Fleming v. State University of New York

• Decision Date: 06 August 2007
• Docket Number: No. 05 CV 5386(RJD)(MDG).,05 CV 5386(RJD)(MDG).
• Citation: 502 F.Supp.2d 324
• Parties: Dr. Lester FLEMING, Plaintiff, v. The STATE UNIVERSITY OF NEW YORK and Dr. Audree Bendo, Defendants.
• Court: U.S. District Court — Eastern District of New York

502 F.Supp.2d 324

Dr. Lester FLEMING, Plaintiff, v. The STATE UNIVERSITY OF NEW YORK and Dr. Audree Bendo, Defendants.

No. 05 CV 5386(RJD)(MDG).

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

August 6, 2007.

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Gary Phelan, Outten & Golden LLP New York, NY, for Plaintiff.

Peter Sistrom, Office of the Attorney General New York, NY, for Defendants.

MEMORANDUM & ORDER

DEARIE, Chief Judge.

Plaintiff Dr. Lester Fleming brings this action pursuant to Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; and 42 U.S.C. § 1983. Plaintiff completed his medical residency at the Health Science Center at Brooklyn, a facility operated by defendant State University of New York ("SUNY"), under the supervision of defendant Dr. Audree Bendo. He claims that defendants improperly disclosed to his prospective employer that he has sickle cell anemia, with the result that he lost his offer of employment. Defendants now move to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons explained below, defendants' motion is granted in part, and denied in part.

BACKGROUND

Plaintiff is an anesthesiologist who suffers from sickle cell anemia. Am. Compl. ¶ 8. In 2002, having completed medical school and an internship in internal medicine, he began an anesthesiology residency at SUNY's Health Science Center at Brooklyn. Id. ¶¶ 13-15.

In July 2002, near the beginning of his residency, plaintiff was hospitalized due to complications of sickle cell disease. Id. ¶ 31. Plaintiff informed Dr. Banu Lokhandwala, SUNY's Director of Residency Education at Long Island College Hospital, that he was in the hospital, but did not indicate the reason for his hospitalization. Id. Plaintiff claims that during a subsequent telephone call with defendant Dr. Audree Bendo, his supervisor and the director of his residency program, he disclosed to Dr. Bendo that he had sickle cell anemia. Id. ¶¶ 22, 31. Dr. Bendo informed him that he would need a doctor's letter in order to return to work. Id. ¶ 31. Following his recovery, plaintiff obtained such a letter, returned to work, and completed the remainder of his residency without incident. Id. ¶¶ 31-33.

In April 2005, near the end of his residency, plaintiff applied for a position at the Yuma Regional Medical Center ("Yuma") in Yuma, Arizona. Id. ¶ 16. In May 2005, he was offered the position, and he and representatives of Yuma signed an employment contract. Id. ¶¶ 17-18. Yuma then conducted a "credentialing process" that included making inquiries of plaintiffs former employers. Id. ¶¶ 20-21.

During the credentialing process, plaintiff claims, Dr. Bendo sent Yuma a letter regarding plaintiff. Id. ¶ 22. Either in this letter or otherwise, on plaintiffs account, Dr. Bendo disclosed to Yuma that plaintiff had sickle cell anemia. Id. ¶ 28. On August 30, 2005, Dr. Richard Watson, Acting Chairman of the. Yuma Anesthesia Medical Services Group ("YAMS"), told plaintiff that Dr. Bendo's letter had raised "red flags," and that he should seek alternative employment. Id. ¶¶ 24-25. On September 1, 2005, plaintiff was advised by Dr. David Diuguid, his hematologist, that Yuma had contacted him in order to confirm a statement made by Dr. Bendo. Id. ¶ 27-28.

Plaintiff claims that during a September 29, 2005 conference call, Yuma officials asked about his health, asked why he had not informed them that he had sickle cell anemia, and advised him that they would require him to sign an addendum to his employment contract. Id. ¶¶ 34, 37, 39. The addendum, which plaintiff received on November 4, 2005, provided that Yuma would employ plaintiff only if he acknowledged, in the words of the complaint, "that it would not be possible for [Yuma] to provide him a reasonable accommodation for his operating room and call schedules." Id. ¶¶ 40-41. Plaintiff refused to sign the addendum, and now characterizes Yuma's insistence that he do so as a constructive termination. Id. ¶¶ 42-43.

On November 16, 2005, plaintiff began this lawsuit.¹ His complaint alleges that notwithstanding his own efforts to keep his medical records confidential, and without his consent, Dr. Bendo wrongfully divulged to Yuma that he has sickle cell anemia, with the result that Yuma denied him employment. On this basis, plaintiff charges SUNY with violations of the ADA and of Section 504 of the Rehabilitation Act. Plaintiff alleges, as well, that Dr. Bendo violated his right to privacy under the Fourteenth Amendment Due Process Clause, and seeks to recover damages from her pursuant to 42 U.S.C. § 1983. Defendants move to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

DISCUSSION

A. Standards of Review

The Federal Rules of Civil Procedure require that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R.Civ.P. 8(a)(2), so that the defendant receives "fair notice of what the ... claim is and the grounds upon which it rests," Conley v. Gibson 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In considering a Rule 12(b)(6) motion to dismiss a complaint for failure to state a claim, the Court "tak[es] as true the facts alleged in the complaint and draw[s] all reasonable inferences in the plaintiffs favor." Jackson Nat'l Life Ins. Co. v. Merrill Lynch & Co., Inc. 32 F.3d 697, 699-700 (2d Cir.1994).

Ordinarily, in deciding a Rule 12(b)(6) motion, the Court may consider only the complaint itself. However, "the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference." Chambers v. Time Warner, Inc. 282 F.3d 147, 152 (2d Cir. 2002) (quoting Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co. 62 F.3d 69, 72 (2d Cir.1995)). Further, "[e]ven where a document is not incorporated by reference, the court may nevertheless consider it where the complaint `relies heavily upon its terms and effect,' which renders the document `integral' to the complaint." Id. at 153 (quoting Int'l Audiotext 62 F.3d at 72).

On a motion to dismiss for lack of jurisdiction pursuant to Rule 12(b)(1), the Court takes a different approach. There, the Court "accept[s] as true all material factual allegations in the complaint," but "argumentative inferences favorable to the party asserting jurisdiction should not be drawn." Att Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd. 968 F.2d 196, 198 (2d Cir.1992). Moreover, in deciding such a motion, the Court is free to consider materials beyond the pleadings. Makarova v. United States 201 F.3d 110, 113 (2d Cir. 2000). The plaintiff bears the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists. Id.

B. Americans with Disabilities Act

Plaintiff first asserts a claim under the confidentiality provisions of the Americans with Disabilities Act. The ADA consists of five titles, of which the first two are relevant here. Title I, which prohibits employment discrimination, permits employers to inquire about employees' disabilities only under limited circumstances, declaring that an employer "shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity." 42 U.S.C. § 12112(d)(4)(A). Where an employer acquires information about an employee's disability, that information is to be "maintained on separate forms and in separate medical files and ... treated as a confidential medical record...." 42 U.S.C. § 12112(d)(3)(B). Such information may be divulged only to work supervisors where relevant to necessary restrictions or accommodations, to government officials investigating ADA compliance, or to first aid and safety personnel. Id. Title II, meanwhile, governs the "services, programs, and activities" of public entities. In relevant part, it provides: "Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132.

Board of Trustees of the University of Alabama v. Garrett 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001), in which the Supreme Court held that the Eleventh Amendment bars Title I suits against state defendants seeking money damages, precludes plaintiff from pursuing this litigation under Title I. PL's Mem. Opp'n Mot. Dismiss [hereinafter PL's Mem.] at 4. Plaintiff observes, however, that Title II's implementing regulations "adopt Title I's list of prohibited conduct," and argues that because `defendants' alleged disclosure of plaintiffs sickle cell anemia did not comply with Title I's requirements regarding the confidentiality of employees' medical information, it constitutes a violation of Title II, whose application to state defendants the Eleventh Amendment does not categorically bar. Id. at 4 n. 29. Defendants respond that this Court lacks subject matter jurisdiction to hear plaintiffs ADA claims, because Title II does not apply to employment discrimination, Defs.' `Mem. Supp. Mot. Dismiss [hereinafter Defs.' Mem.] at 13-16, and because plaintiffs suit under Title II is barred by the Eleventh Amendment, id. at 7-13. Defendants argue further that even if Title I's confidentiality provisions apply, plaintiff has failed to state a claim under those provisions. Id. at 16-23.

The law is unsettled as to whether Title II of the ADA covers employment discrimination. Without answering the question itself, the Supreme Court has acknowledged a split of opinion among the circuits. Garrett 531 U.S. at 360 n. 1, 121 S.Ct. 955 ("[N]o party...