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Gangadeen v. City of New York

August 12, 2009

MILFORD GANGADEEN, RONALD BROW, SHARON HALLOWAY, AND AKINDRA REAPE, PLAINTIFFS,
v.
THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF HEALTH & MENTAL HYGIENE, THOMAS R. FRIEDEN, SARAH BEATRICE, THOMAS J. BREUERS, AND MEYER, SUOZZI, ENGLISH & KLEIN, P.C., DEFENDANTS.



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

OPINION & ORDER

Plaintiffs Milford Gangadeen, Akindra Reape, and Sharon Halloway*fn1 bring suit alleging that defendants*fn2 violated 42 U.S.C. § 1983 and the First Amendment, New York State Civil Service Law Section 75-b, and the New York City Human Rights Laws.*fn3

Following the completion of discovery, defendants moved for summary judgment on plaintiffs' claims, and the motion became fully submitted on July 10, 2009. For the following reasons, the motion to dismiss the First Amendment retaliation claims is granted, and the Court declines to exercise jurisdiction over the remaining state law claims. See Valencia ex rel. Franco v. Lee, 316 F.3d 299, 306 (2d Cir. 2003).

BACKGROUND

The following facts are undisputed, unless they are identified as being advanced by either the plaintiffs or defendants. Plaintiffs Gangadeen, Reape, and Holloway were employed by the New York City Department of Health and Mental Hygiene ("DOHMH") as Special Officers ("SOs").*fn4 The Bureau of the Public Health Laboratory ("BPHL") is a licensed and regulated laboratory located in the DOHMH building on First Avenue in New York City. DOHMH's Public Health Laboratory ("PHL") is a testing and analysis location for potential specimens of biological weapons of mass destruction. Numerous inspections and reviews have found the BPHL in substantial regulatory compliance, and its license has been continuously renewed.

SOs employed by DOHMH are often assigned to security posts at the DOHMH building on First Avenue, including to the intake post at the PHL. The SOs are supervised by Thomas Breuers, the Director of Security for DOHMH. The SOs are designated peace officers under New York Criminal Procedure law, and their duties include monitoring the safety of the DOHMH premises. According to DOHMH Police Force Patrol Procedures, an SO must "[o]bserve any unusual conditions including fire and safety hazards; where possible, correct the situations and report all such conditions." As for the requirement in that manual that "Health police shall immediately notify their supervisors of any serious incident or condition," Breuers testified that this refers to the notification of criminal activities.

Dr. Sara T. Beatrice is the Director of the PHL. Beatrice does not supervise or manage non-BPHL employees who are assigned to the DOHMH building, such as the SOs. It is the role of the Health and Safety Unit of the BPHL to insure the safety of BPHL employees. The director of the BPHL Health and Safety Unit is Jacqueline Terlonge, who reports to Beatrice.

BPHL monitors the air in New York City to test for the presence of agents of bio-terrorism, and it conducts tests on substances brought by various other agencies to determine if the substances are hazardous. Federal regulations provide a protocol for the handling of suspected bioterrorism samples brought to the BPHL.

Machines known as autoclaves are used to decontaminate samples sent to BPHL after testing. The autoclaves are not located in areas to which the public has access. After going through the autoclave, the samples -- contained in red bags labeled with a biohazard insignia -- are removed and placed in carts to be picked up by a medical waste carter. After samples have been autoclaved, there may be an offensive odor.

In response to an April 22, 2005 memorandum from SOs to their union delegate Al Soto, expressing the SOs' complaint that odors emitted from the autoclave had caused dizziness and nausea, DOHMH conducted an air quality test on May 17, 2005. The test found that the air quality was satisfactory with no contaminants, but recommendations were made to reduce the odor emanating from the autoclave. A subsequent test performed on August 21, 2008 confirmed that the air quality was at acceptable levels.

BPHL also conducts weekly surface testing of the specimen intake area in the building; all such testing has revealed no select agent contamination in the intake area. On February 21, 2006, the BPHL tested samples from the residence and workplace of a drummer who had become ill with symptoms of anthrax poisoning. Dr. Heller, the person responsible for the BPHL Select Agent Program, reported that no breaches occurred in the integrity of the samples, but plaintiff Gangadeen states that FBI agents went to their vehicles and opened the samples, potentially exposing everyone there to anthrax spores, and failed to re-decontaminate the submissions in violation of the laboratory's Standard Operating Procedure Manual. No employee of BPHL, including Dr. Heller, reported any issue related to the laboratory's handling of the anthrax samples. Gangadeen alleges that he was exposed to anthrax and treated months later for a rash with an antibiotic, but he did not complain about the handling of the samples to anyone at BPHL and has provided no evidence to corroborate his receipt of this medical treatment.*fn5

Gangadeen admits that he did not submit a line of duty injury request or otherwise report to Breuers or his staff that he had been exposed to anthrax. Indeed, Gangadeen made a log entry on February 23, 2006 that all accessioning protocols relating to the anthrax were followed, stating: "All accessioning protocol was followed as per Dr. Heller's instructions. Nothing further to report."

SOs assigned to the intake area do not wear protective gear, because they do not handle specimens or open bags that are presented to the BPHL for testing. Specimens are removed from their protective packaging by BPHL technologists in a secure laboratory, and SOs are not in that laboratory or involved in the unpacking, testing, or transporting of specimens.

Breuers testified that SOs were trained in connection with the "accession" process, which was a method of maintaining and documenting the legal chain of custody of specimens submitted for testing that involved numbering and entering the specimens in a database; Reape, however, states that SOs were not so trained. Defendants have produced an email from the intake coordinator stating that "Officer Reape was trained in receiving BW samples. Next time PO REAPE [works] this location she should do the sample intake and have someone watch over her."

A. The Plaintiffs' Employment History Halloway

Halloway was hired by DOHMH in April 2001, and was transferred to PHL following September 11, 2001. In 2004, Halloway requested a transfer from the PHL, but did not specify a particular facility or assignment to which she wished to be transferred. In a letter dated September 30, 2004, she was offered a transfer to a field assignment, but she declined the offer because of the easier commute by public transpiration to the PHL building. Halloway did not make any additional requests for a transfer.*fn6

By memorandum dated May 22, 2007, Halloway was transferred due to circumstances surrounding her arrest of a PHL employee. Halloway remains employed by DOHMH.

Gangadeen

Gangadeen was hired as an SO on April 1, 2001. He was disciplined and placed on probation in 2006, and resigned in 2007 in lieu of being fired.

In a notice dated April 18, 2006, Gangadeen was suspended by the Employment Law Unit ("ELU"). In the related Notice and Statement of Charges dated April 21, 2006, the ELU described that Gangadeen had, inter alia, repeatedly said "fuck you" to his supervisor and had threatened him by saying "you don't know me -- watch your back."*fn7 After an Informal Conference was held on April 27 relating to this incident, the Informal Conference leader recommended the termination of Gangadeen's employment, but Gangadeen entered into a stipulation on May 19, 2006 with ELU settling the charges. The stipulation provided that, inter alia, Gangadeen would be suspended without pay for 30 days, and be placed on probation for one year from his return.

On May 14, 2007, Breuers received a threatening email from an unknown person from a "willselfdistruct" website, which he reported to the New York City Department of Investigation ("DOI"). Breuers notified Jonathan Wangle in the ELU and Inspector General Christopher Staackmann that he had received an email containing a threatening message. Investigator Stephan Zander of the DOI commenced an investigation. In investigating this incident, Wangle notified the DOHMH Information Security Officer of the email, who retrieved DOHMH police officer Cecilio Gonzalez's computer activity and data. This information revealed "numerous e-mail communications between Gonzalez and Gangadeen that contained sensitive and confidential DOHMH information."

Zander issued a report on June 12, 2007 to the ELU, summarizing his findings, based on, inter alia, a May 17, 2007 interview with Gangadeen under oath.*fn8 Zander reported that Gangadeen had admitted that he took unauthorized pictures of the laboratory, that the pictures were sensitive in nature, and that he shared the pictures with Gonzalez.*fn9 Gangadeen also admitted that www.willselfdestruct.com emails had been sent by Gonzalez to Breuers, Frieden, and others, and that Gonzalez had bragged that he used that website so that the emails could not be traced.*fn10 Gangadeen asserted in the interview that he took these photographs of health and safety violations and emailed them to his supervisor. Gangadeen also stated in his interview that he and others should be eligible for hazardous material pay. In Zander's report, he notes that "[a]lthough Gangadeen's concerns for safety conditions within the Health Lab may be sincere, his conduct appears to have violated the terms and conditions of his City employment" due to his videotaping sensitive areas and violating the DOHMH computer policy by emailing still pictures from the videotapes to another officer. Zander concluded that the matter should be referred to ELU for discipline.

Gangadeen admits that he learned of this investigation and the fact that charges would be filed against him by June 1, 2007, and on July 9, 2007, ELU served Gangadeen with a Notice of Statement and Charges ("Notice") charging him with acts of misconduct stemming from his taking pictures at PHL and for excessive lateness and unauthorized absences in 2006 and 2007. The Notice was sent by Rose Tessler of the ELU, and was based on the DOI's findings. The Notice stated that Gangadeen had violated Standard of Conduct Rule 3.25, "Conduct prejudicial to good order and discipline." It informed Gangadeen that he had [a]dmitted to the [DOI] using your personal video camera to record images inside the [PHL] in or about November of 2006. As a Special Officer assigned to the [PHL], you are aware that any form of recording, including video or photography, is prohibited inside the facility.

Additionally, it is part of your duties as a [SO] to prevent any individual attempting to make such a recording of the facility or items contained therein.

The Notice also advised Gangadeen that he had violated that Conduct Rule and one regarding unauthorized use of City equipment on or about May 9, 2007, by using his DOHMH email and/or computer to send 70 digital images of items inside the PHL. The Notice also charged that Gangadeen had improperly used a DOHMH fax machine, and had violated another conduct rule by being absent and late for work without authorization on several occasions in 2006 and 2007.

After an Informal Conference was held on August 7, 2007 relating to these charges, the Informal Conference leader recommended termination of Gangadeen's employment, and a hearing was scheduled for December 13, 2007. On that day, Gangadeen, represented by counsel, executed a stipulation with DOHMH, signed by himself and his counsel,*fn11 in which he resigned as a SO. The stipulation stated that Gangadeen "hereby agrees and states that he has entered into this Stipulation knowingly, intentionally and voluntarily without coercion or duress, and upon advice of his counsel, and does accept all of the terms and conditions contained herein." Gangadeen states that DOHMH took the position that he would be fired unless he resigned, so "instead of having a termination on [his] employment record, [he] felt [he] had no choice but to resign." The stipulation provides that if outside employers inquire about Gangadeen's employment, DOHMH will not disclose the nature of the underlying disciplinary proceedings. Gangadeen's resignation was effective as of January 30, 2008. While still employed in December 2007, DOHMH granted Gangadeen's transfer request to a facility in the Bronx so that he could visit his daughter more easily.

Reape

Reape was hired as a probationary SO on April 23, 2007. From May through October 2007, Reape was late on ten occasions, and she was given counseling letters by her supervisors. Additionally, she was coded as being absent without authorization six times between August and October 2007. Despite these time entries, Reape states that she has never been absent without authorization.

On October 31, 2007, Reape submitted a DOHMH Reportable Occurrence Form which claimed that she had become ill due to an insect bite while on duty at PHL on October 6, 2007. On October 26, Reape provided DOHMH with a doctor's note stating that she "has left parotid gland inflammation and she needs to stay away from infectious environment at workplace." Reape was approved for medical leave, but because she did not have any available sick or annual leave balances, she was placed on a three month medical leave without pay. Reape maintained this status from November through February 3, 2008, with an expected return date of February 4, 2008.

Reape sought an extension of that leave, stating that her doctor did not approve her return to work. The Assistant Commissioner of the DOHMH's Bureau of Human Resources, Brenda McIntyre, states that Reape did not submit updated medical documentation to support this request. Reape claims that she did not want to go on leave, but wanted a transfer to a different location, but that while on leave she submitted medical documentation from her physician stating that she was not authorized to return to work, and that she was "approved for further leave by Dr. Gehl's office, a.k.a. Employee's Health." Reape states that she was eventually diagnosed with an autoimmune disorder that her doctors believe was caused by the hazardous environment in the laboratory, and that she provided a doctor's note to that effect in November 2007, but she has provided no documentary or other evidence on this score. On February 4, 2008, Reape did not return to work, but instead requested additional leave with pay. She also requested leave under the Family Medical Leave Act and pursuant to the DOHMH Time and Leave Manual, but it was determined she was ineligible.

When Reape did not appear for work on February 4, 2008, she was considered Absent Without Official Leave ("AWOL"). Reape claims that she had submitted "all necessary medical documentation" and had been approved for further leave by Dr. Gehl, but has provided no additional evidence of any such approval or additional documentation beyond the doctor's note of October 2007 related to her gland inflammation. On March 7, 2008, a letter from McIntyre advised Reape that Reape's services as an SO were no longer required. It is undisputed that at the time McIntyre ...


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