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BERWEGER v. COUNTY OF ORANGE

November 8, 2000

LURANA M. BERWEGER AND SUSAN E. MENON, PLAINTIFFS,
V.
COUNTY OF ORANGE, JOSEPH G. RAMPE, COUNTY EXECUTIVE, CHRIS ASHMAN, COMMISSIONER OF MENTAL HEALTH, RICHARD GOLDEN, COUNTY ATTORNEY, AND EASTERN HEALTHCARE GROUP, INC. DEFENDANTS.



The opinion of the court was delivered by: McMAHON, District Judge.

MEMORANDUM DECISION AND ORDER GRANTING SUMMARY JUDGMENT AS TO DEFENDANTS ASHMAN AND GOLDEN, AND DENYING SUMMARY JUDGMENT AS TO DEFENDANTS RAMPE, THE EASTERN HEALTHCARE GROUP, AND THE COUNTY OF ORANGE.

Plaintiffs Lurana M. Berweger and Susan E. Menon are medical services workers. They allege that they were fired from their jobs at the Orange County Correctional Facility ("the Jail") for criticizing the County's Department of Mental Health, in violation of their civil rights under 42 U.S.C. § 1983. They also have joined a state claim under the Whistle-blower Statute, New York State Labor Law § 740. They bring their claims against the County of Orange ("the County"); Joseph G. Rampe, County Executive, Chris Ashman, Commissioner of Mental Health, and Richard Golden, County Attorney ("the Individual County Defendants"); and Eastern Health Care Group, Inc. ("EHG").

On November 12, 1999, this Court dismissed Menon's claims against defendant EHG. Menon remains a plaintiff in this case against the County and the County Defendants. On March 27, 2000, the plaintiffs discontinued their claims against the Individual County Defendants under New York State Labor Law § 740.

All defendants have moved for summary judgment on the claims that remain against them.

The County has moved for summary judgment on three grounds: (1) that plaintiffs have not offered evidence that presents a genuine issue of material fact as to whether the County Defendants coerced EHG to terminate them; (2) that plaintiffs have not offered evidence that presents a genuine issue of material fact that the County Defendants conspired to deprive them of employment; and (3) that plaintiffs fail to state a claim under the New York Whistleblower Law.

The Individual County Defendants moved for summary judgment on the ground that there is no evidence that any county official coerced EHG to terminate the plaintiffs or to prevent their successor from hiring them.

EHG moved for summary judgment on the grounds that (1) EHG did not act under color of state law; and (2) plaintiff cannot create a genuine issue of material fact under the New York Whistleblower Law. EHG also moved for attorneys' fees as the prevailing party on their motion to dismiss plaintiff Menon's claim against it, and for sanctions under Rule 11 of the Federal Rules of Civil Procedure.

For the reasons stated below, summary judgment is granted as to defendants Ashman and Golden, and denied as to Rampe, EHG and the County on the 1983 claims; summary judgment is granted to all remaining defendants on the claims arising under the New York Whistleblower Statute; and EHG's motion for sanctions and fees is denied.

FACTS PERTINENT TO THE MOTION

On a motion for summary judgment, the Court views the facts most favorably to the non-moving party — in this case, the plaintiffs.

1. Medical Care at the Orange County Jail

The County operates the Jail in Goshen, New York. It contracts with private entities to provide medical services to inmates. The County Executive, Joseph Rampe, has the power to award and terminate the contracts. (Rampe Dep. at 33-34.)

From approximately 1987 to 1989, the County contracted with Correctional Medical Services ("CMS") to perform medical services, and from approximately 1994 to 1998 with Correctional Physicians Services ("CPS"). On April 1, 1998, the County contracted with Eastern Healthcare Group ("EHG") to assume the provision of medical services.

Plaintiffs Menon and Berweger are registered nurses. They have worked for all three private contractors who provided medical services to inmates at the Goshen Jail. Menon was hired at the Jail as Health Services Administrator ("HSA") in 1986, supervising the medical unit nursing staff. Although the medical services contractor changed periodically, Menon remained in her position until 1997, when she was promoted to Regional Manager. At that time, Berweger, who had been a nurse on staff at the jail since 1990, became the HSA.

The Orange County Department of Mental Health (DMH) under its Commissioner, Chris Ashman, provides mental health and psychiatric services at the jail. DMH employed a psychiatrist to prescribe psychiatric medications, but the nursing staff employed by the vendor would only administer such prescriptions upon written order from the psychiatrist with designated privileges at the jail.

2. Complaints by Plaintiffs About Medical Care at the Jail

Commencing in or about 1994 and continuing through 1998, Menon complained to Ashman and to Colonel Theodore Catletti, Correctional Administrator, that the nurses providing care to inmates were unable to reach the DMH psychiatrist Beneb Ting, M.D., when needed. Until 1994, Dr. Ting had made his telephone number available to nurses so that they could call him in an emergency, or with questions about inmate psychiatric care. According to Menon, Dr. Ting ceased responding to nursing staff phone calls in or about 1994, and began leaving Orange County for long periods of time without notifying the nurses.

When Menon complained to Ashman about Dr. Ting's failure to provide services to inmates, he told her to use the "back-up unit" at Arden Hill Hospital ("AHH"). However, because the physicians at AHH did not have privileges to prescribe medications for inmates as required by administrative standards, Dr. Ting's authorization was still necessary to administer medication to inmates.

Menon also complained to Ashman that Dr. Ting was over-prescribing psychotropic medications to inmates; that the DMH staff was failing to verify inmates' medication history prior to prescribing psychotropic drugs; and that DMH had failed to make adequate provision for emergency psychiatric care for inmates. (Menon Dep. at 75-107, Catletti Dep. at 31-48). In 1995, Menon complained to Ashman that the DMH was not verifying inmates' claims about the medications they had been taking prior to incarceration. Menon alleges that Ashman did not take any corrective action.

When Berweger became HSA in 1997, she made similar complaints about DMH to Ken Fox, Deputy Commissioner of Mental Health. (Berweger Dep. at 174, 26-28.)

In or about March 1998, the nursing staff sent a female inmate to the emergency room at AHH because she was lying on the floor, unresponsive. The inmate was a patient of the DMH. She was diagnosed with tranquilizer poisoning and a drug overdose, as a result of over-medication by DMH. Berweger reported this incident to Keith McLean, vice-president and chief operating officer of EHG. Berweger and Menon also shared with McLean their general concerns about DMH services at the Jail.

In early June, 1998, Berweger suggested to McLean that they report their concerns about the DMH to a higher authority. (Berweger Dep. at 49.) After some consideration, McLean gave Berweger permission to write a letter on EHG stationery to Rampe. (Id.) In her letter, dated June 22, 1998, Berweger told Rampe about the problems the medical unit had experienced from 1995 to 1998 concerning DMH services. She cited the case of the inmate with tranquilizer poisoning, and explained how she had sent the bill for the inmate to Ashman for payment. She wrote that "Mr. Ashman sent a terse letter . . . feigning ignorance as to why the bill was sent to him even though he was apprised of the situation in writing . . ." (Ex. 2 to Ullrich Aff.) Berweger concluded:

"The situation as it exists cannot continue. We need to be one department with the same philosophies and 24 hour access to physicians and psychiatrists that all have the same employer so we can freely exchange information and ideas.
"It is my hope that you will consider a change at the jail and you will entertain a proposal to privatize the services of the mental health department so that the medical department and the mental health department can work together professionally to deliver quality care to the inmates of Orange County."

(Id.)

After Rampe received the letter, Catletti called Berweger to his office. He told her that Rampe was "furious" that she had criticized Ashman. (Berweger Dep. at 39, 219.) Rampe made no attempt to contact Berweger in response to her letter, and refused to speak to McLean about it. (Rampe Dep. at 82.)

On or about July 8, 1998, upon McLean's order, Berweger prepared a document detailing all of the "concerns" that the jail's Medical Department had with DMH. On or about July 9, 1998, Menon delivered this document to Gary Greenwald, Esq., attorney for defendant EHG and to Spencer McLaughlin, an Orange County Legislator.

Menon also met with McLaughlin to discuss problems at DMH on that same day. (Menon Dep. at 246-248.) As a result, McLaughlin phoned and met with Ashman concerning Menon's complaint, as did another legislator, Bernard Winstanley, Chairm ...


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