Scheiner v. New York City Health and HospitalsScheiner v. New York City Health and Hospitals
OPINION AND ORDER
This аction is brought pursuant to 42 U.S.C. § 1983 and also invokes the Court’s supplemental jurisdiction over pendent state law claims. The plaintiff, Clifford J. Scheiner (“Scheiner”), alleges that he was stripped of his clinical privileges and fired from his position as an emergency room physician at Kings County Hospital Center in violation of his rights under the First and Fourteenth Amendments.to the United States Constitution. The plaintiff also brings state law claims for malicious prosecution and for a violation of New York State’s whistleblower statute, N.Y. Civ.
I.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless “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 a judgment as a matter of law.” Fed. R.Civ.P. 56(c);
see also Celotex Corp. v. Catrett,
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
II.
The following facts are not in dispute, except where noted. Kings County Hospital Center (“KCHC”) is a municipal hospital and is a facility of the defendant HHC, a public сorporation chartered by the State of New York. (Compl. ¶ 9; Pl.’s 56.1 St. ¶ 2; Defs.’ 56.1 Counter-St. ¶ 1.) The plaintiff began employment at KCHC in 1976, first as an intern and ultimately as an attending physician. (Pl.’s 56.1 St. ¶ 1; Defs.’ 56.1 St. ¶¶ 1-4; Pl.’s 56.1 Counter-St. ¶¶ 1-3.) The plaintiff worked in the Department of Emergency Medicine (“DEM”) and the Urgent Care Center (“UCC”) until December 5, 1995, when his clinical privileges were revoked. (Defs.’ 56.1 St. ¶ 6; Pl.’s 56.1 St. ¶ 3.) The plaintiffs employment was terminated on or about March 6, 1996. (Defs.’ 56.1 St. ¶ 7; Pl.’s 56. St. ¶ 4; Defs.’ 56.1 Counter-St. ¶ 3.)
In the summer of 1994, defendant Phillips — Caesar became Deputy Executive Director of KCHC with supervision over various areas of hospital administration. (Defs.’ 56.1 St. ¶ 8; Pl.’s 56.1 Counter St. ¶ 4.) Defendant Jean Leon began her employment at KCHC in or about July 1994 as the Interim Executive Director, and became the Executive Director in or about February 1995. (Defs.’ 56.1 St. ¶ 9.) Defendant Dr. Rice, who was asked to join the staff of KCHC by defendant Dr. Sca-lea, began his employment at KCHC in or about July 1992 as the Director of the DEM. (Defs.’ 56.1 St. ¶ 10.)
In April 1994, Dr. .Rice initiated disciplinary proceedings against Scheiner by initiating a Request for Disciplinary Action (“RDA”) against the plaintiff with the Chairman of the Medical Staff Committee. (Defs.’ 56.1 St. ¶ 29; Third Declaration of Assistant Corporation Council Kevin J. Smith dated October 30, 2000 (hereinafter “Joint Ex.”), Joint Ex. 2.) The RDA contained four allegations against the plaintiff: lack of basic medical knowledge; repeated displays of rudeness; refusal to or.delay in evaluating or treating patients in violation of the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”); and, insubordination. (Joint Ex. 2 at 1.) Pursuant to the KCHC Medical Staff By-laws (Joint Ex. 1 at 33-34), the RDA was referred to an Ad Hoc Committee of the DEM (“AHC”). (Defs.’ 56.1 St. ¶30.) The Ad Hoc Committee consisted of Drs. Low, Baron, Hartnet, and Bania. (Joint Ex. 3; Defs.’ 56.1 St. ¶44.) Under the KCHC Medical Staff By-laws, the AHC investigates the matter and makes a report on the matter to the Medical Staff Committee (“MSC”). The KCHC Medical Staff By-laws provide that the AHC is to interview the practitioner subject to discipline, but the interview does not constitute a hearing. (Joint Ex. 1 at 33-34.)
On or about April 27, 1994, Dr. Low, a physician and faculty member within the DEM, sent the plaintiff a letter which: (1) informed the plaintiff that he was the Chairman of the AHC; (2) infоrmed the plaintiff of-the general nature of the statements made about him that were included within the RDA; (3) provided to the plaintiff a list of the medical cases that were the subject of the RDA, a statement about the complaints- of rudeness regarding the plaintiff, a statement of the alleged COBRA violations, and a statement regarding the plaintiffs insubordination. (Joint Ex. 3.)
Pursuant to the KCHC Medical Staff By-laws, the MSC is to consider the AHC report and conduct its own investigation and take whatever action it deems appropriate under thе circumstances. (Joint Ex. 1 at 34-35.) The MSC that investigated the plaintiff consisted of Drs. Meehan, Camilien, Rajagopal, Reilly, Salwen, and Shames. (Defs.’ 56.1 St. ¶ 53.) The MSC convened on June 3, 1994, and met with the plaintiff regarding the RDA. (Joint Ex. 5.) The MSC recommended that the President of the Medical Staff inform defendant Leon that, due to Schemer’s unsatisfactory performance, he should be dismissed. (Joint Ex. 5 at 14.) By letter dated Sept. 29,1994, Dr. Meehan informed Leon of the MSC’s recommendation regarding the plaintiff. (Joint Ex. 6.)
Subsequently, by letter dated October 11, 1994, Leon informed the plaintiff that, based upon the recommendations of the AHC and the MSC, it was proposed that the plaintiffs clinical privileges and staff membership at KCHC be revoked, and that he not be reappointed to the medical staff at KCHC. (Joint Ex. 7.) Leon also advised the plaintiff of his right to invoke the grievance procedure pursuant to Article 10 of the KCHC Medical Staff By-laws, and set forth the grievance procedures to which the plaintiff was entitled. (Joint Ex. 7.) The letter also allegedly included a сopy of the RDA. (Joint Ex. 7; Joint Ex, 11; PL’s 56.1 Counter-St. ¶ 22.)
Thereafter, in a November 4, 1994 letter to Dr. Meehan, the President of the Medical Staff, the plaintiff initiated the grievance procedure set forth in the KCHC Medical Staff By-laws. (JointEx.il.) By letter dated December 30, 1994, Dr. Elver-son informed the plaintiff that the formal grievance procedure had been commenced and that the Initial Hearing Panel (“IHP”), Step 4 of the Article 10 grievance procedures, would meet to review the matter. (Joint Ex. 18.) Under the KCHC Medical Staff By-laws, the IHP is charged with “conducting] a thorough and impartial investigation of the grievance,” including interviewing persons believed to have information and reviewing pertinent documents. (Joint Ex. 1 at 42.) The IHP, composed of Dr. Elverson, as Chairman, and Drs. Strashun and Wetzel, convened on January 18,1995, January 19, 1995, and March 7, 1995. (Joint Ex. 21, Transcript dated January 18, 1995, and January 19, 1995 (“Jan.Tr.”) at 1-2, 108-109; Joint Ex. 21, Transcript dated March 7, 1995 (“Mar. Tr.”) at 1-2.) Prior to the start of the IHP proceedings, the plaintiffs submitted to the IHP members a written rebuttal to the RDA, which was entered as an exhibit during the IHP proceedings. (Pl.’s Ex. 1; Joint Ex. 21, Jan. Tr. at 3.) The plaintiff, Dr. Rice, Dr. Scalea and Dr. Austin testified during the IHP proceedings with respect to the allegations ’contained in the RDA. (Joint Ex. 21.)
On March 14, 1995, the IHP found that the plaintiff was medically incompetent. (Joint Ex. 22.) The plaintiff appealed the IHP’s finding to the Appeal Board (“AB”). (Joint Ex. 24.) The AB panel that reviewed the plaintiffs grievance consisted
The plaintiff requested review by defendant Marcos, the President of HHC. (Joint Exs. 31 & 32.) As part of the plaintiffs notification to appeal to the President of HHC, the plaintiff requested an opportunity to have a personal interview with Dr. Marcos. (Joint Ex. 32.) Although the President denied the plaintiffs request to have a personal interview (Joint Ex. 33), the plaintiff was permitted to submit a written statement setting forth why the plaintiff believed that the decision to revoke his clinical privileges was erroneous. (First and Second Declarations of Assistant Corporation Council Kevin J. Smith dated September 5, 2000 (hereinafter “Defs.’ Ex.”), Defs.’ Ex'. N.) Dr. Marcos denied the plaintiffs appeal by letter dated November 13,1995. (Joint Ex. 34.)
Shortly thereafter, on or about December 6, 1995, the plaintiffs staff and clinical privileges at KCHC were revoked and the plaintiff was informed that he would not be reappointed to the medical staff at KCHC. (Joint Ex. 36 at 5.) On or about January 24, 1996, Doctors Council, the collective bargaining agent for the plaintiff and other physicians at KCHC, filed a Step II grievance under the collective bargaining agreement in place between the City of New York and Doctors Council, claiming that the plaintiffs termination violated the collective bargaining agreement. (Defs.’ Ex. P.) On March 1, 1996, the Step II review officer for HHC denied the plaintiffs Step II grievance. (Defs.’ Ex. Q.) On or about March 6, 1996, the defendant Leon terminated the plaintiff. (Def.Ex. R.)
In June. 1996, the plaintiff appealed the revocation of his privileges to the New York State Department of Health Public Health Council (“Public Health Council”), claiming that KCHC acted improperly in terminating his privileges. (Joint Ex. A.) On December 2, 1996, the Public Health Council rejected Schemer’s appeal, finding that KCHC had not been arbitrary or capricious in terminating the plaintiff and had not acted in bad faith or in violation of its by-laws. (Joint Ex. C.)
Also in June 1996, the plaintiff, through the Doctors Council, requested arbitration for the alleged violation of “the applicable Doctors Council collective bargaining agreement by the improper discipline and/or termination” of the plaintiffs employment. (Defs.’ Ex. S.) On July 17, 1998, the arbitrator issued a decision finding that the actions of KCHC Medical Board were “not proeedurally regular” under the collective bargaining agreement and its own rules and regulations. (Joint Ex. D at 56.) The arbitrator reinstated the plaintiffs clinical privileges and employment at KCHC with full back pay effective May 8, 1996, and remanded the plaintiffs status to the medical staff review procedures for a new imposition under the KCHC Medical Staff By-laws. (Joint Ex. D at 56.) HHC filed a petition to vacate the arbitration award with the New York
The same charges of medical incompetence that were the subject of the KCHC disciplinary proceedings which ended in the termination of thе plaintiffs medical privileges were at some point referred to the New York State Department of Health’s Office of Professional Medical Conduct by Dr. Rice. (Pl.’s Exs. 14 & 15.) The Office of Professional Medical Conduct investigated the allegations and concluded that, although there were indications that the plaintiff had difficulties with interpersonal relationships, under the law there was no evidence of misconduct and the Office of Professional Medical Conduct closed the case. (Pl.’s Exs. 14 & 15.)
The plaintiff filed this action on November 23, 1998. The plaintiff alleges that the initiation of the disciplinary proceedings against him was in retaliation for his outspoken criticism and complaints with respect to KCHC policy and conditions, and thus violated his First Amendment rights. (CompLIHl 75, 76.) The plaintiff also alleges that the disciplinary proceedings that culminated in the revocation of his privileges and the loss of his job were procedurally flawed, violated the KCHC Medical Staff By-laws and his right to due process under the Fourteenth Amendment. (Compl.lffl 55, 72, 76.) In addition to his federal claims under 42 U.S.C. § 1983, the plaintiff also asserts state law claims for malicious prosecution and for a violation of New York State’s whistleblower statute, N.Y. Civil Service Law § 75b.
III.
In order to prevail on a claim under 42 U.S.C. § 1983, a plaintiff must satisfy two elements: “First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.”
Gomez v. Toledo,
IV.
The defendants argue that they are entitled to summary judgment dismissing the plaintiffs First Amendment claim.
It is well-established that a public employer cannot retaliate against an employee for the exercise of the employee’s First Amendment free speeсh rights.
Rankin v. McPherson,
Not all employee speech is entitled to constitutional protection. If the employee’s speech relates solely to issues of personal concern to the employee, the speech is not protected.
See Bernheim v. Litt,
The question of whether speech is protected by the First Amendment is an issue of law for the Court. •
See Connick,
The defendants first argue that the plaintiffs alleged criticism and complaints with respect to KCHC policy and conditions did not involve matters of public concern because they were motivated by personal concerns and thus were not protected speech. There is sufficient evidence to establish that the plaintiff made a number of complaints with respect to KCHC policy and conditions that involved
The defendants next assert that, even if the plaintiff has made complaints addressing matters of public concern, the plaintiff cannot establish a causal connection between his complaints and the initiation of the RDA by Dr. Rice. In particular, the defendants submit an affidavit from Dr. Rice that states he was unaware of any of the plaintiffs complaints. (Defs.’ Ex U at ¶¶ 4-5.) They also argue that although Dr. Rice did not initiate the RDA until April 1994, he had already decided in late 1993 or early 1994 to submit an RDA. Thus, the defendants argue that the plaintiffs complaints were not a motivating factor in Dr. Rice’s decision to initiate the RDA. In addition, the defendants claim that they would have reached the same decision in the absence of any protected speech.
The causal connection between protected speech and an adverse employment action “must be sufficient to warrant the inference that the protected speech was a substantial motivating factor in the adverse employment action, that is to say, the adverse employment action would not have been taken absent the employee’s protected speech.”
Morris,
In this case, there are genuine issues of material fact as to whether the initiation of the RDA and еventual termination of the plaintiff was causally connected to the plaintiffs complaints and whether the defendants would have reached the same decision in the absence of any protected speech. First, there is a factual
Second, the temporal proximity between the plaintiffs comрlaints, which were made throughout 1993 and through 1994, and the initiation of the RDA in April 1994 support an allegation of a causal connection sufficient to survive summary judgment.
See Gorman-Bakos,
Third, there are genuine issues of material fact with respect to whether the charges against the plaintiff were justified, raising questions as to how important a role the plaintiffs protected speech played in the initiation of the RDA and the decision to terminate the plaintiff.
See Morns,
Accordingly, drawing all inferences in favor of the plaintiff, there are genuine issues of material fact with respect to the plaintiffs First Amendment claim. Summary judgment dismissing that claim is therefore denied.
V.
The defendants next argue that they are entitled to summary judgment dismissing the plaintiffs due process claim.
A.
The defendants first assert that, in requesting arbitration, the plaintiff waived his right to submit his Section 1988 due process claim to a judicial forum. The
The defendants’ argument cannot be sustained. The plaintiff in this case is suing for the violation of his federal statutory rights and not for violations of the collective bargaining agreement. Provisions in a union negotiated collective bargaining agreement for an arbitration process for grievances do not preclude the availability of remedies for violations of federal statutory rights such as Section 1983.
See Alexander v. Gardner-Denver Co.,
Under
Wright,
even if a waiver was enforceable, such a waiver in a collective bargaining agreement must at a minimum be clear and unmistakable.
Wright,
In this case, the applicable Doctor’s Council collective bargaining agreement requires, as a condition to arbitration of a grievance, that the employee file a written waiver of the right “to submit the underlying dispute to any other administrative or judiсial tribunal except for the purpose of enforcing the arbitration award.” (Defs.’ Ex. V at Article VIII, § 3.) This provision is a not a “clear and unmistakable” waiver of the rights of represented employees to pursue their rights to sue for violations of Section 1983 in federal court. This clause is very general and could reasonably be read to apply to disputes concerning violations of the collective bargaining agreement, rather than violations of a federal statute. Moreover, there is no evidence that the collective bargaining agreement explicitly incorporates any statutory anti-discrimination requirements. (Defs.’ Ex. V.)
The collective bargaining agreement required the employee to file a written waiver so that any waiver in this case was affected not only by the union negotiated collective bargaining agreement but also by the waiver that was actually signed by Schemer when he submitted his grievance to arbitration. The defendants point out that in
Gilmer v. Interstate/Johnson Lane Corp.,
Thus, neither the collective bargaining agreement nor the waiver that the plaintiff signed precluded the plaintiff from pursuing his claims under Section 1983.
B.
The defendants next assert that they are entitled to summary judgment on the plaintiffs due process claim because the plaintiff received all the process that he was due.
To state a procedural due process claim a plaintiff must establish that: (1) he has been deprived of life, liberty, or property; and (2) without due process of law.
Cf. Logan v. Zimmerman Brush Co.,
The defendants assert that the plaintiff had adequate notice of the charges against him and had an opportunity to be heard at multiple levels provided in the KCHC Medical Staff By-laws — the AHC, the MSC, the IHP, the AB, and the appeal to the President of HCC. The plaintiffs rely on, among other things, Dr. Low’s April 27, 1994 letter, the fact that the plaintiff was provided an opportunity to review the patient medical charts prior to meeting with the AHC, and the plaintiffs receipt of the RDA prior to the IHP hearing for the proposition that the plaintiff received adequate notice of the charges against him and sufficient explanation of the evidence against him.
To satisfy due process, however, “facially adequate procedures must be realized in practice.”
Scheiner,
From the record before the Court, it appears thаt a reasonable trier of fact could conclude that the defendants’ violated the plaintiffs due process rights. Here, the plaintiff contends that he was, in effect, denied an opportunity to respond to the charges against him. In particular, the plaintiff claims that he was disciplined on charges of which he did not receive
In addition, there are issues of fact with respect to whether the IHP relied on charges of which the plaintiff did not have sufficient notice. As a result of the IHP hearing, the IHP submitted a brief two-page report to the chairperson of the Grievance Committee supporting revocation of the plaintiffs clinical and staff privileges and the plaintiffs termination and a letter was sent to the plaintiff stating that the findings of the MSC that the plaintiffs clinical privileges and staff membership be revoked and the plaintiff be terminated were appropriate. (Joint Exs. 22 & 23.) Although the report summarized seven findings, which could generally be termed medical incompetence, the report did not discuss what evidence the IHP relied on in reaching its findings.' (Joint Ex. 22.) Because it is not clear from the report and the current record before the Court whether the IHP findings were based on the original charges and the sixteen patient cases contained in the RDA or whether they are in fact based on additional conduct raised for the first time before the IHP and the degree to which that conduct is unsupported and based on possibly unreliable hearsay, summary judgment is inappropriate. 4
In sum, the plaintiff has come forward with sufficient evidence to create genuine issues of material fact as to whether the plaintiff was afforded adequate notice and a meaningful opportunity to be heard prior to the revocation of his clinical privileges and his termination. Thus, the defendants’ motion for summary judgment on the plaintiffs due process claims is denied'. 5
VI.
The defendants also contend that they are entitled to summary judgment on the plaintiffs Section 1983 сlaims under the doctrine of qualified immunity. Under the doctrine of qualified immunity, “gov
Nevertheless, “even where the plaintiffs federal rights and the scope of the official’s permissible conduct are clearly established, the qualified immunity defense protects a government actor if it was ‘objectively reasonable’ for him to believe that his actions were lаwful at the time of the challenged act.”
Lennon v. Miller,
There are factual issues as to whether the defendants violated the plaintiffs rights under the First Amendment and under the Fourteenth Amendment. There are issues of fact with respect to, among other matters, whether the defendants retaliated against the plaintiff because he expressed his views on matters of public interest, whether the reasons that were given for his discharge were in fact pretex-tual, and whether the decisions of the various decision-makers were based on charges of which the plaintiff had not been provided with notice and a meaningful opportunity to respond. Given the state of the current factual record in this case, and construing the evidence in the light most favorable to the plaintiff, a reasonable trier of fact could find that the defendants’ actions were objectively unreasonable and that the defendants are not entitled to the protection of the qualified immunity defense. Thus, the defendants’ motion for summary judgment on this ground is denied.
VII.
The defendants next move to dismiss the plaintiffs state law claims for violations of New York State’s whistleblower statute, N.Y. Civ. Serv. Law § 75-b, and for malicious prosecution.
A.
N.Y. Civ. Serv. Law § 75-b(2)(a) prohibits a “public employer” from taking adverse personnel action against an employee who discloses information to a governmental body:
(i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. “Improper governmental action” shall mean any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent’s official duties, whether or not such action is within the scope of his employment, and which is in violation of any federal, state or local law, rule or regulation.
N.Y. Civ. Serv. Law § 75-b(2)(a).
The defendants assert that the plaintiffs claim under N.Y, Civ. Serv. Law § 75-b should be dismissed for the same reasons that they argued the plaintiffs First Amendment claim should be dismissed. The Court, however,' has already found that there are genuine issues of material fact with respect to the plaintiffs First Amendment claim. In addition, there is evidence that the plaintiff made complaints and disclosed information to the N.Y. State Department of Health concerning alleged improper governmental action. (Pl.’s Ex. 12 at 100034.) Thus, there are also genuine issues of material fact with respect to whether the defendants took adverse personnel action against the plaintiff for disclosing information to a governmental body. 6
B.
To prevail on a claim of malicious prosecution under New York law, a plaintiff must show: (1) the institution of an action or proceeding by the defendant; (2) begun with malice; (3) the absence of probable cause to support the proceeding; and (4) termination of the proceeding in favor of the plaintiff.
See Engel v. CBS, Inc.,
New York courts have held that administrative prоceedings may form the basis for malicious prosecution actions where the administrative proceedings “have sufficient attributes of judicial proceedings,” such as where there is a “hearing and trial on the issues on evidence and testimony under oath, with the right of cross-examination.”
Groat v. Town Bd. of Town of Glenville,
In this case, the plaintiff relies on both his disciplinary proceedings under the KCHC Medical Staff By-laws and the investigation by the Office of Professional Medical Conduct (“OPMC”) as “proceedings” for the first element of his malicious prosecution claim. The defendants did not question this specific element in moving to dismiss the plaintiffs malicious prosecution claim. While the parties have addressed this issue- in subsequent submissions, because this was not a ground for summary judgment, the Court declines to decide whether either of these proceedings is sufficient under state law to constitute a proceeding. In particular, the parties have failed to develop what, if any, proceedings are conducted by the OPMC and whether they are sufficiently judicial to qualify as a proceeding under New York State law. Thus, the Court cannot decide the issue on the current state of the record and the issue may be raised in a motion in limine before trial. While the defendants did argue that no proceeding was terminated in favor of the plaintiff, it is plain that at least the OPMC proceeding terminated in favor of the plaintiff because the OPMC found that there was no evidence of misconduct by the plaintiff and closed the case. In addition, while the defendants argue to the contrary, there are issues of fact as to whether either proceeding was begun with malice on the part of the defendants and whether the defendants had probable cause to support the proceeding. 7
The defendants also contend that they are entitled to absolute immunity for the state law claims because their actions were official actions involving the exercise of discretion. Whether an action of a governmental employee or official is “cloaked with any governmental immunity requires an analysis of the functions .and duties of the actor’s particular position and whether they inherently entail the exercise of some discretion and judgment.”
Mon v. City of New York,
In this case, the Court cannot decide the issue of whether absolute immunity applies to the defendants on the current state of the record. The defendants have not attempted to distinguish among the various defendants and them different functions and duties in the disciplinary proceedings brought against the plaintiff nor have they addressed whether the various defendants’ positions entail investigatory functions or making decisions of a judicial nature.
Accordingly, the defendants’ motion for summary judgment dismissing the plaintiffs state law claims is denied.
VIII.
The plaintiff seeks partial summary judgment against the Responding Defendants based solely on the plaintiffs due process claim as it relates to the proceedings beginning with the IHP. The plaintiff argues that it can be decided as a matter of law that he did not receive fair notice of the subject matter of the disciplinary proceedings before the IHP and AB and that the plaintiff was not given a fair opportunity to be heard.
However, as discussed above, there are issues of fact as to what evidence the IHP actually relied upon in reaching its recommendation and whether the plaintiff had notice of what the IHP relied upon. Moreover, viewing the evidence and the light most favorable to the defendants, there are issues of fact as to whether the plaintiff was provided an adequate opportunity to respond to the charges made against him. Although his questioning was limited both before the IHP and the AB, the plaintiff submitted to the IHP a detailed rebuttal to the charges contained in the RDA prior to the IHP hearing. (PL’s Ex. 1.) In addition, after the IHP hearing in January 1995, and before its decision, the plaintiff submitted another rebuttal that addressed allegations raised at the IHP hearing that were not discussed in the RDA. (Pl.’s Ex. 2.) Thus, summary judgment is inappropriate, and the plaintiffs motion is denied.
CONCLUSION
For the foregoing reasons, the defendants’ motion for summary judgment pursuant to Fed.R.Civ.P. 56 is denied. The plaintiffs motion for partial summary judgment pursuant to Fed.R.Civ.P. 56 is also denied.
SO ORDERED.
Notes
. This Court has previously denied a motion to dismiss in this case brought by certain of the defendants.
See Scheiner v. New York City Health and Hosp. Corp.,
No. 98 Civ. 8330,
. HHC appealed the decision of the New York State Supreme Court, New York County to the Appellate Division, First Department. However, that appeal was subsequently withdrawn.
. In deciding the previous motion to dismiss in this action, the Court found that the plaintiff has alleged the deprivation of both a liberty and property interest. See Scheiner, 1999 WL 771383, at *6.
. The defendants argue that any flaws in the pre-deprivation hearing were cured by the availability of the post-deprivation arbitration process. The Court already rejected this argument in the prior opinion on the motion to dismiss.
See Scheiner,
. In addition, the Court has already determined that there are issues of fact with respect to whether the defendants, including those directly involved in the review of the plaintiffs disciplinary proceedings, terminated the plaintiff because he engaged in protected speech. If there are issues of fact as to whether the plaintiff was terminated in violation of his First Amеndment rights, there is reason to believe that the plaintiff did not receive a "meaningful” opportunity to be heard from those directly involved in his termination.
. There is authority [or the proposition that, while N.Y. Civ. Serv. Law § 75-b provides a cause of action against government entities, such as HHC, it does not provide a cause of action against individual employees.
See Pry
v.
McCall,
. The plaintiff has not attempted to distinguish among the defendants in bringing his claims for malicious prosecution. The defendants, in bringing their motion for summary judgment, have similarly not sought to distinguish among the defendants. It is plain that at least with respect to Dr. Rice, who signed the RDA and instituted the disciplinary proceeding and brought the charges to the attention of the OPMC, it cannot be said that there are no issues of fact as to the existence of actual malice and probable cause. The thrust of the plaintiff's evidence as discussed above shows that such issues exist.