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SZOKE v. CARTER

August 25, 1997

ESTER SZOKE, Plaintiff, against MACK L. CARTER, JR., individually and as Commissioner of Hospitals for the County of Westchester, JEFFREY SWEET, individually and as Assistant Personnel Director for the Westchester County Medical Center, MARILYN M. CORBETT, individually, HERBERT MORRIS, individually, and THE COUNTY OF WESTCHESTER, Defendants.


The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 Ester Szoke brings this action, pursuant to 42 U.S.C. § 1983, against Jeffrey Sweet, Herbert Morris, and the County of Westchester ("the County") alleging violations of her First Amendment and due process rights. *fn1" Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56. Additionally, defendant Sweet moves for an order disqualifying plaintiff's attorney, and plaintiff cross-moves, pursuant to Fed. R. Civ. P. 11, for sanctions against Sweet and his counsel for filing the motion seeking disqualification. For the reasons stated below, defendants' motion for summary judgment is granted in part and denied in part. Sweet's motion to disqualify plaintiff's attorney, and plaintiff's cross-motion for sanctions are denied.

 BACKGROUND

 On a motion for summary judgment, "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988). The following facts are construed accordingly.

 In February 1988, the County of Westchester ("the County") hired Ester Szoke to work as a senior laboratory technician in the Pathology Laboratory ("the Laboratory") at the Westchester County Medical Center ("WCMC"). WCMC operated the Laboratory until it was moved, some time after Szoke was hired, to a New York Medical College ("NYMC") facility. After the move, NYMC operated the Laboratory, under contract, for the County. It is undisputed that this new arrangement did not affect Szoke's status as a County employee.

 On or about November 26, 1991, Szoke wrote and forwarded a memorandum to her supervisor, Marilyn Corbett, detailing concerns that she had about the safety of her work environment. In a memorandum dated November 26, 1991, Corbett informed Myron R. Melamed, the Chairman of the Department of Pathology at New York Medical College of Szoke's concerns.

 Thereafter, on December 20, 1991, Szoke wrote Melamed directly ("December 1991 letter"), detailing the following concerns.

 
The ventilation in the Cytoprep space was very poor. I mentioned this to Ms. Corbett several times.
 
* * *
 
I have found in the past, that while we function well at 20 [degrees] C (68 [degrees] F) the rest of the coworkers who are sitting all day with computers and microscopes, need much higher temperature. Since we do not have the staining set-ups under the hood, lowering the temperature is the only way that we can try to minimize evaporation of chemicals we constantly use.
 
* * *
 
In addition to chemical fumes, in this small area we also are exposed to potentially infectious human biological materials. . . . We should handle the non-GYN specimens under a sterile hood.

 On January 30, 1992, Szoke forwarded a copy of the December 1991 letter to Stuart Newman, chairman of the Biosafety Committee at WCMC.

 On July 16, 1992, Szoke was served with a Notice of Disciplinary Charges relating to two specific incidents of misconduct and insubordination. These charges resulted from Szoke's alleged refusal to follow the directions of her acting supervisor Leeanne Klimstra. On the basis of those disciplinary charges, then Commissioner Carter suspended Szoke without pay for thirty days, pursuant to New York State Civil Service Law § 75(3). On August 13 and September 4, 1992, an administrative fact-finding hearing was held before hearing officer Herbert Morris.

 Meanwhile, on or about September 2, 1992, Szoke drafted and delivered a memorandum ("September 1992 memorandum") to Corbett expressing her concern about the processing of specimens at the Laboratory. Specifically, the memorandum states:

 
On August 17 or 18, I brought to your attention a potentially serious problem regarding the preparation of NON-GYN specimens . . . The inherent danger of specimen confusion is obvious, even for the most experienced laboratory personnel, in such a high volume laboratory as ours, where the work is so repetitious. . . . The new procedure may not only further decrease the efficiency of ...

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