Reda v St. Johnland Nursing Ctr.
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Reda v St. Johnland Nursing Ctr. 2012 NY Slip Op 32551(U) September 27, 2012 Sup Ct, Suffolk County Docket Number: 5970/2009 Judge: Paul J. Baisley Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] ';!l011 Fonn Order SUPREME COURT - STATE 01' NEW YORK I.A.S. PART XXXVI SUFFOLK COUNTY PRESENT: HON. PAUL J. BAISLEY, JR., ./.S.c. --------------------------------------------------------------X LOUIS REDA, Plaintin~ INDEX NO.: 5970/2009 CALENDAR NO.: 2011021610T MOTION DATE: 4/26/2012 MOTION NO 003 MD PLAINTIFF'S ATTORNEY: MISHKIN, PC One Suffolk Square, Suite 240 Islandia, New York 11749 scorr MICHAEL -againstST. JOHNLAND NURSIN(, CENTER. Defendant. --------------------------------------------------------------X DEFENDANT'S ATTORNEY: PECKAR & ABRAMSON, P.c. 70 Grand Avenue River Edge, New Jersey 07661 Upon Ihe !()lIowillg papo:r~ nllmh..:ro:d i to 50 read on this motion for summary lutl!:l:ment: Notice of l\'lotion/ ()rJ~r to Sholl' Calise and supporting papers 1-22: 50 : NNiee 01'0(').\, \lotion "ltd ,\LippO'liii"pllpC'S_, Answering Affidavits and supporting raper~ 23-4fi : !{..:piying Aflidavils lll1d Suppolting papers 48-49 , Other..:!1..... (:1]]d (l:1i:c1 Ilw. iug c(1uii.ld ill .\ti]i]i()j t IIIll'. vjipo.!~d to tilt 1llotion) it is. ORDERED that this motion (motion sequence no. 003) of defendant St. Johnland Nursing Center for an order pursuant to CPLR R. 3212 granting summary judgment dismissing the complaint is denied. This is an action for retaliatory discharge from employment in violation of New York Labor Law §740. The plaintiff alleges that he made complaints to his supervisors regarding violations of state and federal regulations, as well as his employer's written policies, regarding the safe use and storage of oxygen tanks utilized to care for residents at the defendant's skilled nursing facility. Jt is undisputed that defendant's stalIprovides care for 250 residents, including persons \\/110 suffer from dementia and head trauma, and that some orthe residents require oxygen to aid them in breathing. A.ecording to the plaintilf's complamt', he began to complain about unsafe practices involving oxygen use and distribution on or about March 6, 2006. Shortly thereafter, he was suspended fi)J' one day and required to take an anger management class in retaliation for his actions. Later, his supervisor denied his reasonable request for vacation time that he had earned. Afkr his further complaints were ignored, he \'vTotca letter outlining his concerns on April j 4, 2007. His employer responded with increased oversight of his actions. In July or August 2008, the delCndant placed a disciplinary note in plaintiff's personnel file regarding a baseless 3ccusation by the mother of one of the residents at the defendant' 5 facility. The director of safety and security at the hlCility, John Dully ("Duffy"), investigated this alleged incident, and knew that the accusation was bascless because a nurse present at the time told Duffy that the incident did not I Some (lJ"tile al1egmions in tile comphlirn ar~ llOt disputed by the defendant while others ,lie vigorously dispUkd, The r~~italion ()fthc allegations i, not inl~nded to indicate that the Court considers them to be facts tor the purP()SI;Softilis motion. [* 2] /,OIl!S Iled",' Inde.t'vo .';1 .!1!!III!U/III ..ilir.l'llig ('elilel' . \ 5'J7{) (jC) happen. In addition, the plaintif!' filed a response indicating that the incident never huppened. On September 19, 2008, Duffy told the plaintiff that he was belllg investigated f~)]" ushing an oxygen p tank a dIstance of six ICet out of an elevator in anger. The plaintIff told that the incident never happened. On September 24, 2008, an Il1cident occurred when pJainti'tf asked a nurse, Robl11 N icolel1O ("Nicolctto"), If she had written on an order sheet ill error. Another nurse, Carol Zorn ("/,orn"), butted into the conversation. and the plaintiff told Zorn to mind hel- own business and he walked away. Instead. Duffy wrote a report that the plaintit-Thad eursed at Nicoletta, and thut the plall1tifThad returned the next day to threaten Nicoletto and others if they gave statements about the 1lleident. On or about September 25, :2008, the plaintiff's employment \-vas terminated. The pJaintiJfihen commenced this action 8gainst his former c111.ployer1{)r unlawful tennlllation pursuant to Labor Law ~740. commonly referred to as the "whistleblower statute." Duny The dclcnuant now movcs for summary judgment dismissmg thc verified complaint 111 thIS action on the grounds that the plaintiff cannot prove that he reported one of the alleged VIOlations. that hc cannot identify any federal or state law regarding the use and handling of' oxygen, that he C8nnot prove that any of the violations caused actual harm or caused danger to the public health or safety, and that the plaintiff was tenmnated for a legitimate non-retaliatory reason. The proponent of a summary judgment motion must make a prillw/acie showing of entitlement to judgment as a matter oflaw, tendering sufficient evidence to eliminate any material issue of fact (stf Alvarez v Pnnpecf Hospital, 68 NY2d 320, 508 NYS2d 923[1986]; Winegrad" ./\/elV York Univ. Med Or, 64 NY2d 851,487 NYS2d 316 [1(85)), The burden then shifts to the party opposing the motion \vhich must produce evidentiary proofin admissible form sufficlCnt to require a trial of the material issues of fact (ROlli" Borre!o, 289 AD2d 557, 735 NYS2d 197 pd Dept 2001]; Rehecchi v Whitmore, 172 AD2d 600, 568 NYS2d423 [2d Dept 1991']; O'Neill v Fishkill, 134 AD2d 487. 521 NYS2d 272 [2d Dept 1987'1). Furthermore, the parties' competing interest must be viewed ""in a light most favorable to the party opposing the motion" (Marine Midland !Jank, iV.A. \' Dino & Arlie '.I'Automatic Transmission Co., 168 AD2d 610,563 NYS2d 449[20 Dcp! 1990]). In support of its motion, the delcndant submits, among other things, multiple excerpts oj" depOSItion transcripts', a copy of its personnel policy manual, copies of the plaintiffs personnel/disClpl1l1ary records and work evaluations, its poliCIes regarding the storage and distrihution (l!, o.\ygen tank~ at' its hcility, ,md a copy of a letter from plJintiff ,111egl11g violations of said policies. The ('OUlt notes that all of the excerpts of the deposition transcripts submitted by the defendant arc unsigned and uneertified. However, in his opposition the pl(]intiJT submits the same transcripts along with theIr certiJication pages. NeIther party has submitted proof that the transcripts 'vvere !{m:vardcd to the respective witnesses for thcn- review (see ePI ,R 3116 I(1). I-Iowcver. the Court may consider the IIl1s1gned deposition transcripts submitted in support of the motion as the plaintiff has not raised any challenges to their accuracy (Rodriguez l' Ryder Tl'llck. lnc,. 91 1\ U3d 93.5, 937 N YS2d 602 ! 2d Dept 2012], Zulo! v Zieh(L 81 A U3d 935, 917 NYS2d 2851'2d Ikpt 20111: see a/so !Jelll1er l' !Jer,,!,CI". 28:1 AU2d 374, 726 NYS2d 22 I-I st [)cpt 2001l £ahari v ('ily oIN,,]!' r()jk 242 AD2d 15,672 NYS2d 332 [1 st Dcpt 1998]). Following, the same reasoning. the ('oun \vilf consider the excerpts submitted by the plaintillin oPPOSItion to the motioll. "dl~l"l) The ('ourl 110[<::-; (h;11bolh parlio:s have :-;ul1miued exc<,l'plS 01111<: (kpo:-;il iOIl lesli 111<111;" thc I'~:-;pective Ckp()Il~IlIS lilill PI" pick-- p:lssagL'S l'<:kV;lllt 10 Iheir nrglll11cllls. -2- [* 3] I.ollis NC;/(I".\I. ./"hl!lrIJlrl IlIdo' Nil. j(j71i{),) NUI'.I'ill,\! ( "!IIt'!' /\t his depositioll, thc plainti1'flestitied that he was lmed by the defcndclilt in 1980, and that hc wns promoted 1Il2006 to handle the distribution of oxygen lanks at the defendant's filCil1ly. He staled that w:eording to the delcndanl's policies only one II tank and onc E tanl(' were permitted to be stured in the clean utility rooms located in each of the seven or eight units at the 11Kility. He l11dicated that his understanding about oxygen tank storage and dIstribution carne from the subject policics, and from his supervisoL Lydia DeRosa ("DeRosa"). rhc plaintiff funher testified that he had numerous conversations with DeRosa about his observation of violations of the defendant' s policies, including (00 many oxygen tanks stored in the clean utility rooms, tanks stored in hallways, lllore than two tanks stored in residents' rOOI11S,anks running in rooms without any'one t being present. and residents "hooked up" to empty tanks. Ailer he \-vrote a letter regarding his complaints, his superiors started "getting on his case," issuing two instances of written discipline, denying him a requested vacation, and "Icoercing me] into going back and forth to sign 1'01' cleJivenes." lie admitted thai signing l()l"deliveries was part of his job responsibilities. However. he stated that the stall assigned to the area near to the place where deliveries \vere made could have slgned 1(lt"them, and that the real reason was to make his work more difficult. Ilc acknowledged that hlS request fl.)r vacation time was not technically Il1compliance with the personnel policy manual, and that, eventually, he was given the vacation lime that he had requested. The plaintiflteslilied that he did nol object to a work evaluation dated February 11, 2000, in which he was rated "below standard" under lhc criterion listed as "l\bi11ty to work well with residents and stan~" and that he docs not know why' the low mark was given, He stated that he was in agreement with the defendant's zero tolerance policy regarding workplace violence or threats, and agreed that if they occur then one's employment could be terminated immediately. The plaintiff Illliher testified that a co-worker, Robin Nicoletto, made a complaint that he cursed at her in September 2008, that the matter involved a simple dispute, and that he never cursed at her or another co-worker present at that time, DuffY testiJied that he was responsible for maintainll1g the defendant's oxygen storage po!lcies, which follow the National Fire Protection Association 2000 safety code (NFPA 2(00), ·'because that's what the Department of Health follows, the 2000 regulations." Hc indicated that the policies require no more than one I-! tank and one E tank in each clean uliJity room, and that tanks be chained on a dolly or cart. He stated that if a lank is not chained to or on a doHy it could create a dangerous situation if the tank tipped over, that he did not think that additional tanks in a dean utility' room poscd a danger if chmned or on a cart, and that he was not aware of any Inclden1s <lIthe cJdl~lldanl's facility ill which all oxygen hmk ere,ltcd a c1<mgerous situation or 1l1jured someonc. Duff)! further testified that iran employee has a complaint about compliance issues, thc proper procedure is to talk to their Immediate supervisor or a number of other administrators. I Jc indicated that Lydia DeRosa was the pJaintifj~s Imlllediate supervIsor. The only complaint made by the plaintiJTthal he knew 8bout \-vas that the plaintifCwas asked by the nursing stalTto deliver tanks to the 1I111ts hen unnecessary. w He stated that he never saw the letter sent by the plainti ITcomplaining about violations of the oxygen policies. He I'Llrther stated th,lt he never saw tanks stored in the hallways orthc units, or moved without being chained (0 a dolly. At her deposition, Lydia DcR.. sa ("DeRosa"), tesldicd that she ,"vas cmployed by the o detCndant as its director or materials management thUI she was responsible i()l' the c!Jseipline oj' the employees in her departilltnt, and that the plaintiff was the only other person in that rhe' r~~lH\II'Cwnls thul II lanks ,Ire'dppw,-:illl<lI~ly 111'(; I\:ctlall allll arc re'laliv~ly hCi!V!',II'hile I, lank, ar~ nppW\imaldj' two 'Jild UI)~-llCIlj' 1(,(\[lall. alld ,\I''';IllOl'Cponahlc and wcigh mll~ll less. -3- [* 4] f,lIIlis Ned" Index -,Vo. 5'.i7!NJ'J ,'Sf . .1,,1111/(111(1 'vllr,"lIlg (','lIIer dcpartment. She stated that she did not remember any resident or employee complaining about the use or handling of oxygen tanks. but that the plaintilTdid make verbal complaints to her. The plaintilTtold her that nurses were leaving tanks running while not hooked up to a resident. thai residents were lell hooked up to empty tanks. and he complained that he was making too many deliveries of oxygen. She indicated Ihat she relayed these complaints to the director of engineering.. the director of nursing. and the administrator orihe facility. In response to plaintin~s complaints ..the defendant was able to obtain approval from the fire marshal to inslall holders for up to one dozen tanks in two of the facility's units that used the most oxygen. She was not aware of what was done regarding the plaintiff's other complaints. She did not recall seeing. or receiving the plaintiJrs letter dated April 14,2007, which outlined his complaints. and she docs not know i r anyone else saw it. DeRosa fuTlher testified that the plaintilTs complaints about oxygen use and handling were made before and after the date of his letter. She indicated that she had seen empty oxygen tank:) :)tored in the hallways or the facility and tanks !ell off dailles, that she did not observe any injuries or harm come from those tanks, and that she was not aware of any citations issued by the Department oj"Ilealth or the Fire Department. She indicated that she addressed every complaint that the plaintiff made to her, and that the plaintilTwas originally denied the vacation that he requested because she had scheduled her vacation for the same time well in advance She stated that she was involved in the discussion regarding the plaintiffs suspension lor threatening a nurse. that she did not investigate that incident, and that she was not involved in the decision to terminate the plaintiff's employment. Mary Jean Weber ("Weber"), the administrator and chief executive onicer of the defendant. testified that the defendant's oxygen policies are in line with the relevant regulations. that they include limits on storage in the clean utility rooms, and that the Department of Health has never cited the defendant for violations regarding oxygen use and handling. She stated that she was not aware oj"any resident or employee complaints regarding the improper use of oxygen, but that she was aware of the plaintiffs complaints about other issues. At hcr deposition, Elizabeth Arden ("Arden") testified that she is a licensed practical nurse at the defendant 's l~lCility,that hcr job responsibilities include the administration of oxygen to n:sicicnts, and that shl' was aware of the defendant's oxygen policies. She indicated that the oxygen policies prohibit 1110rc than one H tank and one E tank in the clean utility ro0111S, that and a sign must be posted 011 the door or a room where oxygen is being administered. Arden fUl1her io.::stificJ lli"t slle Hever saw a viulalioi1l)["thc signagc re4uirement. that she ih.:vcrsaw empty tJilk:i silting in a resident's room, and that she did see empty tanks. not full tanks. temporarily in the faci!lt{ s hallways. She was not aware or any incidents ofharm regarding oxygen tanks. and she did \lot know of any complaints by residents or employees rcgarding oxygen. She stated that the defendant hdd annual in-service training regarding its oxygen policies. At her deposition. Sylvia Marschhauscr ("Marschhauscr"") testilicd that she is a licensed practical nurse at the defcnclant·s lacility. that her job responsibilities include lhe administration of oxygen to residents. and that she was aware of the defendant's oxygen policics. She stated that the nursing staff generally knows when an oxygen tank supplying a resident with o'\ygen will cmpty. that the staIr does not wait until a tank gets completely empty but changes out the tanks when they gel low. She indicated that she was not aware of"any tanKs being left oIl dollies, and that she did not recall ~vcr seeing a tank without chains. Marschhauscr furl her testified that the oxygcll policies prohibit 1110re than one H lank and one E tank in the clean uti liLY rooms, that sht.: did not know of any injuries regnrding violations or the oxygen policies, and thOlIshe was not -4- [* 5] 1.0il,',\' /Iec/o I' SI . ./0/11I1(111<0' iVllrsiilg /m/,_'-"\ o, 5')i(rll') N ('ellin (lvI/areof any resident or employee making a complaint about oxygen use or handling. She acknowledged that. if a n:sldcnl \vas hooked up to an empty oxygen tank it could be dangerous to the reSIdent, and Ira ti'cestandlllg tank fell over it could explode. Beth Stc\,vart ("'Stew'w'e), the director of human resources at the defendant's lacility, testified thai she \vas not ilware of any resident or employee complaints regarding the use and handling of oxygen. and that if an employee made such a complaint she would have Duffy and the director or nursll1g investigate the matter. She stated that the plainti ff's letter dated April 14. 2007. was in his human resourccs folder, and that, prior to the letter. the plaintiff had been lt1vcstigated regarding a disagreement with a co-worker. As a result ol'that investigation the rlamtitfwas dlsclpl1l1ed. and he was required to undergo counselmg for anger management. She and DuCly investigated the incident that led to the plaintiffs termination from employment Stewart further tcsti!led that she thinks that the plaintiffwouJd not have been terminated "ifhc didn't start back the neXl day:' and that "he would have only been suspended."' Labor Law §740 (2) provides, in pertinent part, that "[a]o employer shall not take any retaliatory personnel action against an employee because such employee ...(a) discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer thalls in violation of law, rule or regulation which violation creates and presents a substantial and specil1c danger to the public health or safety," To establish a cause of action under the whistleblovv'er statute, a plaintiff must plead and prove (1) that his or her cmployer engagcd in an activity, policy, or practice which violated a law. rule, or regulation and (2) that said violation must be actual, not merely possible, and present a substantial and specil~c danger to the public health or safety (see Bordel1 I' General Elee. C'o., 88 NY2d 869, 871, 644 NYS2d 912 [1996], Pipia Ii l\'US,'>'UIICOlll1ty, 34 AD3d 664, 826 NYS 2d 318; COl1n()l~y l' !Jarry J'vlackhnl'c Rc({II'.~,\'WteCo., 161 AD2d 520, 555 NYS2d 790 [1990]). In addition, the plaintiff must specify the law, rule or regulation that has actually been violated by the defendant's behavior and describe how the defendant's activity has endangered the health or safety of the pubhe. If the plaintiff Cails to satisfy one or both of these prerequisites, the court must dismiSS the Labor Law § 740 cause of <lction(see B!lIllcnreich l' North ,)'hol'e Health ,~ys., 287 AD2d 529, 731 NYS2d 638 pOOr]; Fail l' Precise Impor(s Corp., 256 AD2d 243. 681 NYS2d 498 r 1998']; Connolly v !farry ;vlacklO1l'e Rm{ Estate Co.. supra; see also O]l'itz v Helh Israel Med 0,. .. I Misc 3d 912lA), 781 NYS2d 626 I 2IJIJ4 I) Here. the deICndant has tnilcd to establish its entitlement to summary judgment. The depositIOn transcripts submitted in support of the mOTionrcveal that there arc multiple questions of fact including, but not limited to, whether the alleged violations of the dclcndant's 'vvritten policies, acknowledged to be based on NFPA 2000 because the local Departmcnt of llcallh !'ollo\Vsth()se regulations, presented a specific and subSl:1111i::d cbnger to the puhllc hC::l!th and salety. imd whether the disciplinary actions taken by (he defCndanl against lhe piaintJ!f including his tennimltioll from employment. were legitimate and non-retaliatory. The plaintilTs submission includes contradictory testimony f!'Om(hllcrent witnesses regarding DuCly's invcstigation of the mCIdent iIlVO Iving the mother ()r one 0 r the residcn ls, and other wi tncsses testi lIed regardi ng the empty tanks be1l1g\crt 111 the rooms al'resldents, and too many tanks being stored in the clean utility rooms. and tanks being !en freestanding, off of a dolly. Because summary judgment depnves the litigant oehls or her day in coul1, it is considered a "'drastic remcdy" which should be invoked only \vhen there is no doubt as to the absence of triable issues (Andre l' POII/eroy. 35 NY2d 361,364 ['19741; L'/::I:'I" \' j'liussuu COllnty, III AD2d 212 [2d Dept 1985l). Indeed, where -5- [* 6] i,fmis H,'d" \" ,'ii, ,/olmiumi ,NlIrsilig ( e!ll!.'r /ru/(,X ;Vo, .'')711 0') there is any doubt as to the existence oftriable issues, or when.: the issue is even arguable, the Court must deny the motion (Chi/berg v Chilberg, 13 AD3d 1089, 788 NYS2d 533 [4th Dcpt 2004'1, reO/x denied] 6 AD3d 1181,792 NYS2d 368 [4th Dept 20051; Barclay v Derick/a. 182 }\D2d 658, SB2 NYS2d 252 j2d Dept 19921; Cohen v !fe-Fhal Concepts, Inc., 100 ;\[)2d 175,473 NYS2d 426 II st !lopt 1984 J, uflil63 NY2d 379, 482 N YS2d 457 I] 984 J). .. . The excerpts of the deposition 1Hllilring a trial in this action. Accordingly, the defendant's transcripts submitted by the pJaintilT raisc qucstions of fact motion for summary judgment is del11ed. PAUl J. BAISI..EY .lt1 Dated: September 27.2012 J.S.c. FINAL DISPOSITION X -6- NON-FINAL DISPOSITION
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