The opinion of the court was delivered by: MARY JOHNSON LOWE
Before this court are plaintiff's and defendant's cross-motions for summary judgment under Fed R. Civ. P. 56, filed on February 13, 1992 and February 21, 1992, respectively. For the reasons stated below, plaintiff's motion is denied and defendant's motion is granted.
The present motions were referred to Magistrate Judge Barbara A. Lee by Order of Reference dated June 3, 1992. Magistrate Judge Lee issued a Report and Recommendation ("R&R") on February 10, 1993. Plaintiff filed an objection to the R&R pursuant to 28 U.S.C. § 636(b)(1) on March 22, 1993.
The R&R's detailed account of the facts is adopted for purposes of this Opinion and Order. Only the essential facts are recited here. Plaintiff obtained a license to practice medicine in the State of New York in 1972, but since 1977 has suffered from mental illness. In 1985, the New York State Board for Professional Medical Conduct ("Board") charged plaintiff with professional misconduct for practicing while his ability was impaired by mental illness.
A hearing committee of the Board held hearings in February and March of 1986, and in May 1986 recommended revocation of plaintiff's license. A review committee, however, recommended remand because plaintiff's counsel had withdrawn during the hearings without replacement. The Board agreed with the review committee and remanded for additional hearings, which were held from October to December of 1989. The hearing committee in April 1990 again recommended revocation, and the Commissioner of Health joined the hearing committee's recommendation. The review committee, however, significantly departed from the hearing committee's recommendations. The review committee agreed that plaintiff was guilty of misconduct, but grounded that finding on just one of five charges: that "during June, 1985, [plaintiff] practiced medicine as a staff physician employed by the Newark Developmental Disabilities Service Office while his ability to practice was impaired by mental illness." Brooks Aff. Ex. D, P 6 (Statement of Charges).
The facts underlying that charge were described by the review committee as follows:
Early in June 1985 respondent could not function, his voice slurred, and answers were not appropriate to questions. He was employed at the Newark Developmental Center until he left on June 19, 1985. Respondent's mental illness [had] progressed from the period of January 2, 1985, when he appeared to be extremely confused, insecure and not functioning up to his capacity; to April 10, 1985 until April 30, 1985, when he was having a problem and agreed to see the consultant psychiatrist; and to May 1985, when he became worse, mumbled in response to a question, and gave information that was completely devoid of the question.
The record also shows that [plaintiff's] physician supervisor observed [plaintiff's] work performance to be starting to deteriorate before the first part of May 1985. At a meeting at that time, [plaintiff] would have a tendency to talk in short bursts, and then go off on a tangent completely on some other subject. The supervisor felt [plaintiff] was getting irritable over an extended period of time and was losing his confidence. By May 1985, [plaintiff] was not functioning the way he should have been. Nevertheless, he refused to be hospitalized.
By the first week of June 1985, [plaintiff] could not function, and at that time denied that he had a problem. In June 1985, [plaintiff] felt he did not need the psychiatric care which he was recommended to receive. During the first week of June 1985, [plaintiff] was still seeing patients. At that time, while [plaintiff] was practicing, [plaintiff] was mumbling, repetitive, withdrawn, and seemingly fearful. In late May and early June 1985, [plaintiff's] prior personal hygiene problem recurred and his patient records showed his own insecurity or were sometimes not understandable. In June 1985, [plaintiff's] supervisor observed that [plaintiff] was "incapable," due to slurring, hesitancy with answers, and not appropriate responses which were not even remotely connected to the discussion.
Brooks Aff. Ex. A at 15-16 (review committee report) (citations omitted). The review committee found plaintiff guilty of practicing while mentally impaired:
We reject [plaintiff's] contention that there is no sufficient proof that [plaintiff] actually practiced medicine while impaired. [Plaintiff] is guilty not merely because he has a serious mental illness. Based on all of [defendant's] proof, we find that [plaintiff] was, as charged in the fifth specification, practicing medicine during June 1985. Accordingly, we conclude, by a preponderance of the evidence, that [plaintiff] is guilty of the fifth specification in light of his conduct of practicing the profession as a staff physician employed by the Newark Developmental Center while his ability to practice was impaired by mental disability.
Brooks Aff. Ex. A at 16-17.
The review committee concluded that
in order to adequately protect the public, [plaintiff's] license to practice as a physician in the State of New York should be revoked. We have considered all the mitigating and aggravating circumstances and find, in agreement with the hearing committee, that revocation is appropriate. We note that [plaintiff's] contention that his license cannot be revoked under the Federal Rehabilitation Act and the State Human Rights Law is without merit. The Board of Regents has discretion to impose an appropriate measure of discipline. Under these circumstances, the Board of Regents is not required by law to allow respondent to practice under monitoring and supervision.
Plaintiff filed this action on February 26, 1991, claiming that the revocation violated Section 504 of the Rehabilitation Act of 1973 ("the Act"), 29 U.S.C. § 794(a). Plaintiff alleges that the revocation was ordered "as a measure to protect the public safety and not as a means of punishment for engaging in culpable conduct." Compl. P 27. Plaintiff alleges that his condition can be controlled, and submits that the Act required the Board to determine whether plaintiff was "otherwise qualified" -- i.e., whether assurance that his condition was under control could have been maintained with reasonable accommodation. Plaintiff asks this Court to direct defendant to reconsider the matter and address whether reasonable accommodation is possible.
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Ambiguities must be resolved against the movant. Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962)). Summary judgment is granted "only where the entire record would inevitably lead a rational trier of fact to find for the moving party." National R.R. Passenger Corp. v. City of New York, 882 F.2d 710, 713 (2d Cir. 1989). Summary judgment is not granted where "sufficient evidence supporting the claimed factual dispute [is] shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-289, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)).
Section 504(a) of the Act states in pertinent part:
No otherwise qualified individual with a disability in the United States shall, solely by reason of her or his disability be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
29 U.S.C.A. § 794(a). Handicap status alone is an impermissible ground for assuming a person's inability to function in a particular context. Southeastern Community College v. Davis, 442 U.S. 397, 405, 60 L. Ed. 2d 980, 99 S. Ct. 2361 (1979). By enacting § 504(a), Congress wished to "protect the handicapped against discrimination stemming not only from simple prejudice, but also from 'archaic attitudes and laws' and from 'the fact that the American people are simply unfamiliar with and insensitive to the difficulties confronting individuals with handicaps.'" ...