Slue v. New York University Medical Center
| Decision Date | 03 January 2006 |
| Docket Number | No. 04 Civ. 2087(GEL).,04 Civ. 2087(GEL). |
| Citation | 409 F.Supp.2d 349 |
| Parties | William E. SLUE, Jr., Plaintiff, v. NEW YORK UNIVERSITY MEDICAL CENTER, New York University School of Medicine, New York University, Irwin M. Freedberg, M.D., Anita P. Orlin, Reginald Odom, John E. Harney, Decision Strategies, LLC., Jeff Kern, Iris Cortez, the name is fictitious since the true name of this individual is presently unknown to Plaintiff, "JOHN DOE", and "JANE ROE", the complete names of whom are fictitious since the true names of these individuals are presently unknown to Plaintiff, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Donald L. Citak, Citak & Citak, New York, New York, for plaintiff.
Joel E. Cohen, McDermott Will & Emery LLP, New York, New York, for defendants.
Plaintiff William E. Slue, Jr. ("Slue") brings this diversity action against his former employers, New York University Health Center ("NYU Health Center")1 and New York University School of Medicine ("NYU Medical School"); various former supervisors and NYU personnel; Decision Strategies, Inc. ("Decision Strategies"), a private investigation firm; and an individual investigator. In a ten-count complaint, plaintiff charges various state causes of action, alleging wrongful discharge and breach of contract, improper termination of lease, improper denial/termination of benefits, conversion, defamation, intentional infliction of emotional distress, interference with contract, intentional interference with economic opportunity, and violation of federal and state privacy laws. Defendants move for summary judgment pursuant to Fed.R.Civ.P. 56(c) on all claims. Plaintiff cross-moves for summary judgment on NYU defendant's first counterclaim, breach of fiduciary duty. Defendants also move to strike plaintiff's cross-motion for summary judgment as untimely and move to strike various allegations from his complaint. The defendants' motion for summary judgment is granted in part and denied in part. The plaintiffs motion for summary judgment will be granted. The defendants' motion to strike will be denied.
Slue began working as a pharmacy aide at NYU Health Center on June 11, 1962. (Slue Dep. 7.) In 1976, he began to work for NYU Health Center as a medical photographer in the Dermatology Department, and he was promoted to Supervisor of Medical Photography in 1987. (Slue Aff. ¶ 2.)
Slue was appointed to NYU Medical School as a part-time, non-tenured teaching assistant in 1995. This appointment was renewed annually; Slue has provided documentation of his appointment renewal through the 2001-2002 academic year.2 (Citak Aff. Ex. Q; see also Levin Dep. 32-33, 39-40.) During this period, Slue gave at least two lectures in the Department of Dermatology and taught residents how to put their lectures together. (Slue Dep. 32-33.) Slue did not receive an increase in compensation with his appointment as a faculty member. (Slue Dep. 30.)
Since 1988, plaintiff has also owned and operated William Slue Services, Inc., a private dermatology photographic business through which he sees private patients. Through his private practice, Slue developed the Total Body Photography ("TBP") technique, a specialized form of dermatology photography designed to detect early forms of melanoma. (See Cohen Aff. Ex. 18 at 1239.) When it was first developed, the TBP session consisted of the photographer taking a series of twenty-three images of an individual's skin surfaces using 35-mm film, while the patient was completely nude, taken in a matter of minutes so as to minimize the individual's discomfort level. (Id.; Slue Aff. ¶ 7.) After a TBP session, prints would be made from the slides and placed in a book. (Id. at ¶ 8.) Later, Slue began to take a total of twenty-six images in a standard TBP session, taking additional images if necessary. (Id. at ¶ 6.) In early 2002, plaintiff switched to digital equipment, which was less costly and less time-consuming, but continued to use 35-mm film as a backup and to ensure the quality of the photographs. (Id. at ¶ 9.)
Starting in 1988, Slue operated his private practice at a location outside NYU Health Center. In October 2002, Slue entered into an agreement with NYU Health Center to use office space at the Health Center in Room H124 to conduct his private practice, in exchange for a payment of $400 per month. (Orlin Dep. 126-27; Freedberg Dep. 150; Harney Dep. 21-22.) Under this agreement, Slue was authorized to use the space several times per month on evenings and weekends to see private patients for TBP sessions. (Harney Dep. 21-22.) Other than the $400 rent, Slue did not pay NYU Health Center any portion of the income generated from the use of this space. Slue never signed any document memorializing this agreement. (Slue Aff. ¶ 17; Orlin Dep. 126.) Slue's TBP sessions were all conducted as part of his private practice and were not undertaken as an NYU Medical School faculty member or NYU Health Center employee. (Slue Aff. ¶ 23.)
After receiving complaints from Anne Stoecker, Slue's photography assistant, regarding Slue's excessive use of time and NYU space for his private practice, Sheila Furjanic, Director of Compliance at NYU Health Center, initiated an investigation. (Furjanic Dep. 27-29; Stoecker Dep. 52-53.) Months later, after a discussion with Slue's previous photography assistant, Stoecker complained to Frujanic regarding her observations of Slue's practice of taking additional slides of female patients and making sexually inappropriate comments about patients and employees. (Stoecker Dep. 87-88.) Following these complaints, the Health Center retained the services of Decision Strategies, an investigation firm, to conduct an independent investigation of Slue. (Kern Dep. 13-14.) As part of the investigation, Decision Strategies sent an undercover female agent, Iris Cortez,3 to pose as Slue's patient at a TBP session. Defendants do not dispute that Stoecker went into Slue's briefcase, without permission, and took several slides taken of Iris Cortez. (See Slue Aff. ¶ 27.)
On January 26, 2004, the results of this investigation were discussed at a meeting among Reginald Odom, Senior Director of Human Resources at the Health Center; John E. Harney, Senior Vice President of the Health Center; Dr. Irwin M. Freedberg, Chair of the Dermatology Department and a tenured professor at NYU Medical School; and Anita Orlin, Administrator of the Department of Dermatology and Slue's supervisor. (Harney Dep. 34.) At this meeting, the parties concluded that the photographs of Cortez were inappropriate, and called Slue into the meeting to explain how and why the photos of Cortez were taken. (Odom Dep. 41-42; Harney Dep. 33-38; Slue Aff. ¶ 28.) Finding his explanation inadequate, defendants suspended Slue from his employment pending further investigation on January 27, 2004, (Odom Dep. 93.) After Slue was suspended, several of the defendants met to examine the photographic slides that plaintiff had taken of patients. The slides were not kept in Slue's office, but in Dr. Alfred Kopf's office at NYU Health Center. (D. Rule 56.1 Statement ¶ 83.) The defendants found that certain slides of several female patients were missing, but no slides from any male patients were missing. (Id. at ¶¶ 88-89.)
Slue vigorously denies that he engaged in any inappropriate conduct as a photographer. (Slue Aff. ¶¶ 9-14, 21.) He offers an affidavit from another medical photographer, who states that taking photos with 35 mm film as a backup to digital photos is reasonable TBP practice. (See Witmer Aff. ¶¶ 7-9.) Plaintiff also offers an affidavit from an individual who chaperoned his photographic sessions with patients for over 15 years, who states that she heard no complaints and never observed any inappropriate or sexual conduct towards any patient. (See Richards Aff. ¶¶ 3-7.)
At defendants' request, plaintiff appeared for a meeting with defendants on January 30, 2004. However, plaintiff refused to meet without his attorney present, defendants would not meet with the attorney, and plaintiff was fired. (D. Rule 56.1 Statement ¶¶ 98-102.)
Summary judgment is proper when "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 judgment as a matter of law." Fed. R.Civ.P. 56(c). The moving party bears the burden of establishing the absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact is established "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The court must "resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion." Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir.1996). In addition, the court is not to make any credibility assessments or weigh the evidence at this stage. Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996).
The party opposing summary judgment, however, may not rely on "conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). Likewise, a mere scintilla of evidence will not suffice. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. The nonmoving party, instead, must "set forth specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 11, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), quoting Fed.R.Civ.P. 56(e). Emulating the standard for a directed verdict under Rule 50(a), summary judgment is proper when "the nonmoving party has...
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