United States District Court, E.D. New York
June 21, 2005.
CARMEL REDDINGTON, Plaintiff,
STATEN ISLAND UNIVERSITY HOSPITAL and NORTH SHORE-LONG ISLAND JEWISH HEALTH SYSTEM, INC., Defendants.
The opinion of the court was delivered by: I. LEO GLASSER, Senior District Judge
MEMORANDUM AND ORDER
Plaintiff Carmel Reddington ("plaintiff") brings this action
against her former employer, Staten Island University Hospital
("SIUH"), and North Shore-Long Island Jewish Health System, Inc.
("Health System"), the entity that allegedly owned and/or
controlled SIUH. She asserts causes of action for age
discrimination and retaliatory discharge for whistleblowing
activities. Pending before the Court is defendants' motion to
dismiss the complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6) and for attorney's fees pursuant
to N.Y. Labor Law § 740.
The following facts are accepted as true for purposes of this
motion.*fn1 Plaintiff was an employee of defendant SIUH from
December 19, 1994 to October 30, 2002. Am. Compl. ¶ 3. When she
began working for SIUH in 1994, she was a Coordinator of
Volunteer Services. In March of 1998, plaintiff was promoted to
Manager of Volunteer Services. Id. ¶ 15. In February 2002,
Joseph Conte ("Joseph Conte"), Vice President of SIUH, held a Total Quality Leadership Team
meeting at which he discussed his plans to travel to Italy to
market a radiation therapy treatment to persons with cancer in
that country. After the meeting, plaintiff indicated to Joseph
Conte that she spoke Italian and offered him her assistance.
Id. ¶ 17.
On May 16, 2002, Joseph Conte asked plaintiff to meet with him
and Dr. Gilbert Lederman ("Lederman"), the Director of Radiation
Oncology at SIUH, the next morning. At the meeting on May 17,
Joseph Conte and Lederman told plaintiff that twelve families
from Italy were at SIUH and asked her if she would act as an
interpreter for them. Plaintiff agreed to do so in addition to
performing her tasks as Manager of Volunteer Services until the
hospital hired full-time employees for the interpreter position.
Id. ¶ 20.
Plaintiff then accompanied Lederman to meet the Italian
families. Upon introducing herself, plaintiff "was besieged with
complaints of inadequate and non-treatment, abandonment, and
failure to provide a translator." Id. ¶ 21. Plaintiff reported
these complaints to Lederman, who assured her that the concerns
would be addressed. Plaintiff continued to receive complaints
from the Italian families, which she reported to Joseph Conte
later that week. Id. ¶ 23. Joseph Conte asked plaintiff to meet
with him the next morning to resolve the complaints, but the next
day plaintiff was unable to find him. Instead, on May 20,
plaintiff reported the families' complaints to Lederman who
responded that Joseph Conte was solely responsible for the
patients' treatment. Id. ¶¶ 25, 26.
On May 21, Lederman asked plaintiff to notify the Italian
families that he planned to hold a meeting. At that meeting,
plaintiff acted as an interpreter for Lederman and two other
individuals, Alfred L. Glover ("Glover"), the Chief Operating
Officer of SIUH, and Ralph J. Lamberti ("Lamberti"), the
Executive Senior Vice President of SIUH. The Italian patients and
their families expressed their concerns, in particular the need for additional interpreters, and plaintiff
relayed that information to Lederman, Glover and Lamberti. Id.
In mid-June 2002, plaintiff acted as an interpreter at a
meeting with Joseph Conte, Lederman, Andrew Passeri, Ph.D.
("Passeri")*fn3 and two others, Salvatore Conte and Dr.
Lemongello, who plaintiff alleges falsely misrepresented
themselves as medical doctors. Id. ¶ 33. At that meeting, the
individuals discussed plans to establish a second office in
Italy, in addition to the one in Naples which Salvatore Conte
staffed, to be managed by someone named Lemongello. As with
Salvatore Conte, Lemongello was to receive a $1,750 fee for each
patient he referred to SIUH who was treated there. Id. ¶ 33.
Plaintiff expressed her concern about the legitimacy and legality
of this fee arrangement to Joseph Conte on numerous occasions.
Id. ¶ 34.
Plaintiff continued to receive complaints from Italian patients
and their families about the inadequacy of the treatment they
were receiving and to report that information to Joseph Conte. He
dismissed the complaints and told plaintiff, "You are not to be
at their beck and call" and "What do they need, a babysitter?"
Id. ¶ 36.
In August 2002, plaintiff went to Joseph Conte's office, which
he shared with Anthony Ferreri ("Ferreri"), Senior Vice President
of Human Resources. While waiting for Conte, plaintiff told
Elaine Burke ("Burke"), Ferreri's administrative assistant, about
the Italian patients' complaints. Burke suggested that plaintiff speak to Passeri. Plaintiff later met with Passeri and
told him about "the inadequate patient care" and that additional
interpreters were needed. Id. ¶ 41. Passeri stated that he
would like to establish an International Patient Program ("IPP"),
of which plaintiff would be the director. In fact, while
plaintiff was in the office, Passeri called Ferreri of Human
Resources and told him as much. Id. ¶¶ 41-42. During the
meeting, plaintiff also asked Passeri whether she could return to
her position as Manager of Volunteer Services if the position
with the IPP did not work out, and Passeri assured her that she
could. Id. ¶ 43.
On August 20, 2002, plaintiff met with Ferreri about the new
position with the IPP. In response to plaintiff's concerns about
who would assume the position of Manager of Volunteer Services in
plaintiff's stead, Ferreri indicated that the hospital was in the
process of hiring someone. Id. ¶ 45. When plaintiff returned
from a two-week vacation, Burke provided her with a job
description for the new position as Director of the IPP, which
plaintiff signed on August 30, 2002. In that position, Joseph
Conte was plaintiff's immediate supervisor.
While in the new position, plaintiff continued to report
concerns to the hospital administrators. For example, in
September 2002, plaintiff told Joseph Conte that, while she was
in Italy, Salvatore Conte told her that he was required to send
pathology slides to SIUH for each prospective patient. Joseph
Conte explained that two patients in the treatment program were
erroneously treated because they never actually had cancer. Id.
¶ 51. Plaintiff also complained to Joseph Conte on October 18,
2002 that "she was being treated more like a clerk than as a
director" and that Burke had been acting as a director and
undermining plaintiff's management of the IPP. Plaintiff asked
Conte why she was "being harassed by Elaine [Burke]" and he
responded, "I didn't know we were harassing you." Id. ¶ 52.
On October 25, 2002, Margaret D'Alto ("D'Alto"), Vice President
of Human Resources, arranged a meeting with plaintiff. D'Alto
said she understood plaintiff had some concerns. Plaintiff
relayed her concerns about Burke's efforts to undermine plaintiff's
authority, for example, by rescheduling IPP events for the
weekends, which was inconvenient for plaintiff. Id. ¶ 54.
Additionally, plaintiff showed D'Alto an event flyer that Joseph
Conte sent to personnel in the Radiation Oncology Department,
which indicated that people interested in attending should RSVP
to Burke. Id. ¶ 55. D'Alto indicated plaintiff had some
"legitimate concerns" and that she would investigate them. Id.
¶ 56. D'Alto also stated that Burke was "the point person"
between Joseph Conte and plaintiff, and plaintiff responded that
she was comfortable with that arrangement. Plaintiff told D'Alto
she was "merely asking for some clarification on the logistics of
her department." Id. ¶ 58. Finally, D'Alto asked plaintiff to
meet with her and Burke on October 30, 2002 to "clear up any
misunderstandings." Id. ¶ 59.
As planned, plaintiff went to D'Alto's office on October 30,
but was informed that Burke would not be present at the meeting.
Instead, D'Alto's assistant, Marie, was present to take notes.
Id. ¶ 60. D'Alto accused plaintiff of contacting Joseph Conte
after plaintiff was told that Burke would be the "point person."
Plaintiff stated she was unaware that she was not permitted to
call Conte. D'Alto then told plaintiff that she was terminated.
Plaintiff asked if she could return to her position as Manager of
Volunteer Services, but D'Alto said, "I don't think Joe [Conte]
wants you around." Id. ¶¶ 61-64. When plaintiff asked what she
had done wrong, D'Alto said only that plaintiff "disobeyed
orders" and that she should "pack up and leave." Id. ¶ 65.
Plaintiff alleges that throughout her employment with defendants
she was "an exemplary employee."
In November, 2002, plaintiff contacted the New York State Labor
Department and was advised that she should have SIUH indicate in
writing its reasons for terminating plaintiff. She contacted
D'Alto and then Lamberti to request such a document and stated
that she had not had an exit interview or received any
information regarding her medical insurance or vacation pay. In
early December, D'Alto called plaintiff and indicated she would "take care of" plaintiff's vacation pay,
that someone would contact plaintiff about her insurance coverage
and that she would send a termination letter to plaintiff
shortly. Id. ¶ 71. Plaintiff asked D'Alto why she was
terminated and why the hospital did not follow its dismissal
procedure, but received no answer to her questions. On December
10, 2002, SIUH sent plaintiff a termination letter indicating
that plaintiff was terminated because of "probationary failure."
Id. ¶ 73. Plaintiff alleges that she was never informed that
there was a probationary period for the new position. Id. ¶¶
On January 15, 2003, Terry Booras ("Booras"), an SIUH Human
Resources employee, met with plaintiff. Booras told plaintiff
that she was "certainly eligible for rehire," but that no
positions were presently available. Booras stated that she would
look for positions for plaintiff, but plaintiff never heard from
Booras again. Id. ¶¶ 77-79.
Plaintiff filed her original complaint on March 15, 2004, in
which she asserted eight causes of action for (1) violation of
the Age Discrimination in Employment Act, 29 U.S.C. § 621 et
seq. ("ADEA"); (2) age discrimination in violation of New York
Executive Law § 290 et seq.; (3) violation of the New York
City Human Rights Law, § 8-107 et seq. of the Administrative
Code of the City of New York; (4) retaliation pursuant to New
York Labor Law § 740; (5) retaliation pursuant to New York Labor
Law § 741; (6) violation of the Fair Labor Standards Act; (7)
intentional infliction of emotional distress; and (8) breach of
contract. She premised this Court's subject matter jurisdiction
on 28 U.S.C. §§ 1331 and 1367.
Defendants moved to dismiss the original complaint by motion
dated May 19, 2004. Plaintiff then filed an amended complaint on
August 24, 2004 and omitted the causes of action for retaliation
pursuant to New York Labor Law § 740, violation of the Fair Labor
Standards Act and intentional infliction of emotional distress. Pending before the Court is defendants' motion to
dismiss the remaining claims pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6) and for attorney's fees under New
York Labor Law § 740.
When deciding a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), a court takes the facts as alleged in the complaint to
be true, and must draw all reasonable inferences from those facts
in favor of the plaintiff. See Ortiz v. Cornetta,
867 F.2d 146, 149 (2d Cir. 1989). "[M]otions to dismiss for [lack of]
subject matter jurisdiction under Rule 12(b)(1) are reviewed
under the same standards as motions to dismiss for failure to
state a claim under Rule 12(b)(6)." Walker v. New York,
345 F. Supp. 2d 283, 286 (E.D.N.Y. 2004) (citations omitted). A court
must not dismiss a complaint "unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). With those principles in mind, the Court turns
to the parties' arguments in this case.
I. Whistleblower Act, N.Y. Labor Law § 740
In her original complaint, plaintiff asserted a cause of action
under N.Y. Labor Law § 740 ("§ 740" or "Whistleblower Act"),
which, in relevant part, prohibits an employer from "tak[ing] any
retaliatory personnel action against an employee because such
employee . . . (a) discloses, or threatens to disclose to a
supervisor or to a public body an activity, policy, or practice
of the employer that is in violation of law, rule or regulation
which violation creates and presents a substantial and specific
danger to the public health or safety." That section further
Existing rights. Nothing in this section shall be
deemed to diminish the rights, privileges, remedies
of any employee under any other law or regulation or
under any collective bargaining agreement or
employment contract; except that the institution of
any action in accordance with this section shall be deemed a waiver of the rights and remedies
available under any other contract, collective
bargaining agreement, law, rule or regulation or
under the common law.
§ 740(7) (emphasis added). Defendants argue that this waiver
provision precludes plaintiff from maintaining the causes of
action in her amended complaint. There is conflicting case law
interpreting the reach of this waiver provision. The parties rely
on Collette v. St. Luke's Roosevelt Hospital,
132 F. Supp. 2d 256 (S.D.N.Y. 2001), in which plaintiff, an independent
contractor working for the hospital's Continuing Medical
Education program, made various complaints about defendant's
hiring practices and its violation of accreditation standards
concerning receipt of donations from pharmaceutical companies.
Plaintiff was ultimately terminated and brought an action
asserting causes of action under New York's Whistleblower Act and
the Fair Labor Standards Act. That action resulted in a
stipulation of settlement between the parties. Thereafter,
plaintiff filed a second action alleging wrongful retaliation in
violation of Title VII, New York state and city
anti-discrimination laws, disparate impact race discrimination
under Title VII, state and city laws and breach of employment
contract. In moving to dismiss the complaint, defendant argued
that by asserting a Whistleblower Act claim plaintiff waived her
other causes of action. Id. at 259-60.
The court began by analyzing the plain meaning of the statute's
text. It rejected the broadest interpretation, namely, that once
a plaintiff initiates a claim under § 740, all concurrent and
future lawsuits by that employee are waived, because, among other
reasons, that would chill whistleblowing and thwart the very
purpose of the statute. Id. at 262-63. The court then
determined the limitations of the Act. In the course of its
opinion, the court rejected three possible limitations on the
breadth of § 740: (1) that the waiver applies to all claims by
the plaintiff against her employer; (2) that the waiver applies
to all claims arising out of the parties' employment
relationship; and (3) that the waiver applies to all claims
arising out of the same course of conduct as the alleged
retaliatory termination. Id. at 264-65. In rejecting the third "course of conduct" limitation, the court made clear that
asserting a cause of action under § 740 does not act as a waiver
of federal causes of action. "[A]n effort by New York to
condition a state law right on the waiver of arguably unrelated
federal rights would raise serious constitutional questions."
Id. at 265 (emphasis in original). Moreover, the court reasoned
that applying the waiver to federal claims would preclude a
plaintiff from alleging an invasion of interests distinct from
those the Whistleblower Act was designed to protect. Id. at
265-66 (distinguishing federal right not to be discriminated
against from state law right not to be retaliated against for
reporting a public health threat). The Court gleaned the purpose
of the Act from its legislative history, including the statement
in Governor Mario Cuomo's Executive Approval Memorandum on
signing the Act: "Encouraging employees to bring violations to
the attention of their employers and shielding them from employer
retaliation if they disclose wrongful conduct to authorities,
will protect the welfare of the people of this State, promote
enforcement of the law, and give needed protection to employees
who wish to act as law-abiding citizens without fear of losing
their jobs." Id. at 271. Based on this statement, the court
held that interpreting the waiver to "require an election of
remedies that protect the whistleblower," but not to extinguish
"any rights [an employee] might have under independent causes of
action . . . that may have arisen from the same course of
employer conduct as the retaliatory firing," is consistent with
the purpose of the Act which is to provide an incentive for
employees to report violations of the law. Id.
Finally, the court cited the practice commentary to the Act,
which it concluded suggests that the waiver provision "is
intended to avoid overlapping claims and duplicate recovery that
might arise from an employer's retaliation for whistleblowing,
rather than to require that a whistleblower plaintiff
automatically waives rights to redress harms unrelated to
whistleblowing." Id. at 273. The court's discussion of
"overlapping claims and duplicate recovery" is illuminating: `[I]f in retaliation for disclosing arguably unsafe
as well as illegal crack sales by a welfare hotel
management, an employee was shot, maimed and hence
unable to work, and then denied health benefits, a §
740 claim for lost benefits should not operate to bar
a suit for battery. The shooting would be
independently illegal apart from its retaliatory
character. The same reasoning can apply to less
colorful situations where retaliation is not an
element of the claim under a source of redress apart
from § 740.' . . . Similarly, it would follow that an
African-American employee who is fired after
reporting that his employer illegally concealed a
toxic waste dump (activity protected under the Act),
would not, upon instituting a whistleblower
complaint, waive the separate claim that the employer
had also discriminated against him by taking his race
into account in deciding to fire him.
Id. at 273-74 (quoting practice commentary). Applying its
interpretation of the Act, the court held that plaintiff's
discrimination claims were not barred as they were based on facts
distinguishable from the alleged retaliation giving rise to her
whistleblowing claim. Id. at 274.
Another instructive case is Nicholls v. Brookdale University
Hospital Medical Center, 2004 WL 1533831, at *1 (E.D.N.Y. July
9, 2004), which involved the allegations of a physician assistant
against her hospital employer and its agents for, inter alia,
labor law violations, race discrimination, and retaliation. As a
union delegate, plaintiff relayed complaints she received from
employees to the hospital regarding the latter's discriminatory
practices. Id. Plaintiff was then accused of improperly signing
patient charts and ultimately terminated from employment. Id.
She brought an action against the hospital. In her complaint, she
asserted a cause of action under § 740. Defendants moved to
dismiss the complaint pursuant to Rule 12(b)(6), and the court
held that the § 740 claim was time-barred. With respect to the
waiver provision in § 740(7), the court, adopting the reasoning
in Collette, held that the waiver applies "only to causes of
action that arise from the same course of conduct as the
retaliatory action." Id. at *6. Thus, the court dismissed
plaintiff's state and city discrimination claims to the extent
they were based in part on alleged retaliation against plaintiff.
Id. For the same reason, the court also dismissed plaintiff's
claim for breach of contract pursuant to the collective
bargaining agreement. Id. at *7. The court gave plaintiff leave
to replead within thirty days to demonstrate that those causes of action did not
arise from defendant's alleged retaliatory conduct. In framing
the waiver as applicable to claims based on the same "course of
conduct" as the retaliatory discharge, Nicholls appears to
adopt a broader interpretation of § 740(7) than did Collette;
indeed, Collette rejected a "course of conduct" interpretation.
Nevertheless, the results reached in those cases assist in
reconciling the courts' interpretation insofar as both courts
focused on the interest allegedly invaded in analyzing the
allegations underlying the whistleblower and discrimination
In Nadkarni v. North Shore Long Island Jewish Health System,
No. 02-5872 (E.D.N.Y. 2003) (Seybert, J.), an unpublished
decision which the parties here also cite, the plaintiff asserted
claims for discrimination based on disability and retaliation for
complaining about public health threats. The court cited
Collette, but, as in Nicholls, concluded that plaintiff,
having asserted a cause of action for retaliatory termination
under § 740, had waived all other claims because they were based
on her allegations that she was terminated as "a result of her
disability and in retaliation for her complaints regarding the
welfare of Franklin's patients." Id. at 12 (emphasis added).
Both parties also cite New York state case law. Those cases
apply the waiver provision in § 740 even more broadly than the
federal court decisions discussed above. For example, one court
held that it "bars claims which arise out of the same facts as
give rise to the claim brought under section 740(2)." Feinman v.
Morgan Stanley Dean Witter, 193 Misc. 2d 496, 497 (N.Y. Sup. Ct.
2002) (ruling that plaintiff's age discrimination claim under
state law was barred because it and the cause of action under §
740 were based on plaintiff's discharge from employment and denying
plaintiff's motion to amend his complaint for the fourth time).
See also Owitz v. Beth Israel Med. Ctr., 2004 WL 258087, at
*3 (N.Y. Sup. Ct. Jan. 29, 2004) (holding that waiver applies to
claims that "arise out of the same acts" as those underlying the
§ 740 claim "and/or that `relate to' the retaliatory action(s)on
which the § 740 claim is based" and dismissing discrimination
claims alleging that plaintiff was terminated in retaliation for
complaining about sexual harassment) (citations omitted);
Rotwein v. Sunharbor Manor Residential Health Care Facility,
181 Misc. 2d 847, 853 (N.Y. Sup. Ct. 1999) ("a retaliatory
discharge claim under Labor Law § 740 forecloses the assertion of
any other claims or remedies relating to the discharge");
Gonzalez v. John T. Mather Memorial Hospital,
147 Misc. 2d 1082, 1083-84 (N.Y. Sup. Ct. 1990) (holding that "the
commencement of an action under Labor Law § 740 precludes any
other action by the same plaintiff under any other theory of
liability," but permitting the plaintiff to rely on her amended
complaint which omitted that claim).
The Court adopts the interpretation of the scope of the §
740(7) waiver in Collette and turns to the allegations in this
case. In her § 740 cause of action, plaintiff alleged that on
numerous occasions, she reported to SIUH and its agents "that
patients were receiving improper inadequate treatment, and that
some patients had received no treatment at all." Am. Compl. ¶ 98.
Additionally, plaintiff reported that the patients were refused
copies of their medical records and that the hospital did not
obtain their informed consent in violation of N.Y. Public Health
Law §§ 179 and 2800 et seq. Those unlawful activities created
a "substantial and specific danger to the public." Plaintiff also
complained about the fee arrangements between SIUH and the
Italians who falsely represented themselves as medical doctors,
which she alleged violated N.Y. Public Health Law §§ 2811 and
4800 et seq. and 47 C.F.R. § 1001. She further alleged that
she made those complaints in good faith and that they were
truthful. Id. ¶¶ 100-1. Plaintiff was fired "in retaliation for
reporting" those violations and sought reinstatement to her
position as Director of the IPP, with full fringe benefits and seniority rights. Id. ¶¶ 112,
116. Additionally, she sought compensation for lost wages,
including back and front pay, benefits, reasonable costs,
disbursements and attorney's fees. In addition to monetary
damages totaling $1,000,000, plaintiff sought an injunction
against defendant's unlawful conduct. Id. ¶¶ 117-20.
Plaintiff's omission of the § 740 claim from her amended
complaint does not immunize her claims from the waiver provision
in § 740(7). See Def. Mem. at 12. Nicholls held that
"Plaintiff's claims based on conduct arising from defendants'
retaliatory action cannot be revived merely because the
collateral section 740 claims have been dismissed. The language
of section 740(7) is clear and leads to a harsh result but not an
absurd one. It clearly states that the waiver applies when a
plaintiff has instituted an action under section 740(7)." 2004
WL 1533831, at *7 (emphasis in original). Therefore, the court
held that "having risked filing a time-barred whistleblower
action," plaintiff's related claims were waived. Id. See also
Gaughan v. Nelson, 1997 WL 80549, at *2 (S.D.N.Y. Feb. 26,
1997) (holding "Plaintiff cannot erase his initial waiver by
filing the Amended Complaint which omits the dismissed Labor Law
§ 740 claim. The filing of the Amended Complaint does not change
the fact that Plaintiff's original complaint `institut[ed]' a
claim under the meaning of § 740(7)."); McGrane v. Reader's
Digest Ass'n, Inc., 1993 WL 525127, at *1 (S.D.N.Y. Dec. 13,
1993) ("The election required by the Labor Law provision is not
revocable under state law."); Feinman, 193 Misc. 2d at 498
(claim under § 740 acted as a waiver with respect to
discrimination claim, notwithstanding that it was dismissed as
time-barred); Rotwein, 181 Misc. 2d at 854 (waiver triggered by
the mere institution of an action containing a § 740 claim, so
that "a discontinuance of or service of an amended complaint
dropping the Labor Law § 740 claim would not invoke a fresh
start, nullifying the initial waiver").
II. N.Y. Labor Law § 741 Claim In her amended complaint, plaintiff asserts a claim under N.Y.
Labor Law § 741, alleging that she was wrongfully terminated in
retaliation for reporting to SIUH management that, inter
alia, patients were receiving inadequate care in violation of
the public health laws of New York.*fn5 See Am. Compl.
Count IV. As with § 740, § 741 prohibits employers from
retaliating against whistleblowers. Unlike § 740, however, § 741
applies specifically to health care employees. Under the ruling
of Collette, plaintiff waived this claim when she asserted a
claim for retaliatory termination under § 740 in her original
complaint. See 132 F. Supp. 2d at 274 (waiver provision applies
to "rights and remedies concerning whistleblowing").*fn6
See also Berde v. North-Shore Long Island Jewish Health System, Inc.,
No. 015320-04, at 7 (N.Y. Sup. Ct. Feb. 4, 2005) (the § 740(7)
waiver bars claims asserted under § 741 arising from the same
acts); Nadkarni v. North-Shore Long Island Jewish Health System,
Inc., No. 13796-03, at 3 (N.Y. Sup. Ct. Mar. 17, 2004) (noting
one ground for dismissal of § 741 claim is the waiver under §
740(7) as to all other claims based on the same events).
Accordingly, this claim is dismissed.*fn7
III. Age Discrimination Claims
Plaintiff asserts claims for age discrimination under the ADEA,
the New York Executive Law § 290 et seq. and the New York
City Human Rights Law, § 8-107 et seq. of the Administrative
Code of the City of New York. See Am. Compl. Counts I, II, III.
These causes of action allege that plaintiff was born on May 12,
1949 and, at the time of her termination, was 53 years old and
part of a protected class. Defendants' discharge of plaintiff
because of "probationary failure" was pretextual and constituted
a violation of the ADEA. Plaintiff also alleges that SIUH
replaced her as Director of the IPP with an employee who was
approximately thirty years old. Finally, SIUH failed to "honor
the agreement that Plaintiff would be restored to her former position as Director of Volunteer Services" and
filled that position with an employee who was twenty-five years
old. Id. ¶¶ 81-88.
With respect to the effect of the waiver under § 740(7) on
federal claims, defendants argue that plaintiff is precluded from
pursuing her ADEA claim. Def. Mem. at 11. Nevertheless, the Court
is persuaded by the determination in Collette that a cause of
action under § 740 does not act as a waiver of federal causes of
action because "an effort by New York to condition a state law
right on the waiver of arguably unrelated federal rights would
raise serious constitutional questions." 132 F. Supp. 2d at 265
(emphasis in original). See also Nicholls, 2004 WL 1533831,
at *6 ("Holding that the waiver does not apply to claims under
federal law, avoids serious federal constitutional problems,
which would be raised were a state statute to nullify a federal
provision.").*fn8 Therefore, the Court denies defendants'
motion to dismiss plaintiff's ADEA claim.*fn9 The waiver provision of § 740(7) may, however, apply to
plaintiff's state and city law discrimination claims because
federalism concerns are not implicated. In Collette, plaintiff
alleged that "she was denied a promotion, treated in a hostile
manner, and discharged for retaliation" for complaining about
defendant's discriminatory employment practices. By contrast, her
whistleblower claim alleged "retaliation exclusively on account
of her reporting unlawful financial contributions to an
accrediting body for medical education programs. The court held
that "differentiated facts" underlay plaintiff's discrimination
claims, and thus they were not barred. 132 F. Supp. 2d at 274.
Here, plaintiff's state and city law discrimination causes of
action are not based on alleged retaliation. Instead, plaintiff
alleges that she was fired based on the pretext of "probationary
failure" according to SIUH's termination letter. Am. Compl. ¶ 73.
As in Collette, plaintiff's whistleblowing and discrimination
claims are based on different facts. Significantly, because
plaintiff's age discrimination claims are not predicated on
allegations of retaliation, those and her whistleblowing claims
are even more distinct than the ones at issue in Collette. See
also Nicholls, 2004 WL 1533831, at *6 (holding plaintiff
failed to plead "purposeful discrimination" or "hostile work
environment" in asserting her discrimination claims and granting
plaintiff leave to replead those claims without reference to the
alleged retaliation).*fn10 Accordingly, the Court denies
defendants' motion to dismiss plaintiff's state and city law
IV. Defendants' Request for Attorney's Fees
Defendants move this Court for an order granting them
attorney's fees under § 740(6), which provides: "A court, in its
discretion, may also order that reasonable attorneys' fees and
court costs and disbursements be awarded to an employer if the court determines
that an action brought by an employee under this section was
without basis in law or in fact." They argue that plaintiff's
claim under § 740 was without basis in law or fact because, since
she filed her original complaint more than one year after her
termination, the claim was time-barred. See Def. Mem. at 16-17.
Defendants rely on Rotwein to support their argument for
attorney's fees. That court analyzed the sufficiency of
plaintiff's § 740 claim and held that plaintiff failed to allege
that he was an "employee" under the Act, that there was an actual
violation of law, rule or regulation about which plaintiff
complained and, assuming a violation, that it presented a
substantial and specific danger to the public health and safety.
181 Misc. 2d at 852. Finding that plaintiff's claim was without
merit, the court exercised its discretion under § 740(6) to award
defendants attorney's fees, costs and disbursements. In reaching
its decision, the court considered that the plaintiff earlier
attempted to withdraw the § 740 claim by discontinuance (which
was ineffective under state law in the absence of a court order
or stipulation) and that the action had been pending for more
than a year at that time. Id. at 853. The court viewed
plaintiff's attempt to withdraw the whistleblower claim as an
effort to avoid the waiver pursuant to § 740(7) and preserve his
other claims. Id. at 853, 855. Moreover, defendants in
Rotwein had answered the complaint, discovery had been
conducted relating to the retaliatory discharge and the
litigation had progressed to the summary judgment stage. Id.
Unlike in Rotwein, plaintiff in this case served her amended
complaint before defendants filed an answer to the original
complaint containing the § 740 claim. See Pl. Opp. at 26.
Moreover, there has been no discovery conducted in this
litigation to date. Accordingly, the Court denies defendants'
request for attorney's fees. See Majer v. Metro. Transp.
Auth., 1990 WL 212928, at *9 (S.D.N.Y. Dec. 14, 1990) (denying
request for attorney's fees pursuant to § 740(6) without
prejudice pending discovery as to the nature of plaintiff's
claim); Feinman, 193 Misc. 2d at 499 (denying defendant's
motion for attorney's fees as a matter of discretion).
V. Breach of Contract Claim
Plaintiff asserts a claim for breach of contract alleging that
in August 2002, Passeri told plaintiff that he was interested in
starting the IPP with plaintiff as head of that program. See
Am. Compl. Count V. Plaintiff accepted the new position in
reliance on representations by Passeri and Ferreri that "her old
position as Manager of Volunteer Services would always be
available to her should things not work out for her with the"
IPP. Am. Compl. ¶ 112. Plaintiff alleges that defendants breached
their contract with plaintiff by "summarily firing her without
the opportunity to return to her former position, and by failing
to follow the termination procedures set forth in the [SIUH]
Employee Handbook" and that as a result she suffered economic
damage. Id. ¶¶ 113-14.
In moving to dismiss plaintiff's claim, defendants argue that
plaintiff was an at-will employee, that there was no employment
contract between the parties and that the employment relationship
was terminable by either party at any point. Def. Mem. at 17.
They rely on De Petris v. Union Settlement Ass'n, Inc.,
86 N.Y.2d 406, 410 (1995), in which the court affirmed the dismissal
of plaintiff's Article 78 proceeding for reinstatement based on
allegations that he was wrongfully terminated and that defendant
corporation violated its termination procedures. In the course of
its opinion, the court stated that "absent an agreement
establishing a fixed duration, an employment relationship is
presumed to be a hiring at will, terminable at any time by either
party." Id. An employee may recover for wrongful discharge,
however, where he establishes that the employer made him aware of
"its express written policy limiting its right of discharge and
that the employee detrimentally relied on that policy in
accepting the employment." Id. The court also cautioned that
the "mere existence of a written policy . . . does not limit an
employer's right to discharge an at-will employee or give rise to
a legally enforceable claim by the employee against the employer." Id. Plaintiff here does not sufficiently allege an
employment agreement between her and defendants. Moreover, she
fails to allege that she was aware of and relied on an express
written policy limiting SIUH's right to terminate her in
accepting employment at the hospital. Plaintiff's allegations
with regard to the SIUH employee handbook, which she alleges
contained termination procedures that SIUH violated, are
inadequate to overcome the presumption of at-will employment.
With respect to the allegations that plaintiff relied on
representations by Passeri and Ferreri that she could return to
her position as Manager of Volunteer Services, courts hold that
oral assertions do not support a claim for breach of an implied
contract. For example, in Albert v. Loksen, 239 F.3d 256, 264
(2d Cir. 2001), the plaintiff asserted a cause of action for
breach of implied contract alleging that, although he had no
written employment agreement with his employer, oral
representations made to him during an orientation meeting and on
postings in the workplace on which he relied gave rise to an
implied employment contract. The Court rejected the argument and,
finding no other evidence of an employment contract between the
parties, granted summary judgment in favor of defendant. Id. at
265. In Albert, the Second Circuit cited Fitzgerald v.
Martin-Marietta, 256 A.D.2d 959 (1998), which is factually
analogous to this case. In 1977, plaintiff was employed by
defendant as an hourly utility worker and, in 1986, he was
offered a new, nonunion position within the corporation.
Plaintiff was reluctant to accept the position because of the
security of his existing position, but, after relying on verbal
assurances from his superiors "that he would be treated fairly,
in accordance with the policies" in the employee handbook, he
accepted the new position. Id. at 959-60. Plaintiff was
ultimately terminated and thereafter brought an action for breach
of contract premised on the representations of the handbook and
the oral statements of his superiors. The court deemed plaintiff
an at-will employee because he lacked a fixed duration employment
agreement, and held that plaintiff failed to rebut the
presumption against the employer's right to discharge its employees by alleging the elements of wrongful discharge in
De Petris. See discussion supra. Moreover, it rejected the
contention that the statements in the handbook and those by
plaintiff's superiors created an implied employment contract
between the parties and affirmed the decision granting summary
judgment in favor of defendant. Id. at 960.
Albert and Fitzgerald counsel the Court to conclude that
plaintiff's allegations of representations by Passeri and Ferreri
are insufficient to establish the existence of an employment
contract between the parties. In the absence of allegations
sufficient to show the existence of an employment agreement, the
Court presumes plaintiff was an at-will employee and her claim
for breach of contract is dismissed.*fn11 See Ullmann v.
Norma Kamali, Inc., 207 A.D.2d 691, 692 (1st Dep't 1994)
(dismissing breach of contract claim where plaintiff was at-will
employee and allegations of oral assurances of employment were
insufficient to overcome presumption that employment was freely
terminable).*fn12 VI. Whether Health System Was Plaintiff's Employer
Defendants argue that plaintiff has failed to allege that
Health System is her "employer" and therefore she fails to state
a claim against that defendant under the various
anti-discrimination statutes asserted in the complaint and N.Y.
Labor Law § 741.*fn13 See Def. Mem. at 18-20. In this
regard, the Court finds instructive Da Silva v. Kinsho
International Corp., 229 F.3d 358, 360 (2d Cir. 2000), in which
the Second Circuit considered whether a plaintiff's failure to
allege that a defendant has the requisite number of employees so
that it is an "employer" under Title VII deprives a federal court
of subject matter jurisdiction or whether that infirmity in the
complaint concerns the merits of the case.*fn14
Specifically, that case concerned whether a parent company and
its subsidiary were a single employer for purposes of the statute
so that the employees of the parent company should be counted as
the subsidiary's. Id. Significantly, the Court stated that
plaintiff "endeavored to plead that an employer covered by Title
VII has violated its prohibition" and that plaintiff's "failure
to prove single employer status is not a ground for dismissing
for lack of subject matter jurisdiction or even for failure to
state [a] claim; it is a ground for defeating her federal claim
on the merits." Id. at 365. See also Fernandez v. M&L
Milevoi Mgmt., Inc., 357 F. Supp. 2d 644, 647 (E.D.N.Y. 2005)
(Glasser, J.) (citing Da Silva and denying defendants' motion
to dismiss for lack of subject matter jurisdiction because
plaintiff sufficiently alleged defendant entity was his
employer). Here, too, plaintiff has alleged that Health System
was her "employer" as that term is defined in Title VII and the other anti-discrimination statutes she invokes. The Court finds
that plaintiff's allegations are sufficient to provide Health
System with notice of the claims against it. Accordingly,
defendants' motion to dismiss plaintiff's claims against Health
System is denied.
For the reasons stated above, the Court (1) dismisses
plaintiff's claim for retaliation under N.Y. Labor Law § 741
(Count IV); (2) denies defendants' motion to dismiss plaintiff's
discrimination claims (Counts I, II, and III); (3) denies
defendants' request for attorney's fees pursuant to § 740(6); (4)
dismisses plaintiff's claim for breach of contract (Count V);
and (5) denies defendants' motion to dismiss plaintiff's claims
against Health System.