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Calabro v. Nassau University Medical Center

March 27, 2006


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



Plaintiff Vincent Calabro ("Plaintiff") filed the present action, pursuant to 42 U.S.C. § 1983 ("§ 1983") and New York Labor Law § 740 ("Whistleblower Law"), claiming that Defendant Nassau University Medical Center ("Medical Center") terminated his employment for, inter alia, comments he made to a local news channel regarding the conditions at the Medical Center loading dock, through which various items, including foodstuffs, are received at the hospital. Defendant now moves for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons herein, Defendant's motion is DENIED.


The material facts, drawn from the Complaint and the parties' Local 56.1 Statements, are undisputed unless otherwise noted.

Plaintiff is a former employee of the Medical Center. Though his working title was "Food Inspector," he performed a number of tasks for the Medical Center during his tenure. The Medical Center is a hospital and a public employer.

Plaintiff was employed and terminated by the Medical Center on a number of occasions since 1989. He was originally hired in 1989 as a Food Inspector I and eventually promoted to Food Inspector II. His responsibilities included inspecting and reporting on all food shipments coming into the Medical Center. Plaintiff apparently complained on a number of occasions that vendors were billing the Medical Center for more food than was being delivered or for delivering unusable food. These complaints were typically disregarded.

In 1991, the Medical Center eliminated the "Food Inspector" position and Plaintiff was fired in 1992. After his 1992 firing, Plaintiff filed a grievance pursuant to the collective bargaining agreement then in effect, and won back his job through the grievance process in 1994. He was reassigned to a position with Nassau County in its purchasing department. Plaintiff worked in purchasing department from his re-hiring until 1997 when he was transferred back to the Medical Center, where he worked in a number of different departments. In 2000, Plaintiff was promoted to supervisor of the mailroom. Though he did not inspect any food during this period, he continuously maintained the title of Food Inspector II.

In early March 2000, Plaintiff complained to his supervisor in administration, Steve Suspenski ("Suspenski"), that an NCAA basketball pool was being conducted by the Medical Center administration. Plaintiff feared that the public may interpret such a pool run by the administration as administrative support of gambling on County time. Suspenski advised Plaintiff to allow the pool, but Plaintiff asked for confirmation in writing, apparently infuriating Suspenski. Several weeks later, on March 23, 2000, Plaintiff was terminated.

Once again, Platiniff filed a grievance. After a hearing, the Administrative Law Judge ordered the Medical Center to re-hire Plaintiff in the dietary department. On February 13, 2001, Plaintiff returned to the Medical Center personnel office, but was assigned to a variety of tasks, including assignments to the telephone room, grants management, and the loading dock. Again, he maintained the title of Food Inspector, but never inspected any food.

While working on the loading dock Plaintiff made a number of complaints regarding "feces and human waste, soiled clothing, bed sheets, biohazards, dead animals from the laboratory, vermin, insects, mosquitos gnats and the associated stench." (Pl.'s Mem in Opp'n at 7 (citing Dep. of Vincent Calabro, dated August 23, 2004 ("Calabro Dep.") at 37-38).) Nothing ever came of his complaints.

Meanwhile, in May 2003, Richard Turan, the Medical Center's CEO sent out an e-mail, asking supervisors to eliminate positions that were "unnecessary/inappropriate." (Morris Affirmation, Ex. B.) Suspenski identified the Food Inspector position as being both unnecessary and inappropriate because there was no one actually inspecting the food. In a memo dated June 12, 2003, Karl Kampe, the Medical Center's head of Human Resources wrote, "We have identified the position of Food Inspector II and are prepared to abolish this position under Section 80 of Civil Service law." (Id. at Ex. F.)

As Defendant's put it, Plaintiff's "appearance on a WNBC channel 4 news broadcast interrupted the process of terminating Calabro's employment." (Defs.' Summ. J. Mem. at 8.) Tim Minton, a news reporter, contacted Plaintiff concerning an "investigative report surrounding the delivery area at the hospital." (Pl.'s Opp'n Mem. at 8.) "Mr. Minton advised [Plaintiff] that [he] was the only employee who had the title of Food Inspector and [Mr. Minton] wanted to know how [Plaintiff] was permitting food to pass through such an unsanitary loading dock." (Calabro Aff. ¶ 32.) Plaintiff told Mr. Minton that he had not been permitted to inspect food for years. Plaintiff's comments were part of Mr. Minton's report, which was broadcast on June 18. The next day, the Civil Service Commission issued a memo stating, "The position is held by Mr. Vincent Calabro . . . . Should the position be abolished Mr. Calabro would be laid off as he has no bump or retreat rights." (Id. at Ex. G.)

Immediately after his comments aired on the news, the Medical Center commenced an investigation of Plaintiff's comments. On July 3, 2005, approximately two weeks after the broadcast, Plaintiff was called into a meeting with various high-ranking hospital employees and questioned with regard to his complaints. At the close of that meeting, Mr. Kampe stated, "[T]he corporation has uhm, made a determination that uh, we no longer need a food inspector in this hospital. So we're going to uh, abolish your position as of closing today." (Pl.'s Rule 56.1 Statement, Ex. J at 6.) After exhausting his administrative remedies, Plaintiff filed the present complaint on January 12, 2004. Defendant filed its answer on February 4, 2004.


I. Summary Judgment Standard

Summary judgment pursuant to Rule 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Rule 56(c)).

To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted).

A district court considering a summary judgment motion must also be "mindful of the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the evidentiary burdens that the respective parties will bear at trial guide district courts in their determination of summary judgment motions. Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the non-movant's claim. Id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant ...

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