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Clarke v. City of New York

United States District Court, E.D. New York
Aug 1, 2001
98 CV 3715 (ILG) (E.D.N.Y. Aug. 1, 2001)


holding that plaintiff could not establish a temporal link because the speech occurred six months to two years before the reassignment

Summary of this case from King v. Bratton


98 CV 3715 (ILG)

August 1, 2001


Plaintiff Kildare Clarke, M.D., a physician employed by the City of New York and the Kings County Hospital ("KCH"), commenced this action to challenge his reassignment from the Emergency Department to Urgent Care as violating the First and Fourteenth Amendments to the United States Constitution, Article 1, §§ 8 and 11 of the New York State Constitution and 42 U.S.C. § 1983. Now before the court is defendants' motion for summary judgment. For the reasons that follow, defendants' motion is granted.


The events predating the filing of this motion have already been recited in a Memorandum Order issued by this Court on July 1, 1998 denying plaintiff's request for preliminary injunctive relief which would have barred defendants from transferring plaintiff from the Emergency Department of KCH. Familiarity with those facts is presumed here. In sum, plaintiff alleges that he began working in the Emergency Department of KCH in 1974 while completing his residency training. Plaintiff is board certified in forensic medicine, but not in emergency medicine or in any other specialty.

According to "New York City Regional 911 Emergency Department Standards" developed by the 911 Ambulance Destination Advisory Committee and the staff of the Fire Department of the City of New York 911 Evaluation Unit, an Emergency Department attending physician must be "[b]oard certified or admissible (completed required amount of training in the area of their specialty) in Emergency Medicine, Internal Medicine, Surgery, Family Practice, or Pediatrics. Board certification must be obtained within five (5) years of admissibility." (Wotorson Aff., Ex. 6(a)) KCH policy, as reflected in the Minutes of a December 11, 1997 meeting of hospital medical directors and staff, provides that the five year period delineated in those 911 Emergency Department Standards requires physicians assigned to the Emergency Room to be "Board Certified or admissible within five years of residency." (Smith Decl., Ex. J) Plaintiff has failed the emergency medicine board examination on each of the 13 times he has taken the exam since 1982. Despite the fact that the five year time period following his residency has long since passed, plaintiff maintains that he remains eligible to retake the emergency medicine board examinations and that he will remain eligible to do so as long as he takes the boards once every three years.

In the summer of 1996, plaintiff contacted the New York City Health and Hospitals Corporation's ("HHC"'s) Internal Investigations Department to complain that the emergency medicine faculty members at KCH were being paid for hours that they did not actually work. Plaintiff contends that he again voiced this complaint on several occasions up until his transfer in May 1998 and that he gave the Internal Investigations Department permission to disclose that he was the source of the complaint. In 1996 and again in 1997 and 1998 plaintiff reported this complaint along with his suspicion that a coverup was afoot to defendant Dr. Kathy Rones, then the Executive Director of KCH. (Clarke Dep. 93-95, 97-98, 175-176) Plaintiff also reported this complaint to defendant Dr. Aubrey Phillips-Caesar, defendant Jean Leon, and Dr. George Proctor, the Chief Operating Officer. Also in the summer of 1996, plaintiff complained about medical students being permitted to practice on cadavers without permission or proper supervision. (Clarke Dep. 111-112, 176-178) At the same time, he alleges that he complained to the New York State Department of Health and to the New York Times newspaper that certain physicians in the Emergency Department were incompetent and ill-equipped to handle trauma cases. (Clarke Dep. 101-103)

Shortly after the summer of 1996, plaintiff was reassigned to triage patients, a function he contends is typically performed by nurses, not physicians. In 1997, plaintiff and another physician, Dr. Lee Yang, complained to a federal investigatory agency that KCH had mishandled several emergency cases. According to plaintiff, that agency typically reveals the sources of complaints it receives. (Clarke Dep. 106, 108, 109) Later that year, plaintiff contends that he commented to Jean Leon, the Executive Director of KCH, that each time he made a complaint, the hospital was surveyed, to which Jean Leon purportedly responded, "why don't you keep your mouth shut then." (Clarke Dep. 114, 115, 175, 179, 180)

Up until his transfer, plaintiff claims that he had several conversations with defendant Dr. Phillip Rice about his views of the allegedly substandard care provided by the hospital's Emergency Department to poor and minority patients. Eventually, Dr. Rice began to hear rumors that plaintiff had complained to various agencies about hospital governance and patient care problems and that plaintiff had raised such problems during appearances on radio and television shows. (Rice Dep. 107-109) After learning of these rumors, Dr. Rice informed plaintiff that he, Dr. Rice, was one of the most powerful people in the hospital and that he would get rid of plaintiff if "it was the last thing [he would] do." (Clarke Dep. 91-93, 137, 191) Dr. Rice also told plaintiff that he had read a judicial decision dated March 6, 1992 by New York Supreme Court Judge Beverly Cohen that concerned plaintiff. (Clarke Dep. 73) That decision, while not annexed with these motion papers, apparently enjoined plaintiff's transfer from the Emergency Department without due process on the grounds that he was not board-certified. Plaintiff took Dr. Rice's comment to mean that Dr. Rice would find a pretext for plaintiffs termination. When plaintiff complained of Dr. Rice's threats to Reba Williams, a labor relations director at the hospital, Williams told plaintiff: "I told that man to leave you alone." (Clarke Dep. 98-100)

In November 1997, plaintiff appeared on a television program aired by an NBC affiliate to discuss health care problems at KCH. While on the program, plaintiff explained, as he had apparently done in the past, that he believed that Yankel Rosenbaum had actually died as a direct result of medical negligence on the part of KCH's Emergency Department. (Clarke Dep. 52-53, 55, 60, 64, 67-68, 119-120) After informing plaintiff that he had seen his television appearance, Dr. Rice purportedly confided to a patient that he was trying to "get rid" of plaintiff. (Clarke Dep. 125, 134-136)

After the 1997 television appearance, plaintiff contends that he began to have problems with Dr. Richard Sinert, then the Department's Research Director. Specifically, he claims that Dr. Sinert told Dr. Rice that plaintiff was a "pea brain" (Clarke Dep. 127-128) and that plaintiff should be removed from the Emergency Department. (Sinert Dep. 68-71) At his deposition, Sinert confirmed that as Research Director he had discussions with Dr. Rice and others about the board certification requirement for working in the Emergency Department. (Dr. Sinert Dep. 68-71) However, Dr. Sinert could not state conclusively whether he had discussed the impact of such regulations upon plaintiff. (Sinert Dep. 5-8, 12) Plaintiff believed that Sinert disagreed with him about his use of the press in denouncing patient care problems and that he was using the press for self-aggrandizement.

On April 30, 1998, plaintiff received a letter dated April 29, 1998 from Dr. Rones which informed him that he would be transferred out of the Emergency Department effective May 18, 1998 (less than three weeks later) if he had not passed the board examinations by that time, since board certification was a requirement under the "911 EMS Standards" maintained by the Fire Department for hospitals designated as ambulance-receiving facilities. (Clarke Dep. 46) Eventually, plaintiff, along with four other physicians, was transferred from the Emergency Department based on lack of board certification. The reassignment did not affect plaintiff's salary, benefits or seniority and he continued to be an Attending Physician Level III. According to plaintiff, the decision to reassign him was made by Dr. Rones, Dr. Rice, Jean Leon, and Dr. Sinert. (Clarke Dep. 192-194)

Plaintiff alleges that the explanation given for his transfer, that he was not board certified, was entirely pretextual. The existence of a pretext, he argues, is revealed in the testimony of Dr. Rones. First, plaintiff contends that Dr. Rones admitted that she had no direct knowledge of either the Regional 911 Ambulance Destination Advisory Committee — or either its two subcommittees, REMAC and REMSCO — or the City Fire Department ever expressing any concerns about KCH employing non-board certified physicians. (Rones Dep. 25) Second, plaintiff argues that Dr. Rones was aware of a 1992 judicial decision enjoining the hospital from transferring plaintiff without due process and had discussed that decision with others prior to directing plaintiffs transfer. (Rones Dep. 83-85) Plaintiff also maintains that he was not given adequate notice of the new board certification requirement referred to in the April 29 letter. Moreover, he contends that even if he had been given an opportunity to be heard at a full hearing, such a hearing would have been futile as his transfer was the product of a conspiracy and of KCH's professed policy and practice. (Clarke Dep. 241) In contrast to the hospital's rationale for transferring him based on his lack of board certification, plaintiff points to a 1993 study by the New York State Department of Health which found no correlation between patient care outcomes and board certification. Second, he claims that hospital officials openly spoke of their intention to "get rid of" plaintiff and asked him to "keep his mouth shut" whenever he spoke of matters of public concern. Third, plaintiff contends that defendants blatantly ignored a judicial proscription against transferring him without an opportunity to be heard. Fourth, plaintiff claims that the organizations which developed the new board certification requirements for designated 911 facilities have no legal authority to impose such requirements, although, significantly for purposes of this motion, Dr. Rones, the affiant upon whom plaintiff relies in attempting to support this assertion himself acknowledges that these organizations do have the power to recommend that fire departments adopt certain criteria, including board certification, for the selection of designated 911 facilities. Finally, plaintiff contends that KCH only imposed the board certification requirement after it first attempted but failed to eliminate plaintiff under the guise of a reduction in "per session" physician staff.

REMAC is an acronym for the Regional Emergency Medical Advisory Committee, and REMSCO is an acronym for Regional Emergency Medical Subcommittee. Both are subcommittees of the 911 Ambulance Designation Committee. (Van Dunn Dep. 49-60)

As a result of his transfer, plaintiff contends that he has missed pay increases and promotional opportunities (Clarke Dep. 212-216); that he has lost numerous opportunities to serve as an expert witness or to deliver lectures on emergency medicine; and that his reputation and standing among his peers have been substantially diminished. (Clarke Dep. 257-260)

Defendants have now moved for summary judgment, arguing that plaintiff has failed to demonstrate either a causal connection between his speech and his reassignment from KCH's Emergency Medicine Department to the hospital's Urgent Care Center or that his speech was a "motivating factor" in the decision to reassign him. In addition, defendants allege that plaintiff has failed to demonstrate that the transfer was an adverse employment action, since it permitted plaintiff to stay within the same hospital and imposed no reduction in pay or benefits. Further, defendants claim that plaintiff cannot demonstrate that the transfer violated his rights under the Due Process Clause of the Fourteenth Amendment, since plaintiff lacked a property interest in his particular assignment in the Emergency Department at KCH and, in any event, was provided with notice of the requirement that he become board certified in a memorandum distributed to all attending physicians in the Emergency Department once in 1995 and again in 1996. (Smith Decl. 10-12, 19-22) Even assuming that notice provided to plaintiff was inadequate, defendants maintain that plaintiff had available to him an adequate post-deprivation remedy which he failed to exercise. Defendants also argue that plaintiff's First and Fourteenth Amendment claims must be dismissed in view of plaintiff's failure to demonstrate that each municipal entity had a policy, practice or custom of reassigning physicians in violation of their constitutional rights. In addition, defendants argue that Audrey Phillips-Caesar and Dr. Richard Sinert had no personal involvement whatsoever in the decision to reassign plaintiff and should therefore be dismissed from this action. Finally, defendants argue that plaintiff's claims based on Article I, §§ 8 and II of the New York State Constitution should be dismissed because of his failure to comply with New York Consolidated Law § 7401, which requires a plaintiff to file with HHC a notice of intent to file an action, and General Municipal Law § 50-i.


I. Summary Judgment

Summary judgment is proper when there is no genuine issue of material fact and based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp., v. Catrett, 477 U.S. 317, 322-323 (1986). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. Grady v. Affiliated Central. Inc., 130 F.3d 553, 559 (2d Cir. 1997). In determining whether the movant has met this burden, the court must resolve all ambiguities and draw all permissible factual inferences in favor of the party opposing the motion. Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L.Ed.2d 176, 82 S.Ct. 993 (1962)).

II. First Amendment Retaliation Claim

To prevail on a First Amendment retaliation claim, a plaintiff in this Circuit must establish: (1) that the speech at issue was protected speech involving a matter of public concern; (2) that he suffered an adverse employment action; and (3) that there was a causal connection between the protected speech and the adverse employment action. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-87 (1977); Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir. 1994). The speech must be "at least a substantial or motivating factor in the employer's adverse employment action." Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir. 1996) (quotingFrank v. Relin, 1 F.3d 1317, 1328 (2d Cir. 1993)). Even accepting for purposes of this motion that plaintiff's speech was protected, an assumption defendants are prepared to make, plaintiff fails to establish the other prongs of a prima facie case of retaliation under the First Amendment and thus cannot prevail on this claim.

A. Adverse Employment Action

An adverse employment action occurs when a plaintiff sustains "a materially adverse change" in the terms and conditions of employment.Galabya v. New York City Board of Education, 202 F.3d 636, 640 (2d Cir. 2000) (citing Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir. 1999)). "While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action." Valentine, 50 F. Supp.2d at 284 (citing Smart, 89 F.3d at 441; Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) ("because there are no bright-line rules, courts must pore over each case to determine whether the challenged employment action reaches the level of `adverse'")).

A "materially adverse change" might occur in the context of "a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Galabya, 202 F.3d at 640 (holding that plaintiff's transfer from one special education school to another was not an adverse employment action) (citation omitted). In involuntary transfer cases, the inquiry focuses on whether the transfer constitutes a "negative employment action tantamount to a demotion." Patrolmen's Benevolent Ass'n v. City of New York, 74 F. Supp.2d 321, 335 (S.D.N.Y. 1999) (citing Larson 12.08[2] at 12-82). The materiality of a transfer cannot be demonstrated where a plaintiff offers "no evidence, save his own unsupported, conclusory statements, that his new position is any less prestigious or that his duties have been significantly altered." Mudholkar v. Univ. of Rochester, 2000 App. LEXIS 25208 (2d Cir. 2000) (university professor's reassignment from "Statistics Department" to "Program in Statistics" as part of university reorganization deemed not to be an adverse employment action because not material); see also Chu v. City of New York, No. 99 Civ. 11523, 2000 U.S. Dist. LEXIS 18513 (S.D.N.Y. Dec. 27, 2000) (holding that plaintiff failed to establish that transfer within units of New York Police Department was an adverse employment action).

Here, plaintiff claims that his reassignment was equivalent to a demotion, that he lost prestige in the medical community, that he was denied the title of Physician Specialist, and that he lost $20,000 in annual salary that physicians in the Emergency Department received. However, plaintiff has failed to demonstrate that his transfer from the Emergency Department was a demotion, rather than a mere reassignment. As for plaintiff's claim that his new position lacks the prestige of the Emergency Department, that too is unsubstantiated since, if anything, plaintiff's responsibilities in his new assignment in Urgent Care include treating, not merely triaging patients, and add to his prestige. Plaintiff's claim that as a result of his transfer he has not been invited to speaking engagements and to provide expert opinions is equally shaky, as plaintiff fails to provide any specific examples of past lost opportunities. (Smith Decl., Ex. D, 275-76) Thus, plaintiff's claim of lost prestige is unsupported by actual facts. Nor is plaintiff's claim that he has lost promotional opportunities and opportunities for salary increases convincing, as even if plaintiff had remained in the Emergency Department, he would have had to obtain board certification in emergency medicine, surgery, internal medicine, family practice or pediatrics in order to receive a change in title to Physician Specialist and $20,000 annual salary increase. (Smith Decl., Ex. K, 70-73) Plaintiff is not board-certified in any of these specialty areas and has failed the emergency medicine board exam on 13 occasions since 1982. (Smith Decl., Exs. C; D, 41-44; and G) Granted, if afforded an infinite number of chances to obtain board certification, it is possible that plaintiff might one day succeed in doing so; nonetheless, given his past performance, plaintiff's characterization that he was "denied" an opportunity to rise within the ranks of the Emergency Department is fanciful and supported by nothing more than conjecture.

B. Causal Connection

Even assuming for purposes of this motion that he could establish that his reassignment was tantamount to a demotion, plaintiff also must establish a causal connection between a protected activity and that adverse employment action. See Griffin v. Ambika Corp., 98 Civ. 8985, 2000 U.S. Dist. LEXIS 9681 (S.D.N.Y. July 13, 2000) (finding no such connection between plaintiff's suspension and her complaint to the NYS Division of Human Rights) (citing Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465 (2d Cir. 1997)). The requisite causal connection must support the inference that the 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 v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). Causation may be proven by showing that the retaliatory action was close in time to the protected activities; that other similarly situated employees were treated differently; or with direct proof of retaliatory animus. See e.g. Gilligan v. Town of Moreau, No. 00-7109, 2000 U.S. App. LEXIS 27198 (2d Cir. 2000) (affirming summary judgment in favor of defendant where no causal connection established between plaintiff's testimony before grand jury and her discharge); Morris, 196 F.3d at 102 (finding no causal link where, among other reasons, two year gap existed between protected activity and adverse employment action).

Here, plaintiff's initial complaints about poor patient care at KCH occurred in 1986, when he criticized the hospital's program during guest appearances on the Charlie Rose Show, New York 1 News, the Geraldo Rivera Show and others, in various newspaper articles, including the Village Voice, the New York Times and the New York Post, and on various occasions while testifying at a trial or deposition. Plaintiff's deposition, however, reveals that he cannot identify with any specificity whatsoever when he criticized KCH, other than to say that these comments predated his reassignment in 1998. (Clarke Dep. 51-56, 60, 62, 63, 68) The only dates plaintiff can identify with any specificity include his communications with the Internal Investigations Department of HHC concerning overpayment of KCH faculty and his appearance on NBC in November 1997 during which he alleged that Yankel Rosenbaum had died because of the gross negligence of KCWs emergency physicians.

Beyond being unable to identify precisely the dates of the critiques for which he purports he was reassigned, a close parsing of the record reveals that none of the defendants who made the decision to reassign plaintiff were aware of his comments on television, in the print, on radio or on any other media. While Dr. Sinert is alleged to have contacted NBC by email shortly after plaintiff's appearance and commentary about Yankel Rosenbaum's death to inform NBC that plaintiff did not speak for KCH and that plaintiff had been demoted, Dr. Sinert is not alleged to have been a part of the decision to reassign plaintiff and his actions thus cannot provide the foundation for plaintiff's retaliation claim.

Most importantly for purposes of this motion, plaintiff cannot establish a temporal link between his speech and his reassignment, which occurred six months apart to two years apart. Where such a lengthy lag exists between the speech and the reassignment, there can be no inference of a causal link. See, e.g., Cobian v. City of New York, No. 99 Civ. 10533, 2000 U.S. Dist. LEXIS 17479 (S.D.N.Y. Dec. 6, 2000) (holding that plaintiff failed to establish causal connection between protected activity and adverse employment action which took place after four-month lag);James v. Newsweek, No. 96 Civ. 0393, 1999 U.S. Dist. LEXIS 15588 (S.D.N.Y. Sept. 30, 1999) (no causation where "there was at least a four-month gap between the protected activity and the adverse actions"),aff'd mem., 213 F.3d 626 (2d Cir. 2000), cert denied, 121 S.Ct. 303;Conner v. Schnuck Mkts, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (same); Hughes v. Derwinski, 967 F.2d 1168, 1174 (7th Cir. 1992); Cooper v. City of North Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986) (same). Even if the lag between the speech and the adverse employment action is found not to raise an inference of a causal link, plaintiff argues that a jury still may reasonably infer, in certain circumstances, that defendants were simply biding their time to latch onto an event or an issue which would serve as a pretext to undertaking an adverse employment action in retaliation for plaintiff's protected speech activities which may have occurred six or more months earlier. See, e.g., Benedict v. Town of Newburgh, 125 F. Supp.2d 675 (S.D.N.Y. 2000). While such a scenario is indeed plausible, it is incomprehensible in a case such as this one, where the event or issue "latched" onto by defendants — namely, plaintiff's lack of board certification and the consequences potentially flowing to the hospital from it — did not arise after plaintiff engaged in the protected speech, but rather preceded the protected speech by a matter of years. Stated otherwise, defendants in 1995 and again in 1996 announced that in order to continue to be designated as a 911 ambulance-receiving facility, the department would have to conform to the 911 EMS Standards. Plaintiff, despite repeated attempts, failed to conform to those standards. Rather than a convement justification for a plan driven by conspiratorial and retaliatory motives, defendants' enforcement of the 911 EMS Standards board certification requirement cannot be seen as anything other than the product of legitimate concern for the continuing operations of the Emergency Department. If anything, it would seem that plaintiff was treated generously considering his failure to measure up to a certification requirement that he was simply unprepared or unable to meet. Because plaintiff neither raises an inference of causal connection nor demonstrates an actual connection between his speech and his reassignment, he fails to establish the requisite link.

C. Independent Motivating Factors

Even assuming that plaintiff could demonstrate that his reassignment was an adverse employment actually causally linked to his speech, plaintiff's claim must fail because the record clearly demonstrates that defendants would have reached the same decision even in the absence of the speech. See Mt. Healthy, 429 U.S. at 287. Courts have not hesitated to grant summary judgment where an employer offers a legitimate business reason for an action and plaintiff fails to offer a single material fact to expose those reasons as mere pretexts for discrimination. See Rodriguez v. New York City Hous. Auth., No. 96 Civ. 3229, 2000 U.S. Dist. LEXIS 14182, *23 (S.D.N.Y. Sept. 29, 2000) ("Defendants have profferred [sic] legitimate business reasons for each of the actions complained of by Plaintiff, including the re-assignment of Plaintiff's NYCHA vehicle, the relocation of his office, the alteration of his schedule and the negative promotional memorandum. Other than recounting the events themselves, Plaintiff doesn't even attempt to illustrate that Defendants' explanations were pretexts for discriminatory conduct."). Plaintiff here fails to refute the evidence in the record that HHC, KHC and other hospitals in New York that receive 911 ambulance calls are required to comply with the Regional New York City Emergency Standards in order to receive ambulances that respond to 911 calls in the City. As the entity that maintains and oversees the 911 system in New York City, the Fire Department chooses hospitals that will be designated as 911 facilities hospitals. A 911 Advisory Committee makes recommendations to the Fire Department, which then determines whether or not to maintain certain hospitals as designated 911 facilities. (Dunn Dep. at 40-41, 61-62) Pursuant to the 911 EMS Standards, such hospitals must have attending physicians certified in one of five specialty areas, in none of which is plaintiff certified. (911 EMS Standards, Wotorson Aff. Ex. 6(a); Rice Dep., 10) Even assuming, as plaintiff argues in his opposition, that the Fire Department cannot "enforce" the 911 EMS standards, it is uncontested that they can rescind a hospital's designation as a 911 ambulance receiving facility for failure to meet those Standards.

In September 1997 and in January 1998, the Woodhull Hospital of HHC and KCH, respectively, were inspected by the Fire Department and informed that they were in danger of losing their status as 911 facilities. (Smith Decl., Exs. I, 8-14; J) As a result, HHC informed medical directors in each HHC hospital that Emergency Departments must be in compliance with 911 EMS Standards, including board certification of physicians. The Fire Department informed KCH that another inspection would be conducted in Fall 1998 and, because Drs. Rice and Rones knew that plaintiff, among other doctors, not being board-certified, the hospital risked being noncompliant with the 911 EMS Standards. As a result, KHC resolved to reassign non-board certified physicians from the Emergency Department to other areas of the hospital. From this decision arose the letter plaintiff received in April 1998 informing him that he was to be reassigned to Urgent Care beginning in May 1998. (Smith Decl., Exs. F., 32-38; K, 32-33; and L) Other physicians were also reassigned pursuant to hospital policy. (Smith Decl., Ex. M) Because plaintiff's reassignment was clearly part of an overarching effort on the part of KCH not to lose its status as a 911 receiving facility, it is beyond cavil that defendants would have reassigned plaintiff regardless of his speech.

III. Due Process Claim

Plaintiff next claims that his right to Due Process under the Fourteenth Amendment was denied when defendants reassigned him. He argues that he should have received notice and an opportunity to be heard prior to his reassignment. In order to suffer a deprivation of a property interest, it is axiomatic that plaintiff must have had a property interest in his particular assignment within KCH. Plaintiff can point to no state law or provision of a collective bargaining agreement which would give him even a colorable property interest in a particular department at KCH. The only source upon which plaintiff relies in defining such a property interest is a Judgment entered on March 6, 1992 by New York County Supreme Court Justice Beverly Cohen which enjoined defendants from transferring plaintiff out of the Emergency Department without notice or an opportunity to be heard and ruled that such a transfer would likely violate plaintiff's constitutional rights. That Judgment, however, enjoined a transfer that was to take place in 1991 and also dealt with the retroactive effect of a regulation that is not at issue in this litigation. In any event, defendants apparently later decided not to transfer plaintiff due to a shortage of physicians in the Emergency Department. While plaintiff suggests that the 1992 Judgment is still in effect, its relevance here is not immediately apparent. Contrary to plaintiff's assertion that defendants' most recent actions violate "each and every principle which Justice Cohen announced in her 1992 decision," (Pl.'s Opp'n at 26), if Justice Cohen did indeed find in 1992 that defendants could not transfer plaintiff from the Emergency Department on only three weeks notice, defendants here gave plaintiff close to three years notice insofar as they alerted him in an official memorandum in 1995 that all attending physicians were required to become board certified under the 911 EMS Standards applicable to ambulance-receiving hospitals such as KCH.

Even assuming that plaintiff could articulate a clear property right of which he was arguably deprived without due process, plaintiff cannot show, on this record, that he was not provided with adequate notice of the requirement that he obtain board certification in one of five specialties delineated by the 911 Emergency Standards. Plaintiff contends that both because he assumed that the 1992 Judgment still stood and because in 1993 the New York State Department of Health abandoned the requirement that Emergency Department physicians be board certified, he had no reason to expect that he would "suddenly be required in 1998 to prove that he was board certified lest he be transferred and demoted." (Pl.'s Opp'n at 26) Despite plaintiff's professed naivete, the record clearly reflects that defendants gave plaintiff, and all attending physicians, notice of the board certification requirement. In 1995, Dr. Rice, Director of the Emergency Medicine Department at KCH, delivered a memorandum to all attending physicians which clearly informed them that they were required to become board certified in one of the five areas outlined in the 911 EMS Standards. (Smith Decl., Ex. F, 10-12, 19-22) That defendants were generous enough to permit plaintiff to maintain his ordinary responsibilities while he tried, apparently without success on 13 separate occasions, to pass the board examinations and cannot now be mistaken for a hasty deprivation of plaintiff's property interest. Lacking the proper certification, plaintiff simply had no cognizable interest in the Emergency Department position. The notice given to him was ample. Assuming for a moment that plaintiff did have a property interest in his particular assignment and that the notice afforded him was insufficient, plaintiff would still fail in his attempt to demonstrate a violation of the Due Process clause, as he had ample opportunity to challenge his reassignment through an Article 78 proceeding. Having elected not to challenge this administrative action by bringing such a proceeding, plaintiff cannot do so now. See Campo New York City Employees' Retirement System, 843 F.2d 96 (2d Cir. 1998) (holding that plaintiff's due process violation must fail where she could have challenged agency decision in a post-deprivation Article 78 proceeding, but failed to do so).

IV. Qualified Immunity for Individual Defendants

42 U.S.C. § 1983 gives individual governmental officers qualified immunity from liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (982); Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998) (applying qualified immunity to First Amendment claim). Ordinarily, in evaluating a qualified immunity defense, the court must first determine "whether the plaintiff has alleged a deprivation of constitutional right at all." Connell, 153 F.3d at 79-80. Having found both plaintiff's First Amendment retaliation and Due Process claims meritless, the court simply notes that the individual defendants were acting well within the bounds of objective reasonableness when they took actions to ensure that KCH's Emergency Department would not lose its status as a 911 receiving facility. Accordingly, to the extent they are sued in their individual capacities, the Complaint must be dismissed against the individually named defendants.

V. Claims Against New York City and the Health and Hospitals Corporation

Plaintiff has named as a defendant the City of New York as well as HHC. By now familiar principles governing municipal liability dictate that municipalities may not be liable under 42 U.S.C. § 1983 for actions of employees based on a theory of respondeat superior. Board v. County Commissioners v. Brown, 520 U.S. 397 (1997); Monell v. Dept. of Social Services, 436 U.S. 658 (1978). In order to establish liability for the unconstitutional acts of a municipal employee, a plaintiff must show that the violation of his constitutional rights resulted from a municipal custom, policy or practice. Monell, 436 U.S. at 694. A causal link must be demonstrated between the official custom or practice and the plaintiff's injury to demonstrate liability on the part of the municipality. Plaintiff's claims against the City are problematic for several reasons, the first of which is that he has failed to demonstrate that the City was even remotely involved in his reassignment and the second of which is that the City and HHC are separate legal entities, with HHC actually serving as a public benefit corporation independent of New York City, Brennan v. City of New York, 59 N.Y.2d 791 (1983), and with no clear line of responsibility between the City and HHC. Even more fatal to plaintiff's claim is the fact that he fails utterly to demonstrate that either the City or HHC had a policy, practice or custom of retaliating against individuals who exercise their First Amendment right to criticize public hospitals or of transferring individuals without due process under the Fourteenth Amendment. Accordingly, plaintiff's claims against the City and HHC cannot lie.

VI. Claims Against Audrey Phillips-Caesar and Richard Sinert, M.D.

A plaintiff attempting to establish the liability of individual defendants under 42 U.S.C. § 1983 must demonstrate "personal involvement of defendants in alleged constitutional deprivations" as a prerequisite to an award of damages. Moffitt v. Town of Brookfield, 950 F.2d 880 (2d Cir. 1991) (quoting McKinnon v. Patterson, 568 F.2d 1977),cert. denied, 434 U.S. 1087 (1978)). Defendant Audrey Phillips-Caesar is responsible for regulatory affairs, risk management and quality assurance at KCH and defendant Richard Sinert, M.D. is a physician employed at KCH as a Director of Research. Plaintiff has failed to demonstrate that either Phillips-Caesar or Dr. Sinert played a role in the decision to reassign plaintiff from KCH's Emergency Department. Accordingly, plaintiff's claims against these defendants must be dismissed.

VII. Supplemental State Law Claims

Having found that all of plaintiff's federal claims should be dismissed, this court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims pursuant to 28 U.S.C. § 1367(c). See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Federman v. Empire Fire and Marine Ins. Co., 597 F.2d 798, 809-11 (2d Cir. 1979).


For the foregoing reasons, defendants' motion for summary judgment is granted.


Summaries of

Clarke v. City of New York

United States District Court, E.D. New York
Aug 1, 2001
98 CV 3715 (ILG) (E.D.N.Y. Aug. 1, 2001)

holding that plaintiff could not establish a temporal link because the speech occurred six months to two years before the reassignment

Summary of this case from King v. Bratton

finding that plaintiff could not establish a temporal link between his speech and reassignment which occurred six months apart to two years apart

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Case details for

Clarke v. City of New York

Case Details


Court:United States District Court, E.D. New York

Date published: Aug 1, 2001


98 CV 3715 (ILG) (E.D.N.Y. Aug. 1, 2001)

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