MEMORANDUM OPINION & ORDER
PAUL A. CROTTY, District Judge.
This is a fraudulent inducement and whistle blower action instituted on August 6, 2006 by plaintiff Neelu Pal ("Pal") who alleges that defendant New York University School of Medicine ("NYU") fraudulently induced her, in violation of New Jersey law, to take a fellowship in NYU's bariatric surgery program; and thereafter fired her in retaliation for her complaints about the bariatric surgery program's substandard conditions and patients' care, in violation of New York Labor Law § 741, also known as "New York's Health Care Whistle Blower Law."
On August 23, 2007, the Court granted NYU's Fed.R.Civ.P. 12(b)(6) motion to dismiss Pal's fraudulent inducement claim (Order dated August 23, 2007, Docket No. 45).
Discovery followed, supervised by U.S. Magistrate Judge Frank Maas. Discovery revealed certain facts which are not disputed. On Saturday, January 21, 2006, Pal called bariatric surgery patients, who were to be operated on the following week, and said in substance that NYU's operating procedures were substandard and that their forthcoming surgery was not safe. Pal called anonymously. Upon investigating, NYU determined that Pal made these anonymous calls. She was suspended and subsequently terminated.
NYU moved for summary judgment on Pal's retaliation discharge claim. On August 29, 2009, the Court entered the following order:
In connection with the oral argument of the motion for summary judgment, now scheduled for Monday, September 21, 2009 at 3:00 p.m., the Court has determined that the plaintiff's secret, anonymous communications and disclosures, during the weekend of January 21 and 22, 2007, to patients scheduled for bariatric surgery during the following week, are not protected by New York Labor Law § 741 because they were not made to a "public body" or a "supervisor, " as required by statute.
Argument should address whether there were other communications or disclosures which fell within the statute, and whether plaintiff's termination was in retaliation for said communications and disclosures. (Order, dated August 20, 2009, Docket No. 81).
NYU argued that Pal was suspended and subsequently terminated as a fellow because of her inappropriate phone calls to pre-operative patients, not because of any complaint about patient care. Pal maintained that her termination was attributable to her complaints about inadequate patient care. Those complaints were made to a person authorized by NYU to receive complaints. The Court denied summary judgment, determining that there was a genuine factual dispute over whether Pal was terminated because she made inappropriate phone calls; or because she expressed her concern over the quality of patient care at NYU. (Memorandum Opinion and Order, dated January 25, 2010, Docket No. 86).
The case was tried by the Court on May 3-6, 2010. Pal called ten witnesses, including eight witnesses who were employed by NYU. At the conclusion of Pal's case, NYU moved for judgment pursuant to Rule 52(c) of the Fed.R.Civ.P. The Court held separate conferences with counsel for Pal and NYU at which the parties were encouraged to settle. The parties reached a preliminary agreement to resolve their differences, but they were unable to enter into a final settlement agreement.
The Court now turns to defendant's pending Rule 52 motion.
Both sides agree that there are three elements to establishing a retaliation discharge claim under New York Labor Law § 741: (1) plaintiff must act in good faith and have a good faith belief that NYU was engaging in practices that constitute improper quality of care; (2) plaintiff engaged in protective activity; and (3) Pal was terminated because she engaged in protective activity (Trial Tr., pg 600, 617). Further, the parties stipulated that Pal had acted in good faith, thereby satisfying the first element. The resolution of the matter depends on how the second and third elements are decided. (Id. at 600-601, 617).
At the commencement of the trial, Pal's counsel outlined Pal's theory of recovery:
(1) Pal was not fired because of the telephone calls she made to the patients who were to be operated on.
(a) Doctors Ren and Fielding knew about the phone calls and "were willing to let it slide", rather than impose any discipline.
(b) The real reason Pal was fired was because of Pal's complaints to Dr. Bernstein about the conditions in NYU's bariatric surgery program run by Drs. Fielding and Ren.
(c) As soon as Drs. Fielding and Ren learned of Pal's disclosure to Bernstein, they began to malign, disparage and discredit her, accusing Pal of ...