Castells v Fisher

[*1] Castells v Fisher 2013 NY Slip Op 50049(U) Decided on January 4, 2013 Supreme Court, Kings County Schmidt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 4, 2013
Supreme Court, Kings County

Salvador Castells, M.D., Plaintiff,

against

Stanley E. Fisher, M.D., Individually and in his Capacity as Chairman of State University of New York Health Science Center at Brooklyn — Department of Pediatrics, and State University of New York Health Science Center at Brooklyn, Defendants.



13765/07



Plaintiff Attorney: Lifshutz & Lifshutz, P.C., 271 Madison Avenue, Suite 905, New York, NY 10016

Defendant Attorney: Clement Colucci, Assistant Attorney General, 120 Broadway, 24th Floor, New York, NY 10271

David Schmidt, J.

The following papers numbered 1 to 15 read herein:Papers Numbered



Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-6

Opposing Affidavits (Affirmations)7-8

Reply Affidavits (Affirmations)9, 10, 11

Memoranda of Law12, 13, 14

Transcript of Oral Argument15

The principal remaining issue presented in this action is whether defendant Stanley E. Fisher, M.D. (defendant), discriminated against plaintiff Salvador Castells, M.D. (plaintiff), an insulin-dependent diabetic, in violation of Executive Law § 296 (1) (a). That section of the [*2]Executive Law prohibits discrimination on the basis of an employee's disability.[FN1] Plaintiff alleges that defendant (who was then his immediate supervisor) discriminated against him and ultimately constructively discharged him by filing a number of adverse professional reports alleging, based on defendant's observations and those of plaintiff's coworkers, that plaintiff was an "impaired" physician. Defendant has conceded that he made reports, critical of plaintiff's cognitive functioning, to the Chief Medical Officer of plaintiff's employer, to the Medical Society's Committee for Physician's Health, and to the State Office of Professional Medical Conduct, but argues that his reports were justified. Defendant moves for summary judgment dismissing plaintiff's claim of disability discrimination.[FN2]

The Court concludes that defendant's alleged actions do not constitute disability discrimination or constructive discharge under the Executive Law.[FN3] Although defendant's reports concerning plaintiff's alleged mental impairment were ultimately proved incorrect and plaintiff was found competent to continue to practice medicine without restriction, a subsequent disciplinary investigation that was separately initiated by defendant led to an uncontroverted finding, conceded by plaintiff at an administrative hearing at which he appeared with counsel, that he had impermissibly conducted private practice outside his employer's facilities and that he failed to share his side income with his coworkers. The investigation also resulted in a monetary penalty. After the results of the investigation were announced, plaintiff voluntarily left his employ on five weeks' prior written notice as per his resignation letter in which he alleged that he had been discriminated against on the basis of age, rather than disability.[FN4] Plaintiff has made no showing, in opposition to defendant's prima facie case of a valid nondiscriminatory reason for plaintiff's voluntary departure, to persuade the Court that defendant's prior medical reports were motivated, at least in part, by plaintiff's disability or targeted that disability. Nor has plaintiff shown that the outcome of defendant's subsequent investigation, which was commenced at least two years after the last report regarding plaintiff's medical condition had been resolved in his favor, was in any way tainted or served as a pretext to compel him to leave his employ (see Edwards v Jamaica Hosp. Med. Ctr., 2006 WL 6319701, 2006 NY Slip Op 30566[U] [Sup Ct, NY County 2006], affd 47 AD3d 514 [1st Dept 2008]; Timashpolsky v State Univ. of NY Health Science Ctr. at Brooklyn, 306 AD2d 271, 272-273 [2d Dept 2003], lv denied 1 NY3d 507 [2004]; Laub v St. Vincent's Med. Ctr. of Richmond, 306 AD2d 322, 323 [2d Dept 2003]). It matters not whether the employer's stated reason for the imposition of a monetary penalty on plaintiff for his moonlighting without permission and without sharing his side income was "a good reason, a bad reason, or a petty one" (Melman v Montefiore Med. Ctr., 98 AD3d 107, 121 [1st Dept 2012] [internal quotation marks and citation omitted]). Rather, what matters is that the employer's stated reason for the action was nondiscriminatory (id.). Thus, plaintiff has failed to raise a triable issue of material fact as to whether the reason proffered by defendant for his challenged action was merely pretextual, either in whole or in part (see Cenzon-Decarlo v Mount Sinai [*3]Hosp., 2012 WL 6603089, *2, 2012 NY Slip Op 08680 [2d Dept 2012]).

Equally important, the record reflects that defendant, as plaintiff's immediate supervisor, had expressed displeasure with plaintiff's job performance for many years prior to his departure. In the face of plaintiff's inability or unwillingness to bring his performance up to the level that was required of him as Acting Chief of the Pediatric Endocrinology Service, his surreptitious moonlighting (which he executed by customarily leaving his employ before the end of his regular work hours) and his unauthorized retention of his side income were simply the proverbial "last feather that (broke) the horse's back."[FN5] To his employer's credit, however, plaintiff was not dismissed outright but was subjected to a monetary penalty only. Despite his right to appeal the administrative determination, plaintiff resigned.

Finally and crucially, the Court cannot overlook a fundamental proposition that if plaintiff were practicing medicine at his employer's facilities while impaired by a mental illness, it would represent a substantial danger to the public health and safety (see Finkelstein v Cornell Univ. Med. Coll., 269 AD2d 114, 116 [1st Dept 2000]). Defendant, as a New York State-licensed physician and as Chairman of the Pediatrics Department of plaintiff's employer, was legally required to report any bizarre behavior of his coworker physicians to the State medical board. In this regard, Public Health Law § 230 (11) (a) provides that:

"[E]very person licensed pursuant to article[ ] one hundred thirty-one . . . of the education law [i.e., medicine], and . . . the chairperson of each department of every [hospital] . . . shall . . . report to the [state] board [for professional medical conduct] any information which such person . . . has which reasonably appears to show that a licensee is guilty of professional misconduct as defined in section[ ] sixty-five hundred thirty . . . of the education law. . . ." (emphasis added).[FN6]

Both the Public Health Law and the Education Law confer immunity on referring physicians for reports made without malice. Public Health Law § 230 (11) (b) provides that:

"Any person . . . who reports or provides information to the board in good faith, and without malice[,] shall not be subject to an action for civil damages or other relief as the result of such report" (emphasis added).

More broadly, Education Law § 6527 (5) provides that:

"There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person, . . . on account of the communication of information in the possession of such person . . ., or on account of any recommendation or evaluation, regarding the qualifications, fitness, or professional conduct or practices of a physician, to any governmental agency, medical or specialists['] society, [or] a hospital. . . . The foregoing shall not apply to information which is untrue and communicated with malicious intent" (emphasis added).

Consequently, "the statutory framework provides for immunity from civil actions (unless actual malice is shown) for . . . the party who reports the misconduct [Public Health Law § 230 (11) (b)]. . . . Nothing in the legislative histor[y] of [this statute] suggests that [*4]a private cause of action should be implied" (Fine v State, 10 Misc 3d 1075[A], 2005 WL 3700727, *6, 2005 NY Slip Op 52240[U] [Ct Cl 2005]). Plaintiff, having made no showing of actual malice, is thus precluded by the statutory qualified privilege from prosecuting his disability-discrimination claim. Accordingly, for this and other reasons stated herein, defendant's motion for summary judgment is granted, and the complaint is dismissed in its entirety.[FN7] This constitutes the decision, order, and judgment of the Court.

E N T E R,

J. S. C. Footnotes

Footnote 1:Plaintiff does not assert any claim under Administrative Code of City of NY§ 8-107.

Footnote 2:Plaintiff's disability-discrimination claim is his sole remaining cause of action. His claims for age discrimination and common-law defamation were dismissed by order of the Court (Ambrosio, J.), dated May 12, 2008. No appeal has been taken from that order.

Footnote 3:The well-established standards for recovery under Executive Law § 296 are summarized in this Court's decision in Dubois v Brookdale University Hosp., 6 Misc 3d 1023(A), 2004 WL 3196952, *5-6, 2004 NY Slip Op 51819(U) (Sup Ct, Kings County 2004), affd 29 AD3d 731 (2d Dept 2004), and need not be restated herein.

Footnote 4:In a prior action commenced in this Court under Index No. 2904/06 but subsequently voluntarily withdrawn, plaintiff also claimed age, rather than disability, discrimination.

Footnote 5:See Brown v Metropolitan Life Ins. Co., 327 SW2d 252, 255 (Mo 1959) (internal quotation marks omitted). This expression appeared in Gnomologia: Adages and Proverbs, Wise Sentences, and Witty Sayings, Ancient and Modern, Foreign and British, compiled by Thomas Fuller, M.D. (London 1817), ¶ 5120, at 155 ("'Tis the last feather that breaks the horse's back.") (available at http://archive.org/details/gnomologiaadages00full).

Footnote 6:Section 6530 (7) of the Education Law, as referenced in the above-quoted paragraph, provides that "[p]racticing the profession while impaired by . . . mental disability" constitutes "professional misconduct."

Footnote 7:The other named defendant, State University of New York Health Science Center at Brooklyn, does not appear to be a legally cognizable entity (see Education Law §§ 352 [1], [3]), and plaintiff has not controverted defendants' position in this regard.