investigation. For example, on July 20, 1998, Carlucci notified
the Attorney General Medicaid Fraud Unit of her concerns for
patient safety and her concern for the safety of other patients
at facilities using the "LP-20." She testified that she told both
the AG and DOH "everything" she knew or had come to believe about
In the third week of July, as a result of eliminating one of
the day supervisors, Carlucci's job duties were increased. No one
formally disciplined her after the AG investigation; no one fired
her; no one transferred her to a lesser job or took away any of
the benefits of her job.
On one occasion in August, 1998, Carlucci inquired about some
blood oximeters to Defendant Brody. In response, Brody got upset,
flailed his arms around and said "I'm doing the best I can." This
incident caused Plaintiff to get "really scared" and experience
heart palpitations. Because of the palpitations, she felt
physically unable to return to work at Taylor Care. She states
that the conditions at Taylor Care made it impossible for her to
continue in her job, and that she was thus forced to leave.
Plaintiff has not returned to work at Taylor Care since August
28, 1998. WCHCC still maintains her as an employee, but Plaintiff
has, in the meantime, moved to Florida.
Standard for Summary Judgment
Summary judgment is appropriate where there are no genuine
issues of material fact and the movant is entitled to judgment as
a matter of law. See Fed. R.Civ.P. 56(c); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986). A genuine issue for trial exists if, based on the
record as a whole, a reasonable jury could find in favor of the
non-movant. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505.
In making its determination, the court must resolve all
ambiguities and draw all reasonable inferences in favor of the
non-movant. See id. at 255, 106 S.Ct. 2505. To defeat summary
judgment, the non-moving party must go beyond the pleadings and
"must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986). Because the record before this Court is
devoid of any evidence from which a reasonable jury could find in
favor of the Plaintiff on any of her claims, summary judgment is
granted to Defendants and Plaintiff's claims are dismissed.
Kalsched Was Not a State Actor for Purposes of Section 1983
In order to prevail in any claim against Kalsched under § 1983,
Plaintiff must first show that Kalsched, a private party, was
"acting under color of state law" at the time she allegedly
violated Plaintiff's constitutional rights. West v. Atkins,
487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Sherlock v.
Montefiore Med. Ctr., 84 F.3d 522, 527 (2d Cir. 1996). A private
individual can be held liable under § 1983 "only as a `willful
participant in joint activity with the State or its agents.'"
Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d
Cir.) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 152,
90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)), cert. denied,
506 U.S. 819, 113 S.Ct. 66, 121 L.Ed.2d 33 (1992). "Actions by a private
party are deemed state action if `there is a sufficiently close
nexus between the State and the challenged action' that the
actions by the private parties `may be fairly treated as that of
the State itself.'" Chan v. City of New York, 1 F.3d 96, 106
(2d Cir.) (citation omitted), cert. denied sub nom.
510 U.S. 978, 114 S.Ct. 472, 126 L.Ed.2d 423 (1993). "The purpose of [the
close-nexus] requirement is to assure that constitutional
standards are invoked only when it can be said that the State is
responsible for the specific conduct of which the plaintiff
complains." Id. (emphasis in original; citations omitted).
The Supreme Court has established three tests to determine
whether a private
person is deemed to be a "state actor" for purposes of § 1983:(1)
the public function test, Atkins, 487 U.S. at 49-50, 108 S.Ct.
2250; (2) the state compulsion test, Adickes v. S.H. Kress &
Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); and (3)
the symbiotic relationship or nexus test, Burton v. Wilmington
Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961).
Plaintiff fails to establish that Kalsched is a state actor under
any of these three tests.
In order to make out a claim of state action under the "public
function" test, Carlucci must show that Kalsched's function as
Administrator of Taylor Care is "`traditionally the exclusive
prerogative of the State.'" Rendell-Baker v. Kohn,
457 U.S. 830, 842, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (emphasis in
original; citation omitted). Administration of a long-term care
facility is not traditionally an exclusive prerogative of the
state. See Blum v. Yaretsky, 457 U.S. 991, 1012, 102 S.Ct.
2777, 73 L.Ed.2d 534 (1982) (decisions made in the day-to-day
administration of a nursing home are not traditional and
exclusive prerogative of the State). Plaintiff thus fails to meet
the "public function" test.
To prevail under the "state compulsion" test, Plaintiff must
show that the state actor "exercised coercive power or . . .
provides such significant encouragement, either overt or covert,
that the choice must in law be deemed to be that of the State."
Blum, 457 U.S. at 1004, 102 S.Ct. 2777. (citations omitted).
Plaintiff fails to allege, much less provides any evidence, that
the WCHCC engaged in coercive conduct over Kalsched or her
activities during the investigation of the patient death.
Plaintiff thus fails to meet the requirements of the "state
To prevail under the "symbiotic relationship" test, Plaintiff
must show that "[t]he State has so far insinuated itself into a
position of interdependence with [Kalsched] . . . that it must be
recognized as a joint participant in the challenged activity."
Burton, 365 U.S. at 725, 81 S.Ct. 856. Although Kalsched is an
independent contractor, her activities as Administrator of Taylor
Care require constant interaction with WCHCC. Nevertheless,
Plaintiff must show that state was, through the interdependence
of Kalsched's position and WCHCC management, a "joint
participant" in the activities being challenged — i.e.,
Kalsched's alleged attempts to chill Plaintiff's speech and her
alleged retaliatory actions.
In Sherlock v. Montefiore, 84 F.3d 522 (2d Cir. 1996) the
Second Circuit affirmed the district court's grant of summary
judgment for defendant on the grounds that the plaintiff had
failed to allege "state action" by a state contractor. There, the
defendant was an independent contractor providing medical
services at the Rikers Island Correctional Facility. The
plaintiff had been hired by defendant to provide counseling
services. She sued under § 1983 for wrongful termination. In
holding that the plaintiff's claim was properly dismissed for
failing to allege state action, the Second Circuit noted:
The fact that a municipality is responsible for
providing medical attention to persons held in its
custody may make an independent contractor rendering
such services a state actor within the meaning of §
1983 with respect to the services so provided, see
e.g., West v. Atkins, 487 U.S. 42, 54, 108 S.Ct.
2250, 101 L.Ed.2d 40 (1988), but that fact does not
make the contractor a state actor with respect to its
employment decisions, see e.g., Rendell-Baker v.
Kohn, 457 U.S. 830, 840-43, 102 S.Ct. 2764, 73
L.Ed.2d 418 (1982); Wolotsky v. Huhn,
960 F.2d 1331, 1335-36 (6th Cir. 1992). Sherlock, 84 F.3d at
Carlucci is suing Kalsched over actions taken with respect to
Carlucci's employment at Taylor Care. (Compl. ¶ 31). It is
undisputed that Kalsched is a private party employed by
Amsterdam, a private
independent contractor, and that she was providing services
pursuant to Amsterdam's contract with WCHCC. While Amsterdam can
be considered a "state actor" for the purposes of the services it
provides to Taylor Care, that conclusion does not make Kalsched a
state actor for the purposes of the alleged retaliatory
employment actions concerning Carlucci. In fact, because
Plaintiff does not dispute that Kalsched was not empowered to
hire, fire or demote her, she herself does not even begin to make
out a claim that Kalsched's actions toward her were the actions
of WCHCC. As a matter of law, Plaintiff has failed to make a
claim — under any of the three tests — that Kalsched, a private
entity, was a state actor for purposes of the Section 1983 claim.
Plaintiff therefore cannot maintain a Section 1983 action against
her, and all claims against Kalsched are dismissed.
Plaintiff's Claims against Brody and Gainer Must Be Dismissed
(1) Plaintiff's Speech was not "Chilled"
Plaintiff argues that her conversations with investigators from
the New York Department of Health and Attorney General's office
were protected speech under the First Amendment because they
dealt with a matter of public concern. She alleges that as a
result of these conversations and submissions — and the fact that
Kalsched, Gainer and Brody disagreed with her opinion about the
patient death — her speech was "chilled" and she suffered from
"Persons do not relinquish their first amendment rights to
comment on matters of public interest by becoming public
employees." Piesco v. City of New York, Dep't of Personnel,
933 F.2d 1149, 1155 (2d Cir. 1991). Carlucci's speech falls under
First Amendment protection because it was on "a matter of public
concern." See Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct.
1684, 75 L.Ed.2d 708 (1983). A determination of whether the
speech is of "public concern" is made by the court, and is
"determined by the content, form, and context of a given
statement as revealed by the whole records." Id. at 147-48, 103
Any suggestion that Carlucci's speech was on a routine internal
matter and thus not protected speech is without merit. The record
clearly indicates that Carlucci spoke to state investigators
outside the normal channels because of her stated concerns about
the safety of patients and any members of the public who might
come under the medical care of WCHCC. Carlucci also noted to the
inspectors that she was concerned about a "cover up" of the
patient death — a fact which puts her speech squarely within the
public speech category and out of the realm of internal office
affairs. Carlucci was entitled to comment on her opinions
concerning the death, at least insofar as those opinions went
beyond the internal practices of Taylor Care to include her
concern about real dangers posed to the general public and the
cover-up of an important public health issue. See, e.g.,
Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct.
1731, 20 L.Ed.2d 811 (1968) (weighing the interest of a citizen's
right to express opinions on matters of public concern against
the interest of a public employer in the efficient administration
Having accepted Plaintiff's argument that the safety of
patients at a public healthcare facility is a matter of public
concern protected under the First Amendment, Plaintiff's claim
that her speech was "chilled" nonetheless fails. By Plaintiff's
own admission, she told the state agencies involved in the
investigation "everything" she knew or had come to believe about
the patient's death on July 12. Plaintiff's submissions to this
court admit that she "expressed her concern to her superiors and
state agencies that the failure to alarm (as well as other issues
of insufficient care . . .) presented a great risk of harm and
even death to patients at Taylor Care Center
as well as the general public." (Plaintiff's Opposition Brief at
5.) It is, in fact, undisputed that Plaintiff was vocal about her
concerns, that she stated them repeatedly, and, what is most
relevant to her claim here, that she expressed these concerns to
the Department of Health and Attorney General investigators.
Plaintiff "continued her advocacy for the safety of the
patients," and "also expressed her concern to state agencies,
including the Department of Health and the Attorney General of
the State of New York, that the Defendants were engaging in a
cover-up and that they had violated [the] law and policy of the
institution by failing to provide adequate treatment to the
public." (Id.). At no time did any Defendants even slow down —
much less stop — Plaintiff's ability to communicate with the
The closest Plaintiff comes to providing any evidence that
anyone actually "chilled" her speech is Plaintiff's testimony
that Kalsched would not allow Carlucci to close her door during
her meeting with the Department of Health investigator, and stood
outside her door listening to the interview, making had gestures
and "prohibiting Plaintiff from fully disclosing facts to the
investigator." (Carlucci Dep. at 99, 156.) During the course of
that interview, whenever Carlucci left her office to make copies
of documents to give to the Department of Health investigator,
Kalsched was "repeatedly in [Carlucci's] face," and demanded to
know what Carlucci was showing Department of Health. (Id.).
However, Kalsched has been dismissed as a defendant, and this
evidence does not support any claim against Brody or Gainer.
The only evidence that Gainer or Brody made any attempt to
affect what Carlucci told investigators was (1) Gainer's request
at the July 15 meeting that staff members not disclose prior
ventilator problems to the DOH investigators and (2) Brody's
presence at that same meeting. As far as Brody is concerned,
Plaintiff fails to any colorable claim of "chilling" at all. In
addition, Plaintiff herself stated that, despite Gainer's request
at the meeting and Gainer's alleged support of Kalsched's changed
conclusions regarding the patient death, Plaintiff actively and
repeatedly expressed her opinion about prior ventilator incidents
to the Department of Health and the New York Attorney General's
Medicaid Fraud Control Unit. (Carlucci Dep. at 161; Spellman Dep.
at 5, 7, 8.) When she felt that information was being withheld
from the Department of Health or the Attorney General's office,
she went ahead and told the investigators from those offices.
(Carlucci Dep. at 163, 380, 381.) In fact, Plaintiff admits that
she told state investigators "everything" that she knew or had
come to believe about the patient death, which included her
concerns about the prior incidents. (Carlucci Dep. at 373-398.)
Her speech was never "chilled" at any point. As Defendants
properly point out, the mere subjective sense that one's speech
is chilled, without evidence of actual chilling, is not enough to
survive summary judgment. See Spear v. Town of W. Hartford,
954 F.2d 63, 67 (2d Cir. 1992); see also Rodriguez v. Margotta,
71 F. Supp.2d 289 (S.D.N.Y. 1999). Plaintiff's first and third claims
that her speech was chilled and that she was prevented from
telling the government of her concerns are therefore dismissed.
(2) No Adverse Employment Action was Taken by Brody or Gainer
As discussed above, the record is replete with instances of
Plaintiff expressing her opinion about the cause of the death of
the patient and her ongoing concerns about patient safety at
Taylor Care. She claims that by exercising her right to express
her views on these matters of public concern, she was subjected
to retaliation. In order to prevail on a § 1983 claim premised on
retaliation, the Plaintiff must establish that defendants have
taken an "adverse employment action" against her. See Blum v.
Schlegel, 18 F.3d 1005, 1010 (2d Cir. 1994). Adverse employment
action is defined by the Supreme Court in Rutan v. Republican
Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52
(1990) to include not only actual discharge or disciplining by an
employer, but also any action that affects "promotions, transfers
and recalls after layoffs." 497 U.S. at 75, 110 S.Ct. 2729. See
also, Lieberman v. Reisman, 857 F.2d 896 (2d Cir. 1988) (denial
of compensatory and vacation time is adverse employment action);
Bennis v. Gable, 823 F.2d 723 (3d Cir. 1987) (demotion is
adverse employment action).
The evidence of retaliation consists solely of Plaintiff's own
testimony — which I assume for the purposes of this motion to be
true — that Kalsched "interrogated" her, scrutinized her in a way
she had never experienced before, assigned her extra work, and
altered her job responsibilities and duties. (Plaintiff's brief
at 17; Carlucci Dep. 158). Plaintiff also testified that at some
point after the investigation, Kalsched stated that Plaintiff
"would see to it that [Carlucci] never word as a nurse again."
(Carlucci Dep. 558). This retaliation caused Plaintiff to be:
micro-managed, kept out of the information "loop,"
refused access to meetings, refused access to state
agencies . . . [and] prohibited from completing her
investigation into the July 12, 1998 death and/or any
reports with respect to investigations of ventilator
alarm failures, told to withhold information from
state investigators, told to erase computer data
regarding her investigation . . . found her office
had been searched on at least two occasions, had
files stolen from her office, [and was] harassed,
threatened and ultimately forced to leave her
employment. (Plaintiff's brief at 13).*fn1
Of course, Kalsched is no longer a defendant in the action.
Moreover, it is undisputed that Kalsched had no authority to
take, nor did she take, any adverse employment action against
Carlucci. (Kalsched L.R. 56.1 para 5-9). And to the extent that
the alleged retaliation duplicates the alleged "chilling" of her
speech, it is unfounded for the reason her "chilling" claims were
deemed unfounded — her speech was not chilled. Carlucci was never
disciplined, demoted, or fired. She never had any privileges
taken away. She was never removed from the investigation into the
July 12 death. In fact, Carlucci had unfettered access to all the
state agencies performing an investigation of the patient's
death, and her findings and conclusions were used in the
production of the Root Cause Analysis that was sent to the
Department of Health. (Id. at paras 45, 48, 57-58). Thus, it is
hard to see what adverse employment action was taken against her.
Assuming arguendo that Carlucci received additional job
duties, a change in duties is not an adverse employment action
under § 1983. See Boylan v. Arruda, 42 F. Supp.2d 352, 354
(S.D.N.Y. 1999) (to make out a claim under section 1983,
plaintiff must show an adverse employment action that affected
her "employment in a way that is both detrimental and
substantial.") (citation omitted). Furthermore, the record
indicates that the increase in job duties was not directed at
Carlucci, but rather a result of across-the-board budget cuts
that reduced the number of nurses on duty during a given day and
increased all the nurses' workloads. (Carlucci Dep. at 315, 319).
Brody's alleged retaliatory action consisted of general
nastiness and his becoming "really angry very quickly," in
response to Plaintiff's inquiry about the whereabouts of pulse
oximeters that she had asked for a month earlier. Brody allegedly
waved his arms around and stated
"I don't know where they are . . . I'm doing the best I can."
(Carlucci Dep. at 214-215). Plaintiff became "really scared" as a
result of this episode and began to suffer heart palpitations,
which she states are the cause of her inability to return to
work. Plaintiff makes only generalized complaints about Gainer's
alleged retaliatory actions.
Mere "nastiness" of colleagues or supervisors, or
unprofessional behavior, is likewise not considered adverse
employment action for purposes of § 1983. See Van Zant v. KLM
Royal Dutch Airlines, 80 F.3d 708, 713 n. 3 (2d Cir.
1996) (supervisor's verbal abuse and general "nastiness" is not
"an adverse employment decision or action disadvantaging her; . .
."). Subjective beliefs that certain behavior is "scary" is not
an adverse employment action. Thus, assuming Brody's arm waving
has any significance at all, it does not rise to the level of
adverse employment action.
(3) There was No "Constructive Discharge" Amounting to Adverse
Having failed to make out a claim of actual discharge,
disciplining or adverse employment action under Rutan,
Plaintiff is left with her remaining theory that, as a result of
Defendants' actions in the six weeks following the patient death,
she was "constructively discharged" — the ultimate adverse
employment action. She states in her brief, "If ever there was
[sic] a case for constructive discharge, as set forth [by the
case law], this is the one." I disagree. A constructive discharge
claim requires proof that the "employer deliberately created
working conditions that were so difficult or unpleasant that a
reasonable person in the employee's shoes would have felt
compelled to resign," Spence v. Maryland Cas. Co.,
995 F.2d 1147, 1156 (2d Cir. 1993). See Stetson v. NYNEX Serv. Co.,
995 F.2d 355, 360 (2d Cir. 1993) (constructive discharge requires
showing work conditions "so intolerable that [the plaintiff] was
forced into an involuntary resignation.") (quoting Pena v.
Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983)). This is
a high threshold for Plaintiff to meet.
The "intolerable" conditions Plaintiff cites are Kalsched's
verbal abuse; Brody's yelling and arm-waving; Kalsched's
"menacing glares;" and allegations that she was "observed
excessively," "criticized for things others did with impunity,"
prohibited from attending meetings, told not to give certain
information to the Department of Health and Attorney General
investigators and sent away to a training center on the day the
Attorney General inspectors were scheduled to conduct interviews
at Taylor Care. Plaintiff contends that all these activities made
her physically ill and unable to return to work after August 28.
Again, Kalsched has been dismissed from the case already.
Plaintiff says nothing about how Gainer made her life
intolerable. Thus, summary judgment is granted for Gainer on this
claim. And, as a matter of law, the single incident of arm-waving
by Brody does not rise to the level of conditions that were so
difficult or unpleasant that a "reasonable person . . . would
have felt compelled to resign."
This leaves Plaintiff's claim that conditions became stressful
after she cooperated with the State investigation against her
supervisors' wishes. In Spence v. Maryland Casualty Co.,
995 F.2d 1147 (2d Cir. 1993), the Second Circuit considered whether
an employee's claim of a stress-related heart condition made out
a constructive discharge claim. The court there noted that:
A constructive discharge may be found on the basis of
evidence that an employer deliberately sought to
place an employee in a position that jeopardized his
or her health. See, e.g., Meyer v. Brown & Root
Construction Co., 661 F.2d 369, 371-72 (5th Cir.
1981) (constructive discharge in violation of Title
VII where pregnant employee transferred to position
requiring heavy manual
labor). But an employer is entitled to insist on as
high a standard of work performance as it deems
appropriate, and the fact that an employee develops
stress-related ill health from the demands of his
voluntarily undertaken position or from criticisms of
his performance, and as a result determines that
health considerations mandate his resignation, does
not normally amount to a constructive discharge by
the employer. Id. at 1156. (emphasis added).
As the record stands, almost none of Plaintiff's allegations
are backed up by actual evidence. In addition, Plaintiff
misrepresents the record in claiming that "her own doctor and
independent medical professionals hired by the County concluded
that she could not physically return to work until such time as
the harassing treatment ceased." (Pl.Mem.22.) The document on
which plaintiff relies for that assertion says nothing of the
sort. It merely restates the narrative of work-related "stress"
that Carlucci alleges in this suit. In his testimony, the doctor
who prepared the medical report containing Carlucci's statements
about her work-related stress stated that he had no opinion — nor
would he have one if called to testify — concerning the cause of
Carlucci's "stress." (Kornhaber Dep. at 50.)