Opinion
00 Civ. 4083 (JGK)
July 16, 2002
OPINION AND ORDER
The plaintiff, Catherine Dougherty, brings this diversity action against her former employer, Memorial Sloan-Kettering Cancer Center (the "Center"), alleging that the Center terminated her in violation of New York Labor Law § 740 because of complaints she made regarding alleged violations of Food and Drug Administration ("FDA") regulations at the Center's blood bank facility, where the plaintiff was employed from 1979 to 1998. The defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing the Complaint.
I.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994); Kirnon-Emans v. Am. Mgmt. Ass'n, No. 00 Civ. 3960, 2002 WL 523368, at *1 (S.D.N.Y. Apr. 15, 2002). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224.
The moving party, Memorial Sloan-Kettering Cancer Center in this case, bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will determine the facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the burden shifts to the nonmoving party, Catherine Dougherty in this case, to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases).
In this case, the defendant submitted a Rule 56.1 statement along with supporting affidavits and documents. In response, the plaintiff submitted a number of affidavits and documents that allegedly support her position, but did not include a Rule 56.1 Statement containing "a separate, shorthand concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried." Local Civil Rule 56.1(c) provides that "all material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party." See Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir. 1998); Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992); Lee v. Artuz, No. 96 Civ. 8604, 2000 WL 231083, at *1 (S.D.N.Y. Feb. 29, 2000).
II.
Unless otherwise indicated, the following facts are either undisputed or have not been contraverted by any of the briefs or submissions of the plaintiff.
The defendant is a not-for-profit institution that treats patients with cancer and cancer-related diseases, and conducts research regarding the treatment of and a potential cure for cancer. (Def.'s Rule 56.1 St. ¶ 1.) The defendant hired the plaintiff in 1979 to work as a lab technologist in one of its departments, which is designed to meet the blood transfusion needs of its patients, namely, the blood bank. (Def.'s Rule 56.1 St. ¶ 6; Deposition of Catherine Dougherty dated August 14, 2001 ("Dougherty Dep.") at 28-29, 38.) The plaintiff's duties included the testing of blood samples provided by donors, the review of test results, the entry of test results into the blood bank's computer system, and patient testing and cross-matching for blood type and compatibility to ensure that the blood bank released only safe and compatible blood to patients. (Affidavit of Barbara Reilly, Manager of the Blood Bank at Memorial Sloan-Kettering Cancer Center, sworn to October 18, 2001 ("Reilly Aff.") ¶ 7.)
Beginning shortly after the time she was hired, the plaintiff began making a number of internal complaints regarding alleged inadequacies in various procedures used by the blood bank. (Dougherty Dep. 92-93.) The defendant nevertheless promoted the plaintiff three times over the course of her employment. Each of these promotions involved a salary increase but no change in duties or responsibilities. (Def.'s Rule 56.1 St. ¶¶ 14, 15, 16; Dougherty Dep. 38-41.)
The defendant maintains a written disciplinary policy that provides managers with guidelines for the progressive discipline of employees for errors depending upon their severity and any threats to public health or safety. (Def.'s Rule 56.1 St. ¶ 4; Affidavit of Sheila Donoghue, sworn to October 17, 2001 ("Donoghue Aff."), Ex. 2.) Due to the potential dangers inherent in unsafe or unmatched blood transmissions, the blood bank department has implemented a near-zero tolerance policy for errors that might jeopardize a patient's healthy or safety, which generally translates in practice into counseling for the first such error and termination upon any subsequent error of a similar nature. (Reilly ¶ 37.)
The plaintiff's employment record contains a number of warnings for errors or problems that were not threats to patient health or safety. In October 1990, the patient was counseled by a supervisor regarding the manner in which she had interpreted an HIV test, which required its retesting when the test had already been completed. (Def.'s Rule 56.1 St. ¶ 31 Dougherty Dep. 78-80.) The plaintiff received a corrective interview regarding her attendance record in 1992. (Def.'s Rule 56.1 St. ¶ 32; Dougherty Dep. 81-83.) The plaintiff's performance reviews in 1996 and 1997 indicated that she needed to improve her attendance. (Def.'s Rule 56.1 St. ¶¶ 33-34; Dougherty Dep. 71-77.)
In 1994, the plaintiff received a warning for erroneously labeling sixteen donor samples as CMV negative when they were actually CMV positive, resulting in the potentially life-threatening transmission of blood product to four patients. (Def.'s Rule 56.1 St. ¶ 36; Dougherty Dep. 83-84.) However, the plaintiff did not commit any other such serious errors until 1998.
In October 1998, the defendant began outsourcing its donor testing to the National Testing Lab ("NTL"), a blood center approved by the FDA, in Philadelphia, Pennsylvania. (Dougherty Dep. 51-52; Deposition of Kathryn Bello, Administrator of Clinical Laboratories, dated September 20, 2001 ("Bello Dep.") 14-15; Reilly Aff. ¶ 9.) Following this change, the blood bank employees' duties narrowed in that they no longer were required to perform in-house testing of donor blood samples. With regard to their data entry duties, the employees were required to identify the relevant data from the NTL reports, rather than the in-house records with which they were more familiar, and enter this data into the defendant's same computer system. (Def.'s Rule 56.1 St. ¶¶ 21, 23; Dougherty Dep. 58-61.) The change to outsourcing spurred the issuance of revisions to the Standard Operating Procedure that regulated the practices that the blood bank technicians were to use to operate effectively with this new out-sourced data. The plaintiff was consulted in the development of the new procedures, and she suggested a number of changes that were adopted. (Def.'s Rule 56.1 St. ¶¶ 25-28; Dougherty Dep. 61-63.) The employees at the blood bank were trained to use these new procedures in part on the basis of live blood samples, with oversight from a supervisor. (Def.'s Rule 56.1 St. ¶¶ 29-30; Reilly Aff. ¶¶ 16-18.) After these new procedures were adopted, the plaintiff made a number of complaints to supervisors at the blood bank about these procedures and the training.
On December 15, 1998, the plaintiff reviewed and approved an erroneous data entry by a fellow employee, Irene Raptcheff, and authorized the release of a blood sample for which the NTL report indicated that testing for Hepatitis C had not yet been completed. (Reilly Aff. ¶ 20; Dougherty Dep. 124-29.) This entry violated the defendant's standard operating procedure, and allowed for the release of potentially infectious blood to patients. (Def.'s Rule 56.1 St. ¶¶ 45-50; Dougherty Dep. 121-29.) The Center subsequently learned that this potentially infected blood was transfused to patients. (Def.'s Rule 56.1 St. ¶ 51; Reilly Aff. ¶ 20; Bello Dep. 7-8.) On December 24, 1998, the plaintiff entered a sample in the computer system as fit for release although the NTL report indicated that it had not yet been tested for syphilis. Raptcheff reviewed and approved the release, although this error was caught by a supervisor before any blood was released. (Reilly Aff. ¶ 21; Dougherty Dep. 133-36.) On or around January 11, 1999, the defendant terminated the plaintiff and Raptcheff. (Def.'s Rule 56.1 St. ¶¶ 58-59; Reilly Aff. ¶ 24.)
Shortly after her termination, the plaintiff filed an internal grievance challenging her termination on the grounds that it was allegedly made in retaliation for her complaints, but the termination was upheld. (Def.'s Rule 56.1 St. ¶¶ 62-69; Dougherty Dep. 149-51, 164-65.) The plaintiff also raised with the FDA the same complaints that she raises in this action about the blood bank's policies and procedures. These complaints generated a two-month-long FDA investigation of the defendant's practices, which took place in Spring 1999. (Def.'s Rule 56.1 St. ¶¶ 82-83.) At the conclusion of the investigation, an FDA official notified the defendant in a letter dated July 28, 1999, that while "some adverse practices/conditions were observed during the inspection," these problems did not warrant regulatory follow-up at that time. (Reilly Aff. Ex. 1.) The report did not identify any statutory or regulatory violations committed by the defendant. (Id.)
Thereafter, the plaintiff filed this action.
III.
The defendant argues that the plaintiff's claim for violation of New York Labor Law § 740 should be dismissed on summary judgment because the plaintiff has not identified any protected activity in which she engaged. To establish a violation of § 740, an employee must show that an employer took retaliatory action against the employee because the employee either:
(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;
(b) provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any such violation of a law, rule or regulation by such employer; or
(c) objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation.
New York Labor Law § 740(2); see also Hogan v. 50 Sutton Place South Owners, Inc., 919 F. Supp. 738, 744 (S.D.N.Y. 1996). Under any of these alternatives, the employee must prove that her conduct was in response to an actual violation of a relevant law, rule or regulation. Bordell v. Gen. Elec. Co., 667 N.E.2d 922, 923 (N.Y. 1996). An employee's good faith, reasonable belief that such a violation has occurred is insufficient to invoke the statute's protection. Id.; Khan v. State Univ. of New York Health Science Ctr., 734 N.Y.S.2d 92, 94 (App.Div. 2001); Capobianco v. Am. Stock Exchange, 649 N.Y.S.2d 688, 689 (App. Div. 1996)
In this case, the plaintiff has not identified any actual violation by the defendant, and therefore cannot proceed with her § 740 claim. Although the plaintiff has raised a number of complaints about the defendant's internal practices, and has indicated that she believes that these practices violated FDA regulations and the defendant's own internal policies and procedures, (see, e.g., Dougherty Dep. 181, 185, 190), the plaintiff has not identified any specific statutory or regulatory provisions that were violated. The plaintiff raised the very same complaints she raises in this action to the FDA, and the FDA's investigation ended in a finding that no regulatory follow-up was warranted, and in no finding of any relevant violations. The plaintiff has not explained how, much less offered proof that, any of the alleged problems she has identified constituted a violation of any relevant law, rule or regulation.
In fact, an examination of the plaintiff's substantive complaints demonstrates that she has not identified any relevant statutory or regulatory violations. The plaintiff complains, first, that after the Center began outsourcing its blood donor testing, the NTL reports listed results in tables in a different order than they appear in the computer system that the blood bank used, but the software was FDA-approved software, (Dougherty Dep. 183; Reilly Aff. ¶ 30), which the Center was required to use, and the plaintiff has not cited any provision that requires compatibility in the ordering of truth tables and has not explained why a careful technician could not enter the NTL data accurately. (Reilly Aff. ¶ 30.) The plaintiff complains, second, that the Center trained them to input the new NTL data on live blood samples. However, the employees in the blood bank were trained lab technologists, the entries in question went through several layers of review, and the change to using out-sourced data from the NTL data was merely a change in the source of the data; the plaintiff has not explained why this kind of change required any different kind of training for the blood bank's lab technologists, and has not cited any provisions that require experienced lab technologists to be trained on non-live samples when this kind of change in procedure is made. (See Reilly Aff. ¶ 29.)
The plaintiff complains, third, that the NTL data did not have columns for a number of blood test reactions that the in-sourced data previously included, such as Anti-A, Anti-B, A-cell, B-Cell, Rh, Rh control, Coombs Control, 37 degrees C and antibody screening, all of which were needed for the computer system to release blood. However, there is uncontraverted evidence in the record that the NTL conducted these blood tests and reported only the overall results, for example, blood type, that were consistent with the reactions in the tests. The technologists were then asked to enter test reactions consistent with the overall results reported by NTL. (Reilly Aff. ¶¶ 31-32.) The plaintiff has not explained why this was not sufficient for the matching of blood types or pointed to any regulation or statute that required different testing or data. Finally, the plaintiff complains that the computer system that the blood bank was using did not have a truth table column for the p24 antigen, which can be important in protecting against the release of HIV infected blood, but the defendant has explained that the FDA-approved software did not have a truth table column for that data at the time of her complaints and that the Center, with the knowledge of the FDA and consistent with the practice of other blood banks, manually assured that the p24 antigen results were appropriate before slating a blood sample for release. (Reilly Aff. ¶¶ 27-28.) The plaintiff has not explained how this was insufficient under the law, or how any of her complaints could have established an actual statutory or regulatory violation.
In these circumstances, the plaintiff has failed to produce sufficient evidence to create a material issue of fact that there was any actual violation that would render her complaints about these practices and procedures protected under § 740. Summary judgment for the defendant is appropriate on this ground alone. See Khan, 734 N.Y.S.2d at 351.
IV.
The defendant argues that the plaintiff has also failed to establish any causal nexus between her complaints and her termination. See Lambert v. Gen. Elec. Co., 666 N.Y.S.2d 289, 290-91 (App.Div. 1997) (requiring that complaints cause the adverse employment action for a § 740 violation). The causal connection between protected activity and an adverse employment action "must be sufficient to warrant the inference that the [protected activity] was a substantial motivating factor in the adverse employment action, that is to say, the adverse employment action would not have been taken absent the employee's protected [activity]." Scheiner v. New York City Health Hosps., 152 F. Supp.2d 487, 496, 502-03 (S.D.N.Y. 2001) (internal quotation marks and citations omitted) (applying same analysis to similar retaliation claim against a public employer under N.Y. Civ. Serv. Law § 75-b(2)(a) and to First Amendment retaliation claim). Causation can be established indirectly, through circumstantial evidence, or directly by evidence of retaliatory animus. See id.; see also Manoharan v. Columbia Univ. College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). The timing of a defendant's conduct, such as where the protected activity was followed closely in time by adverse treatment in employment, may be circumstantial evidence of a retaliatory motive, though there is no bright-line rule for weighing the import of such evidence. Schemer, 152 F. Supp.2d at 496, 502-03; Gorman-Bakos v. Cornell Co-op Extension, 252 F.3d 545, 554-55 (2d Cir. 2001) (collecting cases). Moreover, in cases where an employer's state of mind or motives are relevant, the materials before the Court must be carefully scrutinized for circumstantial evidence that could support an inference of retaliatory animus. See, e.g., Rucci v. Thoubboron, 68 F. Supp.2d 311, 318 (S.D.N.Y. 1999) (citing Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996))
In addition, New York Labor Law § 740(4)(c) provides that "[i]t shall be a defense to any action brought pursuant to this section that the personnel action was predicated upon grounds other than the employee's exercise of any rights protected by this section." This provision provides a complete defense to employers who can establish that they terminated an employee on a basis other than the employee's exercise of any rights protected by § 740. Rodgers v. Lenox Hill Hospital, 674 N.Y.S.2d 670, 672 (App.Div. 1998). The defendant argues that the record establishes beyond any reasonable dispute that the plaintiff was terminated in accordance with the blood bank's consistent and long-standing policies because she made two serious errors in December 1998 that endangered patients' health and safety.
The defendant has submitted uncontraverted evidence that the blood bank consistently maintained a near-zero tolerance policy for errors that might affect patient health or safety. (Reilly Aff. ¶ 37.) Under this policy, only the first serious error of this kind would receive a warning or counseling, and any subsequent error that followed too closely in time would be deemed a ground for termination. (Id.) The plaintiff does not contest that the blood bank has these policies, and she does not contest that she made two serious errors that could have endangered patients' health or safety in a short time in December 1998. These errors clearly were a legitimate basis for her termination.
The plaintiff argues she was terminated not because of these errors but because she had made a number of complaints about the new procedures to her supervisors. The plaintiff provides no direct evidence of retaliatory animus, and she concedes that she did not make any complaints or threaten to make any complaints to the FDA until after her termination, thus limiting her claim to one for alleged retaliation in response to the internal complaints that she made prior to her termination. Even viewing the record in a light most favorable to the plaintiff, the plaintiff has not produced evidence from which a reasonable jury conclude that her informal complaints were a substantial motivating factor in her termination.
Although the plaintiff was terminated shortly after she made several complaints, the relevance of this timing is significantly undercut by the fact that the plaintiff alleges that she made similar complaints throughout her twenty-one years of employment at the Center, beginning in the early 1980's, and yet she was never terminated until shortly after she for the first time made two serious errors in one month in December 1998, as would be consistent with a straightforward application of the blood bank's policy. In fact, Dougherty was consistently promoted for most of her career despite her complaints and many of her complaints were incorporated into the blood bank's operating procedures, thus indicating that the defendant was responsive to and not hostile to internal complaints. (Dougherty Dep. 93-95.) Similarly, the plaintiff alleges that many of her co-workers at the blood bank made the same or similar complaints about the blood bank's standard operating procedures after the change to NTL outsourcing began, but none of these other employees were terminated except for Irene Raptcheff, who was the one employee who also made two serious errors at the about the same times that the plaintiff did, and Eugene DiGeralimo, who was also terminated after he had made more than one error that could have jeopardized patient care. (Def.'s Rule 56.1 St. ¶¶ 95-99; Dougherty Dep. 173-77; Reilly Aff. ¶¶ 37-39.) At the same time, the record does not support the contention that the plaintiff ever complained about any actual legal or regulatory violations, rather than raising ordinary concerns about procedure in the workplace, and there is no evidence that the complaints she made would be likely to provoke the kind of retaliation that the plaintiff is alleging.
The plaintiff argues that the defendant applied its policies inconsistently with regard to her, which, if true, might provide some evidence that the defendant acted with a retaliatory motive. See, e.g., Greenbaum v. Svenska Handelsbanken, 67 F. Supp.2d 228, 251-52 (S.D.N.Y. 1999) (evidence of deviations from policy or practice in employment decisions with respect to a plaintiff can, in the appropriate circumstances, indicate discriminatory or retaliatory motive). In support of her contention, the plaintiff points to other employees who were allegedly similarly situated and were allegedly treated differently than she was treated. However, the evidence about these employees does not ultimately support the plaintiff's case.
The record suggests that two of the individuals did not in fact commit errors that endangered the public health or safety, and that two committed only one error and therefore received a warning and counseling, as was consistent with the defendant's policies. (Reilly Aff. ¶¶ 36-38.). The plaintiff did not produce a name or any other evidence to support her claims concerning a fifth alleged person, and the sixth person left the defendant's employment twenty years ago and neither party has been able to produce any records or evidence indicating whether this employee had committed errors of a similar kind as the plaintiff's. (Id.) On the other hand, the one person who was clearly similarly situated to the plaintiff was Irene Raptcheff, who committed the same two errors in December 1998 as the plaintiff, and Raptcheff was also terminated at or about the same time as the plaintiff. (Id. at ¶ 23.) Eugene DiGeralimo also committed more than one such serious error, and he too was terminated. (Reilly Aff. ¶ 39.) Hence, there is nothing in the record to indicate that the defendant acted in any way toward the plaintiff other than in accordance with its consistent policies, or, in responding to her errors, treated the plaintiff in any way that was different from the way it treated other employees at the blood bank.
In sum, there is no direct evidence of retaliatory animus in this case, there is ample evidence that the plaintiff was terminated in accordance with a long-standing and legitimate policy of near-zero tolerance for errors at the blood bank that could endanger patient health or safety. No reasonable juror could conclude from the evidence in this case that application of this policy to the plaintiff was merely a pretext for retaliation. Hence, the plaintiff cannot establish any causal connection between her internal complaints and her termination, thus providing a second independent and adequate ground to grant the defendant's motion for summary judgment.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is granted. The Clerk of the Court is directed to enter judgment in favor of the defendant and to close this case.
SO ORDERED.