Judge Allows Jury to Resolve a Dispute: Pesce vs. NYPD

Sounds simple, right?

Lawsuits start because two parties are in a dispute. That is the whole point. No one goes around suing somebody they agree with. That is why we have juries: to settle disputes and decide who is more likely telling the truth.

These guys need something to do

But remarkably, many, many employment cases get thrown out of court because a judge decides the parties do not dispute one or more important facts. That means a jury never gets to decide which side is telling the truth.

So it is refreshing when a judge is able to recognize disputed facts, and lets the case go before a jury.

Consider this scenario. A person with epilepsy wants to be a police officer. He takes medication that have successful prevented any seizures for seven years. Two doctors agree that the epilepsy is well controlled and that the person can safely perform the duties of a cop.

The police department sees things differently. It thinks it is too dangerous for a person with epilepsy to be a cop, even if that person is on effective, anti-seizure medicine. It has three doctors who think the person would be a danger to others.

Who is right? Who is more likely than not telling the truth? Who should decide who is telling the truth?

The rules of the courtroom tell us that a jury, and only a jury, can decide which side is telling the truth. The jury, not a judge, gets to evaluate the testimony and the evidence and decide which side is more likely to be telling the truth.

Because the two sides disagree on important facts, a jury is required to sort it out.

Sounds simple, right?

Let’s go back to our scenario about the person with epilepsy who wants to be a cop.

This is a real life case. Jonathan Pesce was a volunteer firefighter and a paramedic for two years before he applied to be a New York City police officer. In his application, he disclosed the fact that he had epilepsy that he managed with medication. He had been seizure free for seven years on that medicine.

NYPD rejected Pesce’s application without ever having a doctor examine him. When he appealed that decision, other doctors working for the NYPD agreed that his condition made him to dangerous to be a cop. Notably, none of these doctors examined Pesce in person and none specialize in neuroscience. Instead, they relied on an unwritten policy of the NYPD that requires potential officers to be seizure-free for five years and off seizure medicine for one year.

NYPD left Pesce no choice but to file a lawsuit. The City asked the court to throw out the case.

District Judge Denise Cote refused to toss the case. Judge Cote recognized that Pesce and the City saw the facts very differently, and that a jury would have to decide who was right.

For example, NYPD said Pesce was not “qualified” because no one who takes epilepsy medication can be qualified. It said it is just too risky for a cop to have epilepsy. But Judge Cote recognized that Pesce and his doctors said the opposite. Because a jury would be free to believe Pesce’s evidence and reject the City’s evidence, the City was not entitled to have Pesce’s case thrown out.

Sure enough, the jury did believe Pesce’s evidence. A jury found he was qualified to be a police officer, and that he would not pose a safety risk. The jury awarded him $252,762 in backpay and the City agreed to pay his attorney fees. Most importantly, Pesce was hired as a probationary police officer.

Congratulations to Mr. Pesce for standing up for himself and for wanting to be a cop in the first place. That is the kind of bravery and resilience we all want in a police officer.

A tip of the hat goes to Mr. Pesce’s lawyers, Brad Connover and Molly Smithsimon of Connover Law Offices. These lawyers are part of the Jeanne A. Carpenter Epilepsy Legal Defense Fund Network, which was created by the Epilepsy Foundation to help people with epilepsy fight discrimination.