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January 4, 2000


The opinion of the court was delivered by: McMAHON, District Judge.


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 concerned about 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 too low.

Beginning on July 17, investigators from DOH and the Attorney General's office visited Taylor Care to conduct an on-site investigation into the July 12 death. According to Plaintiff, Kalsched, through hand gestures and body language, made it clear that she did not want Plaintiff cooperating with the investigators. Nevertheless, Plaintiff did cooperate, including providing the investigators with documents relevant to the patient death. Plaintiff had also been in touch with the investigators on several occasions prior to their on-site 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 the death.

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 ...

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