The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT AND DISMISSING PLAINTIFF'S CLAIMS
This memorandum memorializes a decision announced in open court
on December 18, 1999.
Plaintiff Marie Carlucci, a nurse, brings suit here under
42 U.S.C. § 1983 against her former employer, Westchester County
Health Care Corporation (WCHCC), her former supervisor, Margaret
Kalsched, an employee of contractor Amsterdam Services
Corporation, and James Brody and Cheryl Gainer, both employees of
WCHCC. Her claims arise out of an investigation following the
death of a patient at the WCHCC long-term care facility, the
Taylor Care Center. Carlucci claims that Defendants: (1)
impermissibly chilled her First Amendment right to speech; (2)
retaliated against her for exercising her First Amendment rights;
and (3) violated her "right to petition the government for
redress of grievances." She has joined a state claim against
Brody, Gainer and
WCHCC under New York Labor Law § 740.
Kalsched moves for summary judgment as to all claims pending
against her on the basis that she is not a state actor for
purposes of § 1983. Kalsched argues in the alternative that the
claims should be dismissed because Carlucci has presented no
evidence that she was deprived of any constitutional rights and
that Kalsched, in any event, is qualifiedly immune from suit.
Defendants WCHCC, Brody and Gainer together move for summary
judgment on all claims against them on the basis that Plaintiff
has failed to demonstrate any deprivation of her constitutional
rights, and in the alternative, that Brody and Gainer are
qualifiedly immune from suit. In addition, WCHCC argues that
Carlucci has failed to state a claim for municipal liability
under § 1983. WCHCC, Brody and Gainer also move to dismiss
Plaintiff's state claim under New York Labor Law § 740.
For the reasons stated below, summary judgment is granted to
all defendants on all federal claims. Plaintiff's claim under New
York Labor law § 740 is dismissed without prejudice.
The following are the facts viewed in the light most favorable
to the Plaintiff:
Westchester County Health Care Corporation ("WCHCC") is a
public benefit corporation created to provide health and medical
services to the residents of Westchester County. See N.Y. Pub.
Authorities Law § 3301 (McKinney's 1997). Taylor Care Center
("Taylor Care") is a long-term care facility of the WCHCC.
Amsterdam Services Corporation is a private entity that provides
administrative services to Taylor Care pursuant to an independent
contractual agreement between it and WCHCC. Margaret Kalsched,
the Administrator of the Center, is an employee of Amsterdam
Services Corporation. She performs her duties as Administrator
pursuant to Amsterdam Services' contract with WCHCC.
James Brody is the Director of Respiratory Therapy at WCHCC
with responsibility for, inter alia, respiratory therapy at
Taylor Care. Cheryl Gainer is Executive Vice President and Chief
Operating Officer of WCHCC.
Plaintiff Marie Carlucci was employed on a provisional basis by
WCHCC at its Taylor Care Center in December 1997 as Deputy
Director of Nursing. She reported directly to Doreen Jackson,
Director of Nursing (not a party to this litigation), who in turn
reported to Defendant Margaret Kalsched. Kalsched did not have
the power to hire, fire, demote or discipline Carlucci, or make
any decision that would adversely affect her pay or rank. As part
of her nursing and management duties, Carlucci was responsible
for investigating incidents, accidents and allegations of abuse,
mistreatment, neglect and negligence at the center. She stopped
working at Taylor Care on August 28, 1998, but she remains a
WCHCC employee. (Carlucci Dep. at 528). In January 1999, WCHCC
offered Plaintiff the Deputy Director position on a
non-provisional basis. (Fessel Decl. Exh. D).
On July 12, 1998, a seriously ill, ventilator-dependent patient
at Taylor Care died somewhat unexpectedly as a result of a
disconnected "LP-20" ventilator. At the time the patient was
found dead, the ventilator alarm did not sound, as it would in a
properly functioning ventilator. On July 13, 1998, in response to
the fact that the alarm did not sound, WCHCC undertook to
investigate the death. Plaintiff was responsible for the
investigation internal to Taylor Care. Certain facts surrounding
the patient's death led the Plaintiff to conclude that the death
was a result of negligence. Plaintiff discovered, for example,
that the use of wrist restraints on the patient was not properly
documented and that normal procedures used for deciding how and
when to use the restraints were not followed. She was also
alarm failures on prior occasions when the "LP-20s" disconnected.
On July 14, Carlucci completed a handwritten preliminary
investigation report in which she concluded that the death
resulted from negligence. She submitted the report to Kalsched.
Although she was not "happy" about the determination of
negligence, Kalsched signed the initial report. After speaking
with other staff members later that same day, however, Kalsched
formed the opinion that the death might not have been the result
of negligence. Kalsched held a meeting about the investigation
that same afternoon, at which Carlucci suggested that Taylor Care
immediately inform the New York Department of Health (DOH)
concerning the circumstances of the patient's death. Kalsched
responded that the Taylor Center was well within the 48-hour
deadline for DOH notification (a clock which had began to run at
the time Carlucci was notified that there was any problem
surrounding the patient's death), and that she preferred to wait
until the 15th to inform DOH.
On July 15, Carlucci informed DOH of the patient death based on
her view that if she did not do so, DOH might not ever be
informed of the death. (Carlucci Dep. at 80). That same day, a
meeting was held of all the supervisory staff, at which Gainer,
Kalsched, Brody and Carlucci were present, along with the head of
WCHCC's risk management department. Gainer instructed those
present at the meeting not to disclose prior incidents of
ventilator disconnections and alarm failures at Taylor Care to
DOH. At the meeting, Carlucci expressed her concerns about the
disconnections and alarm failures on the "LP-20" ventilators.
Later that day, Kalsched went to Plaintiff's office and demanded
that she edit her typed version of the incident report to remove
the determination of "negligence" and insert instead a
determination of "inconclusive."
Also on July 15, WCHCC notified the New York DOH that the
patient had been found with a disconnected ventilator and that
the ventilator might not have been alarmed. At the same time,
WCHCC informed the patient's family that the DOH had been
notified and that WCHCC had initiated an investigation into a
possible ventilator alarm failure. It did not inform the family
of prior disconnects or alarm failures. The Department of Health
forwarded WCHCC's report to the New York State Attorney General's
office, which began its own investigation. (Fessel Decl. Exh. L.)
On July 16, Kalsched approached Carlucci again with orders to
make changes in the report, to indicate that the failure to alarm
was the cause of the patient's death. (Carlucci Dep. at 121). A
biomedical report was completed that same day, which determined
that the "LP-20" ventilator was defective. (O'Hara Ex. 19).
On July 17, 1998, WCHCC submitted a preliminary report to the
Department of Health, indicating that no determination with
respect to the death had yet been reached, and that WCHCC's
investigation was ongoing. (Fessel Decl. Exh. E.) On August 6,
1998, WCHCC submitted a "Root Cause Analysis" to the Department
of Health, in which it set forth in detail the results of the
investigation up to that date. It also described several measures
that WCHCC had implemented to provide greater safety for Taylor
Care residents, including, for example, installation of pulse
oximeters that trigger an alarm when blood oxygen levels become
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 ...