MEMORANDUM OF DECISION AND ORDER
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
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.
I. BACKGROUND
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,
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.”
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
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 River-head 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 Plaintiffs petition in its entirety. (Def. Ex. I.) In particular, the Court found that the transfer of the Plaintiff to the JMU was proper, and that the institution of the Section 75 Charge was lawful and proper. The Plaintiff was eventually terminated, effective February 10, 2009.
II. DISCUSSION
A. Legal Standard
It is well-settled that summary judgment under the provisions of Fed.R.Civ.P. 56(c) is proper only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is “material” within the meaning of Fed.R.Civ.P. 56 when its resolution “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
In determining whether an issue is genuine, “[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion.” Cronin v. Aetna Life Ins. Co.,
B. As to the Plaintiff’s First Amendment Retaliation Claim
The Plaintiff claims that after she spoke to various Suffolk County officials regarding her concerns over the deliberate indifference of medical treatment and the abuse of prisoners at the Riverhead Correctional Facility; the alteration and destruction of medical records; and the possible misuse of drugs; she was retaliated against by the filing of the New York State Civil Service Discipline Charges for misconduct while she worked at the JMU from September 4, 2007 through September 13, 2007. In addition, the Plaintiff alleges that after she filed the instant case, she was retaliated against again by the County’s actions in filing additional Discipline Charges for misconduct in early 2008. The Plaintiff also alleges a number of other retaliatory acts, including her removal from the County payroll; her health benefits being temporarily terminated; the required psychological examination; and the filing of a complaint against her with the New York State Office of Professional Misconduct.
The Second Circuit has “described the elements of a First Amendment retaliation claim in several ways, depending on the factual context.” Williams v. Town of Greenburgh,
To establish a prima facie case of First Amendment retaliation, a plaintiff must show that (1) she engaged in “constitutionally protected speech” because she spoke as a citizen on a matter of public concern; (2) she suffered an adverse employment action; and (3) the speech at issue was a substantial or motivating factor in the decision. Johnson,
1. Whether the Claimed Speech Fails the “Public” Test
The first basis for the Defendants’ motion for summary judgment is that the
“The [United States Supreme] Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos,
As the Supreme Court has recognized, “conducting these inquiries sometimes has proved difficult.” Id. Indeed, the present question the Court now faces is not easily answered. Unlike the facts presented in Garcetti or certain Second Circuit cases where, as in Garcetti, the speech at issue was expressly part of the employee’s official job duties and thus not protected under the First Amendment, here “there [is] room for serious debate” over whether Dr. Dillon was speaking as a citizen or “pursuant to [her] employment duties.” Garcetti,
a. Legal Standard
Speech is on a matter of public concern and therefore a protected activity “if it relates ‘to any matter of political, social, or other concern to the community.’” Johnson v. Ganim,
In Garcetti v. Ceballos, supra, the recent seminal case on this issue, a supervising district attorney was disciplined for writing a memorandum in which he recommended the dismissal of a case on the basis of purported government misconduct. Id. The United States Supreme Court found that the district attorney was not protected by the First Amendment because he “spoke as a prosecutor fulfilling a responsibility to advise his superiors how best to proceed with a pending case” and not as a private citizen. Id. at 421,
After Garcetti narrowed the scope of First Amendment protections for public employees, the Second Circuit has had several opportunities to opine on the subject. For instance, in Weintraub v. Board of Educ. Of City School Dist. of City of New York,
However, the decision also explored another main factor, which was inferred to in the Garcetti decision. The Weintraub court looked to whether the speech took the form of an employee grievance, for which there was no relevant citizen analogue. In particular, the court noted that:
[t]he lodging of a union grievance is not a form or channel of discourse available to nonemployee citizens, as would be a letter to the editor or a complaint to an elected representative or inspector general. Rather than voicing his grievance through channels available to citizens generally, Weintraub made an internal communication pursuant to an existing dispute-resolution policy established by his employer, the Board of Education.
See id. at 204 (asking whether the plaintiff “voic[ed] his grievance through channels available to citizens generally”); Freitag v. Ayers,
Thus, in the wake of Weintraub, many courts inside and outside this circuit have looked to the channels through which the speech was made as pertinent to the analysis. See, e.g., Boyce v. Andrew,
In addition to the factors explored above, the Court notes that an employee may be performing her job when she speaks, even if the expression is not necessarily demanded of her. See Sweeney v. Leone, No. 05 Civ. 871,
Precedent thus dictates several important considerations that this Court must keep in mind when determining whether Dr. Dillon’s complaints were made on a matter of public concern as a private citizen.
b. Matter of Public Concern
As an initial matter, there is no doubt that Dr. Dillon’s speech was a matter of public concern, and the Defendants do not attempt to argue otherwise. Dr. Dillon made serious allegations regarding the policies and practices at JMU, including that necessary medications were not being prescribed; 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. “These incidents, the inadequacy of training and care within the facility, and the lack of a response to reported conditions implicate the health, welfare and safety of severely disabled individuals in the care of the state, are matters of importance to the public.” McLaughlin v. Pezzolla, No. 06 Civ. 0376,
c. Speaking as a Citizen or as an Employee
Next, the Court proceeds to the more difficult inquiry — whether Dr. Dillon’s speech was made as an employee of the County in the JMU or as a private citizen. “In applying Garcetti and Weintraub to this second and more nebulous class of cases where no clear ‘official duty* to speak is present on the record, this Circuit focuses on the subject, manner, and context of the speech to determine whether it relates to topics that are ‘indispensable prerequi
First, the Court agrees with the Defendants that the Plaintiffs speech undeniably concerned the subject matter of her employment, namely the treatment of patients at the JMU. Nevertheless, the Supreme Court has made clear that this alone is not dispositive. See Garcetti,
As for whether her expressions were made pursuant to her duties, the Plaintiff appears to have never received a formal job description when she began her employment. She was at the JMU for a brief period of time — approximately one week— and during that period she largely spent her time filing patient charts and shadowing nurse practitioners. Regardless, it cannot be disputed that the Plaintiff was hired to perform medical duties for the inmate population. This is clear based upon her extensive career background and the various conversations she had with her supervisors regarding their desire for her to perform OB/GYN examinations and procedures. In addition, the description for a “Physician III” civil service position, which the Defendant argues the Plaintiff necessarily reviewed prior to applying for employment with the County, describes her duties as “[p]erform[ing] professional medical services for departments and agencies of Suffolk County.” (Def. Ex. D.)
Strictly speaking, she was not employed to uncover gaps or errors on inmates’ medical charts, nor was she hired to oversee that the inmates were receiving proper medical care. Nevertheless, the relevant inquiry is not that narrow. To count as employee rather than citizen speech, it must be made “in furtherance of one of’ the employee’s “core duties.” Garcetti at 421,
However, even in light of the broader perspective that the Plaintiffs job duties included the general medical treatment of inmates in the JMU, the Court finds that Dr. Dillon’s speech was not made pursuant to those duties. See DiMarco v. Rome Hosp. and Murphy Hosp., No. 88 Civ. 1258,
In the instant case, unlike the complaint in Weintraub which referred to incidents in the teacher’s own classroom, the Plaintiffs complaints referred to systemic mistreatment and corruption extending outside of her own personal duties and affecting inmates with whom she had no personal or job connection. See McLaughlin v. Pezzolla, No. 06 Civ. 0376,
One could argue that if there was a systematic practice of inadequate treatment and widespread usage of fictitious treatments and omissions in the patients’ charts, this would inevitably affect the Plaintiffs ability to perform her job of providing adequate medical treatment to the prisoners. However, the Court finds that this relationship is too attenuated and would stretch the logic of Garcetti to an unreasonable degree. “Were “part-and-parcel” to encompass all speech that aims to improve a government employee’s workplace' — ’thereby helping the employee carry out her core duties there — everything that employees say relating to their work would end up falling outside the First Amendment’s protections. This would fly in the face of the Supreme Court’s repeated reminders that government employees’ speech is often most valuable when it concerns a subject they know best: their jobs.” Ricciuti v. Gyzenis,
While the Defendants do not raise this point, it would also be reasonable to assert that as a physician, Dr. Dillon had a duty to report any misconduct she saw with regard to the treatment of patients. In fact, “[d]octors ... have an affirmative duty to report misconduct of a licensed professional under New York law.” N.Y. Public Health Law § 230-11 (McKinney 2008). Yet, the Court is not persuaded that this forecloses the Plaintiffs claim to First Amendment protection. This would be akin to preventing any public doctor from having a First Amendment retaliation claim anytime the speech was remotely related to the treatment of patients. The Supreme Court’s narrow “holdfing] that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes,” Garcetti,
One’s professional reporting obligations, imposed by an outside authority and mandated by some edict like the New York Public Health Law, is not necessarily part of one’s duties as an employee. This is in stark contrast to other cases where speech was found to be unprotected because the plaintiffs reported wrongdoing pursuant to broadly applicable work rules and/or employee manuals requiring reporting of internal corruption or misconduct. See, e.g., Barclay v. Michalsky,
In addition, Dr. Dillon’s complaints went far beyond the scope of just inadequate medical treatment by other physicians. The Plaintiff also expressed her concerns regarding the potential cover up of abuse by prison guards. This could not be said to be “in furtherance of one of’ the employee’s “core duties.” Weintraub,
Furthermore, some instances of the Plaintiffs speech had citizen analogues, a factor which weighs in favor of finding that her expressions were made as a private citizen. See Kiehle v. County of Cortland, No. 09 Civ. 1259,
Moreover, speaking to a contact administrator with Suffolk County Health Services or with the Suffolk County District Attorney’s Government Corruption Bureau Chief are actions that could have been undertaken by any member of the public at large. Thus, Dr. Dillon lodged her grievances through channels of discourse that are available to non-employee citizens. See Freitag v. Ayers,
The Defendants assert that Dr. Dillon’s speech cannot be protected by the First Amendment because all of her complaints were made based upon her personal knowledge that she acquired solely while working at the jail. However, this contention is without merit. As explained in Griffin v. City of N.Y.,
Therefore, the Court finds as a matter of law that the speech at issue here is on
2. Causal Connection
In the Defendants’ motion for summary judgment, they also argue in the alternative that the Plaintiff has failed to establish the requisite causal connection. In particular, they assert that even if Dr. Dillon’s speech is protected under the First Amendment, in order for her to prevail on her retaliation claim, she must establish a causal connection between her protected activity and the Defendants’ alleged adverse employment actions. This causal connection must be sufficient to support a finding that the Defendants’ speech was a substantial or motivating factor in the adverse action.
The Defendants contend that as established through the findings of Hearing Officer Herzweig, the Plaintiff engaged in numerous acts of misconduct while she was employed at the JMU, such as refusing to obey orders with respect to returning inmate records; refusing to participate in mandated training; and refusing to complete required credentialing. Therefore, the Defendants assert that the County had the power to act, namely to rectify employee misuse of her job responsibilities, regardless of her speech. In other words, the record arguably shows an independent basis for the actions of the Defendants.
“As for the third element, causal connection, ‘allegations must be sufficient to support the inference that the speech played a substantial part in the adverse action.’ ” Arteta v. County of Orange,
Here, the Plaintiff has met her burden to show a causal connection. Although she does not expressly articulate it as such, it appears that she is relying upon temporal proximity to establish such a causal connection.
“[A] plaintiff can indirectly establish a causal connection to support a ... retaliation claim by showing that the protected activity was closely followed in time by the adverse [employment] action.” Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty.,
Here, the Plaintiff began making her complaints about the treatment of patients in the JMU as well as the alleged fabrications and/or omissions in their medical records as early as September 4, 2007, largely through her conversations with Dr. Geraci. On September 13, 2007, the Plaintiff was suspended without pay for thirty days and was escorted from the Riverhead Correctional Facility. 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. On or about September 25, 2007, Dr. Dillon was served with Disciplinary Charges pursuant to New York State Civil Service Law Section 75 on September 25, 2007. Thus, the alleged retaliatory actions all took place within a few weeks of the Plaintiffs protected activities. “Suspect chronology — the close sequence of protest and scrutiny — constitutes circumstantial evidence.” Beechwood Restorative Care Ctr. v. Leeds,
3. Non-Retaliatory Justification
Having determined that the Plaintiff has established her prima facie case, the Court turns to the Defendants’ proffer of a legitimate, non-retaliatory reason for taking action. The Defendants assert that they had genuine reasons and an independent basis for taking the actions they did against the Plaintiff, so that they can show that they would have taken the same adverse action in the absence of her protected speech. In particular, the Defendants rely on the Findings of Hearing Officer Herzweig, which found that the Plaintiff engaged in numerous acts of misconduct while she was employed at the JMU. According to the Defendants, this misconduct included refusing to obey supervisor orders with respect to returning inmate medical records; refusing to participate in mandated training; refusing to complete required credentialing; and refusing to review the State Commission of Correction’s Minimum Standard and State Procedures pertaining to Correctional Medicine. Consequently, Dr. Dillon was found guilty of numerous Section 75 disciplinary charges.
However, these disciplinary charges are not dispositive of this issue. Even if the Defendants’ charges against the Plaintiff were justified, which it appears they were, their pursuit of the claims against the Plaintiff may still have been motivated by an intent to punish her for exercising her First Amendment rights of speech. There is at least a question of fact as to whether the Defendants were substantially motivated by her speech, despite the legitimate
Moreover, the particular circumstances of this case further support the denial of the Defendants’ motion for summary judgment with regard to causal connection, because issues of fact exist as to the Defendants’ motivations. Here, the stated legitimate reasons for subjecting the Plaintiff to adverse employment actions, such as the Plaintiffs photocopying of certain inmates’ medical charts, is directly related to the protected speech — the fabrications and/or omissions in those inmates’ medical charts. Thus, this direct correlation between the protected speech and the articulated reasons for the Defendants’ actions further dictate against a finding that the Defendants’ actions were not substantially motivated by the Plaintiffs speech.
The Defendants also briefly raise the doctrines of res judicata and collateral estoppel in their motion for summary judgment, without much explanation. It appears that the Defendants are contending that because Dr. Dillon was found guilty of numerous acts of misconduct, she cannot relitigate, whether she did or did not do those acts.
The preclusive effect of state administrative findings is governed by New York law. Kosakow v. New Rochelle Radiology Assoc.,
New York law provides a whistle-blowing defense at a Section 75 hearing. Thus, Dr. Dillon, if she reasonably believed that the disciplinary action “would not have been taken but for [protected whistle-blowing activity],” could assert that claim as a defense; if the hearing officer found “that the dismissal or other disciplinary action [was] based solely on a violation by the employer [of the whistle-blower protections],” the hearing officer was to dismiss or recommend dismissal of the disciplinary charges. N.Y. Civil Service Law § 75-b(3)(a).
However, at her hearing it does not appear that the Plaintiff raised the defense that the charges were illegitimate retaliation for her protected speech, and the hearing officer did not consider such a defense sua sponte. “Moreover, under state law, the only finding necessary to support a valid judgment in the administrative hearing was that the [Defendants] w[ere] not solely motivated by retaliatory animus against [the Plaintiff] for initiating disciplinary action against [her].” Broich v. Inc. Village of Southampton,
Here, it is possible that the disciplinary charges — even though upheld in administrative proceedings — would not have been brought but for the Defendants’ retaliatory motive. Indeed, there is nothing in the record to support a finding that the hearing officer considered the existence of whole or partial retaliatory motive, and no ground to conclude that this issue was necessarily decided. This is a showing that the County, as the proponent of collateral estoppel, has the burden to make, Jeffreys v. Griffin,
C. As to the Plaintiff’s New York State Whistleblower Claim
Finally, with regard to the Plaintiffs other cause of action, a New York State Whistleblower claim, the Defendants assert that this claim must be dismissed on the ground that the Plaintiff has failed to serve a notice of claim within the ninety day period as required by County Law Section 52(1) and General Municipal Law Section 50(e).
A “powerful network of legislative enactments — such as whistle-blower protection laws and labor codes — [are] available to those who seek to expose wrongdoing.” Garcetti,
A plaintiff pursuing a claim pursuant to § 75-b must comply with the notice requirements of New York County and General Municipal Law. See Dingle v. City of New York,
III. CONCLUSION
For the foregoing reasons, it is hereby:
ORDERED, that the Defendants’ motion for summary judgment with regard to the Plaintiffs First Amendment retaliation claim is denied; and it is further
ORDERED, that the Defendants’ motion for summary judgment with regard to the Plaintiffs state law cause of action for violations of the New York State Whistle-blower law is granted; and it is further
ORDERED, that the parties are directed to appear before this Court for the purpose of a pre-trial conference on January 29, 2013 at 9:00am.
SO ORDERED.