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Thomas G. Tucker v. the City of New York

July 15, 2011


The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge


Plaintiff Thomas Tucker, formerly an employee of the New York City Department of Health and Mental Hygiene ("DOHMH"), brought this action against defendants the City of New York, the DOHMH, Dr. Robert Hoffman, Maria Mercurio-Zapalla (incorrectly captioned as "Maria Zampella"), and Thomas R. Frieden, pursuant to the First Amendment; 42 U.S.C. § 1983; New York State Labor Law § 740; New York Civil Service Law § 75-b; New York Human Rights Law, N.Y. Exec. Law § 296 et seq.; the New York City Whistleblower Law, N.Y.C. Admin. Code § 12-113; and the New York City Human Rights Law, N.Y.C. Admin. Code §8-502(a) et seq. Plaintiff alleges that he was terminated in retaliation for complaining about corruption, complaining about unsafe and unsanitary working conditions, and seeking accommodation for his disability. Now before the Court is defendants' motion for summary judgment. For the reasons discussed below, summary judgment is granted to defendants on the retaliation claim and the Court declines to exercise jurisdiction over the remaining state and city law claims.


From November 2005 until September 20, 2007, Tucker was employed as a Poison Control Information Specialist ("PCIS") at the New York City Poison Control Center ("NYPCC"), a facility operated by DOHMH. Dr. Thomas Frieden was the New York City Health Commissioner and the head of DOHMH during this period; Dr. Robert Hoffman was the Director of the NYPCC; and Maria Mercurio-Zapalla was the Managing Director of the NYPCC and Tucker's direct supervisor. Ms. Zapalla was not employed by DOHMH, but instead through Bellevue Hospital, which is a part of the New York City Health and Hospitals Corporation ("HHC"), a public benefit corporation created by the State of New York.

Tucker's duties included answering telephone calls to an emergency hotline from consumers or health care practitioners regarding overdoses and accidental ingestion of poisons and making recommendations for treatment, often in consultation with toxicologists who were his co-workers at NYPCC. (Tucker Dep. Ex. A 16:13-16; 17:20-18:1; 18:21-19:6.) As a PCIS, he was a member of a labor union, SEIU 1199. (Id. at 20:20-25.) Tucker was qualified for his position in virtue of having been trained and licensed as a pharmacist. (Id. at 10:1-11.) He had previously operated his own pharmacy in Staten Island for a number of years. (Id. at 9:6-14.) However, Tucker sold his pharmacy business in 1998, after a back injury he suffered in a car accident left him unable to sit or stand for long periods of time. (Id. at 13:12-17) Prior to obtaining employment with NYPCC, Tucker was receiving Social Security disability payments in connection with his back injury. In 2005, he voluntarily chose to seek employment at NYPCC despite his injury, utilizing the Social Security Administration's "Ticket to Work" program. (Id. at 14:17-23.)

Tucker never received a written performance evaluation during the 22 months he worked at NYPCC. In addition, no formal disciplinary actions were taken against him. Tucker was commended in an August 2006 memorandum entitled "Catch of the Month," for his role in responding to a carbon monoxide case. (Canfield Decl. Ex. H 18.)*fn1 However, a March 19, 2007 memorandum from Zappala to Tucker*fn2 states that, on March 14, 2007, Tucker failed to advise his supervisors that he had arrived prior to the start of his scheduled shift and begun work early, and had unnecessarily remained at work past the end of his shift, thereby earning an additional hour of compensatory time which "didn't benefit the poison center." (Id. at Ex. G.) The memorandum also states that Tucker may no longer earn compensatory time without the notification and approval of his supervisors. (Id.) Tucker maintains that he "consistently worked overtime, but only when requested by a supervisor." (Tucker Decl. ¶ 15.) He acknowledges having been instructed not to deviate from his scheduled shifts in an email, but insists that this instruction was later withdrawn by Zappala, who told Tucker to disregard it. (Tucker Dep. Ex. A 50:3-19.)

While at NYPCC, Tucker complained to his supervisors and to his union about the presence of water bugs, roaches, and rodents in the workplace. (Id. at 21:17-23.) In addition, Tucker complained to his supervisors and to his union that the chairs at NYPCC were broken and causing him back pain, that he was not given alternative work breaks, and that the scheduling of shifts was unfair to newer employees. (Id. at 23:24; 28:4-29:6.)

In response to Tucker's complaint about pests, Zapalla had an exterminator come in to set food traps. (Id. at 24:21; 27:20-24.) Zapalla also attempted to replace the broken chairs. However, when replacement chairs arrived, they were deemed to be no better than the old ones and Zapalla sent them back. (Id. at 29:4-6; 30:14-24.) Finally, Dr. Hoffman held a meeting for the employees to discuss the scheduling issues raised by Tucker. (Id. at 34:15-25.)

On September 10, 2007, Tucker was working a day shift at NYPCC. It was the last shift Tucker was assigned to work before taking a scheduled vacation until September 20. During the shift, Tucker had a disagreement with a toxicologist who did something that bothered him. (Pl.'s Rule 56.1 Statement ¶ 15.) Following his interaction with the toxicologist, Tucker approached Zapalla and asked for permission to leave work early due to back pain. The issue of whether Zapalla gave Tucker permission to leave is disputed. Tucker testified as follows:

Q: What did Ms. Zampella [sic] say in response to your request to leave early that day?

A: Initially when I asked her, she appeared to nod that it was okay.

Q: So did you leave that day early?

A: Yes.

Q: So Ms. Zampella [sic] granted your request that you be permitted to leave early on September 10?

A: Not really.

Q: You just testified that she nodded and you went home early ...

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