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Sansone v. Brennan

United States District Court, N.D. Illinois, Eastern Division

February 1, 2017

ANTHONY SANSONE, Plaintiff,
v.
MEGAN BRENNAN, Postmaster General, Defendant.

          MEMORANDUM OPINION AND ORDER

          MILTON I. SHADUR SENIOR UNITED STATES DISTRICT JUDGE.

         After this Court issued the parties' jointly submitted final pretrial order ("FPTO"), the counsel for each side -- Anthony Sansone ("Sansone") as plaintiff and Postmaster General Megan Brennan ("Brennan") as defendant -- submitted the motions in limine that had been forecast in the FPTO, and each then responded to the other side's motions. In contemplation of the forthcoming trial, this memorandum opinion and order will deal with those motions, first those of plaintiff Sansone (cited "Sansone No. -"), then those of Brennan (cited "Brennan No. -").

         Although each litigant's submissions have been substantially more extensive than this opinion will be in expounding the predicates for his or her positions in support of and in opposition to the motions, for the most part this Court sees no need to be similarly expansive in its treatment. Instead it will sometimes simply refer to a party's memorandum (cited "Mem." or "R. Mem.") as the basis for its ruling.

         But even before this opinion turns to that task, it may be worth exploring a question of principle posed by certain of the arguments advanced by Brennan's counsel that strike this Court as more than dubious. As is true whenever the conduct of some branch of the federal government is in issue, Brennan is represented by a member of the United States Attorney's Office. Query: Does that position as a representative of the government, which really means representative of the people of the United States, [1] suggest that the conduct of such a lawyer should be measured by a more demanding yardstick than that applicable to lawyers for private clients?

         In the ABA's Model Rules of Professional Conduct, a number of those Rules (Model Rules 3.1 to 3.9) are grouped under the rubric "Advocate, " largely reflecting the lawyer's duty of loyalty to his or her client. But advocacy has its limits, so that Rule 3.1 is captioned "Meritorious Claims and Contentions" (emphasis added) and Rule 3.3 is captioned "Candor Toward the Tribunal, " with the latter Rule teaching that loyalty to the client is not unbounded. And one difference between lawyering for a private client and lawyering for the government (that is, for the people of the United States) -- a difference on which this Court, despite its more than three decades in the private practice followed by more than three decades as a judge, had really not been called upon to focus before the current analysis -- is that the private client's lawyer who is called upon to advance a questionable position is free to withdraw from representation rather than taking that stance, while a government lawyer does not enjoy that freedom.

         Having posed that philosophical query, this Court has resolved it by recognizing that the obvious inability to define the government lawyer's role by articulating some objective standard that reflects the just-stated distinction must perforce leave the matter to the best judgment of the government lawyer involved in a case. Thus this opinion has not applied stricter scrutiny to the positions advanced by government counsel, even though such an approach taken by the lawyer himself or herself might well be justified conceptually. In any event, that consideration has made no difference in the result here, for the analysis that follows reveals a substantial number of areas in which government counsel has fallen short by any reasonable standard.

         Sansone's Motions

         Sansone No. 1 is described this way at his Mem. 1:[2]

Plaintiff moves in limine that defendant be barred from stating that plaintiff, in his original complaint, sought reinstatement as part of his prayer for relief, that defendant be barred from asking plaintiff questions about that aspect of the prayer for relief in his original complaint, and that defendant's opinion witness, Dr. Diana Goldstein, be barred from testifying about that aspect of plaintiff's original prayer for relief. Testimony about this superseded pleading is likely to confuse the issues and the jury.

         As Sansone's memorandum goes on to explain, the original Complaint, drafted of course by counsel, contained a "boiler-plate prayer for relief" that included a request for reinstatement. And that is described in the motion as a lawyer's error, an assertion supported by a citation to Sansone's deposition, and the motion then correctly states that the claimed error was corrected in both the first amended complaint and a second amended complaint by omitting the request for reinstatement.

         In an attempted response to that assertion, Brennan's memorandum points to aspects of Sansone's conduct that evidence his desire to obtain a reasonable accommodation - an accommodation rejected by the Postal Service -- that would have permitted him to continue working despite his serious disability (this action is brought under the Americans With Disabilities Act). In that regard this Court will certainly allow evidence and argument that recount Sansone's statements and conduct, but nothing really supports the contention that the lawyer-drafted pleading ought to be added to the mix.

         On that score our Court of Appeals has dealt with a like situation in DePaepe v. Gen'l Motors Corp., 141 F.3d 715, 719 (7th Cir. 1998), where it upheld the trial judge's exclusion of evidence "to keep the jury focused on the claim of liability that requires decisions, " rather than "allow[ing] the defendant to put the plaintiff's litigation tactics on trial." And to that end DePaepe appropriately called into play the discretion conferred by Fed.R.Evid. 403 in balancing the danger of such matters as creating "unfair prejudice" against the minimal (if any) probative value of the challenged evidence.

         Any knowledgeable litigator knows (1) that the task of drafting pleadings is that of the lawyer and not the client and (2) that even a client who is given a draft pleading to review before it is filed reads it through a layperson's lens, not a lawyer's. It was in encountering resistance by government counsel on this issue right off the bat that this Court was first led to raise the question that has been posed earlier. In brief, Sansone No. 1 is granted.

         Sansone No. 2 is captioned "Motion to preclude testimony or argument that Mr. Sansone has received disability retirement benefits." In that respect it will be remembered, and the litigants have agreed, "that all issues related to Mr. Sansone's loss of pay are equitable issues to be decided solely by the Court if the jury returns a liability verdict in favor of the plaintiff" (Sansone Mem. 4).

         In response to that motion Brennan's counsel unpersuasively contends that Sansone's decision to take a disability retirement "evidenc[es] Sansone's responsibility for the breakdown in the interaction process" (Brennan R. Mem. 3) and goes on to urge that any invocation of the collateral source rule is inappropriate "because the source of the retirement benefits -- the federal government -- is not collateral" (id.). That assertion, understandably proffered without any support at all from authority, distorts the concept of the term "collateral" in the doctrine that is commonly described as the "collateral source rule, " as that doctrine has been stated and applied in the caselaw (including but not at all limited to the cases cited at Sansone's Mem. 4 and 5). Again Brennan's counsel's approach does that counsel no credit, and Sansone No. 2 is also granted.

Next comes Sansone's No. 3, which his counsel captions this way:
Motion to preclude testimony about conversations and e-mails with Postal Service attorney Isabelle Ferrera.

         On that score Sansone's counsel invokes Fed.R.Evid. 408, characterizing "[t]hose discussions [as] settlement talks to see if Mr. Sanasone's EEO complaint could be settled" (Sansone Mem. 5).

         Brennan R. Mem. 3-6 begins by arguing that the e-mails between Sansone and Ferrera between November 30 and December 3, 2011 "evidence Sansone's responsibility for the breakdown in the interactive process." But Ferrera's own December 5, 2011 e-mail to Sansone directly confirms the latter's Fed.R.Evid. 508 characterization:

As we discussed previously, my role in connection with this matter was to explore with you a possible resolution of the discrimination claim you raised in the EEO Pre-complaint Counseling process.

         In an effort to deflect the plain meaning of that statement, Brennan R. Mem. 4 emphasizes that Brennan "never made an offer of settlement to Sansone." But although that contention takes the exchange between the two out of Fed.R.Evid. 408(a)(1), Rule 408(a)(2) also prohibits evidence of "conduct or a statement made during compromise negotiations about the ...


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