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Thomas C.Zembiec v. County of Monroe

February 22, 2011


The opinion of the court was delivered by: David G. Larimer United States District Judge



Plaintiff Thomas Zembiec brings this action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and 42 U.S.C. §§ 1983 and 1985, against the County of Monroe ("County"), the Monroe County Sheriff's Department ("Sheriff's Department"), Sheriff Patrick O'Flynn, and Undersheriff Gary Caiola. Plaintiff, a deputy sheriff employed at the Monroe County Jail ("Jail"), seeks damages for alleged violations of his rights under the ADA and the United States Constitution in connection with certain events that occurred in 2008. Defendants have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff has moved for leave to amend the complaint.


According to the complaint, plaintiff has been employed by the Sheriff's Department since May 1989 as a deputy sheriff jailor. In 2003, plaintiff reported what he believed to be employee misconduct at the Jail to the Internal Affairs office of the Sheriff's Department.

Plaintiff was served with certain disciplinary charges in August and November 2004, after which he filed a complaint in this Court against the County and other defendants, alleging that the charges had been brought in retaliation for plaintiff's allegations of misconduct, in violation of plaintiff's rights to due process and free speech. That lawsuit was settled and dismissed in 2006. As part of the settlement, plaintiff was placed on two years' paid leave. Proposed Amended Complaint ("PAC") (Dkt. #19-3, Ex. B) ¶ 24. The settlement agreement also provided that plaintiff "shall be entitled to all rights and remedies," including any rights that he might have under N.Y. Gen. Mun. L. § 207-c, which provides for paid leave for work-related injuries.*fn2

Pursuant to the terms of the settlement, in January 2008 plaintiff was directed to undergo a "fitness for duty" psychological evaluation, "in order to return to work after being on leave for 2 years." Complaint ¶ 20. According to the proposed amended complaint ("PAC"), plaintiff reported to Dr. Boris Shmigel on January 31, 2008. Dr. Shmigel did not clear plaintiff for duty at that time. PAC (Dkt. #21-4) ¶¶ 27-28.

On February 8, 2008, plaintiff submitted an employee injury report, alleging that he had been injured (presumably psychologically) on the job. Complaint ¶ 21. The PAC alleges that on February 12, pursuant to an order from his superiors, plaintiff was seen by a psychologist, Jay Supnick, for another evaluation of his fitness for duty. PAC ¶ 31.

According to the proposed amended complaint, when he met with Supnick, plaintiff indicated that he had some concerns about the confidentiality of whatever medical information plaintiff might discuss or divulge during their session. Supnick allegedly told plaintiff that he would speak to someone at the Sheriff's office about plaintiff's concerns. PAC ¶ 37.

On March 6, 2008, plaintiff's supervisor, Jail Superintendent Ronald Harling, informed plaintiff by letter that no decision on his eligibility for 207-c leave would be made unless and until plaintiff signed a release authorizing his treating psychiatrist to release to Supnick, and to discuss with him, plaintiff's psychiatric records. PAC ¶ 39.

Plaintiff alleges that in letters to various officials, including Monroe County Executive Maggie Brooks, Superintendent Harling, and others, he complained about being compelled to release his confidential medical information. According to plaintiff, he was concerned that Supnick, as a psychologist (i.e., a non-physician) would not be under the same constraints on divulging that information as a physician would be. PAC ¶¶ 36, 40. Plaintiff did then sign a release, but he alleges that he only authorized the release of his psychiatric records to Dr. Shmigel. PAC ¶ 41, 42.

Plaintiff alleges that on May 15, 2008, defendant Caiola informed him that plaintiff needed to sign a medical release for his former psychiatrist to release plaintiff's medical records to "Dr. Supnick, Monroe County Sheriff's Physician," and that if plaintiff did not do so, "it may result in denial" of plaintiff's request for 207-c benefits. PAC ¶ 44. Prompted by that communication, on June 2, 2008, plaintiff filed a complaint with the New York State Education Department alleging that Caiola and Supnick had falsely represented Supnick to be a "physician." PAC ¶ 45.

The Education Department ultimately sustained that complaint, and on January 23, 2009, sent Caiola a letter stating that Supnick was not a physician, and that he should not be referred to as such.

PAC ¶ 46. On June 3, however, due to continued "threats" by Caiola concerning denial of his 207-c benefits, plaintiff gave Supnick a release granting him access to records from both plaintiff's past and current psychiatrists. PAC ¶ 53.

Supnick issued a report on July 21, 2008, stating that plaintiff was fit for duty. Supnick concluded that plaintiff was "psychologically fit" for duty, but he did express some concerns about plaintiff's returning to work under the same individuals who were involved in the events that led to the prior lawsuit. PAC ¶¶ 59, 71. Supnick also stated that "[t]his report should be considered a medical record for purposes of handling in accordance with the provisions of the Americans with Disabilities Act (ADA)." Complaint ¶ 24; PAC ¶¶ 68, 69.

Plaintiff saw Dr. Shmigel on July 30. Initially, Shmigel did not clear plaintiff for duty, but later that day he changed his mind, and left a message on plaintiff's home answering machine informing plaintiff that Shmigel was clearing him for full duty effective August 4, 2008. Plaintiff alleges that Dr. Shmigel did so at the direction of Caiola. PAC ¶¶ 61-64.

On or about July 30, plaintiff was ordered to report for duty on August 4, 2008. He called in sick that day, "after a very rough weekend" caused by his stress at the prospect of returning to work. PAC ¶ 65. Harling then called plaintiff at home and told him that he would be charged with insubordination if he did not report to work the next day. Complaint ¶ 29; PAC ¶ 66.

Plaintiff did report to work on August 5, but continued to experience problems with stress and related physical symptoms such as tightness in the chest. He saw various health care providers over the next several days and weeks, and on August 24, 2008, after another visit to Supnick, Supnick determined that plaintiff was "not psychologically fit for duty" and that his "prognosis for recovery [wa]s very poor." PAC ¶ 99. On August 29, 2008, plaintiff's psychiatrist also wrote a report opining that plaintiff was suffering from a "job-related disability" and that "attempts to return to work would exacerbate his symptoms." PAC ¶ 101. Apparently plaintiff was then allowed to remain on leave, although he was charged with sick time during this period.

On September 27, 2008, plaintiff received an anonymous letter at his home, stating that Supnick's July 21, 2008 report had been posted on the computers at the Jail, making it accessible to any computer user in the Jail. The letter also stated that numerous people had read the report, and that some people had printed copies of it. PAC ¶ 102. Plaintiff alleges that an attorney for the county later admitted to plaintiff's union president that the report had been posted on the computers at the Jail, which he termed "a regrettable mistake." PAC ¶ 112.

On September 30, 2008, defendant Caiola informed plaintiff that the Sheriff's Department wanted plaintiff to undergo an independent medical exam ("IME") to determine his fitness for duty. Complaint ¶ 45; PAC ¶ 107. Although plaintiff, through his then-attorney, objected to this in light of the numerous exams that plaintiff had already undergone, on January 17 and 24, 2009, plaintiff underwent an IME by psychiatrist Rory Houghtalen. PAC ¶ 113.

The following month, on February 20, 2009, plaintiff filed the instant lawsuit. The complaint sets forth claims under the ADA and § 1983, based mostly on the publication of plaintiff's medical records on the Jail computers.

On April 8, 2009, Dr. Houghtalen issued his report. PAC ¶ 117. By stipulation of the parties and order of the Court, Dr. Houghtalen's report has been filed under seal, but among his findings was his opinion that plaintiff could return to work under certain conditions, including that he be "insulated from having to relate to individuals with whom he has a real or potentially conflicted relationship as the result of his reports of misconduct," and that plaintiff not be "placed in a position where a supervisor is among the group of individuals directly involved in or affected by the investigations and disciplinary actions related to the misconduct reports that Mr. Zembiec made or that were made against him." Dkt. #29 at 19 ¶11.

On May 19, 2009, plaintiff's treating psychiatrist, Dr. Faulkner, "issue[d] a report regarding her review of Dr. Houghtalen's evaluation report," in which Dr. Faulkner stated, "I strongly oppose [plaintiff] returning to work in the Monroe County Sheriff's department in any capacity," because she believed that plaintiff was "at risk for further ...

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