Barzilay v. City of N.Y.

• Decision Date: 08 July 2022
• Docket Number: 20-cv-4452 (LJL)
• Citation: 610 F.Supp.3d 544
• Parties: President Oren BARZILAY as President of Uniformed EMTs, Paramedics, and Fire Inspectors, Local 2507, DC 37, AFSCME, et al., Plaintiffs, v. CITY OF NEW YORK, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

610 F.Supp.3d 544

President Oren BARZILAY as President of Uniformed EMTs, Paramedics, and Fire Inspectors, Local 2507, DC 37, AFSCME, et al., Plaintiffs,

v.CITY OF NEW YORK, et al., Defendants.

20-cv-4452 (LJL)

United States District Court, S.D. New York.

Signed July 8, 2022

Amelia Kristin Tuminaro, Walter Murphree Meginniss, Gladstein, Reif & Meginniss LLP, New York, NY, for Plaintiffs.

Danielle Marie Dandrige, Maria Fernanda DeCastro, New York City Law Dept., New York, NY, for Defendants City of New York, Commissioner Daniel Nigro.

Danielle Marie Dandrige, New York City Law Dept., New York, NY, for Defendant Carlos Velez.

OPINION AND ORDER

LEWIS J. LIMAN, United States District Judge:

Defendants City of New York (the "City"); Daniel Nigro ("Nigro"), as Commissioner of the Fire Department of the City of New York; and Carlos Velez ("Velez") (collectively, "Defendants") move for summary judgment, pursuant to Federal Rule of Civil Procedure 56, dismissing each of plaintiffs’ claims. Dkt. No. 58. Plaintiffs Uniformed EMTs, Paramedics, and Fire Inspectors, Local 2507, DC 37, AFSCME ("Local 2507" or the "Union"); Oren Barzilay, as President of Local 2507 ("Barzilay"); Elizabeth Bonilla ("Bonilla"); Alexander Nunez ("Nunez"); Megan Pfieffer ("Pfieffer"); and John Rugen ("Rugen") (collectively, "Plaintiffs") move for partial summary judgment on their claim that Defendants deprived Plaintiffs of their liberty interests without due process. Dkt. No. 45.

Plaintiffs are Emergency Medical Technicians ("EMTs") and paramedics who work for the Fire Department of the City of New York ("FDNY") and the union that represents them. Defendants are the Commissioner and Assistant Commissioner of the FDNY, as well as the City of New York. Plaintiffs have brought this action complaining that Defendants (1) infringed upon Plaintiffs’ freedom of expression by retaliating against them because they communicated with the media on matters of public concern, in violation of the United States and New York Constitutions; and (2) deprived them of liberty and property interests without due process by restricting their employment and barring them from working as EMTs and paramedics in New York City's 911 system without providing notice or an opportunity to be heard, also in violation of the United States and New York Constitutions.

For the reasons that follow, Plaintiffs’ motion for partial summary judgment is denied, and Defendants’ motion for summary judgement is granted in part and denied in part.

BACKGROUND

The following facts are taken from the parties’ Rule 56.1 statements and are taken as undisputed for purposes of this motion except where otherwise stated. The Court construes the facts in favor of the non-moving party.

I. The Parties and Other Relevant Persons

Plaintiff Local 2507 is a labor organization whose members include persons employed by the FDNY who work as EMTs and paramedics, including in the emergency medical 911 system in New York City. Dkt. No. 72 ¶ 1.

Plaintiff Barzilay is currently employed by the FDNY as an EMT and has held that title since 1996. Dkt. No. 48 ¶ 1. Since 2000, he has also been a representative of Local 2507, which represents EMTs, paramedics, and fire inspectors. Id. ¶¶ 2–3. In 2017, Barzilay became President of Local 2507, and while he is serving as Union President, he is now on full-time release from his position as an EMT for the FDNY. Id. ¶ 10.

The other plaintiffs are all either EMTs or paramedics with the FDNY. Rugen has been an EMT since 2004 and is also an Executive Board Member of Local 2507, a position he has held since 2011. Id. ¶¶ 11–12. Pfieffer began working for the FDNY in 2012 as an EMT and in 2013 was promoted to paramedic. Id. ¶¶ 22–23. Nunez began working for the FDNY in 2013 as a paramedic. Id. ¶ 28. Elizabeth Bonilla began working for the FDNY in July 2014 as an EMT and was promoted to paramedic in 2018. Id. ¶¶ 32–33. Pfieffer, Nunez, and Bonilla all are members of Local 2507. Id. ¶¶ 25, 29, 35.

Defendant Nigro is the Commissioner of the FDNY. See Dkt. No. 72 ¶ 110. The Office of Health Care Compliance ("OHCC") is a division of FDNY's Legal Affairs. Dkt. No. 48 ¶ 38. Terryl Brown ("Brown") is the FDNY's Chief Legal Counsel and Deputy Commissioner for Legal Affairs and Administration, and James Saunders ("Saunders") is FDNY's Deputy General Counsel, Chief Health Care Compliance and HIPAA Privacy Officer, reporting directly to Brown. Id. ¶¶ 39–41.

Saunders is tasked with ensuring that the FDNY compliance with the New York State Medicaid regulations remains effective; ensuring that FDNY has processes and procedures in place for handling protected health information and the disclosure thereof; and monitoring violations of federal regulations with respect to FDNY's handling of protected health information. Id. ¶ 43.

The Bureau of Investigations and Trials ("BITS") is also a division of FDNY's Legal Affairs. Id. ¶ 45. It is the disciplinary unit of the FDNY and handles investigations into and the discipline of employee misconduct and/or violations of FDNY policies and procedures or prevailing laws. Id. ¶ 48. Defendant Velez is Assistant Commissioner of the FDNY and has overseen and managed BITS since June 25, 2018. Id. ¶ 46. He reports directly to Brown. Id. ¶ 47.

The New York City Department of Investigation ("DOI") is a New York City agency that has jurisdiction over certain matters, such as criminal violations by city agency employees. Dkt. No. 71 ¶ 71. It receives matters from BITS for investigation. It is an entity separate from FDNY that works independently from FDNY. Dkt. No. 72 ¶ 85. BITS will not itself investigate a matter until DOI has informed BITS that DOI will not be pursuing an investigation. Dkt. No. 48 ¶¶ 82, 87.

II. The Collective Bargaining Agreement

The terms and conditions of employment of FDNY EMTs and paramedics, including the individual Plaintiffs, are governed by a collective bargaining agreement ("CBA") between their representative, District Council 37, AFSCME, AFL-CIO, together with its affiliates Locals 2507 and 3621, and the City of New York. Dkt. No. 72 ¶ 141. The CBA consists of three documents: (1) a contract covering the period July 1, 2002 through June 30, 2006; (2) a Memorandum of Agreement extending the 2002–2006 contract, with modifications, for the period July 1, 2006 through September 5, 2010; and (3) a Memorandum of Agreement further extending the contract, with modifications, covering the period September 6, 2010 through September 6, 2018. Id. Although the terms of the CBA expired in 2018, the parties continue to treat the contract as binding pending negotiation of successive terms. Id.

The CBA specifies salaries and salary ranges for employees of differing titles. Dkt. No. 59-15 Art. III § 2. The CBA defines overtime, night shift differential, and meal and holiday pay to be benefits applicable to Emergency Medical Services ("EMS"). Dkt. No. 71 ¶ 109; see also Dkt. No. 59-15 Art. V § 2 (containing overtime and meal-pay provisions of the CBA and stating that those who "perform[ ] overtime work" shall be reimbursed at overtime rates).

The CBA also contains grievance procedures; the parties dispute whether restrictions of duties are events that are subject to the CBA's grievance procedure. Dkt. No. 71 ¶ 93. The CBA defines "grievance" as:

a. A dispute concerning the application or interpretation of the terms of [the CBA];

b. A claimed violation, misinterpretation or misapplication of the rules or regulations, written policy or orders of the Employer applicable to the agency which employs the grievant affecting terms and conditions of employment ...;

c. A claimed assignment of Employees to duties substantially different from those stated in their job specifications;

... e. A claimed wrongful disciplinary action taken against a permanent Employee covered by Section 75(1) of the Civil Service Law or a permanent Employee covered by the Rules and Regulations of the Health and Hospitals Corporation upon whom the agency head has served written charges of incompetence or misconduct while the Employee is serving in the Employee's permanent title or which affects the Employee's permanent status.

...

g. A claimed wrongful disciplinary action taken against a provisional Employee who has served for two years in the same or similar title or related occupational group in the same agency....

Dkt. No. 59-15 Art. VII, § 1. A union grievance, if not resolved, can lead to an arbitration or an improper-practice hearing, during which the Union and management can present witnesses and evidence to support their respective positions, question the witnesses for the other side, and be represented by counsel. Dkt. No. 71 ¶ 94. In the case of an arbitration, the decision of the arbitrator is final. Id. ¶ 96.

A 2018 dispute concerning whether restrictions imposed on FDNY EMTs and paramedics were disciplinary actions that could be contested under the CBA's grievance and arbitration procedure was decided in January 2021 by arbitration. Dkt. No. 72 ¶ 142. In his Opinion and Award, the arbitrator explained that "[t]he Fire Department has the managerial right to assign and transfer its employees and the Union has the contractual right to grieve disciplinary actions taken against its members." Dkt. No. 69-41 at 23. The arbitrator further suggested that restrictions may be challenged under the CBA only if there is "evidence of punitive intent sufficient to establish that the Grievants’ restricted duty assignments were, at any point, disciplinary in nature," id. at 28, and denied four of the grievances where the arbitrator could not conclude the restriction ever became disciplinary in nature, id. at 28–31, 33; see also id. at 15 (noting the Union's position that the FDNY's managerial rights to assign its employees "is arbitrable, and thus subject to review, when it is disciplinary in nature").

III. Rules Regarding Patient Confidentiality

New York Public Health Law restricts disclosure of Protected Health Information...