Krukenkamp v. State University of New York

395 F. App'x 747
CourtCourt of Appeals for the Second Circuit
DecidedOctober 6, 2010
DocketNo. 09-4933-cv
StatusPublished
Cited by2 cases

This text of 395 F. App'x 747 (Krukenkamp v. State University of New York) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Krukenkamp v. State University of New York, 395 F. App'x 747 (2d Cir. 2010).

Opinion

SUMMARY ORDER

Dr. Irvin B. Krukenkamp appeals from the Eastern District of New York (Platt, J.)’s grant of summary judgment dismissing Dr. Krukenkamp’s First Amendment retaliation and Fourteenth Amendment procedural due process claims. Dr. Krukenkamp also appeals the District Court’s dismissal with prejudice of Dr. Krukenkamp’s state law breach of contract claims. Lastly, Dr. Krukenkamp requests that if we remand this case, we remand to a different district court judge. We assume the parties’ familiarity with the underlying facts, procedural history, and issues presented on appeal.

In 2004, Dr. Krukenkamp sued the State University of New York at Stony Brook (“SUNY Stony Brook”), Stony Brook University Medical Center (“SB Medical Center”), and various affiliated officials, alleging, inter alia, violations of free speech and due process rights (“Krukenkamp I ”). In September 2005, the parties to Kruken[749]*749kamp I agreed to dismiss the case with prejudice, providing for payments to Dr. Krukenkamp and limiting his future employment with SUNY Stony Brook and SB Medical Center. As relevant to this appeal, the Settlement Agreement provided that: (1) during 2006, Dr. Krukenkamp would retain his full staff membership at SB Medical Center and his title, positions, and appointments as professor at SUNY Stony Brook; (2) during 2007, Dr. Krukenkamp would be on Title F paid leave (“presidential leave”); and (3) on January 1, 2008, Dr. Krukenkamp would resign all his positions at SUNY Stony Brook and SB Medical Center, subject to the Krukenkamp I defendants’ performance of various sections of the contract.

In July and August 2006, Dr. Krukenkamp gave interviews to newspaper, radio, and television outlets, criticizing SB Medical Center’s pediatric program and discussing the New York Department of Health’s investigation into that program. Dr. Krukenkamp alleges that after these public comments, Defendants to the current suit (“Krukenkamp II”) retaliated against him. Dr. Krukenkamp filed suit in March 2007, and on October 26, 2009, the District Court granted summary judgment for Defendants, dismissing Dr. Krukenkamp’s First Amendment retaliation claim and procedural due process claim.

Summary judgment is appropriate only “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(c); Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009). “We review de novo the district court’s grant of summary judgment, drawing all factual inferences in favor of the non-moving party.” Paneccasio v. Unisource Worldwide, Inc., 532 F.3d 101, 107 (2d Cir.2008).

A. First Amendment Retaliation Claim

“To establish a First Amendment retaliation claim, a plaintiff must show: (1) his speech addressed a matter of public concern; (2) he suffered an adverse employment action; and (3) a causal connection between the speech and the adverse employment action.” Singh v. City of New York, 524 F.3d 361, 372 (2d Cir.2008). Upon such a showing, summary judgment should be denied unless the defendant shows, as a matter of law, that it “would have taken the same adverse employment action even absent the protected conduct.” Dillon v. Morano, 497 F.3d 247, 251 (2d Cir.2007).

1. The Existence of Speech of Public Concern

Defendants do not dispute that Dr. Krukenkamp’s statements were a matter of public concern and they were aware of them by August 2006.

2. Adverse Employment Action

An employment action is “adverse” if it “would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Dillon, 497 F.3d at 254 (citing Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir.2006)) (quotation marks omitted). Although Dr. Krukenkamp alleges that Defendants took six adverse employment actions toward him, we find that a reasonable jury could find that he suffered only three such actions.

First, Defendants do not contest that they put Dr. Krukenkamp on “inactive” clinical status at SB Medical Center in January 2007. Preventing a surgeon from performing surgery is an “adverse” action.

Second, while not required to do so without considering the reasons that Defen[750]*750dants may proffer for the variance, a reasonable jury could find that after Dr. Krukenkamp’s July 2006 speech, Defendants referred fewer cases to Dr. Krukenkamp while he was on call at SB Medical Center. Dr. Krukenkamp testified that doctors were referred patients that asked for them and, while on call, those unassigned patients who did not ask for a specific doctor. Viewing Defendants’ work schedule and referral log records in the light most favorable to Dr. Krukenkamp, a reasonable jury could find that on days in which he was on call, Dr. Krukenkamp received significantly fewer referrals after his speech than he did before his speech. Defendants do not contest that referring significantly fewer patients to Dr. Krukenkamp, if true, would be “adverse.”

Third, a reasonable jury could find that Defendants’ removal of Dr. Krukenkamp’s name from SB Medical Center’s public “Find a Doctor” website in January 2007 was an adverse action. Defendants do not contest that they took this action but argue that it was trivial. However, a reasonable jury could find such action was “adverse,” hampering Dr. Krukenkamp’s ability to attract new patients and find a new employer. A reasonable jury could find that Defendants aimed to reduce the number of patients requesting Dr. Krukenkamp (assigned patients), just as such jury could find that they reduced his on call referrals (unassigned patients).

For the reasons stated by the District Court, we agree that Dr. Krukenkamp offered insufficient proof that Defendants pressured his secretary to leave his office in February 2007. Further, we agree that neither Defendants’ nonrenovation of Dr. Krukenkamp’s office nor their seating of him on a small stool next to the garbage before a meeting is a sufficiently “adverse” action. No reasonable jury could find that these acts “would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Dillon, 497 F.3d at 254; cf. Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir.2002) (“minor incidents” can “attain the critical mass of unreasonable inferiority” if they “occur often and over a long[] period of time”).

3. Causation

To establish causation, a plaintiff “must show that the protected speech was a substantial motivating factor in the adverse employment action.” Cioffi v. Averill Park Cent Sch. Dist. Bd. of Educ., 444 F.3d 158, 167 (2d Cir.2006) (quotation marks omitted). “A plaintiff can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action.” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir.2009).

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Bluebook (online)
395 F. App'x 747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krukenkamp-v-state-university-of-new-york-ca2-2010.