The opinion of the court was delivered by: I. LEO GLASSER, Senior District Judge
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 ...