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Pal v. New York University

January 25, 2010


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge


Plaintiff Neelu Pal, M.D. ("Pal") brings this action against Defendant New York University ("NYU") asserting claims for fraudulent inducement under New Jersey law and retaliatory discharge in violation of N.Y. Lab. Law § 741. Pal's claims, which arise out of her termination as a fellow in the NYU Program for Surgical Weight Loss, have been the subject of two previous decisions of the Court. On August 23, 2007, the Court entered an order dismissing Pal's fraudulent inducement claim pursuant to Federal Rule of Civil Procedure 12(b)(6). On August 20, 2009, the Court entered another order holding that Pal's anonymous phone calls to patients were not protected by § 741 because the calls were not made to a "supervisor" or "public body" as required by the statute. Pal's sole remaining claim is that she was terminated in violation of § 741 because she voiced her concerns regarding the quality of patient care at NYU.

NYU moves for summary judgment on the remaining claim. According to NYU, Pal was suspended and ultimately terminated as a fellow because she made inappropriate phone calls to patients, not because she complained about patient care. NYU also contends that Pal's request for back pay is too speculative and that under § 741 she is not entitled to recover front pay. Finally, NYU moves to strike Pal's request for a jury trial.

At present, the question of whether Pal was terminated because she made inappropriate phone calls or because she expressed her concern over the quality of patient care at NYU is subject to a genuine factual dispute which cannot be resolved as a matter of law. If impermissibly terminated, there is a factual question of the amount of back pay she may be entitled to recover. As a matter of law, Pal is not entitled to recover front pay. Since Pal's claim under § 741 is equitable in nature, she is not entitled to a jury trial. Accordingly, and for the reasons that follow, NYU's motion for summary judgment is GRANTED in part, and DENIED in part. NYU's motion to strike Pal's request for a jury trial is GRANTED and the jury demand is STRICKEN.


I. Facts

Familiarity with the facts of this action is assumed in light of this Court's previous decisions, and the decisions of Magistrate Judge Frank Maas to whom the action was referred. See Pal v. New York Univ., No. 06 Civ. 5892(BSJ)(FM), 2007 WL 1522618, at *1-2 (S.D.N.Y. May 22, 2007) (Maas, M.J.); Pal v. New York Univ., No. 06 Civ. 5892(PAC)(FM), slip op. at 1-3 (S.D.N.Y. Aug. 23, 2007) (Crotty, J.); Pal v. New York Univ., No. 06 Civ. 5892(PAC)(FM), 2007 WL 4358463, at *1-3 (S.D.N.Y. Dec. 10, 2007) (Maas, M.J.); Pal v. New York Univ., No. 06 Civ. 5892(PAC)(FM), 2008 WL 2627614, at *1-2 (S.D.N.Y. June 30, 2008) (Maas, M.J.). What follows is a brief statement of the facts relevant to the present motion.*fn1

After finishing her residency in New Jersey, on or about October 4, 2005, Pal began working as a fellow in the NYU Program for Surgical Weight Loss under the supervision of Drs. Christine Ren ("Ren") and George Fielding ("Fielding"). According to Pal, soon after arriving at NYU, she became concerned for the safety of the program's patients. Pal testified that her concern was primarily due to incomplete medical histories being prepared for patients prior to surgery, and a lack of attending physicians covering patients staying in the hospital after their surgeries. (Dep. Tr. of Neelu Pal ("Pal Dep.") at 111:4-113:18, Krebs Decl., Ex. 1.) Pal voiced her concerns to Ren and Fielding, (id. at 115:24-116:3), and on December 13, 2005, she sent an email to a number of her superiors, including Ren and Fielding, setting forth some of her concerns. (Pal 12/13/05 email, Krebs Decl., Ex. 50.)

On or about January 12, 2006, Fielding performed bariatric surgery*fn2 on a female patient at NYU and Pal assisted. Two days later, the patient died while hospitalized for postoperative care. On January 19, 2006, another patient became hypotensive*fn3 after surgery and at Pal's suggestion was taken back into the operating room to ensure there was no internal bleeding. It was later determined that the patient had suffered an adrenal crisis, which means that the patient lacked certain hormones or steroids. According to Pal, the adrenal crisis might have been avoided had an adequate preoperative medical history been obtained. (Pal Dep. at 223:10-23.)

Several days later, on Saturday, January 21, 2006, Pal decided to call several patients scheduled to receive bariatric surgery the following Monday. She made the calls from "same day admit" area of an NYU operating room. Pal entered an NYU database to obtain the patients' telephone numbers. She then took it upon herself to call the patients; but did not identify herself or indicate that she was a doctor. During each call, Pal stated that the NYU bariatric program was under review or investigation, that there had been a recent death and that she had witnessed multiple complications. (Pal Dep. at 213-214.) Pal also recommended that the patients talk to their surgeons and hospital administrators before having surgery. (Id.) While Pal contends she made the calls out of concern for the patients' safety, she admits that it is possible that surgery was medically necessary for at least some of the patients she called. (Id. at 219:16.) Pal testified that after making the calls she realized that she could have raised her concerns without calling the patients. (Id. at 226:6-9.) Pal testified further that she did not identify herself when she made the calls because she feared the "repercussions when and if Ren and Fielding found out that I made the[] phone calls." (Id. at 221:5-7.)

Concomitantly with Pal's calls to the patients, the NYU admitting office was contacting patients scheduled for surgery on Monday to remind them of their appointments. In the course of calling the patients, NYU learned that someone had made the anonymous phone calls. Ren, Fielding, and others at NYU were told of the calls, and NYU commenced an investigation into the caller's identity. At some point between Saturday, January 21, 2006, and the end of the day on Monday, January 23, 2006, NYU determined that the calls had been made from the "same day admit" area of the operating room and that Pal was the only person in the area when the calls were made.

Pal reported for work on Monday morning, January 23, 2006, and participated in a number of surgeries, including surgeries on patients she had called on Saturday. At around noon, Pal told Ren and Fielding she was not feeling well and was allowed to leave work. Upon leaving work, Pal called Dr. Carol Bernstein ("Bernstein"), NYU's assistant dean for graduate medical education, and said that she was upset about something and wanted to meet. They scheduled a meeting for the following day, Tuesday, January 24, 2006. While Pal did not go to work on Tuesday, later in the day she met with Bernstein at Bernstein's office. At the meeting, Pal told Bernstein that she was concerned about patient care at NYU and explained the reasons for her concern. Pal also told Bernstein that she had made the anonymous phone calls on Saturday, which Pal described as "something she shouldn't have done." (Dep. Tr. of Carol Bernstein ("Bernstein Dep.") at 64:10-13, Krebs Decl., Ex. 12.) At the end of the meeting, Bernstein told Pal that she would look into the situation.

On January 25, 2006, the day after Pal met with Bernstein and explained her concerns about patient care, and the fact she had made the anonymous phone calls, Ren, Fielding and other NYU administrators and directors held a meeting to discuss Pal's conduct and determine how to proceed. At the meeting, it was decided that Pal would be suspended for four weeks pending further review of the situation. At another meeting held later that day, with Ren, Fielding, Bernstein and the chair of NYU's department of surgery, Dr. Thomas Riles ("Riles"), Pal was informed of her suspension and handed a letter from Riles explaining that she was being suspended because of the anonymous phone calls. Riles' letter describes Pal's calls to the patients as "an egregious example of unprofessional and irresponsible behavior." (Riles 1/25/2006 Letter, Krebs Decl., Ex. 54.)

Fielding and Ren were initially of the mind to allow Pal to return to work, and on February 4, 2006, Fielding sent an email to Dr. Max Cohen ("Cohen"), the Chief Medical Officer for NYU Medical Center, expressing his and Ren's willingness to afford Pal the opportunity to complete her fellowship. (Fielding Letter 2/4/2006, Krebs Decl., Ex. 53.) But Fielding and Ren's readiness to allow Pal to remain in the fellowship program was short-lived, and on February 9, 2006, Fielding sent Cohen another email revoking his offer "to help Neelu Pal." (Fielding Letter 2/9/2006, Krebs Decl., Ex. 55.) On February 16, 2006, Fielding, Ren, Riles, Cohen and others met to discuss Pal's actions and her future at NYU. After everyone at the meeting expressed their views on how to proceed, they unanimously agreed that Pal should be terminated. Approximately five days later, Pal received a letter from Riles dated February 21, 2006, ...

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