United States District Court, E.D. New York
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The Law Offices of David S. Feather, by David S. Feather, Esq., of Counsel, Garden City, NY, for Plaintiff.
Office of the Suffolk County Attorney by Chris P. Termini, Assistant County Attorney, Hauppauge, NY, for Defendants.
MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
This action was commenced by the Plaintiff Patricia Dillon, M.D., M.P.H. (" Dr. Dillon" or " the Plaintiff" ) seeking compensatory damages, punitive damages, equitable relief, and attorneys' fees based on the Defendants (1) taking adverse employment actions against her, including but not limited to suspending her from employment without pay and bringing charges against her pursuant to New York State Civil Service Section 75, all in retaliation for her exercise of free speech, speaking as a citizen regarding a matter of public concern in complaining of consciously indifferent medical treatment of prisoners and possible prisoner abuse in the
Riverhead Correctional Facility in Suffolk County, New York; and (2) taking adverse employment actions against Dr. Dillon in violation of New York Civil Service Law § 75-b, by retaliating against her for reporting illegal conduct and/or conduct that she reasonably believed constituted improper government action. Thus, Dr. Dillon asserts (1) a First Amendment retaliation claim and (2) a claim pursuant to the New York State whistleblower statute against the Defendants Suffolk County, Dr. Humayun Chaudhry, and Dr. Vincent Geraci.
Presently before the Court is the Defendants' motion for summary judgment. For the reasons set forth below, the motion is granted in part and denied in part.
The Plaintiff Patricia Dillon is a medical doctor who worked as a high-ranking public health employee of Suffolk County from 2001 through August 2007. On August 22, 2007, Dillon was transferred from her administrative public health position to Suffolk County's Riverhead Correctional Facility, where she was assigned to provide primary health care to individual prisoners. Dr. Dillon alleges that she was transferred by the newly appointed Suffolk County Commissioner of Health Services, Defendant Humayun Chaudhry, D.O. (" Dr. Chaudry" ). In her new position, she reported to Defendant Vincent Geraci, M.D. (" Dr. Geraci" ), the Medical Programs Administrator of the Jail Medical Unit (" JMU" ) of the Suffolk County Department of Health Services. Dr. Dillon does not state why she was transferred to the Suffolk County Jail, and this transfer does not form the basis of any of her claims. According to the Plaintiff, she never received an oral or written description of her new assignment.
On September 4, 2007, Dr. Dillon met with Dr. Geraci to discuss her new assignment in the JMU. At that time, he explained to Dr. Dillon the nature and procedures of the JMU. The Plaintiff claims that during the course of this discussion, Dr. Geraci told her that JMU (1) routinely denied methadone to patients in methadone maintenance programs; (2) does not provide asthma inhalers to patients; and (3) delays starting patients on medications for several days after they arrive.
On the following day, September 5, 2007, Dr. Geraci requested that the Plaintiff assist him with chart reviews. While observing these charts, Dr. Dillon noted that several patients were receiving inadequate treatment. For example, one chart showed that a patient had received no treatment for broken ribs; not even pain medication. She raised her concerns with Dr. Geraci. In addition, on that same day, Dr. Dillon expressed her concern to Rick Kaufman, a social worker at JMU who serves as Dr. Geraci's second-in-command.
For the next day and a half, the Plaintiff was assigned to the file room and directed to help file charts and conduct chart reviews. In the course of doing so, she once again observed further evidence of inadequate medical treatment and possible prisoner abuse. Dr. Dillon then made photocopies of the relevant portions of these charts. Again, Dr. Dillon reported her concerns to Dr. Geraci, but her concerns were dismissed. In particular, he denied Dr. Dillon's suggestion that federal and/or state authorities be contacted to perform an outside audit of the JMU. On September 6, 2007, Dr. Dillon also called Paul Sabati no, the Chief Deputy County Executive, to discuss some of her concerns regarding the order and dispensation of pharmaceuticals at the JMU.
On September 7, 2007, Dr. Geraci told Dr. Dillon that because she was a female,
she would need to start seeing OB/GYN patients. At that time, the Plaintiff explained that she did not have the necessary experience or training in gynecology and was also not properly credentialed to treat patients in this area. Nevertheless, Dr. Geraci told her that he would have one of the nurse practitioners train her in gynecology and would take care of filing the appropriate paperwork in order for her to receive the proper credentials.
On that same day or the following Monday, September 10, 2007, Dr. Dillon also expressed her concerns to John Heilbrunn, a contracts administrator with Suffolk County Health Services. She explained to him that she had been working at JMU for approximately one week and that she had learned that necessary medications were not being prescribed; that prescribed medications were not being administered to patients; that there was an unwritten policy requiring nurses to list unadministered medications as having been administrated by a fictitious nurse; that abnormal test results were removed from charts; that injured and acutely ill patients were being neglected and left untreated; that required diagnostic tests were not being performed; and that mistreatment of patients was being covered up.
On September 10, 2007, the Plaintiff reached out to the Defendant, Dr. Chaudhry, and informed him of her various concerns. She told Dr. Chaudhry that Dr. Geraci had instructed her that inmates are entitled to a less standard of medical care than the general population. The Plaintiff also notified Dr. Chaudhry that when patients at the JMU were not administered medication, the staff was instructed to note that the medication had been administrated by a fictitious nurse.
On that same day, Dr. Geraci received a questionnaire from the Suffolk County Director of Compliance, which listed various areas of competency that would be required for the Plaintiff to be credentialed to practice gynecology. Dr. Geraci instructed Dr. Dillon to sign the papers and attest that she was competent in these various areas, but she refused, stating that she did not know how to perform the listed procedures. In response, Dr. Geraci insisted that Dr. Dillon pursue whatever steps were necessary to receive the credential or submit a written refusal to see patients. Dr. Dillon then reiterated her concerns about the level of care at the JMU, and informed Dr. Geraci that she had contacted her union and they had advised her not to sign anything. Dr. Geraci then demanded that Dr. Dillon leave the JMU and she was escorted off the premises.
It appears that from September 4, through September 11, 2007, Dr. Dillon photocopied " problematic" charts and brought them to Dr. Geraci's attention.
On September 11, 2007, Dr. Dillon reported to work as she had on previous days, but was told by a file clerk that she needed to speak with Dr. Geraci before filing any charts. She was then called into Dr. Geraci's office, where Rick Kaufman was present. At this meeting, Dr. Dillon was told that she was being moved from the file room to an exam room, and she was handed a new protocol that forbade her from photocopying patient charts. After this meeting, she stopped photocopying any documents.
Later that day, Dr. Chaudhry responded to an earlier email from the Plaintiff regarding her concerns about the medical treatment in the JMU, and wrote to her that " as a reminder, Dr. Geraci is your immediate supervisor and it is correct to work with him in the chain of command to clarify any questions or confusion you may have about Jail Medical Unit (JMU) operations or your role in them."
On September 13, 2007, shortly after the Plaintiff arrived at work, she was called into Dr. Geraci's office, where John Heilbrunn and three men in plainclothes with handcuffs on their person were waiting. Dr. Geraci demanded that the Plaintiff turn over any photocopies she had made of patients charts. Dr. Dillon failed to comply, and at that time Dr. Geraci informed her that she was being suspended for thirty days without pay. He then had the three men escort her off the premises with her hands held behind her back.
The Defendants have a completely different account of the events at the JMU. For instance, the Defendants assert that the Plaintiff was directed to perform OB/GYN procedures only because she explained she was afraid to be around male inmates as a result of a prior incident in her career. In addition, the Defendants contend that during the course of her one week in the JMU, Dr. Dillon refused to familiarize herself with the procedures employed in the JMU and refused to fill out appropriate credentialing materials which apparently were necessary as a pre-condition for her to see and treat inmates/patients. Finally, the Defendants claim that Dr. Dillon was observed photocopying inmate medical records, and upon inquiry from Dr. Geraci, Dr. Dillon untruthfully stated she was doing so as the request of Clare Maser, a Senior Clerk Typist assigned to the JMU. Both parties agree that Dr. Dillon refused to turn over photocopies of these documents when requested.
On September 14, 2007, the Defendants filed a complaint against Dr. Dillon with the New York State Office of Professional Misconduct, accusing her of malfeasance in the copying of records. This ultimately resulted in an investigation that has since been closed.
On or about September 25, 2007, Dr. Dillon was served with Disciplinary Charges pursuant to New York State Civil Service Law Section 75. The County alleged that the Plaintiff was insubordinate in refusing to obey an order to return all photocopies of prisoner medical records; in failing to obey an order to participate in a mandated training process; and in refusing a direct order to complete required credentialing paperwork. In addition, the County alleged that she violated Suffolk County Health Department Rules and Procedures by making photocopies of confidential inmate medical records and doing so without prior consent on two separate occasions. (Def. Ex. E.) These charges were incorporated into an Amended Statement of Charges and Notice of Hearing, which was dated March 17, 2008. The Plaintiff was served with these charges on May 17, 2008. (Def. Ex. F.)
Meanwhile, on November 13, 2007, the Plaintiff filed the instant lawsuit in the Eastern District of New York. According to the Plaintiff, this instigated further retaliatory conduct, which intensified. On November 13, 2007, the Defendant removed Dr. Dillon from the payroll without notifying her. She was not reinstated to the payroll until February 12, 2008. In addition, on November 15, 2007, Dr. Dillon received a notice that the County was going to terminate her health insurance benefits effective November 18, 2007, unless she immediately paid the health insurance premiums, which the Plaintiff claims she did. Nevertheless, on December 3, 2007, the County canceled her health insurance. Her health insurance was not reinstated until January 15, 2009. As another example of alleged retaliatory conduct, the Plaintiff was directed to undergo a psychological examination on December 14, 2007.
On several occasions in January 2008, Dr. Dillon spoke to Chris McPartland, the Suffolk County District Attorney's Government Corruption Bureau Chief, as well as
a representative of the Suffolk County Attorney's Office, regarding her concerns about both the medical treatment of prisoners at the Riverhead Correctional Facility, as well as the forgery and adulteration of medical records.
On January 24, 2008, the Plaintiff was reassigned to a new position in the Southampton Clinic. The Plaintiff raises several issues with regard to Dr. Wickramaaratachi, the Medical Director of the facility, including that he assigned her to do OB/GYN tasks despite her lack of experience and training in that field. Also, he directed the Plaintiff to bill Medicaid with a computer that had been pre-programmed to falsely attest that she was board-certified in Family Practice, which the Plaintiff refused to do. According to Dr. Dillon, during the time that she was assigned to the Southampton Clinic, from February 2008 through May 2008, she repeatedly requested that she be provided with medical textbooks to review and receive formal medical training in Primary Care medicine, but her requests were refused by the Defendant. The Defendants dispute that this occurred.
On or about May 14, 2008, the Defendants transferred Dr. Dillon to the Riverhead Clinic. At this facility, she was directed to not go near patients or medical charts, and was assigned to a solitary room where she was only allowed to exist for a lunch period and two fifteen minute breaks.
On April 23, 2008, the Plaintiff filed an Article 78 Special Proceeding under the New York Civil Practice Law and Rules (" CPLR" ), seeking a finding that the County had illegally transferred her from her prior position to the new position at the JMU, and that the County had failed to perform its lawful duties by serving the Plaintiff with Section 75 charges of misconduct pursuant to the Civil Service Law, and by violating the provisions of the Collective Bargaining Agreement. (Def. Ex. H.) On March 26, 2009, New York State Supreme Court Justice Paul J. Baisley issued a decision which denied the Plaintiff's petition in its entirety. (Def. Ex. I.) In particular, the Court found that the transfer of ...