Wasser v. NY STATE OFF. OF VOC. AND EDUC. SERVS., Civil Action No. CV-01-6788 (DGT).

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Citation: 683 F. Supp.2d 201
• Docket Number: Civil Action No. CV-01-6788 (DGT).
• Parties: Michael J. WASSER, Plaintiff, v. NEW YORK STATE OFFICE OF VOCATIONAL AND EDUCATIONAL SERVICES FOR INDIVIDUALS WITH DISABILITIES; Lawrence Gloeckler, Deputy Commissioner New York State Education Department, Office of Vocational and Educational Services for Individuals with Disabilities, in his individual and official capacities; Danna Mitchell, Brooklyn Office Manager, New York State Education Department, Office of Vocational and Educational Services for Individuals with Disabilities, in her official and individual capacities, Defendants.
• Decision Date: 27 August 2008

683 F.Supp.2d 201

Michael J. WASSER, Plaintiff,
v.
NEW YORK STATE OFFICE OF VOCATIONAL AND EDUCATIONAL SERVICES FOR INDIVIDUALS WITH DISABILITIES; Lawrence Gloeckler, Deputy Commissioner New York State Education Department, Office of Vocational and Educational Services for Individuals with Disabilities, in his individual and official capacities; Danna Mitchell, Brooklyn Office Manager, New York State Education Department, Office of Vocational and Educational Services for Individuals with Disabilities, in her official and individual capacities, Defendants.

Civil Action No. CV-01-6788 (DGT).

United States District Court, E.D. New York.

August 27, 2008.

683 F. Supp.2d 203

Michael J. Wasser, Brooklyn, NY, pro se.

Kathryn Carter Spann, New York State Attorney General, Michael R. Klekman, State of New York Office of the Attorney General, Labor Bureau, New York, NY, for Defendants.

MEMORANDUM AND ORDER

TRAGER, District Judge:

Plaintiff Michael J. Wasser ("Wasser") commenced this action pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (the "Rehabilitation Act")and 42 U.S.C. § 1983 ("§ 1983") against the New York State Office of Vocational and Educational Services for Individuals with Disabilities ("VESID"); Lawrence Gloeckler ("Gloeckler"), the Deputy Commissioner of the New York State Education Department, in his official and individual capacities; and Danna Mitchell ("Mitchell"), VESID's Brooklyn Office Manager, in her official and individual capacities. Wasser, a beneficiary of a federally-funded vocational rehabilitation services program administered by VESID, claims that defendants denied him various benefits and services to which he is entitled under Title I of the Rehabilitation Act. The parties are presumed to be familiar with the 2003 Memorandum and Order in this case. Wasser v. N.Y. State Office of Vocational and Educ. Serv. for Individuals with Disabilities, No. 01-CV6788, 2003 WL 22284576, 2003 U.S. Dist. LEXIS 17496 (E.D.N.Y. Sept. 30, 2003) ("Wasser I").

Wasser is seeking review of the decision issued on July 18, 2001 by hearing officer David Marasciullo ("Marasciullo"), which denied Wasser's claims and found that VESID had provided him with adequate services as required by state and federal law. Defendants are seeking dismissal of all claims remaining after Wasser I. For the reasons explained below, Wasser's remaining claims are dismissed.

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Background

(1)

Wasser is 34 years old and suffers from muscular dystrophy, which has rendered him "functionally a quadriplegic." Compl. ¶ 8. He is dependent for all activities of daily living and uses a computerized motorized wheelchair. Id. Wasser became a VESID client in 1992, and in collaboration with VESID staff he developed an Individualized Written Rehabilitation Program ("IWRP") that listed his career goal as "corporate lawyer." See Wasser IWRP, attached as Ex. B to Affidavit of Frank Stechel in Support of Defendants' Supplemental Submission on Motion to Dismiss ("Stechel Aff."), at 62. In furtherance of his IWRP, Wasser received counseling services and benefits from VESID, including adapted computer systems, transportation and tuition for his undergraduate education, and transportation and partial tuition at Brooklyn Law School. See Record of Goods and Services Authorized and Vouchered for Payment by VESID on Behalf of Wasser, 1991-2001, attached as Stechel Aff. Ex. A. From 1992 until VESID closed Wasser's case in March 2000, VESID spent approximately $132,000 on Wasser's vocational rehabilitation. Rehabilitation Closure Case Note (Mar. 17, 2000), submitted as Wasser Hearing Ex. 21.¹

Wasser's relationship with VESID has been contentious from the start. As a VESID client, Wasser has challenged VESID's provision of services on numerous occasions and initiated four separate agency hearings. In 1993, while Wasser was a student at Brooklyn College, he initiated (and won) a hearing challenging VESID's refusal to provide him with a desktop computer equipped with speech-recognition software. Declaration of Michael Wasser, dated Jun. 7, 2006 ("Wasser Decl.") at ¶¶ 37-41. The hearing officer reversed the agency's decision, finding the VESID technology expert and the VESID evaluator to be "evasive and not credible." Id. ¶ 40. Despite the finding in his favor, Wasser did not receive the requested technology until the spring of 1995. Id. Wasser contends that after this hearing, "the entire VESID agency began to act vindictively and abusively towards him." Compl. ¶ 10.

In 1997, after graduating from Brooklyn College and just prior to commencing his studies at Brooklyn Law School, Wasser sought assistance from VESID in acquiring a laptop computer and accessible writing surfaces. Wasser contends that he wanted to create "an environment of cooperation with VESID," in order to allow him to be "ready to compete with his peers in law school." Wasser Decl. ¶ 42. VESID denied this request, explaining that he had succeeded at Brooklyn College without a laptop and that Brooklyn Law School was responsible for providing the tables. Id. Wasser initiated a fair hearing to challenge that decision. After the first session, Wasser also requested that Defendant Danna Mitchell be removed as his caseworker and that Defendant Lawrence Gloeckler remove the presiding hearing officer, claiming the officer was "derelict in carrying out his responsibilities and ultimately failed to allow for an objective or open airing of Wasser's position." Wasser Decl.¶ 50. VESID's Client Assistance Program also requested that the hearing officer be removed and stated that Defendant Mitchell "harbors a considerable animosity towards the Wassers which ... represents a substantive barrier to his access to VESID's services." Id. As noted

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in the 2003 Order, Wasser also alleged that the hearing officer and VESID representatives engaged in misconduct during the hearing process. Wasser I at *2, 2003 U.S. Dist. LEXIS 17496 at *7. Though Gloeckler refused to remove the hearing officer or reassign Wasser's case, the dispute was ultimately settled and Wasser was provided with the requested equipment. Wasser Decl. ¶¶ 50-51, 53.

Later in 1997, Wasser requested a second fair hearing to challenge VESID's failure to provide ambulette transportation and fees for summer courses at Brooklyn Law School. Wasser Decl. ¶ 56. VESID denied the request on the grounds that Wasser did not meet VESID's summer school guidelines.² Letter from Thomas J. Couto to M. Wasser (May 27, 1997), attached as Wasser Decl. Ex. 45. On May 27, 1997 the hearing officer upheld VESID's decision. Wasser Decl. ¶ 59. In the summer of 1998, Wasser again requested that VESID sponsor the cost of summer courses, and VESID again denied the request.

Wasser graduated from Brooklyn Law School in 1999, and he sat for and passed the New York State bar examination in July of that year. Wasser I at *3, 2003 U.S. Dist. LEXIS 17496 at *9. Prior to commencing his career at the New York City Law Department as an Assistant Corporation Counsel in September 1999, Wasser notified VESID in a one-sentence letter that he had secured employment. Letter from M. Wasser to Danna Mitchell (Sept. 9, 1999), attached as Stechel Aff. Ex. C.³ After receiving notification from Wasser that he had secured employment, Mitchell sent Wasser a letter congratulating him on his success. Mitchell also requested that Wasser provide details about his job, and invited Wasser to notify VESID should he encounter any problems in the course of his employment with which VESID could be of assistance. Letter from Danna Mitchell to M. Wasser (Sept. 20, 1999), attached as Stechel Aff. Ex. D. Wasser only responded to VESID's request for information after a second letter was sent. See Letter from Danna Mitchell to M. Wasser (Oct. 28, 1999), attached as Stechel Aff. Ex. E. In his reply to VESID's request for information, Wasser stated: "I do not give you, nor anyone from VESID permission to contact my employer, or any representative of my employer, under any circumstances. You have proved yourself untrustworthy and dishonest." Letter from M. Wasser to Danna Mitchell (Jan. 5, 2000), submitted as Wasser Hearing Ex. 1. In this same letter, Wasser requested information about transitional and other services available to him, as well as a back-up motorized wheelchair and a van modified for a driver or passenger pending the outcome of his driver evaluation. Id.

VESID closed Wasser's case on March 17, 2000 because, according to VESID, he had achieved his vocational objective and had been successfully employed for over ninety days. See Letter from Danna

683 F. Supp.2d 206

Mitchell to M. Wasser (Mar. 17, 2000) "Closure Letter", submitted as Wasser Hearing Ex. 3. Although VESID acknowledged during the hearing that it normally speaks with a client before closing a case, VESID did not discuss closure with Wasser because doing so was not required under VESID policy and because it had obtained the requisite information for case closure without such a meeting. Jan. 8, 2001 Tr. at 93:21-98:20; see also Rehabilitation Closure Case Note (Mar. 17, 2000), submitted as Wasser Hearing Ex. 21. In addition, Danna Mitchell noted in Wasser's Rehabilitation Closure Case Note that she was reluctant to inform Wasser of the decision to close his case in advance because

experience tells us that the family will respond with their usual verbal abuse. I am really reluctant to invite that by giving advance notice of closure .... He has always made it clear that he did not value and did not want anything resembling a counseling relationship with VESID staff. VESID has provided funds for his undergraduate degree at Brooklyn College, his law degree at Brooklyn Law School, Special Transportation, several evaluations, a very comprehensive computer system for his home and a laptop for law school, major home modifications and furniture for their home, as well as a

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