Opinion
Civil Action No. CV-96-561 (DGT)
July 10, 2003
MEMORANDUM ORDER
Plaintiff Alexander Boxill sued his former employer, Brooklyn College, alleging claims under the Rehabilitation Act of 1973 ("Rehabilitation Act") and Title VII of the Civil Rights Act of 1964 ("Title VII"). Boxill now seeks reconsideration of a Memorandum and Order dated September 7, 2001, denying his Rehabilitation Act claim as judicially estopped. For the following reasons, Boxill's motion is denied.
Background
Familiarity with the facts of this case are assumed and will be set forth only as relevant to the current motion.
Boxill began working for Brooklyn College in 1973 and, after a promotion in 1977, remained employed with Brooklyn College until his retirement in March 1995. During his employment, Boxill developed medical problems related to his heart, and in December 1989, he was diagnosed with congestive heart failure. Boxill took a number of leaves of absence from his job, and in March 1992, he received disability benefits through the academic annuity program TIAA/CREF. The following year, TIAA/CREF informed Boxill that his benefit payments were ending, and Boxill informed Brooklyn College that he wished to return to work. Before permitting Boxill to return to work, Brooklyn College required him to undergo a series of medical exams, which occurred from March 1993 through some time in early 1994. In the meantime, at some point in approximately May or June 1993, Boxill applied for social security disability payments, claiming that he was unable to work due to his heart condition. Although Boxill was initially denied benefits, he eventually received them continuously from an unspecified time in 1993 through 1994.
Boxill returned to work in April 1994 but left again in December of that year after his heart condition worsened. Boxill underwent open heart surgery in February 1995 and retired the following month. Boxill thereafter sued Brooklyn College for alleged violations of the Rehabilitation Act and Title VII. Specifically, he alleged that Brooklyn College discriminated against him due to his race and perceived disability by not allowing him to return to work from March 1993, when he was initially cleared by his physician, through April 1994, when he finally returned to work.
Brooklyn College moved for summary judgment dismissing both claims in Boxill's suit. In a Memorandum and Order dated September 7, 2001, summary judgment was granted as to all of plaintiff's claims, and the Clerk of Court was directed to close the case. With regard to Boxill's Rehabilitation Act claim, since Boxill collected disability benefits during the time that he sought to be employed, he was found judicially estopped from pursuing his Rehabilitation Act claim. Before granting the motion, however, Boxill was invited to submit evidence within three weeks of the date of oral argument on the motion — July 3, 2001 — that might establish that he qualified for the limited exception from the rule barring a plaintiff who has collected disability benefits from maintaining an Americans with Disabilities Act ("ADA") or Rehabilitation Act claim. Boxill failed to come forward with any such evidence; therefore, summary judgment was granted in favor of Brooklyn College. Judgment to this effect was entered by the Clerk of Court on September 20, 2001.
Plaintiff filed and perfected a timely appeal to the Second Circuit, which has been voluntarily withdrawn with leave to re-file after resolution of the pending motion. See Affirmation of Ambrose Wotorson in Support of Plaintiff's Rule 60 Motion ("Wotorson Affirm."), Exs. 2, 5. Thereafter, the parties attempted to amicably resolve this case. In fact, to foster ongoing settlement negotiations, defendant was provided with a copy of plaintiff's affidavit in support of this motion. See id., Exs. 3, 5, 6.
Boxill was granted this three-week period because Brooklyn College did not raise the estoppel argument until its reply memorandum. It should be noted, however, that the motion was not granted until September 7, 2001, more than eight weeks after the oral argument.
According to Boxill, he was aware that his benefits attorney, Mr. Tobias of Binder and Binder, had previously advised him that it was permissible to simultaneously seek social security benefits and try to return to work because, according to Tobias, there is a nine-month trial period that allows one to work full time yet continue to receive social security benefits. See Aff. of Alexander Boxill in Supp. of his Rule 60 Mot. ("Boxill Aff.") ¶ 3. Nonetheless, at the time of oral argument on the summary judgment motion, Boxill was not in possession of any documentary evidence to support Tobias' assertion, which alone could not be admitted as it was hearsay. See id. ¶ 4. Thereafter, Boxill apparently attempted to obtain an affidavit from Tobias that would establish that Tobias provided such advice and that such advice was indeed sound. According to Boxill, his calls were not returned, and he eventually learned that Tobias was no longer employed with Binder and Binder and was unable to otherwise locate him. See id. ¶ 5. In addition, Boxill asserts that his current attorney, Ambrose Wotorson, conducted legal research that failed to turn up any case law that supported Boxill's assertion that he could simultaneously apply for social security benefits and return to work full time. See id. ¶ 6. In frustration, Boxill contacted the Social Security Administration ("SSA") and requested a copy of any rules or regulations that support his claim. See id. ¶ 7. According to Boxill, all of these activities occurred within the three-week period granted by the court for Boxill to submit an explanation of his claim. See id. ¶ 8.
This affidavit is Exhibit 3 to the Wotorson Affirmation.
On or about September 10, 2001 — after the Memorandum and Order dismissing his claims — Boxill traveled to the Social Security Office in Brooklyn and obtained a copy of a SSA booklet entitled, "What You Need to Know When You Get Disability Benefits." See id. ¶ 9. According to Boxill, on page 23 of this booklet, there is an explanation of how one may simultaneously claim that one is willing, ready and able to work and, at the same time, receive social security benefits for as long as nine months. See id.; see also What You Need to Know When You Get Disability Benefits [hereinafter "SSA Booklet"] at 23. Boxill forwarded this booklet to Wotorson around the same time. See Boxill Aff. ¶ 12. Based on this "newly discovered evidence," which Boxill claims "could not have been discovered within the allotted three weeks," Boxill requests reconsideration of the September 7, 2001 Memorandum and Order.
This booklet is Exhibit 4 to the Wotorson Affirmation.
At oral argument, plaintiff's counsel stated that he received the booklet on September 10, 2001.
Discussion (1)
Rule 60(b)(2) allows relief from judgment when a party submits "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." Rule 59(b) provides that any motion for a new trial must be filed "no later than 10 days after entry of judgment." As noted above, plaintiff is moving under Rule 60(b)(2) for relief from summary judgment entered against him on his Rehabilitation Act claim. Defendant opposes this motion of several grounds, each of which is discussed below.
As an initial matter, defendant argues that plaintiff's motion is untimely. Rule 60(b)(2) requires that the motion be made "within a reasonable time" and "not more than one year after the judgment . . . was entered." See also Korelis v. Pa. Hotel, 199 F.3d 1322, No. 99 Civ. 7135, 1999 WL 980954, at *1 (2d Cir. Oct. 8, 1999) (unpublished table decision) ("A motion for reconsideration on the basis of newly discovered evidence under Rule 60(b)(2) must be made within one year."). In this case, judgment was entered on September 20, 2001, and plaintiff's motion was filed on September 18, 2002, which is within the one-year limitation. Thus, plaintiff's motion appears timely.
Defendant nonetheless argues that plaintiff's motion is untimely because it should have been brought within the 10-day period for bringing a Rule 59(b) motion for a new trial. See Letter from Avi Schick to Judge Trager of 10/8/02 ("Def. Opp'n"). Indeed, defendant emphasizes plaintiff's concession that he obtained the SSA Booklet on or about September 10, 2001 — ten days prior to judgment — and forwarded it to his counsel around that time. For further support, defendant directs this court to a Second Circuit case, Schwartz v. Capital Liquidators, 984 F.2d 53 (2d Cir. 1993) (per curiam), which summarily affirmed the district court's dismissal of a Rule 60(b)(2) motion since "there was no indication that [the plaintiff] could not have discovered this evidence earlier." 984 F.2d at 53; see also Sumter v. Babbitt, No. 96 Civ. 0510, 1999 WL 1011946, at *1-2 (E.D.N.Y. Sept. 30, 1999) (finding a Rule 60(b)(2) motion is inappropriate when the moving party admits that the evidence was discoverable before entry of judgment).
By letter dated December 18, 2002, defense counsel confirmed that Brooklyn College would rely on his October 8, 2002 submission — a letter in opposition to plaintiff's pre-motion conference request — in opposition to plaintiff's Rule 60 motion. See Letter from Avi Schick to Judge Trager of 12/18/02.
However, despite the paucity of discussion, the courts in Schwartz andSumter do not appear to be addressing whether the plaintiff's motion was timely filed, rather they appear to address whether the evidence was, in fact, "newly discovered" within the meaning of Rule 60 — an entirely separate issue. In addition, Schwartz and Sumter address the denial of a Rule 60 motion for a new trial, and this case addresses a Rule 60 motion for relief from summary judgment. Thus, defendant's reliance on these cases to establish that plaintiff's motion is not timely filed is unconvincing.
Instead, other Second Circuit cases that have addressed Rule 60(b) motions for relief from summary judgment have summarily indicated that such motions are timely if submitted not more than one year after judgment. See Korelis, 1999 WL 980954, at *1 (affirming denial of Rule 60(b)(2) motion filed more than two and one-half years after initial district court decision); Thompson v. N.Y. City Transit Auth., 205 F.3d 1325, No. 99 Civ. 7257, 1999 WL 1254206, at *1 (2d Cir. Dec. 1, 1999) (unpublished table decision) (affirming denial of Rule 60(b)(2) motion filed 16 months after judgment). As indicated above, this motion was brought a couple of days shy of the one-year limitation and is therefore timely filed. Defendant's argument that plaintiff's motion is inappropriate because plaintiff's proffered evidence is not "newly discovered" within the meaning of Rule 60(b) is a separate issue that is discussed below.
(2)
A party moving for relief from a judgment must meet an "onerous standard." United States v. Int'l Bhd. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001). In order to vacate a judgment under Rule 60(b)(2), plaintiff must demonstrate that (1) the newly discovered evidence consists of facts that existed at the time of the prior decision; (2) he was excusably ignorant of the facts at the time of the original judgment, despite using due diligence to learn of them; (3) the newly discovered evidence is admissible and will likely change the result of the prior ruling; and (4) the newly discovered evidence is not merely cumulative of evidence already offered. See id. (citations omitted); Ross v. Global Bus. Sch., Inc., No. 99 Civ. 2826, 2002 WL 31433609, at *1 (S.D.N.Y. Oct. 30, 2002) (citations omitted). In other words, "a Rule 60(b)(2) motion cannot be granted unless newly discovered evidence would probably produce a different result." Savoie v. Merchs. Bank, 182 F.3d 901, No. 98 Civ. 9042, 1999 WL 385749, at *1 (2d Cir. June 7, 1999) (unpublished table decision) (citations omitted). Rule 60(b)(2) motions are addressed to the broad discretion of the court and are granted "only upon a showing of exceptional circumstances." Newmaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986); see also Int'l Bhd. of Teamsters, 247 F.3d at 391; Pal v. Apfel, 14 Fed. App. 113, 114 (2d Cir. 2001); Savoie, 1999 WL 385749, at *1.
Defendant claims that plaintiff's proffered evidence is not "newly discovered" because plaintiff admits that the evidence was discoverable, and actually discovered, before entry of judgment. "Evidence is considered `newly discovered' for purposes of Rule 60(b)(2) if it `existed at the time of the prior adjudication but . . . was discovered by the movant only after the entry of judgment.'" Johnson v. Askin Capital Mgmt., L.P., 202 F.R.D. 112, 114 (S.D.N.Y. 2001) (quoting Walker v. Dep't of Veterans Affairs, No. 94 Civ. 5591, 1995 WL 625689, at *1 (S.D.N.Y. Oct. 25, 1995)). A Rule 60(b) motion is inappropriate when the moving party concedes that the evidence was discoverable before entry of judgment. See, e.g., id. (citations omitted); Sumter, 1999 WL 1011946, at *1-2. In other words, under Rule 60(b), the new evidence must have existed at the time of the decision, but if it was `in the possession of the party before the judgment [or order] was rendered it is not newly discovered and does not entitle the party to relief.'" Kurzweil v. Philip Morris Co., Inc., Nos. 94 Civ. 2373, 2546, 1997 WL 167043, at *4 (S.D.N.Y. Apr. 9, 1997) (quoting 11 Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure: Civil § 2859 (2d ed. 1995)); see also Thompson v. County of Franklin, 180 F.R.D. 216, 221 (N.D.N.Y. 1998). For this reason, the Second Circuit has affirmed dismissals of Rule 60(b) motions when the moving party's counsel knew of the evidence at the time of judgment. See, e.g., United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir. 1983) (finding Rule 60(b)(2) evidence must be "`truly newly discovered or . . . could not have been found by due diligence'" and affirming the district court finding that evidence of which plaintiff's counsel knew "all along" is not newly discovered) (alterations in original) (quoting Westerly Elecs. Corp. v. Walter Kidde Co., 367 F.2d 269, 270 (2d Cir. 1966)).
In this case, according to his affidavit, plaintiff obtained the relevant evidence, the SSA Booklet, "on or around September 10, 2001." Thus, there is no question that plaintiff possessed the SSA Booklet at the time of judgment — September 20, 2001. Boxill Aff. ¶ 9. Moreover, according to plaintiff, he submitted the SSA Booklet to his attorney also on or around September 10, 2001. Id. ¶ 12. Therefore, plaintiff's counsel also possessed the information before entry of judgment. Even if plaintiff's evidence was not discovered before September 10, 2001, there is no doubt that the evidence could have been discovered by September 30, 2001, which was the deadline for filing a Rule 59(b) motion. See Fed.R.Civ.P. 60(b)(2) (allowing relief from judgment when a party submits "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)"); Fed.R.Civ.P. 59(b) (imposing 10-day time limit after entry of judgment).
Indeed, in terms of "`due diligence,' . . . the moving party must show why he did not have the evidence at the time of the trial or in time to move under Rule 59(b)." MTB v. Federal Armored Express, Inc., No. 93 Civ. 5594, 1998 WL 43125, at *3 (S.D.N.Y. Feb. 2, 1998) (internal quotation marks and citations omitted). Here, plaintiff was excusably ignorant of the relevant evidence at the time of oral argument on the summary judgment motion, which is why plaintiff was granted a three-week period from that date in which to track down the evidence. According to plaintiff's affidavit, he took various steps within that three-week period to find evidence to support his former attorney's assertion that he could claim that he is disabled in order to collect social security disability benefits and simultaneously claim that he is ready, willing and able to work in order to maintain a claim under the Rehabilitation Act. In fact, plaintiff attempted to contact his former counsel, Tobias, at Binder and Binder, plaintiff's current counsel conducted some unsuccessful legal research, and plaintiff requested a copy of relevant rules from the SSA.See Boxill Aff. ¶¶ 5-7. Apparently plaintiff was told that Tobias no longer worked for Binder and Binder. However, while plaintiff indicated that "he has not been able to locate him," he does not indicate what means, if any, he used to attempt to locate him. Id. ¶ 5. For instance, plaintiff has not indicated that he requested a forwarding address or phone number for Tobias from Binder and Binder.
In addition, plaintiff states that he never received the requested material from the SSA and that "out of frustration" he went to the Administration's offices after the expiration of the three-week period. However, as indicated above, the Memorandum and Order granting summary judgment in this case was not issued immediately after the three-week grace period expired, which would have been around July 24, 2001. Instead, the Memorandum and Order was issued more than a month later on September 7, 2001. While plaintiff apparently knew all along that such evidence existed, he fails to explain why he waited until after the Memorandum and Order was issued in this case to finally obtain the material from the Social Security Office. Given plaintiff's weak proffers of due diligence and his concession that he possessed the evidence at the time of judgment, plaintiff's proffered evidence is not newly discovered within the meaning of Rule 60.
The Second Circuit has rejected proffers of due diligence similar to those made by plaintiff in this case. In Potamkin, the district court imposed statutory penalties on the plaintiff for failure to timely file a report with the Federal Trade Commission. See 697 F.2d at 493. The plaintiff sought relief from the judgment under Rule 60(b) on the basis of newly discovered evidence, viz. three affidavits that purported to establish that the plaintiff had made the challenged filing earlier than previously indicated and, thus, that it was not subject to such a high penalty. See id. Since two of the affidavits were from the plaintiff's attorney and indicated that the attorney had known "all along" of the alleged earlier filing, the Second Circuit affirmed the district court's conclusion that the evidence was not newly discovered. In doing so, the Second Circuit also noted that the plaintiff's proffers of due diligence in discovering the earlier filing were feeble because he explained only that he was not able to reach the individual who purportedly made the filing because he was calling a wrong number that no one ever answered and that he could not locate the individual "by any other means" but did not specify what other means, if any, were attempted. See id. In this case, when an attempt was made to locate Tobias, plaintiff's benefits attorney, this court was able to get information in approximately fifteen minutes, further undermining plaintiff's proffer of due diligence.
(3)
Even if plaintiff's evidence is newly discovered, he must demonstrate that the evidence would affect the outcome of this case. Defendant argues that nothing in plaintiff's post-judgment submissions justify altering this court's prior decision. Plaintiff bases his Rule 60(b)(2) motion on a booklet from the SSA that purportedly validates his claim that regulatory authority exists that permits an individual in certain circumstances to seek social security benefits, yet simultaneously seek to return to work full time.
Specifically, the SSA Booklet states that under The Ticket to Work and Work Incentives Improvement Act of 1999, an individual "may be able to continue to receive benefits for up to nine months while [the individual tries] to work." SSA Booklet at 23. This "nine-month trial work period" need not be in a row, but it must take place within a 60-month period. If, at the end of the trial period, the SSA determines that the individual is able to do substantial work, the individual's social security benefits will cease after a three-month adjustment period. See id. According to the SSA Booklet, this trial-work period is part of a package of incentives to help individuals receiving social security benefits to make the transition back to work. See id. at 21.
However, the evidence offered by plaintiff is not effective in changing the result of the prior court order. The court's prior judgment was based on plaintiff's failure to establish a requisite element of his Rehabilitation Act claim. Specifically, the court found that plaintiff was judicially estopped from arguing that he was otherwise qualified for employment with defendant (i.e., that he was perfectly able to work) during the very same period that he asserted to the SSA that his disability prevented him from working. In doing so, the court acknowledged the Supreme Court's recognition in Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S.Ct. 1597 (1999), that recovery of social security benefits does not create a per se estoppel on a subsequent allegation in a Rehabilitation Act claim that an employee was not too disabled to work. Rather, the court noted, plaintiff has the burden of demonstrating why the two positions are not inconsistent. Since plaintiff failed to offer any evidence reconciling his inconsistent statements, his claim failed.
None of the evidence proffered by plaintiff in the current motion explains how he is qualified for the narrow exception to the general rule that a person may not simultaneously receive social security benefits and assert that they are fit to work full time. "The Supreme Court has held that statements made for the purpose of securing disability benefits, describing why the claimant is too disabled to work, do not necessarily bar the disabled individual from claiming in an ADA action that he can perform the essential functions of the job at issue." Parker v. Columbia Pictures Indus., 204 F.3d 326, 333 (2d Cir. 2000) (citing Cleveland, 526 U.S. 795, 119 S.Ct. 1597 (1999)). Nonetheless, the plaintiff must explain the inconsistency. See id. "The explanation must be `sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good-faith belief in, [the statement to the SSA], the plaintiff could nonetheless perform the essential functions of [his] job, with or without reasonable accommodation.'" Disanto v. McGraw-Hill/Platt's Division, 220 F.3d 61, 64 (2d Cir. 2000) (quotingCleveland, 526 U.S. at 807, 119 S.Ct. at 1604 (internal quotation marks and citations omitted)).
Plaintiff has pointed to no explanation in the record for his inconsistent statements other than a booklet from the SSA. However, that booklet does not explain why plaintiff is both disabled within the meaning of the Social Security Act, yet able to work within the meaning of the Rehabilitation Act. The existence of a Social Security booklet that explains a 1999 law, which allows individuals receiving social security disability benefits to attempt to return to work for nine-months, does not reconcile plaintiff's representation in May or June 1993 to the SSA that he was unable to work because of his disability, with his claim in March of the same year that he is able to return to his former position. Indeed, the mere fact that plaintiff may have attempted to return to work does not necessarily support the conclusion that he is able to work.
Moreover, the impetus of the Social Security law proffered by plaintiff appears to be the protection of individuals that are collecting social security — in other words, that may still be disabled — but want to try to re-enter the workforce without risking the loss of their social security benefits should their effort be unsuccessful. The regulation is not intended to assist someone in plaintiff's situation, who in effect is perpetuating what amounts to fraud on the SSA. Plaintiff's position in essence is that he was fit to return to work, but, nevertheless, should be able to collect social security as some form of unemployment insurance. This cannot be the reconciliation that the Supreme Court had in mind in the Cleveland case. Thus, because plaintiff has failed, to date, to reconcile his statements to the SSA with his Rehabilitation Act claim, the evidence presented cannot support a Rule 60(b)(2) motion.
Conclusion
For the foregoing reasons, plaintiff's Rule 60(b)(2) motion for relief from summary judgment is denied.
SO ORDERED.