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Barbara Burhans v. County of Putnam

March 25, 2011


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


Barbara Burhans was employed as a public health nurse with the County of Putnam (the "County") until May 29, 2008, when she was fired following a hearing conducted pursuant to § 72 of the New York Civil Service Law ("NYCSL"). Burhans has sued the County and two County officials, Sherlita Amler ("Amler"), the Commissioner of Health, and Paul Eldridge ("Eldridge"), the Personnel Director, asserting principally that they retaliated against her due to her expression of concern regarding nursing services provided by the County's Department of Health ("Department"). For the following reasons, the motion to dismiss is granted in part.


The second amended complaint ("Complaint") asserts that from January 2002 to May 29, 2008, Burhans was employed as a public health nurse in the Department's Nursing Division. From 2003 to 2006, Burhans told the defendants, representatives of the New York State Department of Health ("DOH"), and the Medicaid Fraud Unit of the New York State Office of the Attorney General that the Department was, inter alia, failing to provide competent nursing services and to maintain proper records.

As a result of deficiencies in the Department's operations that were discovered by the DOH during an audit, and in retaliation for Burhans's complaints, the Department took many actions against Burhans, including the following. It transferred Burhans in February 2005 from the position of Admission Coordinator to nurse-case manager, removed her from weekend rotations and other opportunities for overtime, and did not allow her to use a fax or copy machine. In March 2005, the Department denied Burhans the opportunity to attend a conference. In June and July 2005, Department employees gave Burhans warning memoranda and issued verbal warnings to her. On October 12 and December 7, 2005, pursuant to NYCSL § 75,*fn1 an attorney interviewed Burhans to investigate her conduct and draft disciplinary charges against her. In December 2005, the County car that Burhans drove was ransacked and her personal cellular telephone was taken.

In December 2005, the Department initiated proceedings against Burhans pursuant to NYCSL § 72(5). Section 72(5) provides in pertinent part:

[I]f the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with operations, it may place such employee on involuntary leave of absence immediately; provided, however that the employee shall be entitled to draw all accumulated unused sick leave, vacation, overtime and other time allowances standing to his or her credit.

NYCSL § 72(5) (emphasis supplied).

By letter dated December 8, Burhans was notified that, based on statements she made to colleagues regarding mistakes "she had been making . . . in relation to patient care" and "near car accidents while operating a County vehicle," the Department had concluded that it had probable cause to place her on involuntary leave pursuant to § 72(5) of the NYCSL. Burhans was instructed to meet in late December with a psychiatrist retained by the County.

The Complaint explains that the psychiatrist advised Burhans that she was a whistleblower. Nonetheless, the psychiatrist filed a report finding that Burhans suffered from a major depressive disorder and was unfit to work. In March 2006, Burhans obtained a second psychiatric evaluation which recommended that she be reinstated. On March 27, 2006, Burhans exhausted her vacation and sick leave. As a result, she was unpaid for the remainder of her involuntary leave.

From June 26 through December 11, 2007, a § 72 hearing was conducted concerning Burhans's fitness for employment. During that hearing, Burhans was served with disciplinary charges under NYCSL § 75.

On April 21, 2008, the hearing officer who conducted the § 72 hearing found that there was probable cause to believe that as of December 8, 2005 Burhans was unable to perform the essential duties of a registered nurse. The hearing officer, however, also found that Burhans should be permitted to return to work and should receive back pay and benefits (the "April 21 Report"). Amler rejected the recommendation that Burhans be reinstated, but authorized another psychiatric evaluation of Burhans. On May 29, 2008, after Burhans declined to undergo another psychiatric evaluation, Amler sent Burhans a notice of termination pursuant to NYCSL § 72(4).*fn2


On October 12, 2006, plaintiff filed an action in federal court against the County and twelve individual defendants. The case was assigned to the Honorable Stephen C. Robinson. On January 1, 2007, individual defendant Jane Meunier-Gorman was dismissed from the action with prejudice. On December 16, 2007, the remaining defendants filed a motion to dismiss. This motion was never decided since, on April 24, 2007, plaintiff filed an amended complaint. On June 8, 2009, defendants filed a motion to dismiss the plaintiff's amended complaint. By an order dated October 30, 2009, the parties' joint application for the filing of a second amended complaint was approved. On December 9, 2009, defendants filed a third motion to dismiss. That motion became fully submitted on December 9, 2009.

On November 15, 2010, the case was reassigned to this Court. At a conference on December 17, the parties identified the arguments in the various motion papers that they wished this Court to consider.


The defendants have moved to dismiss Burhans's federal claims and have requested that the Court decline to exercise supplemental jurisdiction over her remaining state law claims. "Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). For a plaintiff's claim to survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007) (citation omitted)). Applying this plausibility standard is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.

A court considering a motion to dismiss pursuant to Rule 12(b)(6) "must accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party." Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008) (citation omitted). A complaint must do more, however, than offer "naked assertions devoid of further factual enhancement," and a court is not "bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 129 S. Ct. at 1949-50 (quoting Twombly, 550 U.S. at 555, 557).

I. Federal Law Claims Plaintiff currently brings eight claims against the defendants, five of which appear to be federal law claims.

In these five federal claims she essentially asserts the violation of three rights: that the defendants violated (1) her First Amendment right to free speech through their retaliatory conduct, (2) her right to a pre-deprivation hearing before placing her on involuntary leave pursuant to ยง 72(5), and (3) her right to equal ...

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