Reddington v. Staten Island University Hospital, No. 06-4152 (2d Cir. 2007)
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The court issued a subsequent related opinion or order on September 22, 2008.
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06-4152-cv, 06-4179-cv Reddington v. Staten Island University Hospital UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 1 2 3 August Term 2007 4 5 6 7 (Argued: October 11, 2007 Decided: December 14, 2007) 8 Docket Nos. 06-4152-cv(L), 06-4179-cv(XAP) 9 10 _____________________________________ 11 12 CARMEL REDDINGTON, Plaintiff-Appellant-Cross-Appellee, 13 14 15 -v.- 16 17 STATEN ISLAND UNIVERSITY HOSPITAL and NORTH SHORE LONG ISLAND JEWISH HEALTH SYSTEM, Defendants-Appellees-Cross-Appellants. _____________________________________ 18 19 20 21 22 23 Before: 24 KATZMANN, LIVINGSTON, Circuit Judges, and KORMAN, District Judge.* 25 26 Employee brought claims against former employer for age discrimination, 27 violation of whistleblower protection law, and breach of contract. The United 28 States District Court for the Eastern District of New York, I. Leo Glasser, J., 373 29 F. Supp. 2d 177, dismissed the whistleblower and contract claims. The parties 30 agreed to dismiss the age discrimination claims with prejudice. * Employee The Honorable Edward R. Korman, Senior District Judge, United States District Court for the Eastern District of New York, sitting by designation. 1 appealed the dismissal of her whistleblower and contract claims, and employer 2 cross-appealed, seeking attorneys fees. 3 Affirmed in part and questions certified. JONATHAN BEHRINS, Behrins & Behrins, P.C., Staten Island, NY, for Plaintiff-AppellantCross-Appellee. 4 5 6 7 JAMES D. WILLIAMS, JR. (David O. Simon, on the brief), Epstein Becker & Green, P.C., New York, NY, for Defendants-Appellees-CrossAppellants. 8 9 10 11 12 13 LIVINGSTON, Circuit Judge: 14 Plaintiff-appellant Carmel Reddington appeals from a judgment of the 15 United States District Court for the Eastern District of New York (I. Leo 16 Glasser, J.) dismissing her claims against her former employer, defendants- 17 appellees Staten Island University Hospital and North Shore Long Island 18 Jewish Health System, Inc. (the Hospital ), for termination in violation of New 19 York s whistleblower protection law and for breach of an employment contract. 20 This case calls upon us to resolve two significant questions arising under section 21 740 of the New York Labor Law, New York s general whistleblower protection 22 law, and section 741, a whistleblower protection statute enacted in 2002 that 23 provides certain protections to employees performing health care services. For 24 the reasons that follow, we believe these questions should be answered by the 2 1 New York courts, and we accordingly certify them to the New York Court of 2 Appeals. 3 The district court also held that Reddington failed to allege facts sufficient 4 to show the existence of an employment contract between the parties and that 5 Reddington had therefore failed to state a claim for breach of such a contract. 6 As to this claim, we agree with the decision of the district court and accordingly 7 affirm the judgment of dismissal. 8 Hospital s cross-appeal after we have learned the views of the New York Court 9 of Appeals regarding the certified questions or that court declines certification. We retain jurisdiction to consider the 10 BACKGROUND 11 12 The following facts are taken from Reddington s amended complaint and 13 supporting documents, which we must assume to be true in reviewing a Fed. R. 14 Civ. P. 12(b)(6) dismissal. Lentell v. Merrill Lynch & Co., 396 F.3d 161, 165 (2d 15 Cir. 2005). 16 Reddington was an employee of the Hospital from December 19, 1994, to 17 October 30, 2002. She was hired as a Coordinator of Volunteer Services and in 18 March 1998 received a promotion to Manager of Volunteer Services. 19 February 2002, Reddington attended a meeting at which Joseph Conte, one of 20 the Hospital s Vice Presidents, discussed his plans to offer radiation treatment 3 In 1 to cancer patients coming from Italy. After the meeting, Reddington told Conte 2 that she spoke Italian, knew Italian culture and customs, and would be able to 3 assist. 4 In May 2002, Conte invited Reddington to meet with him and Dr. Gilbert 5 Lederman, the Hospital s Director of Radiation Oncology. At this meeting, Conte 6 and Dr. Lederman told Reddington that several Italian families were at the 7 Hospital and asked her if she would serve as a translator for them while 8 continuing to perform her duties as Manager of Volunteer Services. Reddington 9 agreed to do so until the Hospital hired a full-time employee to serve as a 10 translator. 11 Upon meeting the Italian families for the first time, Reddington was 12 besieged with complaints of inadequate and non-treatment, abandonment, and 13 failure to provide a translator. (Am. Compl. ¶ 21.) Reddington reported these 14 complaints to Dr. Lederman and later to Conte; nevertheless, the patients 15 complaints were not addressed and persisted for the next several days. 16 On May 21, 2002, Dr. Lederman asked Reddington to notify the Italian 17 patients of an upcoming meeting. At this meeting, Reddington translated the 18 patients needs and concerns to Dr. Lederman and other officers of the Hospital. 19 In June 2002, Reddington served as a translator at another meeting 20 attended by, among others, Conte, Dr. Lederman, and two supposed doctors from 4 1 Italy. The attendees at this meeting discussed the possibility of opening a 2 second office in Italy that would be managed by one of the Italian doctors. This 3 doctor would receive a referral fee for each patient he referred to the Hospital for 4 treatment, just as the other doctor was already receiving referral fees in 5 connection with an existing Italian office. 6 regarding the propriety and legality of this referral fee arrangement to Conte on 7 several occasions, but he did not respond to these concerns or otherwise take any 8 action. Reddington expressed concerns 9 Over the next two months, Reddington continued to work with the 10 Hospital s Italian patients, and they continued to report concerns. In August 11 2002, Reddington met with Andrew Passeri, whose position with the Hospital 12 is not alleged in the complaint, to again report the inadequate care being 13 afforded the Italian patients. Passeri expressed surprise that Conte had not 14 addressed the patients concerns and then asked Reddington to be the director 15 of a new International Visiting Patient Program. Reddington alleges that she 16 inquired whether she would be able to return to her position as Manager of 17 Volunteer Services if the opportunity did not work out favorably and that 18 Passeri assured her that she would always be able to return to her former job. 19 Reddington met with Anthony Ferreri, the Hospital s Senior Vice 20 President of Human Resources, on August 20, 2002, to discuss her new position. 5 1 She reiterated her concerns about being able to return to her former position, 2 and Ferreri gave her the same assurances she had received from Passeri. She 3 also expressed concern that she was leaving for a vacation and would not be able 4 to train the person who would be hired to replace her as Manager of Volunteer 5 Services. Ferreri assured her that she should not be alarmed, for the Hospital 6 already had a candidate for the job in mind. 7 Reddington returned from her vacation and, on August 30, 2002, received 8 and signed a written job description for her new position as Director 9 International Patient Program, reporting to Conte. 10 11 responsibilities, as set forth in the job description, were as follows: 1. Coordinate arrival, transportation and lodging for international patients and ensure continuity with clinical services staff. 2. Coordinate and develop with Chief Medical Officer and appropriate medical personnel, services to be offered to international patients. 3. Coordinate marketing of the international patients program with Senior Staff. 4. Manage and train personnel providing translation services and maintain an on-call schedule to ensure coverage. 5. Maintain International Patients Welcome Center to promote positive image of Staten Island University Hospital and its services. 6. Develop calendar of activities for international patients to further enhance their experience at Staten Island University Hospital. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Her duties and 6 7. Maintain up to date data base on patients serviced. 8. Distribute, collect and analyze patient satisfaction questionnaires to continually enhance services. 9. 1 Communicate with consulate patient s letters of service. 2 3 4 5 6 7 to coordinate 8 9 In her new position, Reddington continued to report complaints to Conte. 10 In September 2002, for example, one of the Italian physicians with whom the 11 Hospital worked expressed to Reddington his frustration that he was required 12 to send prospective patients pathology slides to the Hospital. Conte explained 13 to Reddington that the pathology slides were necessary because the Hospital, 14 which had previously treated two patients who did not have cancer, was 15 attempting to avoid unnecessary treatments. In October 2002, Reddington went 16 to see Conte again to discuss concerns of inadequate patient care. Reddington 17 complained that her management of the Program was being undermined by 18 Elaine Burke, Ferreri s administrative assistant. Reddington later reported this 19 concern to Ferreri. Conte and Ferreri were unresponsive. 20 On October 25, 2002, Reddington received a phone call from Margaret 21 D Alto, a Vice President of Human Resources at the Hospital, asking Reddington 22 to meet. 23 concerns that she had previously expressed to Conte and Ferreri. 24 responded by saying that Reddington s concerns were legitimate and that D Alto At this meeting, Reddington related her concerns, including the 7 D Alto 1 would investigate further. D Alto also stated that Conte was very concerned that 2 Reddington had spoken to Passeri s wife and told Reddington that in the future 3 Burke would be the go-between if Reddington needed to contact Conte. Finally, 4 D Alto asked Reddington to meet again on October 30. 5 At the meeting on October 30, D Alto accused Reddington of calling Conte 6 directly after being told to contact Burke if she wished to reach Conte. 7 Reddington replied that she had not understood that she was not permitted to 8 call Conte and that she had done so to coordinate the transportation of a dead 9 patient s body to England. D Alto said that Reddington s job responsibilities 10 related only to Italian patients, but Reddington replied that D Alto s 11 understanding was incorrect and that she had spent several hours during the 12 previous day with the British patient s family. At the conclusion of this meeting, 13 D Alto dismissed Reddington from her job. Reddington asked if she could return 14 to her former position as Manager of Volunteer Services, and D Alto refused. 15 Reddington asked what she had done wrong, and D Alto replied that she had 16 disobeyed orders. 17 In November 2002, Reddington contacted the New York State Department 18 of Labor, which advised Reddington to obtain a written statement of the 19 Hospital s reasons for terminating her. After several requests by Reddington, 20 the Hospital sent her a letter dated December 10, 2002, stating that she was 8 1 terminated for probationary failure, even though Reddington was never 2 informed that her new position involved a probationary period. 3 After receiving a right-to-sue notice from the Equal Employment 4 Opportunity Commission, Reddington filed a complaint in the United States 5 District Court for the Eastern District of New York on March 16, 2004. In the 6 complaint, Reddington alleged numerous causes of action: violations of federal, 7 state, and municipal laws prohibiting age discrimination in employment; 8 violation of the New York Whistleblower Law, N.Y. Lab. Law § 740; violation of 9 the New York Health Care Whistleblower Law, N.Y. Lab. Law § 741; violation 10 of the Fair Labor Standards Act; intentional infliction of emotional distress; and 11 breach of contract. The defendants moved: (1) to dismiss the complaint for 12 failure to state a claim and for lack of subject-matter jurisdiction; and (2) for an 13 award of attorneys fees under N.Y. Lab. Law § 740(6). Reddington amended her 14 complaint on August 24, 2004, withdrawing the claims arising under N.Y. Lab. 15 Law § 740 and the Fair Labor Standards Act, as well as her claim for intentional 16 infliction of emotional distress. The defendants again moved to dismiss and for 17 an award of attorneys fees. 18 On June 21, 2005, the district court ruled on the defendants motion. 19 Reddington v. Staten Island Univ. Hosp., 373 F. Supp. 2d 177 (E.D.N.Y. 2005). 20 The district court granted the motion in part, dismissing Reddington s claims 9 1 under N.Y. Lab. Law § 741 and for breach of contract, id. at 187, 190, and denied 2 the motion in part, finding that Reddington had stated claims under federal, 3 state, and municipal age discrimination laws. Id. at 188. The court declined to 4 award attorneys fees to the Hospital. Id. at 189. After discovery on the age 5 discrimination claims, the parties stipulated to dismissal of these claims with 6 prejudice, which led to the entry of final judgment. This appeal followed. 7 DISCUSSION 8 9 We review de novo a district court s dismissal of a complaint pursuant to 10 Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations 11 in the complaint as true, and drawing all reasonable inferences in the plaintiff s 12 favor. 13 Although the pleading standard is a liberal one, bald assertions and conclusions 14 of law will not suffice. Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). To survive 15 dismissal, the plaintiff must provide the grounds upon which [her] claim rests 16 through factual allegations sufficient to raise a right to relief above the 17 speculative level. ATSI Commc ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 18 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, -- U.S. --, 127 S. Ct. 1955, 19 1965 (2007)). Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). 20 10 1 I. Jurisdiction 2 Before turning to the merits, we are obligated to satisfy ourselves that we 3 have jurisdiction, even if the parties have not argued to the contrary. Joseph v. 4 Leavitt, 465 F.3d 87, 89 (2d Cir. 2006). Reddington invoked the district court s 5 federal-question jurisdiction by bringing a claim under the Age Discrimination 6 in Employment Act of 1967, 29 U.S.C. § 626©, and the district court properly 7 exercised its supplemental jurisdiction over Reddington s factually related 8 claims under state and municipal law, 28 U.S.C. § 1367(a). At the time the 9 district court dismissed Reddington s claims under N.Y. Lab. Law § 741 and for 10 breach of contract, the district court undoubtedly had jurisdiction over these 11 supplemental claims. Subsequently, the parties agreed to dismiss the claims of 12 age discrimination a group that includes the sole federal claim in this case 13 with prejudice. The dismissal of these claims does not deprive us of subject- 14 matter jurisdiction over Reddington s appeal. See 28 U.S.C. § 1291; Rosado v. 15 Wyman, 397 U.S. 397, 405 (1970) ( We are not willing to defeat the 16 commonsense policy of pendent jurisdiction . . . by a conceptual approach that 17 would require jurisdiction over the primary claim at all stages as a prerequisite 18 to resolution of the pendent claim. ); Gem Corrugated Box Corp. v. Nat l Kraft 19 Container Corp., 427 F.2d 499, 501 n.1 (2d Cir. 1970). Moreover, because, as 20 discussed below, we have decided to certify the novel questions of state law in 11 1 this case to the New York Court of Appeals, we have no occasion to consider 2 whether we may or should decline to exercise our jurisdiction on account of the 3 novelty of these questions. 4 II. New York Labor Law § 741 5 6 New York s Health Care Whistleblower Law prohibits an employer from, 7 among other things, tak[ing] retaliatory action against any employee because 8 the employee . . . discloses or threatens to disclose . . . an activity, policy or 9 practice of the employer or agent that the employee, in good faith, reasonably 10 believes constitutes improper quality of patient care. N.Y. Lab. Law § 741(2). 11 The statute defines employee to mean any person who performs health care 12 services for and under the control and direction of any public or private employer 13 which provides health care services for wages or other remuneration. 14 § 741(1)(a). 15 Id. The district court concluded that Reddington did not state a claim under 16 section 741. It based its conclusion on two alternative grounds: first, that 17 Reddington waived her claim under section 741, the health care whistleblower 18 provision, by previously initiating an action under section 740, New York s 19 general whistleblower provision; and second, that Reddington was not an 20 employee within the meaning of section 741. Reddington, 373 F. Supp. 2d at 12 1 185-87, 187 n.7. The Hospital urges each of these grounds as a basis for 2 affirmance. We address them in turn. 3 A. Did Reddington Waive Her Claim? 4 5 The Hospital s principal argument is that Reddington waived her claim 6 under section 741 by including an action under section 740, New York s general 7 whistleblower provision, in her initial complaint. The statute of limitations 8 applicable to a claim brought under section 740 is one year from the time of the 9 alleged unlawful employment action, N.Y. Lab. Law § 740(4)(a), but the 10 limitations period applicable to a claim brought under section 741 is two years, 11 id. § 740(4)(d). Reddington filed her complaint almost eighteen months after the 12 Hospital terminated her. She originally charged unlawful termination under 13 both sections 740 and 741, but she omitted the section 740 charge from her 14 amended complaint after the defendants moved to dismiss it as time-barred. 15 16 17 18 19 20 21 22 23 Section 740 contains an election-of-remedies provision that states as follows: Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any other law or regulation or under any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective 13 1 2 bargaining agreement, law, rule or regulation or under the common law. 3 4 Id. § 740(7). Two relevant questions arise from this provision. First, did 5 Reddington trigger this waiver provision by including a section 740 claim in her 6 initial pleading? Second, if so, what causes of action did the waiver affect? 7 When we consider issues of New York law, our task is to determine how 8 the New York Court of Appeals would decide them. Michalski v. Home Depot, 9 Inc., 225 F.3d 113, 116 (2d Cir. 2000). We owe no deference to the district court s 10 interpretation of New York law. Elliot Assocs., L.P. v. Banco de la Naciòn, 194 11 F.3d 363, 370 (2d Cir. 1999). Decisions of New York s intermediate appellate 12 courts are helpful indicators of how the Court of Appeals would decide, but we 13 are not strictly bound by decisions of the Appellate Division, particularly when 14 we have persuasive data that the Court of Appeals would decide otherwise. 15 DiBella v. Hopkins, 403 F.3d 102, 112 (2d Cir. 2005) (quoting West v. Am. Tel. 16 & Tel. Co., 311 U.S. 223, 237 (1940)). For the reasons we describe below, we 17 believe that it is appropriate for the New York Court of Appeals, if it so chooses, 18 to address the state law issues regarding the scope of section 740 waivers that 19 are raised by this case. 20 21 1. Did Reddington Trigger the Waiver? 14 1 The second clause of N.Y. Lab. Law § 740(7) provides, in relevant part, 2 that the institution not the maintenance, pendency, or favorable resolution 3 of an action in accordance with section 740 shall be deemed a waiver of the 4 rights and remedies available under any other . . . law. Several courts have 5 suggested that the inclusion of a section 740 claim in a complaint triggers the 6 waiver even if the section 740 claim is facially defective and even if the claim is 7 promptly withdrawn. 8 For example, in Pipia v. Nassau County, 826 N.Y.S.2d 318 (App. Div. 9 2006), the plaintiff alleged a violation of section 740, as well as eight other 10 causes of action, seven of which arose from an allegedly unlawful termination. 11 He moved for leave to amend the complaint to withdraw the section 740 claim 12 and replace it with a section 741 claim. The Appellate Division held that the 13 amended complaint did not state a claim under section 741, and the court also 14 dismissed the seven claims related to the termination because [t]he mere 15 commencement of an action under Labor Law § 740(4) . . . acts as an election of 16 remedies, waiving other causes of action relating to the alleged retaliatory 17 discharge, irrespective of the disposition of such claims. Id. at 320. 18 Similarly, in Hayes v. Staten Island University Hospital, 834 N.Y.S.2d 274 19 (App. Div. 2007), the plaintiff alleged a violation of section 740 and breach of 20 contract. The Appellate Division held that the plaintiff could not proceed on her 15 1 contract claim even after she withdrew her section 740 claim. See id. at 275 2 ( [T]he plaintiff s attempt to amend the complaint to exclude the Labor Law 3 § 740 cause of action did not nullify the waiver. (citations omitted)). 4 Other courts have adopted a somewhat more flexible reading, allowing 5 plaintiffs a grace period within which they can withdraw section 740 claims and 6 nullify the effect of the waiver. See, e.g., Nicholls v. Brookdale Univ. Hosp. Med. 7 Ctr., No. 03-CV-6233 (JBW), 2004 WL 1533831, at *7 (E.D.N.Y. July 9, 2004) 8 ( The court will permit withdrawal of the whistleblower claims . . . by 9 amendment within thirty days. Withdrawal will be deemed the equivalent [of] 10 failing to file the claim. ). The court in Nicholls interpreted the waiver provision 11 to mitigate what it saw as a harsh result. Id. 12 13 2. Does the Section 741 Claim Fall Within the Waiver s Scope? 14 The two clauses of section 740(7) would seem potentially to contradict each 15 other the first assuring that [n]othing in this section shall be deemed to 16 diminish the rights . . . or remedies of any employee under any other law and 17 the second excepting that the institution of an action in accordance with this 18 section shall be deemed a waiver of the rights and remedies available under any 19 other . . . law. N.Y. Lab. Law § 740(7). As one federal district court has put it, 20 [o]n a plain reading of Clause Two, New York s whistleblower regime not only 16 1 diminish[es] other rights, but for employees who seek its shelter, it eviscerates 2 them. 3 (S.D.N.Y. 2001) (second alteration in original). Collette v. St. Luke s Roosevelt Hosp., 132 F. Supp. 2d 256, 262-63 4 Responding to this apparent incongruity, courts have adopted differing 5 and sometimes contradictory limiting constructions of this waiver. New York 6 state courts have generally held that the waiver applies to all causes of action 7 that relate to the retaliatory discharge, which may include contract claims, see 8 Hayes, 834 N.Y.S.2d at 275; Bordan v. N. Shore Univ. Hosp., 712 N.Y.S.2d 155, 9 157 (App. Div. 2000), tort claims, see Pipas v. Syracuse Home Ass n, 641 N.Y.S.2d 10 768, 768 (App. Div. 1996), and claims arising under state antidiscrimination 11 laws, see Owitz v. Beth Isr. Med. Ctr., No. 600331/03, 2004 WL 258087, at *3 12 (N.Y. Sup. Ct. Jan. 29, 2004). Federal district courts, in contrast, generally 13 interpret the waiver as applying only to rights and remedies concerning 14 whistleblowing, Collette, 132 F. Supp. 2d at 274; see also Reddington, 373 F. 15 Supp. 2d at 185-86; Nicholls, 2004 WL 1533831, at *6, and therefore deem it not 16 to apply, for example, to claims of employment discrimination. Collette, 132 F. 17 Supp. 2d at 274. Additionally, federal courts have interpreted the provision not 18 to waive or otherwise affect rights arising under federal law. 19 Nicholls, 2004 WL 1533831, at *6; United States ex rel. Mikes v. Straus, 853 F. 20 Supp. 115, 121 (S.D.N.Y. 1994). 17 Id. at 266; 1 Whatever the proper scope of the section 740 waiver, there is an additional 2 consideration here related to the district court s conclusion that a claim under 3 section 741 falls within it. The waiver, by its terms, relates to rights and 4 remedies available under any other . . . law. N.Y. Lab. Law § 740(7) (emphasis 5 added). Although section 741, the health care whistleblower provision, provides 6 a set of rights distinct from the rights created by section 740, the general 7 whistleblower law, an employee aggrieved by a violation of section 741 can 8 enforce his or her rights only in accordance with the remedial provisions of 9 section 740. See id. §§ 740(4)(d), 741(4). It therefore seems arguable that section 10 740 s waiver cannot affect rights created by section 741 because the associated 11 remedies are available under the same law, not any other law. 12 The logic of Pipia supports this reading. As discussed earlier, the court in 13 Pipia dismissed claims related to an alleged retaliatory termination because 14 they were waived by the institution of a section 740 action, even though the 15 plaintiff withdrew the section 740 claim and replaced it with a section 741 claim. 16 As an alternative ground for this disposition, the court stated that dismissal of 17 the [related] causes of action would have been required even if the plaintiff s 18 [section 741 claim] had been pleaded initially. Pipia, 826 N.Y.S.2d at 320. 19 According to the court, [b]ecause a claim alleging a violation of Labor Law 20 § 741(2) is enforced pursuant to Labor Law § 740(4)(d), the same waiver is 18 1 effected by the institution of a cause of action alleging a violation of Labor Law 2 § 741(2). Id. (citation omitted). Pursuant to this logic, because the waiver is 3 triggered by the institution of an action in accordance with this section 4 namely, section 740 a claim under section 741 is, by necessary implication, an 5 action in accordance with section 740 as well. 6 7 B. Does Section 741 Apply to Reddington? 8 The Hospital argues that even if Reddington did not waive her section 741 9 claim by instituting a claim under section 740, the district court correctly 10 determined that Reddington failed to allege facts sufficient to support a claim 11 that she was an employee a person who performs health care services for and 12 under the control and direction of any public or private employer which provides 13 health care services as defined in the health care whistleblower statute. N.Y. 14 Lab. Law § 741(1)(a). Accordingly, the Hospital urges that her section 741 claim 15 was properly dismissed. 16 Section 741 was enacted in 2002, and it is therefore not entirely surprising 17 that we are unable to find any reported decisions discussing its definition of 18 employee. We begin with the text of the statute, giving words of ordinary import 19 in the statute their plain meaning. See N.Y. Stat. Law § 232 ( Words of ordinary 20 import used in a statute are to be given their usual and commonly understood 19 1 meaning . . . . ); id. § 234 ( Dictionary definitions may be useful as guide posts 2 in determining the sense with which a word was used in a statute . . . . ). In 3 construing a New York law, we also look to legislative history in appropriate 4 cases. See id. § 124 ( In ascertaining the purpose and applicability of a statute, 5 it is proper to consider the legislative history of the act . . . . ). 6 However, these sources provide no easily discernable answer in this case. 7 It is not plain on the face of the statute whether health care services may include 8 services beyond the provision of medical treatment. The legislative history may 9 suggest so. See, e.g., N.Y. Legis. Serv. Governor s Bill Jacket, 2003 A.B. 8017, 10 ch. 505, at 3 ( Like other health care workers, pharmacists often encounter 11 situations in which a regulation is ignored because of expediency[, which] 12 jeopardize[s] patient safety. ). The term health care services might be read to 13 encompass, for example, a hospital s pharmacist, who would likely learn if a 14 doctor at the hospital was illegally prescribing medication, or even a hospital s 15 insurance claims processor. But the legislative history does not clearly indicate 16 whether the definition extends to someone like Reddington whose job description 17 includes functions such as: (1) [c]oordinat[ing] and develop[ing] with Chief 18 Medical Officer and appropriate medical personnel[] services to be offered to 19 international patients ; (2) [d]istribut[ing], collect[ing,] and analyz[ing] patient 20 satisfaction questionnaires ; and (3) [m]anag[ing] and train[ing] personnel 20 1 providing translation services. Neither do we find controlling guidance in other 2 New York statutes that define health care services with greater precision, see, 3 e.g., N.Y. Ins. Law § 4900(e)(2); N.Y. Pub. Health Law § 4900(5)(b); N.Y. Soc. 4 Serv. Law § 369-ee(1)(e), for we interpret statutory terms equivalently only when 5 the statutes refer to the same subject matter and have the same objectives, see 6 N.Y. Stat. Law § 221; Bridgestone/Firestone, Inc. v. Hartnett, 572 N.Y.S.2d 770, 7 773 (App. Div. 1991), which these statutes do not. 8 9 C. Certification 10 Pursuant to Second Circuit Local Rule § 0.27 and New York Court of 11 Appeals Rule § 500.27, we may certify a question to the Court of Appeals when 12 a question of New York law is determinative of a claim before us and no 13 controlling precedent of the Court of Appeals resolves the question. O Mara v. 14 Town of Wappinger, 485 F.3d 693, 698 (2d Cir. 2007) (quoting N.Y. Comp. Codes 15 R. & Regs. tit. 22, § 500.27). In deciding whether to certify, we consider three 16 main issues: (1) the absence of authoritative state court interpretations of the 17 state statute ; (2) the importance of the issue to the state and whether the 18 question implicates issues of state public policy; and (3) the capacity of 19 certification to resolve the litigation. Morris v. Schroder Capital Mgmt. Int l, 20 445 F.3d 525, 531 (2d Cir. 2006) (citations omitted) (quoting Green v. 21 1 Montgomery, 219 F.3d 52, 60 (2d Cir. 2000)). 2 Our analysis leads us to conclude that the issues in this case regarding the 3 scope of section 740 s waiver provision and the meaning of health care services 4 in section 741 are appropriate for certification to the New York Court of Appeals. 5 First, section 741 has never been discussed, or even mentioned in passing, by the 6 Court of Appeals. Moreover, as we have recounted above, there is a split of 7 authority between the lower New York state courts on the one hand and at 8 least some federal district courts in New York on the other on the scope of 9 section 740 s waiver, which makes certification particularly appropriate. See 10 McCarthy v. Olin Corp., 119 F.3d 148, 153 (2d Cir. 1997) (certification is 11 appropriate when there is a split of authority on the issue (quoting Riordan v. 12 Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 51 (2d Cir. 1992))); id. at 157-58 13 (Calabresi, J., dissenting) (certification is appropriate when the split of authority 14 lies along federal/state lines because such a split would lead[] to precisely the 15 kind of forum shopping that Erie R.R. Co. v. Tompkins was intended to prevent 16 (citation omitted)). Second, laws applicable to health care workers, however 17 defined, are of great importance to the public policy of New York,1 and the 18 question how to interpret essential procedural and substantive provisions of 1 In 2004, the health care sector (public and private) in New York employed more than 1,000,000, and paid out almost $43 billion in wages . . . . Kevin Jack, Health Care Engine Drives New York State, Emp. in N.Y. St. (N.Y. State Dep t of Labor, Albany, N.Y.), Jan. 2006, at 1, 1, available at http://www.labor.state.ny.us/workforceindustrydata/PDFs/enys0106.pdf. 22 1 section 741 is likely to recur. Finally, a decision from the New York Court of 2 Appeals will resolve the section 741 claim at issue in this case. Because all three 3 factors favor certification, we conclude that it is appropriate to certify the 4 following two questions to the New York Court of Appeals: 5 6 (1) Does the institution of a time-barred claim pursuant to New York Labor 7 Law § 740 simultaneously with a claim pursuant to New York Labor Law 8 § 741 trigger section 740(7) s waiver provision and thereby bar the section 9 741 claim, even if the section 740 claim is subsequently withdrawn? 10 11 (2) Does the definition of employee in New York Labor Law § 741 encompass 12 an individual who does not render medical treatment, and under what 13 circumstances? 14 15 The New York Court of Appeals may, of course, reformulate these 16 questions as it sees fit so as to better guide this court and others relying on its 17 work. We reiterate, as we have in the past, see, e.g., O Mara, 485 F.3d at 699, 18 our appreciation for the Court of Appeals s guidance on these matters of state 19 law. 20 23 III. Breach of Contract 1 2 Reddington also claims that she had a contractual right to return to her 3 former position as Manager of Volunteer Services if her tenure with the 4 International Visiting Patient Program did not work out. The Hospital argues 5 that this claim is within the scope of section 740(7) s waiver provision. We 6 decline to decide whether Reddington waived her breach of contract claim 7 because we agree with the district court s conclusion that Reddington does not 8 sufficiently allege an employment contract of definite duration. We therefore 9 affirm the district court s ruling dismissing Reddington s breach of contract 10 claim. 11 Under New York law, employment for an indefinite or unspecified term 12 is presumed to be at will and . . . freely termina[ble] by either party at any time 13 without cause or notice. Horn v. N.Y. Times, 790 N.E.2d 753, 755 (N.Y. 2003); 14 see also id. at 759 ( We have consistently declined . . . to recognize a covenant of 15 good faith and fair dealing to imply terms grounded in a conception of public 16 policy into employment contracts . . . . ). This presumption does not apply, 17 however, when the employer and the employee are parties to an agreement 18 establishing a fixed duration. De Petris v. Union Settlement Ass n, 657 N.E.2d 19 269, 271 (N.Y. 1995). 20 An agreement can establish a fixed duration even if its duration cannot be 24 1 determined ab initio, see Rooney v. Tyson, 697 N.E.2d 571, 575 (N.Y. 1998) ( New 2 York s jurisprudence is . . . not so rigid as to require that a definite duration can 3 be found only in a determinable calendar date. ), answering questions certified 4 by 127 F.3d 295 (2d Cir. 1997), as long as the duration is delimited by legally 5 and realistically cognizable boundaries. Id. at 574. For example, an offer of 6 permanent employment does not specify a definite period, but employment for 7 life does. See id. (citing Arentz v. Morse Dry Dock & Repair Co., 164 N.E. 342, 8 344 (N.Y. 1928)). In Rooney, for example, the court held that the plaintiff, who 9 was promised that he would be employed as a trainer for the boxer Mike Tyson 10 for as long as [Tyson] fights professionally, had an employment contract of 11 definite duration because the durational term was understandable . . . and 12 reasonably determinable. Id. at 575, 576. 13 Relying principally on Rooney, Reddington argues that Passeri s and 14 Ferreri s statements to her created an expectation of employment for a definite 15 duration and that the Hospital breached its contract with her by failing to allow 16 her to resume her former job as Manager of Volunteer Services when it 17 terminated her from the position of Director of the International Visiting Patient 18 Program. Specifically, Reddington alleges that: (1) Passeri assured [her] that 19 her former position as Manager of Volunteer Services would always be available 20 to her (Am. Compl. ¶ 43); and (2) Ferreri reiterated Mr. Passeri s assurances 25 1 that [Reddington] would always be able to return to her former position (Am. 2 Compl. ¶ 44). 3 These statements do not give rise to an understandable and reasonably 4 cognizable duration of employment so as to overcome New York law s 5 presumption of employment at will. See Baron v. Port Auth. of N.Y. & N.J., 271 6 F.3d 81, 85 (2d Cir. 2001). Rather, by promising that Reddington s old job would 7 always be available, these assurances are akin to an offer of permanent 8 employment, which New York law does not recognize to specify a definite period. 9 Whatever the precise limits of the doctrine enunciated in Rooney, the statements 10 made to Reddington clearly lie outside of them. See Arentz, 164 N.E. at 344 ( An 11 agreement to give a person permanent employment means nothing more than 12 that the employment is to continue indefinitely and until one or the other of the 13 parties wishes for some good reason to sever the relation. ). Reddington has not 14 alleged sufficient facts to suggest that she was not an at-will employee, and 15 therefore she has not adequately alleged that the Hospital breached an 16 employment contract by terminating her. We accordingly affirm the district 17 court s dismissal of her contract claim. 18 19 20 IV. Cross-Appeal New York s Whistleblower Law authorizes [a] court, in its discretion, [to] 26 1 order that reasonable attorneys fees and court costs and disbursements be 2 awarded to an employer if the court determines that an action brought by an 3 employee under this section was without basis in law or in fact. N.Y. Lab. Law 4 § 740(6). New York courts have awarded attorneys fees under this provision 5 after finding not only that there is no merit in the claim and that it should be 6 dismissed as a matter of law, but also that it lacks even any arguable merit and 7 that such lack of merit should have been apparent at the commencement of the 8 action. Rotwein v. Sunharbor Manor Residential Health Care Facility, 695 9 N.Y.S.2d 477, 482 (Sup. Ct. 1999). Whether Reddington s action was, at its 10 commencement, without basis in law or fact will depend at least partially on how 11 the certified questions are resolved. We therefore retain jurisdiction to consider 12 the Hospital s cross-appeal. 13 CONCLUSION 14 15 We conclude that unresolved, important, and determinative issues of New 16 York law are central to this case, and certification to the New York Court of 17 Appeals is therefore appropriate. Accordingly, the judgment of the district court 18 is AFFIRMED in part, and two questions are CERTIFIED to the New York 19 Court of Appeals. 20 It is hereby ORDERED that the Clerk of the Court transmit to the Clerk 27 1 of the New York Court of Appeals a Certificate in the form set forth above, 2 together with a copy of this opinion and a complete set of the briefs, appendices, 3 and record filed by the parties in this Court. This panel will retain jurisdiction 4 to consider all issues that remain on appeal once the New York Court of Appeals 5 has either provided us with its guidance or declined certification. Finally, we 6 order the parties to bear equally any fees and costs that may be requested by the 7 New York Court of Appeals. 28
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