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JOHNSON v. NEW YORK HOSP.

November 6, 1995

JAMES JOHNSON, Plaintiff, against THE NEW YORK HOSPITAL and DR. DAVID SKINNER, PRESIDENT, Defendants.


The opinion of the court was delivered by: BAER

 HAROLD BAER, JR., District Judge:

 Plaintiff brings this action under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. ยง 794, for alleged unlawful employment termination by defendants The New York Hospital (the "Hospital") and its President, Dr. David Skinner. Defendants move for summary judgment. For the following reasons, I deny defendants' motion.

 I. BACKGROUND

 Plaintiff, pro se, began working for The New York Hospital as a nurse in November 1987. Plaintiff asserts that defendants' termination of his employment on August 30, 1991 was "discriminatory with respect to handicap," Compl. at 3, P 9, because the termination was based on an incident, which took place on August 25, 1991, that resulted from "a relapse in [his] treatment for alcoholism," id. at 2, P 8. Defendants acknowledge that they based their decision to terminate plaintiff largely on that incident. Defs.' Mem. L. Supp. Mot. Summ. J. ("Defs.' Mem.") at 1 ("Mr. Johnson . . . was discharged for engaging in an act of misconduct that warranted immediate termination pursuant to the Hospital's published Rules of Conduct."). Defendants describe the incident as consisting of plaintiff

 
appearing in the lobby of the Hospital in the middle of the night in a severely intoxicated state carrying an open can of beer, verbally abusing several employees and physical resisting their attempts to escort him off the premises, kicking and screaming, and, in general, creating a public disturbance.

 Id. Plaintiff, however, states that the defendants' description of the incident is "not factually correct," Pl.'s Aff. Opp'n Mot. Summ. J. at 2, P 7, and takes issue with many of defendants' asserted "Material Facts Not In Dispute."

 II. STANDARD FOR SUMMARY JUDGMENT

 Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment where the evidence shows that "there is no genuine issue as to any material fact and [that] the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Summary judgment "is properly regarded . . . as an integral part of the Federal Rules as a whole, which are designed to 'secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 1) In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). An issue of credibility is insufficient to preclude the granting of a motion for summary judgment. Neither side can rely on conclusory allegations; instead, the disputed issues of fact must be supported by evidence that would allow a "rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Finally, factual disputes that are irrelevant to the disposition of the suit under governing law will not preclude entry of summary judgment. Anderson, 477 U.S. at 248.

 III. DISCUSSION

 Defendants attempt to support their version of the August 25, 1991 incident solely with citations to plaintiff's deposition testimony, even though defendants simultaneously acknowledge that plaintiff "has testified that he was in a 'blackout' and has no independent recollection of the events of that night." Defs.' Mem. at 6 (citations omitted). Undeterred, defendants assert that plaintiff does not "contest" the following facts:

 
*[Plaintiff] went to the Hospital sometime after midnight, when he was off-duty.
 
*He was in an intoxicated state and was carrying an open can of beer.
 
*He was confronted first by Security Officer McGettrick, who tried to escort him off the premises. He ran away from and had to be pursued by Officer McGettrick.
 
*When several other security officers came on the scene and tried to subdue him, he kicked, yelled, and used profanity and obscene language.
 
*He was escorted to the Emergency Room. On the way there, he continued to kick[,] scream and use profanity.
 
*He used profanity towards a Hospital Administrator.
 
*He was ordered to leave the Hospital.
 
*Against express orders, he returned to the Hospital later that night, still drunk and went up to Baker 17, a patient-care unit. At that point, he was again ordered to leave the Hospital.

 Id. at 6-7 (citations omitted).

 Examination of the cited deposition testimony, however, makes clear that plaintiff fails to contest those allegations primarily because he claims to have no recollection of what occurred that night. Accordingly, plaintiff emphasizes that he does not confirm those events either. The following is typical of plaintiff's testimony:

 
Q. Do you recall the fact that the security guards have all stated that you were in a severely intoxicated state when you went ...

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