., Inc., 642 F.2d 31, 36 n. 8
(2d Cir.), cert. denied, 450 U.S. 978, 101 S.Ct. 1511,
67 L.Ed.2d 813 (1981). Relitigating the constitutional
propriety of Directive 2262 now would not only do a
disservice to defendants, it would undermine the ability of
labor associations to vindicate their members’ rights in
court.’
Loudermill and Abood may represent an exception* to
the Supreme Court’s general understanding that employees
are bound by their union’s decisions as quid pro quo for the
benefit they receive from collective bargaining. See United
Mine Workers of America Health and Retirement Funds v.
7. Because we conclude that res judicata bars plaintiffs’ facial
challenge to the sick leave policy, we decline to review the district
court’s alternative holding that Directive 2262 should be evaluated
under the “rational basis” test and that the policy is rationally related
to the legitimate interests of the Department of Correction.
8. See Richard Wallace, Comment, Union Waiver of Public
Employees’ Due Process Rights, 8 Indus. Rel. L.J. 583, 596 (1986).
20a
Appendix A
Robinson, 455 U.S. 562, 102 S.Ct. 1226, 71 L.Ed.2d 419
(1982); NLRB v. Magnavox Co. of Tennessee, 415 U.S. 322,
325, 94 S.Ct. 1099, 39 L.Ed.2d 358 (1974); Textile Workers
Union of America v. Lincoln Mills, 353 U.S. 448, 455,
77 S.Ct. 912, 1 L.Ed.2d 972 (1957); Ford Motor Co, v.
Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953).
These latter cases rest on the notion that an individual
employee’s right to challenge the terms of a collective
bargaining agreement must be limited if collective bargaining
is to exist at all. This principle will only give way when the
Constitution so requires,? when Congress has directed
9. The due process cases cited by defendants stand for the
proposition that “(C]Jertain substantive rights — life, liberty, and
property — cannot be deprived except pursuant to constitutionally
adequate procedures. ... ‘While the legislature may elect not to
confer a property interest in [public] employment, it may not
constitutionally authorize the deprivation of such an interest, once
conferred, without appropriate procedural safeguards.’ ” Loudermill,
470 U.S. at 541, 105 S.Ct. 1487 (quoting Arnett v. Kennedy, 416
U.S. 134, 167, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (Powell, J.,
concurring in part and concurring in result in part)). Procedural due
process rights are accorded special protection because they belong
to that special category of rights first described in Justice Stone’s
famous footnote 4, namely those that are necessary to protect all
other rights from encroachment by a more powerful majority. United
States v. Carolene Prods. Co, 304 U.S. 144, 153 n. 4, 58 S.Ct.
778, 82 L.Ed. 1234 (1938).
The allegation, however, that the officers’ procedural due
process rights, i.e. those implicated by an application of the sick
leave policy, were not adequately protected by the prior litigation is
insufficient to bar the application of res judicata. See, e.g., Jones v.
Texas Tech University, 656 F.2d 1137 (Sth Cir.1981) (consent
(Cont’d)
21a
Appendix A
otherwise,'® or when a contrary result would unravel
collective bargaining altogether. Thus, in Metropolitan
Edison v. NLRB, 460 U.S. 693, 103 S.Ct. 1467, 75 L.Ed.2d —
387 (1983), the Court held that “a union may bargain away
its members’ economic rights, but it may not surrender rights
that impair the employees’ choice of their bargaining
representative.” /d. at 705-706, 103 S.Ct. 1467, citing
Magnavox, 415 U.S. at 325, 94 S.Ct. 1099 (union cannot
waive employee’s right to strike against unfair labor
practices).
(Cont'd)
judgment in prior action by plaintiff alleging, in both representational
and individual capacities, that university officials deprived plaintiff
and other members of student organization of their rights to freedom
of speech and due process of law barred second suit on res judicata
grounds where second action alleged that procedures pursuant to
which he was placed on probation and restricted from campus
leadership activities violated his individual due process rights);
Sanders v. United States, 34 Fed.Cl. 38 (Fed.Cl.1995); Multi-State
Communications, Inc. v. United States, 648 F.Supp. 1203
(S.D.N.Y.1986).
10. See Robinson, 455 U.S. at 575, 102 S.Ct. 1226 (citing
Franks v. Bowman Transp. Co. Inc., 424 U.S. 747, 96 S.Ct. 1251,
47 L.Ed.2d 444 (1976) (terms of collective bargaining agreement
must comply with Title VII); Corning Glass Works v. Brennan, 417
U.S. 188, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974) (Equal Pay Act);
Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285,
66 S.Ct. 1105, 90 L.Ed. 1230 (1946); Norfolk & Western R. Co. v.
Nemitz, 404 U.S. 37, 92 S.Ct. 185, 30 L.Ed.2d 198 (1971) (Interstate
Commerce Act)).
22a
Appendix A
Similarly, the Supreme Court has recognized that
individual workers benefit when their union litigates on their
behalf. International Union, United Auto., Aerospace, and
Agric. Implement Workers of America [UAW] v. Brock, 477
U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986). “[AJn
association suing to vindicate the interests of its members
can draw upon a pre-existing reservoir of expertise and
capital. Besides financial resources, organizations often have
specialized expertise and research resources relating to the
subject matter of the lawsuit that individual plaintiffs lack.”
Id. at 289, 106 S.Ct. 2523 (citation and internal quotation
marks omitted). These “special features, advantageous both
to the individuals represented and to the judicial system as a
whole[,]” justify the potential cost of preclusion imposed
on individual members. /d. Holding in Brock that the UAW
had associational standing to challenge a policy directive
issued by the Secretary of Labor, the Court answered
concerns that individual workers would not be protected by
the procedural safeguards associated with formal class
certification under Rule 23 of the Federal Rules of Civil
Procedure. Should the evidence show an association was
unable to “represent adequately the interests of all [its]
injured members ... a judgment won against it might not
preclude subsequent claims by the association’s members
without offending due process principles.” /d. at 290, 106
S.Ct. 2523.
Norman Seabrook was freely chosen to be the authorized
bargaining representative for COBA members in 1996. He
challenged Directive 2262 in court on grounds virtually
identical to those underlying this action and brought the
action in his capacity as president of the union for the benefit
23a
Appendix A
of the members.'' Absent evidence of collusion between
Seabrook and the DOC,” plaintiffs are now bound to accept
the amended sick leave policy to which he agreed.
b. The Significance of the Excised Paragraph
The officers argue that “A careful reading of the
Stipulation reveals that the parties who signed it did not
intend to bar future challenges to the constitutionality —
facial and as-applied — of the sick leave policy.” They rest
this claim not on the text, but on language ostensibly omitted
from the agreement. First, they note the absence of any
language specifically precluding future constitutional
11. The Seabrook complaint, for example, alleged that two
plaintiffs seriously injured in the line of duty were denied leave
from their residence to attend church service, to pick up a paycheck,
or to take children to school. It further averred that “Norman
Seabrook . . . through his office logged in excess of 150 complaints
of a similar type by correction officers who were denied leave from
their residence to attend religious services.” The complaint alleged
that defendants conspired to deprive plaintiffs of their First
Amendment rights in violation of 42 U.S.C. § 1985. The Seabrook
plaintiffs not only sought a judgment declaring Directive 2262 as
unconstitutional on its face, but also requested an injunction barring
defendants and their successors from “subjecting correction officers
entitled to sick leave to unlawful violation of their First Amendment
freedoms and ... an appropriate remedy to the aforesaid abuse of
discretion.”
12. We could imagine a different result if it appeared that union
leadership and management sought to use litigation and a consent
decree to take an issue off the bargaining table against the best
interests of a particular class of current or future employees.
24a
Appendix A
challenges to Directive 2262 and, second, they point to the
parties’ decision to strike paragraph “4” from the document."’
With respect to the claimed omission, we note that there
is clear language in the document indicating the parties’
desire for finality: “Whereas, the parties now desire to resolve
the issues arising from this litigation without further
proceedings.” The stipulation calls for dismissal of the action
“with prejudice” so long as the defendants agreed to amend
Directive 2262. For the very reasons discussed in this
opinion, the parties could presume from this language that
subsequent constitutional challenges to Directive 2262 (by
Seabrook, by COBA, and by union members whose interests
were represented in the prior proceeding) would be
precluded. Finally, the parties provided the appropriate
procedures to contest subsequent amendments to Directive
2262 by establishing notice requirements, ensuring that Judge
Block retained jurisdiction, and clarifying that either party
may move to reopen the matter.
With respect to the excision of Paragraph 4, we can only
surmise that initially the two pending actions were to be
exempted from the stipulation. We see no evidence that this
13. Paragraph 4 provided in its entirety:
The parties agree that the amendment of Section VII of
Directive 2262, annexed hereto as Exhibit “A” also
resolves all issues of declaratory and injunctive relief
sought in the companion cases of Bail v. Sielaff, et al.,
90 Civ. 4456(FB), and Palozzolo v. Abate, et al.,
92 Civ. 3305(FB), and those claims for reliei are also
hereby dismissed with prejudice and without costs.
25a
Appendix A
plan was altered because “it was clear to all parties that the
constitutionality of the sick leave policy would continue to
be litigated in the future.”
c. Identity of Claims
Plaintiffs’ third argument concerns whether there is a
sufficient identity of claims to support a finding of
res judicata. “Whether or not the first judgment will have
preclusive effect depends in part on whether the same
transaction or connected series of transactions is at issue,
whether the same evidence is needed to support both claims,
and whether the facts essential to the second were present in
the first.” United Technologies, 706 F.2d at 1260. The
officers begin by pointing out that the Seabrook stipulation
resulted in a revised sick leave policy. Thus, they argue,
res judicata cannot bar any challenge to the version of the
policy in place after the signing of the stipulation on April
9, 1996 because it is not the same, i.e., identical, policy
challenged by the Seabrook complaint. This semantic
cartwheel would virtually eliminate the doctrine of
res judicata for a significant subset of those claims resolved
by settlement agreement. Parties would have no incentive to
modify a controversial policy if the amended version was
subject to renewed attack. The efficiencies created by a
mutually agreeable settlement would be lost.
There is ample precedent to show that mere modification
of a challenged policy will not alone undo the preclusive
effect of a former judgment. In Nash v. Bowen, 869 F.2d
675, 679 (2d Cir.), cert. denied, 493 U.S. 812, 110 S.Ct. 59,
107 L.Ed.2d 27 (1989), for example, we held that res judicata
26a
Appendix A
precluded a challenge by an administrative law judge to new
procedural rules because his claim was “substantially
identical” to one brought four years earlier by the Association
of ALJs, of which he was a member. We reached this result
even though the Association’s claim concerned a distinct
(and discontinued) program. We concluded that “the
‘Bellmon Review Program’ [was] ior all intents and purposes
the same as the ‘Quality Assurance System’ ” to which Nash
now objected, and, therefore, his claims were either raised
in the Association case or “could have been raised”’ in that
action. Jd. The two versions of Directive 2262 have an even
greater affinity.
Plaintiffs’ assertion of new incidents arising from the
application of the challenged policy is also insufficient to
barthe application of res judicata. See Norman v. Niagara
Mohawk Power Corp., 873 F.2d 634, 638 (2d Cir.1989)
(holding prior dismissal of civil rights claims precluded
whistle blower’s subsequent RICO action despite allegations
of new acts of harassment); Waldman v. Village of Kiryas
Joel, 39 F.Supp.2d 370, 379 (S.D.N.Y.1999) (concluding
res judicata barred resident’s Establishment Clause claims
even though complaint relied on facts that post-dated prior
judgments), aff'd, 207 F.3d 105 (2d Cir.2000). We look to
see “whether the same transaction or connected series of
transactions is at issue.” United Technologies, 706 F.2d at
1260 (emphasis added); Brooks v. Giuliani, 84 F.3d 1454,
1463 (2d Cir.1996) (applying New York law) (rejecting
argument that state conduct post-dating prior action was not
part of same transaction or series of transactions).
“ *Transaction’ must be given a flexible, common-sense
construction that recognizes the reality of the situation.”
27a
Appendix A
See Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86,
91 (2d Cir.1997). The hundreds of new incidents about which
plaintiffs now complain fall within the same queue as those
of injured officers who sought additional time out-of-
residence under the earlier version.
Plaintiffs cannot elude this reality merely by invoking
legal terms of art with constitutional mystique. See Wilkinson
v. Pitkin County Bd. of County Comm'rs, 142 F.3d 1319,
1323 (10th Cir.1998). Where all requirements are met,
res judicata can act as a bar to virtually any sort of claim,
including constitutional challenges to the facial validity of
municipal regulations. See, e.g., Irish Lesbian and Gay Org.
v. Giuliani, 143 F.3d 638, 646 (2d Cir.1998) (barring
organization’s free speech and equal protection challenges
to the facial validity of ordinance and accompanying
interpretive police department regulations on the grounds
that such claim had been, or could have been, litigated in
previous action). The “as applied” label cannot obscure the
fact that new time out-of-residence denials are part of the
same series of transactions. If the new as-applied challenges
are to aspects of the policy which survive the earlier
litigation, then the claim itself was subsumed by the earlier
litigation. See Nash, 869 F.2d at 679. If the as-applied
challenges arise from new provisions of the policy to which
an authorized representative has agreed, the members are
bound by their representative’s decision. See Teamsters, 931
F.2d at 184-185; Teamsters, 905 F.2d at 622.
This is not to say that Directive 2262 is forever immune
from attack. Res judicata and collateral estoppel do not
cement the status quo into perpetuity. “[MJ]odifications in
28a
Appendix A
‘controlling legal principles’ could render a previous
determination inconsistent with prevailing doctrine,” Montana,
440 US. at 161, 99 S.Ct. 970 (quoting Commissioner of
Internal Revenue v. Sunnen, 333'U.S. 591, 599, 68 S.Ct. 715,
92 L.Ed. 898 (1948)), and changed circumstances may
sufficiently alter the factual predicate such that new
as-applied claims would not be barred by the original
judgment. Claims based on conduct or procedures which
were not contemplated by, or a direct result of, the earlier
action would not necessarily be precluded. If it was clear,
for example, that all Catholics were now being denied religious
exemptions, while all Muslims were granted extra rec time,
it is unlikely that the Catholic’s claim under § 1983 would
be barred by the Seabrook settlement. Likewise, a new
administration might interpret and apply a particular provision
in a manner not countenanced by either party to the
settlement, in which case litigation might be permitted in
order to interpret the scope or text of the consent decree. See
Teamsters, 931 F.2d at 182-183 & n. 1 (explaining that terms
of complex consent decree often require ongoing interpretation
and interlocutory review). The parties contemplated that
further court action before Judge Block might be necessary
and thus memorialized the court’s continuing jurisdiction
over the matter. The Federal Rules set forth additional
procedures for a party interested in modifying a consent decree"
14. The Supreme Court discussed the relevant burdens of proof
in Rufo v. Inmates of Suffotk County Jail, 502 U.S. 367, 112 S.Ct.
748, 116 L.Ed.2d 867 (1992):
A party seeking modification of a consent decree [under
Fed.R.Civ.Proc. 60(b)] may meet its initial burden by
(Cont'd)
29a
Appendix A
and there are, moreover, any number of extra-judicial
procedures with which the officers may address an untenable
sick leave policy.’
IV
Having concluded that res judicata barred the officers’
facial challenge to Directive 2262, the district court found
that most of plaintiffs’ individual “as-applied” claims were
“sufficiently general or sufficiently inherent in a neutral
application of amended Directive 2262 that they reasonably
(Cont’d)
showing either a significant change in factual conditions
or in law. Modification of a consent decree may be
warranted when changed factual conditions make
compliance with the decree substantially more
onerous. . . . Ordinarily, however, modification should
not be granted where a party relies upon events that
actually were anticipated at the time it entered into a
decree. If it is clear that a party anticipated changing
conditions that would make performance of the decree
more onerous but nevertheless agreed to the decree, that
party would have to satisfy a heavy burden to convince
a court that it agreed to the decree in good faith, made a
reasonable effort to comply with the decree, and should
be relieved of the undertaking under Rule 60(b).
Id. at 384-85, 112 S.Ct. 748.
15. Officers dissatisfied with the outcome of the prior action
may choose to oust union leaders responsible for the settlement,
reject future agreements that include adherence to Directive 2262,
or seek a legislative solution.
30a
Appendix A
could have been raised, or, in some cases, were in fact raised
in Seabrook and are consequently barred by res judicata.”
Monahan, 10 F.Supp.2d at 426. With respect to the remaining
claims of harassment, wrongful punishment, disparate
application of the sick leave policy, conspiracy, and
discrimination on the basis of a disability, the court found
that plaintiffs had “utterly failed to meet their burden to set
forth admissible evidence supporting these claims or
otherwise demonstrating that a genuine issue of material fact
exists for trial with respect to these claims.”'® Jd. Plainti ‘fs
had complained it was “ ‘unfair’ for them to be required to
sift through the relevant deposition transcripts to find
evidence supporting each of their claims” and that the page
limits governing their memorandum in opposition to
defendants’ motion for summary judgment made it
impossible to “set forth each allegation which represents a
constitutional violation.” Jd. (quoting plaintiffs’ opposition
brief at 19-20). The district court pointed out that the
appropriate place to “set forth” each allegation was in
16. To defeat the defendants’ summary judgment motion, the
officers were required to make a showing sufficient to establish the
existence of elements essential to their case, and on which they would
bear the burden of proof at trial. Citizens Bank of Clearwater v.
Hunt, 927 F.2d 707, 710 (2d Cir.1991) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986));
see also Delaware & Hudson Ry. Co. v. Consolidated Rail Corp.,
902 F.2d 174, 177-78 (2d Cir.1990) (“The non-movant ... , who
must sustain the ultimate burden of proof, must demonstrate in
opposing a summary judgment motion that there is some evidence
which would create a genuine issue of material fact.”), cert. denied,
500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 125 (1991).
3la
Appendix A
plaintiffs’ statement pursuant to Local Rule 56.1,'’ but their
counter-statement was, nevertheless, “utterly bereft of record
citations relating to the particulars of any of plaintiffs’ claims
of as-applied unconstitutionality.” 10 F.Supp.2d at 426 &
n. 8 (citing Riley v. Town of Bethlehem, 5 F.Supp.2d 92
(N.D.N.Y.1998) (denying motion for summary judgment.for
failure to supply record citations supporting statement of
material facts); Union Carbide Corp. v. Montell N.V., 179
F.R.D. 425 (S.D.N.Y.1998)). Accordingly, the district court
granted the defendants’ motion for summary judgment on
all remaining claims.
On appeal, the officers do not specifically address the
material elements of any of the as-applied claims. They do
17. Local Civil Rule 56.1 of the Local Rules of the United
States District Courts for the Southern and Eastern Districts of New
York governs “Statements of Material Facts on Motion for Summary
Judgment.” It provides in relevant part that
z (b) The party opposing a motion for summary judgment
~~ shall include a separate, short and concise statement of
the material facts as to which it is contended that there
exists a genuine issue to be tried.
(c) All material facts set forth in the statement required
to be served by the moving party will be deemed to be
admitted unless controverted by the statement required
to be served by the opposing party.
(d) Each statement of material fact by a movant or
opponent must be followed by citation to evidence
which would be admissible, set forth as required by
Federal Rule of Civil Procedure 56(e).
32a
Appendix A
not appeal the grant of summary judgment on the claims of
harassment, wrongful punishment, conspiracy, disparate
application, or discrimination on the basis of a disability.
Instead, the officers argue that the district court erred when
it failed to consider their verified complaints'* as admissible
evidence in support of their claims that the sick leave policy
“precluded Plaintiffs-appellants from engaging in
constitutionally protected activities.” Having reviewed
plaintiffs’ submissions to the lower court as well as the list
of citations to the verified complaints provided for the first
time on appeal, we agree with appellees that the district court
18. The “Almodovar” verified complaint, sworn by eleven of
the 40 plaintiffs is 223 pages and 958 paragraphs long. It contains a
mixture of factual allegations and legal conclusions. Count One
charges that the policy is facially unconstitutional and that defendants
lack sufficient guidelines for discretionary decisions regarding time
out-of-residence requests. Counts Two through Thirty set forth the
particular details of each plaintiff's experience with Directive 2262
and conclude with the identical allegation that “Directive 2262 is
unconstitutional as applied to plaintiffs in that it is and has been
applied in a willful and malicious manner by defendants with an
intent to harass or intimidate plaintiff and deprive him [or ‘her’] of
his [or ‘her’] fundamental constitutional rights.” See, e.g.,
Almodovar cplt. J¥ 87, 127, 167,211, 235, 295, 326, 361, 388, 425,
461, 483, 517, 537, 557, 591, 626, 660, 680, 708, 728, 764, 783,
807, 845, 874, 895, 912, and 946. Count Thirty-one alleges a
conspiracy to deprive plaintiffs of their constitutional rights in
violation of 42 U.S.C. § 1985. Count Thirty-two alleges that
plaintiffs were denied benefits and privileges as a result of their
classification as sick-leave abusers. Eleven other substantially-
similar actions, each initiated by a verified complaint, were
consolidated with the Almodovar action on March 14, 1997. Plaintiff
Lorde alone included a claim of disability discrimination under New
York state law.
33a
Appendix A
appropriately dismissed all of the remaining as-applied
claims alleging deprivation of constitutional liberties.
It is true that a verified complaint may serve as an
affidavit for summary judgment purposes provided it meets
the other requirements for an affidavit under Rule 56(e).
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995) (noting
that Fed.R.Civ.Proc. 56(e) requires affidavits to be made on
personal knowledge, to set forth facts that would be
admissible in evidence, and to demonstrate the affiant’s
competency to testify to the matters in the affidavit);
SA Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure § 1339, at 152 (1990).
This does not mean, however, that parties opting to file
a verified complaint earn a special pass to avoid Local
Rule 56.1. A district court has the discretion to adopt local
rules that are necessary to cafry out the conduct of its
business. Frazier v. Heebe, 482 U.S. 641, 645, 107 S.Ct.
2607, 96 L.Ed.2d 557 (1987) (citing 28 U.S.C. §§ 1654,
2071; Fed.R.Civ.Proc. 83). In the Southern and Eastern
Districts of New York, a party opposing a motion for
summary judgment shail file a short and concise statement
of the material facts in dispute accompanied by citation to
evidence which would be admissible. L.R. 56.1(b) and (d).
Local Rule 56.1 is designed to place the responsibility on
the parties to clarify the elements of the substantive law
which remain at issue because they turn on contested facts.
Cf. Lawler v. Jacobs Eng’g Group of Ohio, Inc., 25 F.3d
1053 (7th Cir.1994) (table) (affirming grant of summary
judgment after failure to comply with S.D.Ind.L.R. 56.1).
“While the trial court has discretion to conduct an assiduous
34a
Appendix A
review of the record in an effort to weigh the propriety of
granting a summary judgment motion, it is not required to
consider what the parties fail to point out.” Downes v. Beach,
587 F.2d 469, 472 (10th Cir.1978); see also Waldridge v.
American Hoechst Corp., 24 F.3d 918, 923 n. 4 (7th
Cir.1994) (affording district court “considerable discretion”
in applying its local rules); Hernandez v. George, 793 F. 2d
264, 269 (10th Cir.1986) (same).
Here, however, even a de novo review of the record
guided by the citations in the appellate brief provides no
help for the officers because plaintiffs’ as-applied claims
regarding the right to participate in “constitutionally
protected activities” fail to survive the initial res judicata
evaluation. As discussed above, the mere assertion of new
incidents arising from the application of the challenged
policy is insufficient to bar the application of res judicata.
See Norman v. Niagara Mohawk Power Corp., 873 F.2d 634,
638 (2d Cir.1989); Waldman v. Village of Kiryas Joel,
39 F.Supp.2d 370, 379 (S.D.N.Y.1999), aff'd, 207 F.3d 105
(2d. Cir.2000). Most of the incidents cited in plaintiffs’
appellate brief, however, are part of the “same transaction
or connected series of transactions” at issue in the Seabrook
litigation. See United Technologies, 706 F.2d at 1260. The
Seabrook complaint alleged that two plaintiffs seriously
injured in the line of duty were denied leave to attend church
service, to pick up a paycheck, and to take children to school.
Indicating that these claims were meant to be representative
of a series of unconstitutional denials, the complaint states
that “Norman Seabrook ... through his office logged in
excess of 150 complaints of a similar type by correction
officers who were denied leave from their residence to attend
35a
Appendix A
religious services.” The series continues with events
complained of here. Appellants direct our attention, for
example, to paragraphs in the Almodovar complaint alleging
that Irwin Cohen was denied permission to attend Saturday
morning Sabbath services at his temple; that Michael
Messina was forcéd to pick up his pay check during his rec
time; and that plaintiff Alice Bresloff was unable to take her
children to church services required by their parochial school.
Most of the cited paragraphs identify occasions on which
officers were denied additional time beyond their four
recreation hours to participate in religious programs or attend
religious services, to participate in family activities or attend
to the needs of family members, to travel, to attend
organizational meetings or celebrations, to vote, to attend
funerals or weddings, or to make trips to the pharmacy.
A number of the cited paragraphs recount penalties given to
officers who did not answer the door during a surveillance
visit because they were in the shower or across the street at
a birthday party. It is clear that these incidents fall within
“the same transaction or series of transactions” at issue in
the Seabrook litigation. Other than new particular details,
“the facts essential to the second were present in the first.”
United Technologies, 706 F.2d at 1260.
There are a few anomalous allegations. Several plaintiffs
State that they were ordered back to work too soon or assigned
to duties inappropriate to their medical condition. Others
claim that the Department failed to accommodate their
disability by failing to provide a handicapped parking space
ora rnp a vehicle. An employer’s duty to accommodate
isabilities, however, is grounded in state and
physical
36a
Appendix A
federal statutes and not the United States Constitution.'®
These allegations do not serve to make Directive 2262
unconstitutional as applied to individual circumstances. To
the extent that these facts suggest a pattern or practice of
harassment, plaintiffs have chosen not to appeal the district
court’s grant of summary judgment on those claims.
Affirmed.
19. See, e.g., the Americans with Disabilities Act of 1990
(ADA), Pub.L. 101-336, 104 Stat: 327, and analogous state statutes.
37a
APPENDIX B — OPINION AND ORDER OF THE
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK
DATED JULY 7, 1998
Daniel MONAHAN, et al.,
Plaintiffs,
Vv.
CITY OF NEW YORK DEPARTMENT OF
CORRECTION, The City of New York, Michael
Jacobson, Acting Commissioner, City of New York
Department of Correction, Terance Skinner, Deputy
Warden and Commanding Officer of the Health
Management Division of the City of New York
Department of Correction, and Johnson,
Supervisor Civilian (ID No.25835), et al.,
Defendants.
Nos. 96 Civ. 2287(JSR), 96 Civ. 3733(JSR), 96 Civ.
4224(JSR), 96 Civ. 7107(JSR), 96 Civ. 7108(JSR), 96 Civ.
8016(JSR), 96 Civ. 8140(JSR), 96 Civ. 9395(JSR), 96 Civ.
9719(JSR), 97 Civ. 0020(JSR), 97 Civ. 0649(JSR)
and 97 Civ. 1670(JSR).
United States District Court,
S.D. New York.
July 7, 1998.
* * *
38a
Appendix B
OPINION AND ORDER
RAKOFF, District Judge.
The plaintiffs in these twelve consolidated cases are
current and former New York City correction officers who
belonged at all relevant times to the Correction Officers’
Benevolent Association (“COBA”), the exclusive bargaining
agent for New York City correction officers. In 1995, their
representative, Norman Seabrook, in his capacity as president
of COBA, brought suit against the City of New York and
related defendants challenging the constitutionality of the
City’s sick leave policy applicable to correction officers. See
Seabrook v. Jacobson, No. 95 Civ. 4194(FB) (E.D.N.Y.,
Compl. dated Oct. 13, 1995) (the “Seabrook” action). That
policy, as embodied in Department of Correction Directive
2262, permitted unlimited sick leave for up to a full year
provided a correction officer on sick leave generally
remained at home. While the City believed that the stay-at-
home requirement was necessary to prevent its otherwise
liberal leave policy from degenerating into an open invitation
to fraud, the correction officers, as represented by Seabrook,
argued that it deprived the officers of a wide variety of
substantive and procedural rights guaranteed to them by the
United States Constitution.
In April 1996, the Seabrook action was settled, pursuant
to which an order was entered in federal court dismissing
Seabrook’s claims with prejudice. See Declaration of John
F. Wirenius, dated November 20, 1997, Ex. E. Under the
settlement, Directive 2262 was amended in numerous
material respects. Among other things, correction officers
39a
Appendix B
on sick leave (with certain limited exceptions known as “sick
leave abusers”) were no longer required to remain in their
residences during their first eight sick days in a given
calendar year; officers injured in the line of duty who were
scheduled to return to work within two weeks of the injury
Were not required to remain in their residences at all; officers
injured on duty but without a specific return date could apply
to the Health Management Division for permission not to be
confined to their residences during some or all of their period
of leave; and all other officers on sick leave were permitted
to leave their residences at any time for medical appointments
and for an additional uninterrupted period of up to four hours
per day for any other purpose whatever (“recreational time”).
While officers in the latter category had to select which of
two four-hour time slots (one in the morning, one in the
evening) they would utilize for such recreational time (so as
to enable Department of Corrections “home visit Captains”
to check on them), they could change the selection every
30 days.
The ink was hardly dry on this settlement when plaintiffs
commenced the instant actions, challenging the amended
Directive as facially violative of the First, Fourth, Fifth and
Fourteenth Amendments of the Constitution and further
contending that, in any event, the Directive has been
unconstitutionally applied to them individually.' In effect
they seek a third bite at the proverbial apple, since the sick
1. Some plaintiffs also allege that defendants engaged in a
conspiracy to deprive them of equal protection and of their privileges
and immunities, in violation of 42 U.S.C. § 1985(3). One plaintiff,
Lorde, also alleges discrimination on the grounds of disability in
violation of state (but not federal) law.
40a
Appendix B
leave policy challenged in the Seabrook action was itself
the result of collective bargaining. The Court concludes,
however, that they may no longer feed on this fruit, since as
explained below, their claims are not only barred by
principles of res judicata but also are both legally and
factually deficient. Accordingly, defendants’ pending motion
for summary judgment must be granted and plaintiffs’ claims
dismissed.
As noted, plaintiffs’ first claim is that the sick leave
policy arising from the Seabrook settlement, as embodied in
amended Directive 2262, is unconstitutional on its face. To
begin with, this claim is barred by the doctrine of res judicata.
While it is true that defendants previously failed to plead
this affirmative defense in all but two of the instant actions?
and did not seek to amend the other pleadings to include
this defense until filing for summary judgment, “absent
prejudice to the plaintiff, a defendant may raise an affirmative
defense in a motion for summary judgment for the first time.”
Steinberg v. Columbia Pictures Industries, Inc., 663 F.Supp.
706, 715 (S.D.N.Y.1987) (quoting Rivera v. Anaya, 726 F.2d
564, 566 (9th Cir.1984)); see also Block v. First Blood Assoc.,
988 F.2d 344, 350 (2d Cir.1993); Devito v. Pension Plan of
Local 819 I.B.T. Pension Fund, 975 F.Supp. 258, 263
(S.D.N.Y.1997); United States v. Krieger, 773 F.Supp. 580,
583 (S.D.N.Y.1991). Although plaintiffs allege prejudice,
chiefly in having to expend substantial time and effort on
2. However, in those two actions, Almodovar and Ball
(involving 30 of the 40 plaintiffs), the answers embodying the res
judicata defense, though otherwise untimely, were filed with
plaintiffs’ consent shortly before service of defendants’ summary
judgment motion.
4la
Appendix B
discovery that they claim would have been improvident if
they had known their claims were subject to being barred by
res judicata, it is settled that “the time, effort and money . . .
expended in litigating” a matter does not constitute
“prejudice” for this purpose. Block, 988 F.2d at 351.
Moreover, substantially the only discovery taken by plaintiffs
over the entirety of these 12 cases consisted of deposing two
witnesses. (Defendants, for their part, simply deposed the
various plaintiffs.) This hardly constitutes material prejudice.
Nor, upon careful inspection of the record, do plaintiffs’
other claims of prejudice find meaningful support.
Conversely, even if plaintiffs’ claims of prejudice were more
colorable than they in fact are, on no analysis are they
sufficiently substantial to overcome the “strong public policy
in economizing the use of judicial resources” that, in
appropriate cases, even warrants a court in raising the defense
of res judicata sua sponte. Doe v. Pfrommer, 148 F.3d 73,
79-80 (2d Cir.1998); see also Salahuddin v. Jones, 992 F.2d
447, 449 (2d Cir.1993). Accordingly, defendants’ application
for leave to amend their answers in the other ten actions to
assert the res judicata defense already raised in Almodovar
and Ball is hereby granted.
Once raised, res judicata fully disposes of plaintiffs’
claim of facial unconstitutionality. “Res judicata assures the
finality of judgments by precluding a party to a lawsuit from
litigating a claim more than once.” Chase Manhattan Bank,
N.A. v. Celotex Corp., 56 F.3d 343, 345 (2d Cir.1995).
“Res judicata may also preclude claims by parties who were
not involved in the earlier lawsuit ... when the precluded
party’s interests [were] represented” in that lawsuit. Jd. The
42a
Appendix B
_ doctrine takes effect when (1) there exists an adjudication
on the merits in a prior lawsuit, (2) the prior lawsuit involved
the party to be precluded or a party in privity with that party,
and (3) the claims sought to be precluded were raised, or
might reasonably have been raised, in the prior lawsuit.
See id. |
All three of these requirements are met here. The
voluntary dismissal of the Seabrook.claims with prejudice
constitutes an adjudication on the merits. See Chase
Manhattan, 56 F.3d at 345. Privity is established because
the plaintiff in the Seabrook case brought that action “in his
capacity as President” of the union that represented all of
the instant plaintiffs in connection with the very issues here
raised: he and they were thus in privity as a formal matter,
as a practical matter, and as a matter of the identity of
interests between those involved in Seabrook and those
involved in the instant actions. See id.; see also Nash v.
Bowen, 869 F.2d 675, 679 (2d Cir. 1989) (judgment rendered
against an association may serve as res judicata with respect
to claims later asserted by members of that association).
Finally, as to identity of claims, res judicata bars not only
the instant claims under the First and Fourteenth Amendment
(alleging violation of plaintiffs’ rights to freely associate,
vote, practice religion and exercise freedom of speech),
which were expressly raised in Seabrook, but also the closely-
related Fourth and Fifth Amendment claims (alleging that
home confinement constituted an unreasonable search and
seizure and violated plaintiffs’ rights to privacy and due
process), which reasonably could have been raised in the
earlier proceeding. See id.
43a
Appendix B
Accordingly, for the foregoing reasons, all of plaintiffs’ -
claims of facial unconstitutionality are barred by res judicata
and must be dismissed on that ground. Separately and
independently, for the reasons that follow, they must also
be dismissed on the independent ground that they cannot
survive summary judgment on the merits.
Challenges to the facial constitutionality of regulations
such as amended Directive 2262 are assessed under the
“rational basis” test. Specifically, because of the multitude
of legitimate interests that a government has in regulating
conduct of its own agents and employees, the facial
constitutionality of municipal regulations relating to
municipal employees is usually satisfied if the municipal
government can show a rational relationship between the
challenged regulation and the state interest it is claimed to
foster. See Kelley v. Johnson, 425 U.S. 238, 245, 96 S.Ct.
1440, 47 L.Ed.2d 708 (1976); Pickering v. Board of
Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d
811 (1968). While there may be unusual situations where a
regulation’s potential chilling effect on the exercise of a
constitutional right may require strict scrutiny of even a facial
challenge, see, e.g., Burson v. Freeman, 504 U.S. 191, 198,
112 S.Ct. 1846, 119 L.Ed.2d 5 (1992), no such situation is
here presented.*
3. To the extent that Pienta v. Village of Schaumburg, 710 F.2d
1258 (7th Cir.1983), suggests otherwise, this Court, like the other
courts to consider the issue, finds it completely unpersuasive. See,
e.g., Crain v. Bd. of Police Commissioners, 920 F.2d 1402 (8th
Cir.1990); Uryevick v. Rozzi, 751 F.Supp. 1064 (E.D.N.Y.1990);
Voorhees v. Shull, 686 F.Supp. 389 (E.D.N.Y.1987); Philadelphia
(Cont'd)
44a
Appendix B
To meet the “rational basis” standard, defendants have
provided unrebutted evidence that the modified home
confinement aspects of Directive 2262 here challenged
rationally serve the legitimate state interests of verifying
officers’ illnesses and preventing malingering. See, e.g.,
Affidavit of Terrence Skinner, dated November 20, 1997, at
8-10, 16-18. As defendants’ evidence shows, it is perfectly
rational for a state employer, as part of a negotiated bargain |
by which it agrees to compensate for up to a full year an
employee who professes to be too sick to even come to work,
to condition such payment on the employee’s effectively
establishing the truth of his professions by remaining at home
for most (but far from all) of the day unless he is sufficiently
well to have already scheduled a return to work.
In response, plaintiffs, for all the myriad claims of facial
unconstitutionality alleged in their Complaint, are reduced
to arguing on this motion that the modified home
confinement policies set forth in amended Directive 2262
are facially unconstitutional because, in the absence of more
specific guidelines for their implementation, they must
inherently operate in an arbitrary fashion. Defendants, for
their part, contend that further guidelines exist, but fail to
(Cont’d)
Lodge No. 5, FOP v. City of Philadelphia, 599 F.Supp. 254
(E.D,Pa.1984); Loughran v. Codd, 432 F.Supp. 259 (E.D.N.Y.1976);
see also Hambsch v. Dept. of Treasury, 796 F.2d 430 (Fed.Cir. 1986)
(rational basis standard applied to secret service sick leave
regulations); Korenyi v. Dept. of Sanitation, 699 F.Supp. 388
(E.D.N.Y.1988) (rational basis standard applied to_sanitation
department sick leave regulations). :
45a
Appendix B
provide admissible evidence to support this contention.* No
further guidelines are necessary, however, because amended
Directive 2262 itself provides sufficient guidance to pass
constitutional muster.
A regulation is not rendered unconstitutional simply
because its implementation requires the exercise of
substantial discretion, unless such exercise presents an
unreasonable potential for arbitrary denial of a constitutional
right. In the sick leave cases on which plaintiffs here rely,
Uryevick v. Rozzi, 751 F.Supp. 1064 (E.D.N.Y.1990), and
Voorhees v. Shull, 686 F.Supp. 389 (E.D.N.Y.1987), this
potential arose because unfettered discretion was delegated
to administrators to provide undefined deviations from
otherwise highly restrictive home confinement policies. In
Voorhees, for example, the regulations at issue mandated
that officers on sick leave could never leave their residences
at all unless supervisors, on unspecified grounds, granted
them permission. Voorhees, 686 F.Supp. at 390 & n. 1.
Similarly, in Uryevick, the regulations required a sick police
officer never to leave his residence between 9:00 a.m. and
4. Exhibit H to the Wirenius Declaration, on which defendants
purport to rely in this regard, is a document entitled “Computer
System Medical Diagnosis Code, Health Management Division,
Central Sick Desk,” that on its face does not appear to create any
meaningful guidelines. Moreover, both Deputy Warden Skinner and
Deputy Warden Bird conceded at their depositions that no further
guidelines exist. See, e.g., Affidavit of Julie Knowles Johnson, dated
November 20, 1997 (“Knowles Johnson Aff.”), Ex. R, Skinner Dep.
at 101 (“the specific guidelines were Directive 2262, period.
Everything else was case by case[.]”); id. Ex. S, Bird Dep. at 83-84
(no other specific guidelines).
46a
Appendix B
-
5:00 p.m. unless 2 Desk Officer determined that his absence
could be allowed “for a reasonable purpose and time.”
Uryevick, 751 F.Supp. at 1066.
Here, by contrast, the extent and duration of the home
confinement is much less restrictive, and the permitted
exceptions more readily available and better defined, than
in either Voorhees or Uryevick. Under the amendments to
Directive 2262 that plaintiffs’ union negotiated, sick police
officers are not required to remain in their residences at any
time during their first eight sick days of a given year, nor
are officers injured in the line of duty with a definite
return-to-duty date subject to any confinement. Those
officers suffering longer-term illnesses that prevent them
from returning to work, while required to remain in their
residences for most of the day, can leave for up to four hours
each day for any reason and can also leave at any time for
medical appointments. This is not significantly different from
the “confinement” they would suffer while working their
ordinary eight-hour workdays as corrections officers —
except, of course, that here they are being paid without having
to work.
In short, amended Directive 2262 serves a rational
purpose on its face, and is neither so restrictive nor so lacking
in standards for its implementation as to create an undue
risk of inherently arbitrary operation. To be sure, the
Directive still leaves certain small decisions to the
employer’s discretion, such as certain adjustments to
recreational time; but leaving such modest adjustments to
the exercise of discretign can hardly be deemed irrational or
arbitrary. If discretion’ cannot be exercised in such a small
47a
Appendix B
compass, no room will ever be left for fact-specific
determinations and the law will become unbending and
inequitable. |
Accordingly, in addition to being barred by principles
of res judicata, plaintiffs’ facial challenges to the
constitutionality of Directive 2262 must be dismissed on the
merits.
As mentioned, plaintiffs also claim that the amended
Directive is unconstitutional as applied to them individually.
For example, several plaintiffs assert that application of the
Directive prevented them from taking part in various leisure
and social activities, religious activities, family activities,
and the hike, and also that difficulties associated with
“logging out” (telephoning the Health Management Division
to request authorization to leave residence) prevented them
from engaging in such activities.* Other plaintiffs complain
5. See Monahan Compl. ff 30-36, 47; Aponte Compl. {fj 69-82;
Ball Compl. {] 23-33, 37-38; Basil Compl. J] 27-28, 33, 36, 46;
Foynes Compl. 9§ 34-36, 42; Lorde Compl. 9 37-38, 44-45;
Nardiello Compl. 9 25-43, 80; Netell Compl. J§ 24-29, 39; Rebecca
Compl. ¥J 24, 29-31, 39; Rodriguez Compl. J] 34-43; Silva Compl.
{| 26, 35-41, 43-48, 56; Almodovar Compl. 9] 45, 53-54, 57 (all
Almodovar plaintiffs), 79-82 (plaintiff Almodovar), 105-116
(plaintiff Beckford), 142-146, 148-159 (plaintiff Bresloff), 186-203
(plaintiff Cohen), 224-227 (plaintiff Cuevas), 249-281 (plaintiff
Deniro), 307-312 (plaintiff Griffin), 345-355 (plaintiff Ilarazza),
373-379 (plaintiff Israel), 406, 409, 417-419 (plaintiff Knowles),
745-751, 757 (plaintiff Tyson), 771-775 (plaintiff Varbero),
780-791, 799-801 (plaintiff Wallace), 825-839 (plaintiff Watford),
856-866 (plaintiff White), 881-887 (plaintiff Whyte-Phillips),
903-905 (plaintiff Whyte), 929-940 (plaintiff Keyes-Alston).
48a
Appendix B
that they were punished for Directive violations that, in some
cases, they deny took place.® Finally, certain plaintiffs allege
that they were “harassed” by employees of the Health
Management Division, who pressured them to return to duty,
delayed or denied their promotions, wrongfully branded them
as “sick leave abusers,” or otherwise applied the Directive
to them in an arbitrary manner.’
Most of these individual claims prove on inspection to
be either sufficiently general or sufficiently inherent in a
neutral application of amended Directive 2262 that they
reasonably could have been raised, or, in some cases, were
in fact raised in Seabrook and are consequently barred by
res judicata. The remaining claims, such as alleged
harassment, wrongful punishment, or disparate application
6. See Ball Compl. Jf 46-48; Basil Compl. ff 31-32, 35; Lorde
Compl. {J 14-16, 31-32; Nardiello Compl. 4 28, 48-49, 70; Netell
Compl. 4 23, 30-32; Rebecca Compl. 9§ 27-28; Silva Compl.
q{ 31, 33-34, 42; Almodovar Compl. J 60-64 (all Almodovar
plaintiffs), 118 (plaintiff Beckford), 204 (plaintiff Cohen), 282-283,
285 (plaintiff Deniro), 316 (plaintiff Griffin), 338, 341-344 (plaintiff
Ilarazza), 371, 380-382 (plaintiff Israel), 758 (plaintiff Tyson), —
776-777 (plaintiff Varbero), 792 (plaintiff Wallace), 867-868
(plaintiff White), 888 (plaintiff Whyte-Phillips), 925-928 (plaintiff
Keyes-Alston).
7. See Aponte Compl. 4 23, 30-33; Nardiello Compl. J 51,
53, 58- 59, 61-69; Netell Compl. 4 21; Rodriguez Compl. $.12-22,
31-33; Silva Compl. J 29; Almodovar Compl. 4¥ 46 (all Almodovar
plaintiffs), 95, 101, 119-120 (plaintiff Beckford), 134, 160-161
(plaintiff Bresloff), 318-321 (plaintiff Griffin), 338, 341-344
(plaintiff Ilarazza), 404 (plaintiff Knowles), 752-756 (plaintiff
Tyson). ;
49a
Appendix B
of the sick leave policy, while not barred by res judicata,
nonetheless must likewise be dismissed because plaintiffs,
in response to defendants’ evidentiary showing that these
Claims are without factual support, have utterly failed to
meet their burden to set forth admissible evidence supporting
these claims or otherwise demonstrating that a genuine issue
of material fact exists for trial with respect to these claims.
See Anderson vy. Liberty Lobby, Inc., 477 U.S. 242, 250, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Virtually conceding as much, plaintiffs counter with the
extraordinary argument that it is “unfair” for them to be
required to sift through the relevant deposition transcripts
to find evidence supporting each of their claims. See
P|.Opp.Br. at 20. Similarly, they argue that “[i]t is physically
impossible for plaintiffs to review forty (40) deposition
transcripts and set forth each allegation which represents a
constitutional violation under a particular amendment in a
forty (40) page memorandum.” /d. at 19. Accordingly,
plaintiffs oppose summary judgment on the as-applied claims
largely by reference to the allegations in their Complaints
8. Of course, the place for such references was not in plaintiffs’
memorandum of law at all, see Local Civil Rule 56.1, but in their
Rule 56.1 Statement, on which no page limit was set but which,
nevertheless, is utterly bereft of record citations relating to the
particulars of any of plaintiffs’ claims of as-applied unconstitutionality.
Cf Riley v. Town of Bethlehem, 5 F.Supp.2d 92 (N.D.N.Y.1998)
(denying motion for summary judgment for failure to supply record
citations supporting statement of material facts); see also Union
Carbide Corp. v. Montell N.V., 179 F.R.D. 425 (S.D.N.Y.1998).
Also, it must be remembered that 39 of the 41 depositions taken in
this litigation were of plaintiffs themselves, who remained available
to their counsel to supply appropriate affidavits.
50a
Appendix B
(with occasional passing reference to deposition testimony
not in the record of this, motion),’ and conclude that
“[pjlaintiffs’ action for unconstitutionality cannot be
dismissed if they have alleged any constitutional violation.”
Id. at 18 (emphasis supplied).
This strategy is squarely at odds with the requirements
of Rule 56. “Simple assertions by counsel that there are facts
in the case that should defeat summary judgment are, by their
nature, conclusory and do not meet plaintiffs’ burden in the
face of a motion for summary judgment.” Sellin v. Rx Plus,
Inc., 730 F.Supp. 1289, 1293 n. 3 (S.D.N.Y.1990). Nor is
plaintiffs, position buttressed by their frequent fallback to
rhetorical blends of bombast and bromide. Plaintiffs having
failed to submit any admissible evidence in support of their
“as applied” claims, those claims must be dismissed.
Similarly, plaintiffs have provided no admissible
evidence in support of their claims that defendants engaged
in a conspiracy, in violation of 42 U.S.C. § 1985(3), for the
purpose of depriving plaintiffs of the equal protection of the
laws or of their privileges and immunities under the law.
See Traggis v. St. Barbara's Greek Orthodox Church, 851
F.2d 584, 586-87 (2d Cir.1988). In particular, plaintiffs
provide no evidence that the “predominant purpose” of the
alleged conspiracy “was interference with, or punishment
for exercise of” such rights. Spencer v. Casavilla, 44 F.3d
74, 79 (2d Cir.1994). Therefore their claims pursuant to
42 U.S.C. § 1985(3) must be dismissed as well.
9. The one other item on which plaintiffs purport to rely in
this regard, the Affidavit of Ms. Knowles Johnson, simply repeats
conclusions rather than avers admissible facts.
Sla
Appendix B
Finally, for the same reason, plaintiff Lorde’s claim of
disability discrimination in violation of New York State law,
see Lorde Compl. J] 67-76, must be dismissed, Lorde having
presented no admissible evidence from which a reasonable
juror could conclude that any of the employment actions
Lorde complains of were motivated by such discrimination. '
In sum, each of the plaintiffs’ Complaints are hereby
dismissed with prejudice. Clerk to enter judgment.
SO ORDERED.
10. To the extent that plaintiffs’ Complaints might also be
somehow read to assert other State law causes of action, those claims
must likewise be dismissed for failure to provide admissible evidence
supporting such claims.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.