Opinion
00 Civ. 1436 (GEL)
January 23, 2003
Mathew Paulose, Jr., Koehler Isaacs LLP, New York, NY, for Plaintiff Marcial Santos
Elise M. Bloom and Elizabeth Cowit, Jackson Lewis LLP, New York, NY, for Defendant Fedcap Rehabilitation Services, Inc.
OPINION AND ORDER
Marcial Santos, a former employee of defendant Fedcap Rehabilitation Services, Inc., filed this lawsuit claiming that Fedcap, in violation of the Americans with Disabilities Act ("ADA"), dismissed him from his employment on account of his disabilities. After a two-day trial on September 24 and 25, 2002, in which Santos appeared pro se, the jury found for the defendant. Santos, now represented by counsel, has moved for a new trial pursuant to Fed.R.Civ.P. 59, claiming that the Court erroneously failed to instruct the jury that a possible reasonable accommodation would have been to offer Santos a job other than as a custodian. Because this Court finds that such an instruction was not warranted by the testimony and arguments presented at trial, and because no reasonable jury would have returned a verdict for the plaintiff had the proposed instruction been given, the motion for a new trial will be denied.
BACKGROUND
The following facts are based on testimony and exhibits presented at trial. Santos was employed as a custodial worker by Fedcap, a nonprofit organization whose mission is to help find employment for disabled persons, from August 1991 through December 1998. (Tr. 80, 101.) It is undisputed that Santos worked as a custodian for his entire time at Fedcap, although is job location, duties and assignments were modified several times to accommodate his abilities and preferences. (Tr. 140-41.) Santos's disabilities include sickle cell anemia and gout. (Tr. 80-81.)
Beginning on August 3, 1998, Santos was granted a one-month leave of absence because his "serious health condition" made it impossible for him to work. (Tr. 159-60.) Santos, however, did not return to work at the end of the month; rather, Fedcap initiated a meeting with Santos on September 10, 1998, at which it informed Santos that it would hold his job open, as required under the Family and Medical Leave Act, for a total of 12 weeks, that is, until October 26, 1998. (Tr. 162.) On October 26, 1998, Santos came to the Fedcap offices. He brought a checklist provided by his doctor listing his limitations and confirming that Santos had only limited ability to perform most of the essential functions of a custodian's job. (Tr. 127-28; D. Ex. 25.) Under circumstances that were disputed by the parties, Santos did not return to or was not permitted to return to his job. (Tr. 69-72, 94-102, 125-26, 13Z-33, 14 1-42.) Fedcap dismissed Santos in December, well beyond the 12-week period during which it had agreed to hold the job open. (Tr. 166-67.)
Santos, who was hampered in his presentation at trial by his less than perfect command of English, did not clearly state what, if any, accommodation he felt he needed. Rather, he appeared to take the position that he was ready on October 26, 1998, to go back to work without any accommodation and that Fedcap's refusing to put him back on the job, and its later termination of his employment, were motivated by bias or lack of concern. In his brief and moving, but ultimately not very clear, opening statement, he did not refer to any request or desire for a transfer to another job or any other accommodation, but simply stated that he was disabled by sickle-cell anemia, and that he "was trying work, keeping the work," but that Fedcap "took away the job from me. That's why I call them discrimination." (Tr. 60-61.)
Similarly, in his direct testimony he did not refer to any request for transfer to another job, nor did he claim he knew of any other job that was available. Rather, after describing the history of his employment with Fedcap, he described a visit to his doctor where he requested "a medical leave for treatment," which the doctor confirmed he needed. (Tr. 69.) He appeared to describe a disagreement over the length of the proposed leave: "Then I was in treatment like three months. Fedcap send me a letter, he cannot hold my job for six months. So I'm going to lose my job. So I don't even finish the treatment." (Id.) Describing what appears to have been the disputed series of meetings on October 26, 1998, he claimed that he was able to work, but that his employer would not let him:
Then [Rich Manigault, Santos's supervisor] told me he cannot. accept me because I'm sick. And I tell him, why? You not my doctor. You cannot tell me I'm sick. You know, let me do it my job, because I need it my job. . . . You not my doctor. . . . My doctor give me. . . back to the work because I'm all right to do my job.
(Tr. 70.) After a brief discussion of getting a run-around from various officials, and not being given various necessary forms or being told Fedcap had not received required forms from his doctor, he described a meeting with another Fedcap official:
. . . I asked the woman to tell me the truth if she has got job or not. The woman told me, you ain't got job with us. . . . You lose the job. Then why I'm lose the job? Just for getting sick? Just for my disability?
(Tr. 72.) A factual dispute existed at trial over whether, in fact, Santos was able to work at that time, and whether in fact he told Fedcap he was able to work or would be able to in the near future. The jury would have been entitled to find that Santos in fact was not able to perform the essential duties of his job on October 26, 1998, or at any time thereafter until his firing in December, based on an abundance of testimony and documents offered by the defendant, including Santos's admissions (1) that he himself had told Fedcap when he returned to work that he was returning too soon, and that if something happened to him he would sue Fedcap (Tr. 101), and (2) that he had applied for and received Social Security disability benefits on the representation that he was totally disabled (DX 49).
Except for a cryptic and oblique reference, in the context of a conversation with his doctor (not his employer), to "light duty" (Tr. 71), Santos at no time indicated that he believed he needed any accommodation to do his job, still less that he sought transfer to another kind of work that he could do. Rather, in response to questions from the Court, asked in order to assist Santos in clarifying his claims and establishing a prima facie case, Santos was unequivocal in stating that when he returned to work on October 26, he "was able" to do the work he was assigned to do, which consisted of buffing the floors with a buffing machine. (Tr. 73-74.) On cross-examination, Santos testified to discussions with Fedcap officials about whether he was able to work and whether his job could be held open longer than the leave he had already received (Tr. 95-101), but never stated that he had asked for transfer to another job.
Finally, in his summation, Santos returned to his consistent position that when he returned to Fedcap, "I was trying to get my job back, but they refuse to give it to me." (Tr. 204) The only possible concession that he was unable to perform his regular duties without accommodation came at the end, and the reference was clearly to the possibility that a longer leave might have enabled him to return to full duty: "Fedcap he never waited for the time when I needed for the treatment because I was needed longer, longer time for the treatment to get better then to [go] back to work." (Id.)
In instructions that are not challenged by Santos, the Court instructed the jury that in order to establish his case, Santos would have to prove (among other things) that he was a qualified individual, meaning that "he was otherwise qualified for the position he held," and that with or without a reasonable accommodation he could perform the essential functions of that employment position." (Tr. 216.) Although Santos's primary argument appeared to be that he was ready, willing and able to work at his regular job at the time he was fired, even without an accommodation, the Court, seizing on the scraps of testimony suggesting that perhaps with further treatment he could have returned to the job later, concluded that there was a material factual dispute as to whether (even if the jury found Santos could not perform his job at the time he was fired) an extended leave of absence might have been an accommodation that would have allowed Santos eventually to perform his job responsibilities safely. Accordingly, the Court, over defense objection (Tr. 228-29), instructed the jury on the employer's duty to provide a reasonable accommodation, in terms that again are not disputed by Santos:
If you find that Mr. Santos required some accommodation to do his job, you must consider whether there were reasonable accommodations the defendant could have made that would have enabled Mr. Santos to fulfill the essential functions of his job that he could not otherwise fulfill.
An employer must be willing to consider making certain changes or accommodation in its ordinary work rules, facilities, or the terms and conditions of employment in order to enable a disabled individual to work. A reasonable accommodation is a change which enables a disabled employee to perform the essential functions of the job.
A disabled employee has the obligation to suggest reasonable accommodations to the employer. But. . . an employer is required to make only those reasonable accommodations which allow the employee to function in the position. . . .
Under the circumstances in this case, reasonable accommodation means a reasonable adjustment or modification to plaintiff's job as a custodian that would enable a qualified individual with a disability to satisfactorily perform all essential job functions of a FEDCAP custodian without imposing undue hardship on FEDCAP.
(Tr. 218-19.)
After defining the concept of reasonable accommodation in these general terms, the Court added a specific instruction concerning leaves of absence, to make clear to the jury the not obvious fact that a leave of absence, like a reduction in duties or the provision of special equipment, could be a reasonable accommodation if the statutory requirements were met:
A leave of absence can be a reasonable accommodation if you find that allowing the leave would enable the employee to perform his job and would not impose undue hardship on the employer.
(Tr. 219-20.) Since no other specific type of accommodation had been suggested by the evidence, the Court did not address any other form of accommodation, though the reference to leaves of absence was clearly non-exclusive, and the definition of reasonable accommodation was broad and general.
Santos argues that the Court should also have instructed the jury that reassignment to a position other than custodian was a reasonable accommodation Fedcap was obligated to offer because the pro se plaintiff, whose native language is not English, at least attempted to introduce reassignment as a theory and to support it with evidence. Fedcap responds that the jury instruction was correct in that it reflects the arguments and evidence presented at trial, and that in any case, the evidence that reassignment was an available reasonable accommodation was so slight that omitting a reassignment charge, if error at all, would be harmless. Fedcap also argues that Santos cannot now challenge the jury instruction since he did not object to it at trial or propose the language he now contends was required.
DISCUSSION
Fed.R.Civ.P. 51 speaks directly to the circumstances under which erroneous jury instructions may become the basis for challenging a verdict: "No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." The Second Circuit has recognized one, and only one, judge-made exception to this requirement: when "there is `plain error' — that is, where the error may result in a miscarriage of justice or in obvious instances of misapplied law." Earl v. Bouchard Transp. Co., Inc., 917 F.2d 1320, 1324 (2d Cir. 1990) ("An exception may be made only when there is "plain error."' (emphasis added)).
Whether or not requested, omission of a particular charge is error only if the charge relates to an "essential" issue raised at trial. See Owen v. Thermatool Corp., 155 F.3d 137, 139 (2d Cir. 1998) ("We will not upset a judgment because of an error injury instructions if the charge actually given was correct and sufficiently covered the essential issues." (internal quotations omitted)). And when there is no "factual predicate" for a proposed instruction, a party is not entitled to it. McCardle v. Haddad, 131 F.3d 43, 52 (2d Cir. 1997). Finally, even if omission of a charge is erroneous, a new trial is not warranted when the error is harmless — that is, when it could not have influenced the jury's verdict. Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000).
Santos concedes that he did not object to the omission of a reassignment charge. Therefore, his success in this motion requires that the omission of the charge not only be technically erroneous, but that it be both "plain error," and, perhaps equivalently, not harmless error.
Plaintiff's counsel attempts to extract from testimony and arguments presented at trial evidence of a conscious effort by Santos to claim that he requested and was denied reassignment to a position other than as a custodian when he went back to Fedcap hoping to return to his custodial job in October 1998. But "an ADA plaintiff complaining of his employer's failure to provide a reasonable accommodation bears both the burden of production and the burden of persuasion on the question whether a suitable vacancy existed at the time he sought transfer." Jackan v. New York State Dept. of Labor, 205 F.3d 562, 567 (2d Cir. 2000). Even liberally construing the language Santos used as a witness and as a pro se advocate, in light of his limited knowledge of English and his lack of legal training, the Court finds no support in the record for plaintiff's claim that he raised reassignment as a viable accommodation either in his dealings with Fedcap in late 1998 or as an issue at trial, let alone that there was evidence that would permit a reasonable jury to find that he had carried his burden of proof on this issue.
Nothing in plaintiff's opening or closing statements at trial indicated that he regarded reassignment as an issue in dispute. The single excerpt from Santos's trial arguments cited in plaintiff's memorandum refers only to his desire to go back to his job, and does not mention anything about a transfer. (P. Mem. 8, citing Tr. 60.) Plaintiff's memorandum otherwise relies entirely on argument by defense counsel that reassignment was not possible at the time Santos was discharged from employment. Id. But that argument serves only to call attention to the fact that plaintiff did not raise the issue, and that the only evidence in the record on the subject of reassignment was testimony by defense witnesses that there were no other jobs that Santos could perform. Even this testimony was elicited only as a concluding flourish in support of Fedcap's claim that Santos's abilities were too severely limited for any employment it might be able to offer. The extensive direct examination of Miriam Greene, Fedcap's former director of vocational rehabilitation, concluded with the following three questions from defense counsel:
Q: Were there any other positions available at that time that Mr. Santos could perform with these limitations?
A: Not to my knowledge.
Q:. . . Do you believe Mr. Santos was discriminated against?
A: I don't. . . . Fedcap's employment programs only hire people who have disabilities, but they have to be able to do their job . . .
Q: Why would you have consulted [Human Resources] with regard to. . . the termination of his employment?
A: I think it was our practice to always do that. . . .
(Tr. 129.) The direct examination of Judith Kraut, Fedcap's Director of Human Resources, concluded with three similar wrap-up questions:
Q: Were there any other positions that were available at that time that Mr. Santos could perform with his limitations?
A: No. there were not.
Q: Has Mr. Santos ever indicated to you that he's ready to come back to work?
A: No, he has not.
Do you believe that [Santos's allegations of discrimination] are true?
A: No. I do not.
Q: Why not?
A: The mission of Fedcap is to help people with disabilit[ies]. . . We do not discriminate. . . .
(Tr. 167.)
Nor did any testimony or other evidence at the trial establish a factual predicate upon which a jury could find that reassignment was a viable accommodation. None of the evidence tended to show that Santos requested reassignment. Santos cites an extended excerpt from his direct testimony, in which he describes his efforts to return to work. (P. Mem. 9-10, citing the portion of Tr. 69-72 set forth in detail above.) Nothing in that excerpt establishes that Santos requested anything other than a job as a custodian; plaintiff's asking Fedcap whether it "has got job or not" does not, in context, sound anything like an attempt to "engage in a discussion about reassignment." (P. Mem. at 10.)
Nor was there any factual support for a claim, had Santos made it, that reassignment would have been possible. Plaintiff relies on the testimony of Miriam Greene, Fedcap's Rehabilitation Counselor, that Fedcap's "goal was to place everyone who completed the training program. . . in any company around the city, or in one of the FEDCAP programs." (Id. at 12.) This testimony at most indicated that Fedcap had jobs other than custodial ones, or had custodial jobs at other locations that might have had different responsibilities than the particular ones attached to Santos's assignment. It does not, however, address whether any other job was open at the time Santos was dismissed, or whether Santos could perform the essential functions of such a job, particularly since Greene's statement was background testimony relating to Santos's entry into the Fedcap program in 1991. The only explicit references to the possibility of reassignment are Greene's and Kraut's testimony, quoted above, that there were in fact no positions available in late 1998 that Santos could perform. There was, moreover, extensive testimony from Yvonne Sanchez, Santos's supervisor, on both direct and cross-examination, as to extensive efforts to accommodate Santos's physical handicaps over the years. (Tr. 140-47.) With no evidence in the record casting doubt upon the veracity of Greene's and Kraut's statements, there was no "factual predicate" warranting that the jury be instructed on reassignment.
For these reasons, the omission of a reassignment instruction was not error at all. Moreover, even if the wisps pulled together by Santos were deemed to have sufficiently raised the issue of reassignment to require a jury instruction, the failure to give such an instruction was neither plain nor harmful error. Error is "plain" if it "may result in a miscarriage of justice" or if it is an "obvious instance of misapplied law." Earl, 917 F.2d at 1324. There was no misapplication of law here, since the jury was clearly and correctly instructed, in non-exclusive terms, that an employer is required to provide an accommodation that meets the general legal standards of effectiveness and lack of undue hardship. Santos complains not that the jury was precluded from considering the theory he now advances, but only that it should have been alerted to consider another possible example of a reasonable accommodation.
Nor was there a miscarriage of justice; indeed, any error was harmless. Based on the testimony presented at trial, and discussed above, no reasonable jury could have returned a verdict for the plaintiff based on Fedcap's failure to consider reassigning Santos to a position other than custodian. As discussed above, two witnesses testified that Fedcap had no other position that Santos was qualified for, and Santos elicited no evidence to the contrary. And there is not a scintilla of evidence in the trial record indicating that Santos requested or contemplated reassignment; rather, the record shows rather clearly that, when Santos reported to work in October 1998, he contemplated only returning to his old job as a custodian:
Q: You came to work with a letter from your doctor which said that you could. . , come back. Is that right?
A: Yeah. . . . I went back to my doctor. . . . No want to lose my job. . . . Doctor ask me, what you want to do? I tell him give me the paper, go back to job because I don't want to lose my job. Beause it's hard for me to find this job. So I don't want to lose it.
(Tr. 97.)
Mr. Santos is a very sympathetic figure. His physical disabilities are burdensome, and his dignified and persistent efforts to return to work rather than content himself with disability payments or welfare command respect. Moreover, the Court must accord every consideration to a plaintiff who labored in court under the additional handicaps of pro se representation, limited education, and weak language skills. Finally, the Court is grateful for the efforts of counsel who has undertaken, at this late stage of the proceedings, the difficult task of moving for a new trial on this record.
Nevertheless, a plaintiff is not entitled to try a case pro se and then, when the result is unsatisfactory, take another bite at the apple with counsel. From the very first pre-trial conference, defendant expressed an interest in settling the case. Early in the litigation, Magistrate Judge Dolinger referred the case to the Court's mediation program for pro se employment discrimination cases, in which plaintiffs are provided with counsel to assist in the mediation. (Dkt. Entry No. 21.) Judge Dolinger also held a settlement conference, at which Santos surely was provided with information about the law governing his case, an opportunity to present his arguments, and the magistrate's good offices to facilitate a fair resolution. (Dkt. Entry No. 23.) Nearly four months before the trial, the Court requested pro bono counsel for plaintiff (Dkt. Entry No. 33), but no lawyer stepped forward to take the case. At the trial, the Court elicited a reasonable settlement offer from defendant, and advised Mr. Santos of the difficulties he faced and the advantages of settlement. (Tr. 2-4.) After the plaintiff's case, the Court again urged Mr. Santos to consider settlement. (Tr. 116-19.) The Court also did what it could to clarify plaintiff's testimony, and to make sure he did not inadvertently omit required aspects of his prima facie case. (Tr. 73-75.) Plaintiff had a fair trial, and the jury reached the only conclusion a reasonable jury could reach on this record. It is time for this litigation to end.
CONCLUSION
For the reasons stated above, plaintiff's motion for a new trial is denied. The Clerk is respectfully directed to enter judgment for the defendant in accordance with the jury's verdict.
SO ORDERED