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JOHNSON v. NEW YORK HOSP.

June 26, 1995

JAMES JOHNSON, Plaintiff, against THE NEW YORK HOSPITAL, DR. DAVID SKINNER, PRESIDENT, JODY SKLAR, ASST. DIR. OF NURSING, Defendants.


The opinion of the court was delivered by: HAROLD BAER, JR.

 HAROLD BAER, JR., District Judge:

 Plaintiff brings this action under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (the "Act"), for alleged unlawful employment termination by defendants The New York Hospital (the "Hospital"), its President, Dr. David Skinner, and its Assistant Director of Nursing, Mr. Jody Sklar. Plaintiff has made an objection to Magistrate Judge Bernikow's granting of a protective order that precludes plaintiff from deposing Dr. Skinner. The District Court can modify or set aside rulings of Magistrate Judges on nondispositive matters where the rulings are "clearly erroneous or contrary to law." Fed. R. Civ. P. 72(a). Defendants, meanwhile, seek an order dismissing the claims against the individual defendants in their individual capacities. Defendants' request has not been previously addressed by a Magistrate Judge.

 For the following reasons, I grant defendants' motion to dismiss the case against Mr. Sklar in his individual capacity, but deny defendants' motion to dismiss against Dr. Skinner in his individual capacity. My ruling, by finding Dr. Skinner a proper defendant in his individual capacity, necessarily requires that plaintiff have the opportunity to depose Dr. Skinner. I therefore set aside the Magistrate's ruling as contrary to law.

 I. BACKGROUND

 
discharged as the result of an incident of severe misconduct, which involved his appearance on the premises of the Hospital in an intoxicated state, his refusal to leave the Hospital's premises when requested to do so by a Hospital security guard, and his physical assault on two Hospital security guards.

 Answer at 3-4, P 19. "Any employee," states the Hospital, regardless of an alleged 'disability' or 'handicap,' would be discharged after an incident of such severe misconduct." Id. at 4, P 19. While that may be, my task here is to assure adequate discovery to both sides within the framework of the Federal Rules of Civil Procedure.

 Plaintiff seeks to depose Dr. Skinner, the Hospital's President and a named defendant, while defendants move to dismiss the suit against Dr. Skinner and the other named individual defendant, Mr. Sklar, in their individual capacities. Defendants ground this motion on their contention that individuals cannot be liable under the Rehabilitation Act.

 II. DISCUSSION

 Case law supports the proposition that individuals who are responsible for the discriminatory decisions of organizations can be personally liable under the Rehabilitation Act. In Chaplin v. Consolidated Edison Co. of New York, 587 F. Supp. 519, 521 (S.D.N.Y. 1984) (emphasis added) (footnote omitted), this Court addressed the issue, concluding that the Act and its regulations "can be read as requiring a showing that the discrimination took place under a federally funded program, but as permitting a suit against individuals responsible for discriminatory policies as well as against the entity receiving federal funds." The Court did acknowledge, however, that the question "is not free from doubt." Id.; see also Yoder v. Gross, Civ. No. 91-6839, 1991 U.S. Dist. LEXIS 16092, 1991 WL 237831, at *2 n.1 (N.D. Ill. Nov. 5, 1991) (holding that a university president could be subject to liability under the Rehabilitation Act provided his "personal responsibility" were established (citing Chaplin)); DiPompo v. West Point Military Academy, 708 F. Supp. 540 (S.D.N.Y. 1989) (citing Chaplin).

 The line of cases upon which defendants rely fails to counter what this Court held in Chaplin. In Glanz v. Vernick, 756 F. Supp. 632, 637 (D. Mass. 1991), although the District of Massachusetts found that a doctor who was employed in a resident teaching capacity of a federally-funded hospital could not be held liable under the Act, the Court based its ruling on the fact that the doctor "clearly is not in a position to accept or reject federal assistance." The Second Department of the New York Supreme Court Appellate Division recently cited Glanz in Doe v. Jamaica Hospital, 202 A.D.2d 386, 608 N.Y.S.2d 518, 519 (App. Div. 2d Dep't 1994), where it held that a physician could not be susceptible to Rehabilitation Act liability "simply because he is an employee of a Federally-funded hospital." The Court explained, "The obligations of [the Act] are imposed upon those who are in a position to accept or reject [those obligations] as a part of the decision whether or not to 'receive' Federal funds." 608 N.Y.2d at 519 (citation omitted); see also Doe v. City of Chicago, Civ. No. 94-4122, 883 F. Supp. 1126, 1994 U.S. Dist. LEXIS 16492 (N.D. Ill. 1994) (permitting a Rehabilitation Act suit against an individual in his individual capacity where he was capable of accepting or rejecting federal funds on behalf of an organization). Here, the "doctor" happens to be President of The New York Hospital and as such, he, unlike the practicing physicians in Glanz and Jamaica Hospital, plays a significant role in making that decision. Mr. Sklar, the Assistant Director of Nursing, probably does not. Hence, I grant defendants' motion only insofar as it seeks to remove Mr. Sklar as a defendant in his individual capacity. The claims against Dr. Skinner in his individual capacity survive.

 In enacting the 1992 amendment of the Rehabilitation Act, Congress intended that the standard of "reasonable accommodations" that employers must make under the ADA would serve as the standard in actions alleging Rehabilitation Act violations in the employer-employee context. 42 U.S.C. § 12112(b)(5)(A). This is more easily understood once we recognize that the Rehabilitation Act provides a broader prohibition than one limited to discrimination that takes place in the employment setting; in addition, the Rehabilitation Act protects those "excluded from the participation in, . . . denied the benefits of, or . . . subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). Accordingly, ...


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