United States of America v. New York University Medical Center et al, No. 1:2005cv06163 - Document 86 (S.D.N.Y. 2012)

Court Description: MEMORANDUM AND ORDER granting 70 Motion for Summary Judgment filed by New York University Medical Center, New York University School of Medicine: For the reasons set forth within, Defendants' motion for summary judgment is GRANTED in its entirety and Plaintiff's complaint is dismissed. (Signed by Judge Lawrence M. McKenna on 1/25/2012) (ab)

Download PDF

United States of America v. New York University Medical Center et al Doc. 86 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - X UNITED STATES OF AMERICA ex rel. : TERENCE SASAKI, relator : : Plaintiff, : : -v: 05 Civ. 6163 (LMM)(HBP) : NEW YORK UNIVERSITY MEDICAL : MEMORANDUM AND ORDER CENTER and NEW YORK UNIVERSITY : SCHOOL OF MEDICINE, : : Defendants. : - - - - - - - - - - - - - - - - - X McKENNA, D.J. Defendants New York University Medical Center and New York University School of Medicine (collectively, “Defendants” or “NYU”), move for summary judgment pursuant to Federal Rule of Civil Procedure 56 dismissing plaintiffrelator Terence Sasaki’s (“Plaintiff”) claims brought under the qui tam provisions of the False Claims Act, 31 U.S.C. §§ 3729-3733. For the reasons set forth below, Defendants’ motion is granted. I. Background and Procedural History A. NYU’s Relationship with the Veteran’s Administration Plaintiff’s complaint arises out of an educational and professional partnership between NYU and the United States Department of Veterans Affairs (“VA”), which operates the VA Medical Center in Manhattan, NY Dockets.Justia.com (“Manhattan VA”). As part of this relationship, NYU residents1 and other physicians train at the Manhattan VA, which then reimburses NYU for the shared costs of providing a joint educational program. (Defs. New York Univ. Medical Center and New York Univ. School of Medicine’s Local Civil Rule 56.1 Stmt. of Material Facts Not in Dispute, Sept. 30, 2011, (“Defs.’ Rule 56.1 Stmt.”) ¶¶ 35, 39, 41; Pl.-Relator Terence Sasaki’s Response to Defs.’ Local [Civil] Rule 56.1 Stmt. of Material Facts Not in Dispute, Oct. 28, 2011, (“Pl.’s Rule 56.1 Stmt.”) ¶¶ 35, 39, 41.) The payments are governed by a “disbursement agreement” pursuant to which NYU invoices the Manhattan VA quarterly to bill for the number of approved reimbursements. “pay lines”, or resident physician (See Defs.’ Rule 56.1 Stmt. ¶¶ 41, 43, 48, 49; Pl.’s Rule 56.1 Stmt. ¶¶ 41, 43, 48, 49.) B. Plaintiff’s Residency and Termination from NYU In July 2000, Plaintiff began a medical residency at NYU in a combined program in neurology, radiology, and neuroradiology. (See Defs.’ Rule 56.1 Stmt. ¶ 1; Pl.’s Rule 56.1 Stmt. ¶ 1.) As part of his residency, Plaintiff took part in medical rotations at the Manhattan VA. (See Tr. of Dep. of Terence Sasaki, Aug. 12, 2010, attached as 1 According to Plaintiff, NYU residents have graduated medical school, are licensed to practice medicine, and are employees of NYU. (See Pl.Relator Terence Sasaki’s Mem. of Law in Opp’n to Defs.’ Mot. for Summ. J. (“Pl.’s Mem.”) at 14.) 2 Ex. A to Decl. of Brian A. Burns, Sept. 30, 2011, (“Burns Decl.”), at 181:14-17.) Between 2003 and 2004, NYU placed Plaintiff on remediation twice and on probation twice due to alleged academic and professional deficiencies. (See Defs.’ Rule 56.1 Stmt. ¶¶ 5, 7, 13, 15; Pl.’s Rule 56.1 Stmt. ¶¶ 5, 7, 13, 15.) On May 18, 2005, NYU terminated Plaintiff from the combined program citing a failure to satisfy the probation. requirements (See Ltr. of from Plaintiff’s Dr. Michael most recent Ambrosino, Dr. Edmond A. Knopp, and Dr. Robert I. Grossman to Dr. Terence Sasaki, May 18, 2005 (“Termination Ltr.”), attached as Ex. F to Burns Decl.) On April 11, 2005, roughly one month prior to his termination, Plaintiff submitted a telephone complaint to the VA’s Office of the Inspector General (“VA OIG”) alleging that NYU was defrauding the Manhattan VA. (See Hotline Input Transaction for Complaint Received Apr. 11, 2005, Aug. 3, 2005 (“Pl.’s Tel. Compl.”), attached as Ex. 26 to Decl. of Charles M. Yoon in Opp’n to NYU’s Mot. for Summ. J., Oct. 28, 2011 (“Yoon Decl.”).) In his telephone complaint, Plaintiff alleged, inter alia, that NYU radiology residents were not performing their duties at the Manhattan VA in person and that NYU was forcing residents to sign attendance sheets on behalf of others who 3 were not present Manhattan VA. during (See id.) their required shifts at the On Apr. 28, 2005, Plaintiff sent the VA OIG an email further delineating his complaint and alleging that after he raised his concerns with NYU, he was “immediately retaliated against” and harassed for his role (See Email from Dr. Terence Sasaki as a “whistleblower”. to VA OIG Hotline, Apr. 28, 2005 (“Pl.’s Email Compl.”), attached as Ex. 27 to Yoon Decl.) C. Plaintiff’s Qui Tam Action Following his termination and complaints to the VA OIG, Plaintiff brought this qui tam action on behalf of the government against NYU alleging violations of the federal False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3733. Plaintiff’s complaint states two causes of action. First, Plaintiff alleges that NYU has violated FCA Section 3729 by fraudulently billing the Manhattan VA for the full amount of resident pay lines despite the fact that residents often do not show up for their assignments at the Manhattan VA. (See Verified Second, Compl., Plaintiff July 1, alleges 2005, that ¶¶ NYU 17, has 18, 48.) unlawfully retaliated against him for his complaints to the VA OIG, in violation of FCA Section 3730(h). Following a period (See id. ¶¶ 52-55.) of investigation into Plaintiff’s claims, the government declined to take over 4 the action pursuant to 31 U.S.C. § 3730(b)(4)(B). Unsealing Order, Sept. 3, 2008.) (See Defendants now seek to dismiss both of Plaintiff’s causes of action on summary judgment. II. Discovery Issues Before addressing Defendants’ motion for summary judgment, the Court will address Plaintiff’s request for clarification regarding various discovery matters. (See Ltr. from Heather S. Dixon to Court, June 27, 2011; Ltr. from Theodore K. Chang to Court, Nov. 30, 2011.) On issued an request November oral for 4, ruling certain in 2010, this additional Magistrate case Judge denying discovery. Pitman Plaintiff’s (See Tr. of Proceedings Before Mag. J., Nov. 5, 2010, attached as Ex. 1 to Pl.-Relator’s Reply in Further Supp. of Objections to Non-Dispositive Ruling by the Mag. J., Dec. 9, 2010, at 116:23-117:20.) On December 10, 2010, this Court affirmed Magistrate Judge Pitman’s ruling because Plaintiff had not shown that the ruling was clearly erroneous or contrary to law. (See Endorsed Mem., Dec. 10, 2010 (citing 28 U.S.C. § 636(b)(1)(A)).) On November 16, 2010, Magistrate Judge Pitman issued a second set of oral rulings again denying Plaintiff additional discovery. Before Mag. J., Nov. 16, 2010 5 (See Tr. of Proceedings (“Nov. 16, 2010, Tr.”), attached as Ex. 1 to Pl.-Relator’s Objections to Non- Dispositive Rulings by the Mag. J., Mar. 4, 2011 (“Pl.’s Mar. 4, 2011, Objections”), at 32:15-33:3, 69:8-13, 74:1075:5.) On November 16, Objections), another order March 4, 2010, and rulings on via 2011, June Plaintiff (see 20, Pl.’s 2011, endorsement objected Mar. this stating to 4, Court that the 2011, issued “Plaintiff’s objections to the November 2010 rulings of Magistrate Judge Pitman are overruled” (see Endorsed Mem., June 20, 2011). Plaintiff now seeks clarification regarding “whether or not his objections to the November 16, 2010 rulings . . . were considered by [the Court] and ruled upon in the June 20, 2011 endorsement”. Dixon to Court, June 27, 2011.) (Ltr. from Heather S. The Court clarifies that it considered Plaintiff’s objections to Magistrate Judge Pitman’s November 16, 2010, rulings when issuing its June 20, 2011, order, and that the rulings are affirmed because Plaintiff has not shown that they are clearly erroneous or contrary to law. In however, the See 28 U.S.C. § 636(b)(1)(A). the interest Court will of alleviating address each any of confusion, Plaintiff’s objections in detail. Pursuant to Federal Rule of Civil Procedure 72(a), a district court “must consider timely objections 6 [to a magistrate judge’s order] and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” See also 28 U.S.C. § 636(b)(1)(A) (“A judge . . . may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.”) “Under this highly deferential standard of review, magistrates are afforded broad disputes and discretion reversal discretion is abused.” in is resolving [non-dispositive] appropriate only if their AMBAC Fin. Servs., LLC v. Bay Area Toll Auth., No. 09 Civ. 7062 (RJH), 2010 WL 4892678, at *2 (S.D.N.Y. Nov. 30, 2010) (citation omitted). “The reviewing court must be left with the definite and firm conviction that a mistake has been committed to overturn the magistrate matter.” judge’s resolution of a nondispositive Id. (citation and internal quotation omitted). Plaintiff makes multiple objections to Magistrate Judge Pitman’s Plaintiff denying November argues Plaintiff that 16, 2010, Magistrate document rulings.2 Judge discovery First, Pitman erred relating to by (i) additional time periods of potential fraudulent conduct by 2 Defendants question the timeliness of Plaintiff’s objections. (See Defs.’ Mem. of Law in Opp’n to Pl.’s Rule 72(a) Objections to the Nov. 16, 2010 Rulings Made by Mag. J. Pitman, Apr. 20, 2011 (“Defs.’ Discovery Mem.”), at 12-13.) For present purposes, the Court assumes, without deciding, that Plaintiff’s objections are timely and overrules them in any event. 7 NYU; (ii) medical departments other than radiology, specifically emergency medicine and psychiatry; and (iii) the work and coverage provided by NYU attending physicians. (See Pl.’s Mar. 4, 2011, Objections at 8.) Second, Plaintiff objects to Magistrate Judge Pitman’s denial of two additional depositions, both of radiology doctors who, Plaintiff argues, may have knowledge relevant to (See id. at 20.) Plaintiff’s claims. A. Document Discovery At the November 16, 2010, conference, Magistrate Judge Pitman reviewed information supplied by Plaintiff in support of additional document discovery, which included an affidavit from the Plaintiff himself, and concluded that it was “speculative”. (Nov. 16, 2010, Tr. at 19:9.) Magistrate Judge Pitman further explained that expanding discovery in a case on the “cusp of dispositive motions”, “is just going to result in undue delay and undue resolution of the claims that are asserted.” (Id. at 32:1533:3.) He also complaint did not medical expressed put departments notwithstanding concern Defendants were involved Plaintiff’s on that notice in counsel’s the Plaintiff’s that other allegations, belief that departments such as psychiatry and emergency medicine were “contained within [their] original 8 characterization” of Plaintiff’s 31:24, Finally, combined 33:4-8; see Magistrate program of study. at (Id. also Compl. ¶¶ Judge Pitman questioned 11, 18-19, 30:1922-24.) whether the United States would have a right to separately investigate new allegations with respect to the additional departments-a development that would likely delay the case further. (Nov. 16, 2010, Tr. at 33:8-10.) These rulings are well within Judge the ambit of Magistrate Pitman’s broad discretion concerning non-dispositive disputes (see AMBAC Fin. Servs., 2010 WL 4892678, at *2), clearly erroneous nor contrary to law. and are neither The Court therefore overrules Plaintiff’s objections. B. Additional Depositions Federal Rule of Civil Procedure 30(a)(2)(A) “presumptively caps the number of depositions in a case at ten, and Rule 26 gives district courts broad authority to limit discovery, taking into account the needs of the case and other relevant factors.” v. Reimerdes, Rule 104 26(b)(2)(C) Universal City Studios, Inc. F. Supp. 2d states that 334, a 342 court (S.D.N.Y. “must limit frequency or extent of discovery” if it finds that “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the 9 2000). the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” As Magistrate Judge Pitman noted, Plaintiff had at the time of his request already taken 10 depositions. (Nov. 16, 2010, Tr. at 56:3-6.) Since then, Plaintiff has taken three more depositions. (See Defs.’ Discovery Mem. at 6.) Nonetheless, Plaintiff sought to depose an additional NYU doctor, Dr. Grossman, who had signed the letter terminating Plaintiff from the NYU program. (Id. at 53:8-17.) However, Plaintiff’s counsel acknowledged at the hearing that the letter outlines the reasons for which NYU terminated Plaintiff, and Defendants’ counsel noted that Plaintiff’s termination depositions. had been (Id. at 53:18-54:25.) addressed in other Plaintiff also sought to ask Dr. Grossman whether he signed a “program letter agreement” between NYU and the Manhattan VA and whether NYU was responsible for the monetary claims it submitted to the VA hospital. Magistrate program (Id. at 56:14-19, 58:3-4, 62:9-20.) Judge letter Pitman agreement ordered itself, 10 the and production counsel However, of the for NYU acknowledged that NYU was responsible for claims submitted. (Id. at 63:8-16, 69:8-13.) Pitman reasonably Accordingly, Magistrate Judge concluded Grossman was unnecessary. that a deposition (Id. at 69:8-13.) of Dr. This ruling was neither clearly erroneous nor contrary to law. Finally, Plaintiff sought to depose a Dr. Kantor because he “was the chief of radiology at the VA [hospital] in Brooklyn” and because in 2001, he “expressed concern about the lack of residents showing up at the Brooklyn VA [hospital] and providing coverage there.” 71:1.) However, as Magistrate Judge (Id. at 69:15- Pitman noted and Plaintiff’s counsel admitted, because Dr. Kantor was based in Brooklyn, he was unlikely to have first-hand knowledge of the practices undertaken at the Manhattan VA hospital-the subject of Plaintiff’s complaint--in the relevant time period. (Id. at 72:6-12.) reasonably denied Kantor well, as Thus, Magistrate Judge Pitman Plaintiff’s and that application decision erroneous nor contrary to law. was to depose neither Dr. clearly (Id. at 74:10-75:5.) III. Defendants’ Motion for Summary Judgment A. Summary Judgment Standard This Court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 11 law”. Fed. R. Civ. P. 56(a). “‘An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party’”; “‘[a] fact is material if it might affect the outcome of the suit under the governing law’”. Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (quoting Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008)). “When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, the nonmoving party must come forward with specific facts showing that See Matsushita Elec. there is a genuine issue for trial. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “[R]eliance upon conclusory statements or mere allegations is not sufficient to defeat a summary judgment motion.” Davis v. State of New York, 316 F.3d 93, 100 (2d Cir. 2002) (citations omitted). “The court ‘is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw 12 all reasonable inferences in favor of that party, and to eschew credibility assessments.’” Metito (Overseas) Ltd. v. Gen. Elec. Co., 2009 WL 399221, at *7 (S.D.N.Y. Feb. 18, 2009) (quoting Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 122 (2d Cir. 2004)). “However, the ‘mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient’ to withstand a Id. (quoting Anderson, 477 motion for summary judgment.” U.S. at 252). B. Timeliness of the Motion Before motion for addressing summary the judgment, merits the of Defendants’ Court considers Plaintiff’s contention that the motion is untimely. i) Fed. R. Civ. P. 56(b) Plaintiff argues that Defendants’ motion is late because it was brought after the 30-day window following the completion of discovery set forth in Federal Rule of Civil Procedure 56(b).3 “must now concluded be in taking this discovery-related According to Plaintiff, Defendants the case,” activity position and was yet that discovery has the last possible Magistrate Judge Pitman’s August 23, 2011, order denying in part and granting in part 3 Rule 56(b) states that “[u]nless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.” 13 various discovery requests by Plaintiff. 14.) (Pl.’s Mem. at Thus, because Defendants filed their summary judgment motion on September 30, 2011, Plaintiff argues that the motion comes 8 days too late. (Id.) Magistrate Judge Pitman’s August 23 order in part required the VA to September 16, 2011. produce additional documents by (See Mem. Op. and Order, Aug. 23, 2011, at 14-18, 20-23.) Thus, on its face, that order cannot be said to have closed discovery 30 days prior to Defendants’ motion for summary judgment. In addition, Plaintiff himself acknowledges that discovery has not yet closed. (Pl.’s Mem. at 14, 24-25.) Thus, there is simply no basis on which to conclude that Defendants have run afoul of the 30-day time limit of Rule 56(b). ii) Rule 56(d) Plaintiff next argues that if Defendants’ motion is not late, it must be premature because “there is still significant and essential discovery outstanding.” 24-25.) (Id. at Federal Rule of Civil Procedure 56(d) states that a court may deny or defer a summary judgment motion, allow time for additional discovery, or issue any other appropriate order “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” 14 In the Second Circuit, an affidavit submitted pursuant to Rule 56(d) (formerly Rule 56(f)) must state “(1) what facts are sought and how they are to be obtained; (2) how these facts are reasonably expected to raise a genuine issue of material fact; (3) what efforts the affiant has made to obtain them; and (4) why the affiant’s efforts were unsuccessful.” Shaheen v. Naughton, 222 Fed. Appx. 11, 13 (2d Cir. 2007) (citations discovery omitted). “if it A deems court the may refuse request to additional be based on speculation as to what potentially could be discovered.” Id. (quoting Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994)). Plaintiff’s counsel represents via declaration that some of the additional discovery being sought pertains to additional NYU medical departments, other physicians, and additional time periods. (Yoon Decl. ¶ 53.) Because the Court has affirmed Magistrate Judge Pitman’s November 16, 2010, denial of that discovery, as discussed above, it cannot support Plaintiff’s argument here. The declaration also states that Plaintiff wishes to obtain documents relating to “NYU’s retention policies”, which the Court takes to mean “document retention policies”, and to take additional depositions of radiology residents. (Id. ¶¶ 54-55.) However, the declaration does 15 not explain how these might reasonably be material to the disposition information not for of this case. concerning purposes NYU’s of Indeed, document replying to Plaintiff retention seeks policies Defendants’ summary judgment motion, but rather to make a spoliation motion. (Id.) need Similarly, Plaintiff makes no effort to explain the for depositions of additional radiology residents beyond speculating, without evidentiary support, that the residents already deposed were solicited and commandeered by NYU”. Because Plaintiff somehow “improperly (Id.) has not identified any additional discovery that could reasonably raise issues of material fact, the Court finds that Plaintiff’s arguments pursuant to Rule 56(d) are unavailing, and that Defendants’ motion for summary judgment is timely. C. Plaintiff’s First Cause of Action for Violation of the False Claims Act, 31 U.S.C. §3729 Under the version of the FCA applicable to this case, a party is liable if he or she, among other acts, “knowingly presents, or causes to be presented, to an officer or employee of the United States Government . . . a false or fraudulent claim for payment or approval.” U.S.C. § 3729(a)(1) (2005).4 31 To establish a violation, a 4 Congress amended the FCA in 2009 to, inter alia, alter the wording of Section 3729. See Fraud Enforcement and Recovery Act of 2009 (FERA), 16 plaintiff “must show that defendants (1) made a claim, (2) to the United States government, (3) that is false or fraudulent, (4) knowing of its falsity, and (5) seeking payment from the federal treasury.” U.S. ex rel. Mikes v. Strauss, 274 F.3d 687, 695 (2d Cir. 2001). “The central question whether under the False Claims Act is the defendant actually presented a ‘false or fraudulent claim’ to the government.” Johnson v. Univ. of Rochester Med. Ctr., 686 F. Supp. 2d 259, 265 (W.D.N.Y. 2010) (citation omitted). The version of the FCA that applies to Plaintiff’s complaint defined a “claim” as “any request or demand, whether under a contract or otherwise, for money or property . . . if the United States Government provides any portion of the money or property which is requested or demanded.” 31 U.S.C. § 3729(c) (2005). Although the FCA does not define “false or fraudulent”, the Second Circuit has held that these words used in conjunction “suggest an Pub. L. No. 111-21, § 4(a)(1), 123 Stat. 1617, 1621. However, with certain exceptions not relevant here, the 2009 amendments apply only to conduct occurring on or after May 20, 2009, the date of the amendment’s enactment. See id. § 4(f), 123 Stat. at 1625. Because Defendants’ conduct is alleged to have occurred prior to 2009 (see Compl. ¶¶ 1146), the Court evaluates Plaintiff’s causes of action pursuant to the version of the FCA in effect at that time, and all citations to the FCA herein are to the pre-2009 amendment version. The parties agree. (See Mem. of Law in Supp. of Defs.’ Mot. for Summ. J. (“Defs.’ Mem.”) at 13 (quoting pre-amendment FCA); Pl.’s Mem. at 15 n.22.) In any event, the Court finds that the disposition of Defendants’ motion would be the same under the amended version of the Act. 17 improper claim is aimed at extracting money the government otherwise would not have paid.” As other courts have Mikes, 274 F.3d at 696. recognized, “[t]he paradigmatic example of a false claim under the FCA is a false invoice or bill for goods or services.” United States v. Rivera, 55 F.3d 703, 709 (1st Cir. 1995) (citation omitted). The knowledge,” “reckless FCA or defines acting disregard” § 3729(b) (2005). “knowingly” in “deliberate of truth or (citation omitted). presenting a as false a having ignorance” falsity. “actual or 31 with U.S.C. Thus, the requisite intent is more than negligence or innocent mistake. incorrect as Put claim matter means it is a lie.” of Mikes, 274 F.3d at 703 another “does proper not way, mean “knowingly” the accounting, claim but is rather Id. (citation omitted). Defendants argue that there is no factual support for Plaintiff’s allegation that NYU submitted false or fraudulent claims to the Manhattan VA, and thus Plaintiff’s first cause of action must be dismissed. 15.) (Defs.’ Mem. at Defendants further argue that Plaintiff cannot meet the scienter requirement of the FCA because there is no evidence that Defendants submitted claims with actual knowledge, deliberate ignorance, or reckless disregard of their falsity. (Id. at 16.) 18 i) Submission of a False or Fraudulent Claim According to Plaintiff, the disbursement agreement between NYU and the Manhattan VA required NYU to provide five radiology residents at the Manhattan VA “around the clock” and to “prorate its invoices for actual time rendered” by those residents. (Pl.’s Mem. at 15-16.) Plaintiff also contends that although the residents were to be “physically present” at the Manhattan VA during their shifts, doctors testified that “only one or two residents would appear at the Manhattan VA for duty” and that “each resident would only provide coverage for two to three hours per day,” while night and weekend coverage was even more sporadic. (Id. at 16-17.) Despite this, NYU allegedly continued to bill the Manhattan VA for “24/7 coverage for all five residents”. (Id. at 17.) Finally, Plaintiff contends that NYU staff meeting agendas show that it was common practice for residents to “sign the names of other, absent residents VA . . . .” into (Id. at 6.) sign-in logs at the Manhattan For support, Plaintiff proffers sign-in sheets allegedly showing multiple resident names entered in the same handwriting. (Id.) Defendants argue that the undisputed facts show that NYU’s invoice submissions in the relevant time frame were “appropriate in all respects.” 19 (Defs.’ Mem. at 15.) In addition, Defendants contend that Plaintiff has adduced no evidence that the disbursement agreement between NYU and the Manhattan residents. VA actually requires “24/7” coverage by (Reply Mem. of Law in Further Supp. of Defs.’ Mot. for Summ. J. (“Defs.’ Reply Mem.”) at 4.) Instead, Defendants believe the agreement is clear on its face that such coverage is not required. (Id. at 4.) Defendants also point to evidence that the Manhattan VA reviewed and authorized all of period. (Defs.’ NYU’s Mem. invoices at 15.) in the Thus, relevant according time to Defendants, even if NYU’s invoices were somehow incorrect, the Manhattan VA was fully informed of the particulars of the claims, and thus those claims could not be fraudulent as a matter of law. (Defs.’ Reply Mem. at 4-5.)5 The Court agrees with Defendants that Plaintiff has failed to cite sufficient evidence of false or fraudulent claims made by NYU, and that Plaintiff’s first cause of action fails as a matter of law. First, Plaintiff’s interpretation of the disbursement agreement is not supported by the agreement’s 5 Defendants also argue for the first time in their reply brief that “a relator cannot make out an FCA claim based on a defendants’ purported failure to comply with contractual obligations to the U.S. government.” (Defs.’ Reply Mem. at 3.) Courts generally do not consider arguments raised for the first time in a reply brief. See, e.g., James v. Orange County Correctional Facility, No. 09 Civ. 7226 (CM), 2011 WL 5834855, at *3 (S.D.N.Y. Nov. 18, 2011) (citations omitted). In any event, because Defendants’ summary judgment motion is granted for other reasons as set forth herein, the Court need not address this argument. 20 plain language. The agreement outlines the process by which the Manhattan VA pays NYU in return for residents’ “VA duty”, defined as “the number of days a VA resident is physically performing present the at the normal VA and Medical Center customary and is of a duties postgraduate medical trainee in the care and treatment of patients.” Stipends (Disbursement and Fringe Agreement Benefits for VA (“Disbursement ¶ 3, attached as Ex. 2 to Yoon Decl.) House Staff Agreement”) However, this does not mean, as Plaintiff argues, that during a day of VA duty, a resident must be physically present at the Manhattan VA “around the clock” or NYU must prorate its invoice for that period. the agreement makes (See Pl.’s Mem. at 16.) clear that “the house Instead, staff member [i.e., resident] may be physically absent but on call to the VA Medical Center, or may be relieved from physical presence for evening, Federal holiday, weekend, or approved leave.” Plaintiff (Disbursement has pointed to Agreement no ¶ 3.) evidence that Tellingly, supports his interpretation of the agreement. Second, Plaintiff has offered no evidence that NYU improperly invoiced--i.e., submitted false claims to-the Manhattan VA. Using numbers that are unsubstantiated by any documentation or testimony, Plaintiff estimates that 21 NYU billed the Manhattan VA for 24-hour, 7-day-a-week coverage by, on average, 144 doctors, five of whom were radiology residents. (Pl.’s Mem. at 3-4.) Thus, Plaintiff believes that NYU wrongly billed the Manhattan VA for some 24,192 hours of resident coverage and services each month because those residents were purportedly fulfilling their VA duties for only a fraction of the time required. n.5.) (Id. However, the invoices themselves make no reference to hours worked by NYU doctors. (See, e.g., Invoices from NYU Hospitals Center to Dep’t of Veterans Affairs NY Harbor Healthcare Sys., attached as Ex. 1 to Yoon Decl. and as Exs. N, CC, DD, EE and FF to Burns Decl.) Plaintiff’s “24/7” theory of billing Thus, even if were correct, the actual claims at issue in this case, the invoices, make no representations regarding the number of hours worked that could be “false or fraudulent”, nor has Plaintiff proffered any evidence that NYU falsely or fraudulently misrepresented the nature or amount of those invoices in some other way. Third, the disbursement agreement states that VA timekeeper records are “the sole determinant of whether a day of VA duty was satisfactorily performed by the house staff member.” Plaintiff cites (Disbursement no evidence 22 Agreement that the ¶ 7(c).) Manhattan VA Yet ever found that NYU residents failed to perform their requisite number of “VA duty” days.6 Indeed, Dr. Hanson, the VA’s Rule 30(b)(6) witness, testified that the VA reviewed and approved period, every and disbursement invoice that NYU from NYU satisfied agreement. in the relevant time requirements of of Tr. (See the Richard Dep. of the Hanson, Sept. 16, 2010, (“Hanson Dep. Tr.”), attached as Ex. L to Burns Decl., at 57:10-17 (“I would say that I approved the invoices, each one that came. We did our due diligence as best we could to make sure that there were no errors in the billing process. . . . And I would agree that . . . the VA and NYU satisfied the requirements of the disbursement agreement.”).) Plaintiff has offered no evidence to rebut this testimony. Instead, Plaintiff attempts to frame Dr. Hanson’s testimony as “irrelevant” because Dr. Hanson is the chief of neurology, not radiology, at the Manhattan VA. Mem. at 17.) Chief of (Pl.’s However, Dr. Hanson also was the Associate Staff for Education 6 at the VA hospital, and Plaintiff cites only an NYU “House Staff Meeting Agenda” from 2001 that states: “1. Dr. Cantor [sic] inquired about few residents, possible cut in lines[;] 2. Assigning residents; must show-up and signin.” (See Pl. Mem. at 7 (citing House Staff Meeting Agendas at 2, attached as Ex. 17 to Yoon Decl.).) Notwithstanding the fact that these statements, standing alone, do not support the weight that Plaintiff places on them, Plaintiff’s counsel acknowledged before Magistrate Judge Pitman that Dr. Cantor would not have had firsthand knowledge of events at the Manhattan VA in the relevant time period. (See Nov. 16, 2010, Tr., at 72:6-9.) 23 therefore in charge of the education of medical residents, as well as responsible for overseeing the reimbursement of academic affiliates, such as NYU. 10:16-24, 11:25-12:6.) (See Hanson Dep. Tr. at In addition, Dr. Hanson testified on behalf of the VA with respect to both the disbursement agreement and the “establishment of education, oversight, and payments for the radiology residents.” 13:6.) (Id. at 12:14- Because he was the VA’s Rule 30(b)(6) witness, Dr. Hanson’s testimony is binding on the VA. See Sabre v. First Dominion Capital, LLC, No. 01 Civ. 2145 (BSJ) (HBP), 2001 WL 1590544, at *1 (S.D.N.Y. Dec. 12, 2001) (citing 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2103 (2d ed. 1994)). Finally, Plaintiff contends that the testimony of the “relevant radiology attending at the Manhattan VA (Dr. Howard Banner, Chief of Nuclear Medicine) directly supports Dr. Sasaki’s claim that NYU did not provide all of the coverage/services for which they invoiced the Government”. (Pl.’s Mem. at 17.) But Dr. Banner’s testimony cannot support that conclusion. generally two residents Dr. Banner simply stated that would show up each day to his department at the Manhattan VA in 2003, and that he would read cases with those residents for about two to three hours per day. (See Tr. of Dep. of Howard J. Banner, Sept. 24 15, 2010, (“Banner Dep. Tr.”), attached as Ex. 7 to Yoon Decl., at 44:14-17, 109:2-5.) He did not testify that residents failed to satisfy their obligations pursuant to NYU’s agreement with the Manhattan VA in any way. contrary, Dr. Banner stated that there was To the never any problem in the relevant time period with NYU residents not showing up for service at the VA hospital. (See Tr. of Dep. of Howard J. Banner, Sept. 15, 2010, attached as Ex. A to Reply Decl. of Brian A. Burns, Nov. 23, 2011, at 16:1016.) In addition, Dr. Banner stated that he did not know how much the VA paid NYU for resident services in any of the years relevant to Plaintiff’s claims (Banner Dep. Tr. at 42:24-43:7), that he had never seen any invoices sent by NYU to the VA (id. at 109:16-19), and that he had no knowledge of NYU’s billing activities (id. at 109:20-23). In light of Plaintiff’s failure to offer evidence that supports his otherwise conclusory statements regarding the disbursement agreement and NYU’s invoices, Plaintiff has failed to raise a genuine issue of material fact regarding NYU’s submission of false or fraudulent claims to the Manhattan VA, and summary judgment for Defendants is warranted. ii) See Davis, 316 F.3d at 100. Knowledge Requirement Even if Plaintiff raised a genuine issue of fact 25 concerning NYU’s submission of false or fraudulent claims, Plaintiff’s cause of action fails because Plaintiff has cited no evidence that NYU did so “knowingly”. Plaintiff argues that NYU knew that its invoices were false practice” because allegedly residents of NYU entering encouraged the names the “common of absent residents in sign-in sheets at the Manhattan VA. Mem. at 6-8.) (Pl.’s For support, Plaintiff points to sign-in sheets that allegedly show multiple resident names entered in the same handwriting as well as NYU meeting agendas referencing the Manhattan VA sign-in policy. 6.) (See id. at Plaintiff also relies on an affidavit from an NYU resident who acknowledged that residents would often sign in for others not present. (See Pl.’s Mem. at 6 (citing Aff. of Daniel Meltzer, Apr. 28, 2010, attached as Ex. 11 to Yoon Decl.).) However, whether or not individual residents signed the names of other, absent residents on attendance sheets at the Manhattan VA says nothing about the accuracy of NYU’s invoices, let alone NYU’s state of knowledge with respect to those invoices. First, 30(b)(6) Dr. deponent, Hanson, gave the Manhattan unrebutted VA’s testimony Rule that supervising attending physicians at the Manhattan VA were responsible for ensuring resident 26 attendance at VA (See Hanson Dep. Tr., at 98:24-100:24.) rotations. the Manhattan VA radiology department utilized While sign-in sheets, the VA did not require it or any other department to do so, nor did the VA require NYU to maintain them. (Id. at 101:8-15, 102:12-21.) Ultimately, Plaintiff has offered no evidence that the sheets, accurate or not, had any bearing on NYU’s claims at issue. submission of invoices--the actual Even if Plaintiff could establish that the sign-in sheets reveal overbilling by NYU, absent any indication of scienter on the part of NYU, the errors would at most be one of accounting, actionable under the FCA. not fraud, and thus not See Mikes, 274 F.3d at 703 (“The notion of presenting a claim known to be false does not mean the claim accounting, omitted); knowing is but see incorrect rather also means id. presentation as it (“[T]he of what a is matter a lie.”) of (citation requisite intent known be is to proper is false the as opposed to negligence or innocent mistake.”) (citations and quotation marks omitted). Second, the NYU staff meeting notes cannot reasonably support Plaintiff’s claim that NYU encouraged residents to falsify attendance records. simply advise attendance residents guidelines and to comply make 27 use The meeting notes with of Manhattan sign-in VA sheets (See, e.g., House Staff provided by the Manhattan VA. Meeting Agendas, attached as Ex. 14 to Yoon Decl., at 2 (“Assigning residents; must show-up and sign-in”), 6 (“VA Rotations: schedule has specific locations. Please go where you are assigned to be.”), 8 (“Be sure to sign-in at VA.”).) raise The notes make no mention of, nor can be said to any issue deliberate of fact ignorance, concerning, or even NYU’s reckless knowledge, indifference concerning purportedly false or fraudulent invoices. Finally, residents were Plaintiff not satisfying alleges their that NYU obligations knew at the Manhattan VA because NYU call schedules required residents to attend meetings, trainings, and other work assignments that “would necessarily preclude them from being at the Manhattan VA to provide the 24/7 coverage required under the Disbursement Agreement.” (Pl.’s Mem. at 19.) But Plaintiff has provided no evidence that NYU residents left the Manhattan VA without the permission of a Manhattan VA supervisor, as allowed for under the disbursement agreement, or that NYU improperly billed the Manhattan VA for residents’ “VA duty” days when those residents were in fact absent. Because Plaintiff has failed to provide evidence supporting any material issue of fact with respect to NYU’s 28 knowledge of allegedly false claims made to the Manhattan VA, the Court grants Defendants’ motion for summary judgment with respect to Plaintiff’s claim under 31 U.S.C. § 3729 for this reason as well. D. Plaintiff’s Second Cause of Action for Retaliation Under the False Claims Act Pursuant to 31 U.S.C. § 3730(h) (2005), [a]ny employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under [the FCA], including investigation for, initiation of, testimony for, or assistance in an action filed or to be filed under this section, shall be entitled to all relief necessary to make the employee whole. Congress added this provision “to protect persons who assist the discovery and prosecution of fraud and thus to improve the federal government’s prospects of deterring and redressing crime.” Neal v. Honeywell Inc., 33 F.3d 860, 861 (7th Cir. 1994) (abrogated on other grounds by Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409 (2005)). “To sustain an action under Section 3730(h), a plaintiff must prove (1) that he engaged in conduct protected under the statute, (2) that defendants 29 were aware of his conduct, and (3) that he was terminated in retaliation for his conduct.” U.S. ex rel. Sarafoglou v. Weill Med. Coll. of Cornell Univ., 451 F. Supp. 2d 613, 624 (S.D.N.Y. 2006) (quotation marks and citation omitted). Plaintiff alleges that in June 2004, shortly after he questioned one of NYU’s attending physicians about “the propriety of NYU’s relationship with and the policies regarding coverage at the Manhattan VA,” NYU placed him on remediation, the termination. (Pl.’s Mem. at 9.) placed Plaintiff first on disciplinary probation, step toward full Four months later, NYU the next stage of the disciplinary process, citing his failure to pass mock oral examinations. (Id.) In April 2005, Plaintiff telephoned and emailed the VA Office of the Inspector General (“OIG”) (Id. at 10.) to report his concerns. Then, on May 17, 2005, Plaintiff sent a fax outlining his complaint to the VA OIG using a fax machine in the office of Dr. Edmond Knopp, an attending physician at NYU. (Id.) After seeing a copy of his fax in Dr. Knopp’s office the following day, Plaintiff was terminated from NYU’s residency program and escorted off of the premises. (Id.) According to Plaintiff, the timing of these events, coupled with the fact that NYU did not terminate other residents whose academic performance and behavior were “comparable (or even 30 worse)” than Plaintiff’s, necessarily means that Plaintiff was terminated in retaliation for his complaints regarding NYU’s invoices to the Manhattan VA. (Id. at 11.) Plaintiff also claims that NYU has perpetuated its backlash by “blacklisting” Plaintiff from future educational, and housing opportunities. i) employment, (Id.) Protected Conduct The first step in sustaining an action under 31 U.S.C. § 3730(h) requires proving that plaintiff engaged in “protected conduct”. Sarafoglou, 451 F. Supp. 2d at 624. “To qualify as protected conduct an employee’s actions must have been in furtherance of an action under the FCA, that is, an employee must have been investigating matters that were calculated, or reasonably could have lead [sic], to a viable FCA action.” Garcia v. Aspira of New York, Inc., No. 07 Civ. 5600 (PKC), 2011 WL 1458155, at *4 (S.D.N.Y. Apr. 13, 2011) (internal quotations and citations omitted). “Protected activity is interpreted broadly.” omitted). Id. (citation Furthermore, a relator need not prevail on his or her FCA claim in order to recover for retaliation under 31 U.S.C. § 3730(h). F.3d 61, required 67 to reasonable (D.C. show basis”, a See Hoyte v. Am. Nat’l Red Cross, 518 Cir. 2008). “good for However, faith basis”, believing that 31 or he a relator is “objectively or she was investigating matters in support of a viable FCA case. Id. See also Lang v. Nw. Univ., 472 F.3d 493, 495 (7th Cir. 2006) (“What [an FCA relator] actually believed is irrelevant, for people believe the most fantastic things in perfect good faith; a kind heart but empty head is not enough. The right question is whether her belief had a reasonable objective basis . . . .”). The triable Court issue conduct”. of finds fact that Plaintiff concerning his has alleged raised a “protected Plaintiff submitted complaints to the VA OIG by phone and email in April 2005, which in turn triggered an inquiry by the Veterans Health Administration. Tel. Compl.; Pl.’s Email Compl.) Although (See Pl.’s Plaintiff’s Section 3729 claim ultimately fails, as discussed above, his complaints to the VA OIG reveal an objectively reasonable basis for believing that he was investigating matters that could have led to a viable FCA claim. See, e.g., Neal, 33 F.3d at 864 (“The statute expressly covers investigatory activities preceding litigation. . . . [S]upplying information that set off an investigation, fits comfortably into this category.”). ii) NYU’s Awareness of Plaintiff’s Conduct Plaintiff also has raised an issue of fact regarding NYU’s awareness of Plaintiff’s protected conduct. 32 To satisfy 31 U.S.C. § 3130(h), a defendant “must know . . . that plaintiff is engaged in protected activity as defined above--that is, in activity that reasonably could lead to a False Claims Act case.” U.S. ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 742 (D.C. Cir. 1998); see also U.S. ex rel. Hopper v. Anton, 91 F.3d 1261, 1269 (9th Cir. 1996) (“[U]nless the employer is aware that the employee is investigating fraud, the employer could not possess the retaliatory intent necessary to establish a violation of § 3730(h).”). Plaintiff first argues that NYU was aware of his protected conduct as of around June 2004 when he complained to one of NYU’s attending physicians, Dr. Elissa Kramer, about NYU resident coverage at the Manhattan VA. Mem. at 20.) testimony or (Pl.’s However, Plaintiff has not identified any other evidence that references his alleged discussion with Dr. Kramer, as is required to defeat a motion for summary judgment. See Davis, 316 F.3d at 100 (2d Cir. 2002) (“[R]eliance upon conclusory statements or mere allegations is not sufficient to defeat a summary judgment motion.”) (citations omitted).7 7 Despite referring in briefing to this alleged discussion several times, Plaintiff cites no evidence of the discussion’s occurrence or content. (See, e.g., Pl.’s Mem. at 9, 20, 22.) Plaintiff also refers to the discussion in his response to Defendants’ statement of material facts pursuant to Local Rule 56.1 (see Pl.’s Rule 56.1 Stmt. ¶¶ 28-29), 33 Nonetheless, that Defendants may Plaintiff have been conduct at least as of May 2005. has presented aware of his evidence protected The fax Plaintiff sent to the VA OIG on May 17, 2005, from the NYU fax machine of Dr. Knopp clearly indicates that Plaintiff had already (See Fax to Inspector submitted a complaint to the VA OIG. General, Dep’t of Veterans Affairs, May 17, 2005 (“Pl.’s May 17, 2005, Fax”), attached as Ex. 28 to Yoon Decl.) Plaintiff also submitted an affidavit stating that he saw a copy of his fax on Dr. Knopp’s desk the following day, shortly after residency which program Plaintiff and was terminated escorted off the from his premises. (See Decl. of Dr. Terence Sasaki in Opp’n to NYU’s Mot. for Summ. J. (“Sasaki Decl.”) ¶ 18.) triable issue Plaintiff’s of fact allegedly This evidence raises a regarding protected NYU’s conduct. awareness See, of e.g., Yesudian, 153 F.3d at 743 (“Threatening to file a qui tam suit or to make a report to the government . . . clearly is one way to make an employer aware.”) iii) Termination in Retaliation for Conduct To satisfy the final requirement for sustaining an action under Section 3730(h), and “to overcome a motion but again fails to cite any supporting record evidence, in violation of Local Rule 56.1(d). See Local Rules of the U.S. District Cts. for the S. and E. Districts of N.Y. ¶ 56.1(d). 34 for judgment as a matter of law (or summary judgment), an employee must reasonable supply jury sufficient could conclude facts that from the which employee a was discharged because of activities which gave the employer reason to believe that the employee was contemplating a qui tam action against it.” Mikes v. Strauss, 889 F.Supp. 746, 753 (S.D.N.Y. 1995) (emphasis added). “When an employer produces sufficient evidence to show a legitimate reason for a plaintiff’s connection between termination.” termination, allegedly there is protected no causal activities and Liburd v. Bronx Lebanon Hosp. Ctr., No. 07 Civ. 11316 (HB), 2009 WL 900739, at *11 (S.D.N.Y. Apr. 3, 2009) (citation omitted). Defendants evidence of termination. practices, Dr. by grounds Plaintiff Robert residency interpersonal behavior ample, for unrebutted Plaintiff’s On February 27, 2003, prior to any complaint made “poor submitted independent allegedly neurology have towards regarding Staudinger, program, and and staff, invoicing director reprimanded communication students chart documentation.” the NYU’s of Plaintiff skills, and NYU’s for demeaning inappropriate (Ltr. from Dr. Robert Staudinger to Dr. Terence Sasaki, Feb. 27, 2003, attached as Ex. B to Burns Decl., at 1.) Due 35 to Plaintiff’s performance deficiencies, Dr. Staudinger informed Plaintiff that he was to follow a plan of remediation. Plaintiff received another (Id.) letter On July 16, 2003, notifying him that he “unsuccessfully completed the remediation plan” and that he was being placed on probation. Kim Nelson, Staudinger, Dr. July Decl., at 1.) Michael 16, (See Ltr. from Dr. Peter Ambrosino, 2003, attached and as Dr. Ex. C Robert to Burns On June 29, 2004, after Plaintiff entered the radiology portion of his residency program, Dr. Michael Ambrosino, NYU’s radiology residency director, and Dr. Alec Megibow, NYU’s vice chair of education, sent Plaintiff yet another letter informing him of performance deficiencies and again placing him in remediation. Michael Ambrosino and Dr. Alec (See Ltr. from Dr. Megibow, attached as Ex. D to Burns Decl.) June 29, 2004, The letter stated that various faculty considered Plaintiff’s performance to be “below expectation”, that Plaintiff had allegedly “missed or misinterpreted . . . which identical findings exceed stage in those their in a number of [his] and peers educations,” and significance . . . that at “[t]hese misses have had potential patient care consequences.” at 1.) Plaintiff At the conclusion was required to of take his a remediation mock oral an (Id. plan, exam, and Plaintiff was notified that failure to complete the plan 36 satisfactorily could “lead to disciplinary action up to and including termination.” signed the letter (Id. at 2.) indicating his Plaintiff counter- understanding implications of the issues presented”. of “the (Id. at 3.)8 On October 4, 2004, Plaintiff received one more letter informing him that he was being placed on probation following poor performance during his mock oral exam. (See Ltr. from Dr. Michael M. Ambrosino, Dr. Alec J. Megibow, and Dr. Robert I. Grossman to Dr. Terence Sasaki, Oct. 4, 2004, attached as Ex. E to Burns Decl., at 1.) countersigned disagreed this with the letter as letter’s probationary conditions. well, but findings Plaintiff wrote as (See id. at 3.)9 well that he as his Plaintiff then appealed his probation, and an ad hoc committee of NYU doctors denied concurred, testimony[,] the appeal, based on that Dr. noting file Sasaki that “[t]he information had performed Committee and direct below the 8 Plaintiff now disputes the letter’s findings regarding his performance, stating that Dr. Ambrosino’s deposition testimony “revealed that he lacked a solid basis for making this statement”. (Pl.’s Rule 56.1 Stmt. ¶ 12.) However, Dr. Ambrosino testified that Plaintiff made a “very severe miss” that could “kill a patient” on more than one occasion, and that although he did not have patient charts available at his deposition to confirm the number and type of misses Dr. Sasaki made, he had discussed the problem with the faculty “who review the cases” at the time of the letter. (Yoon Decl. Ex. 6 at 320323.) Plaintiff has presented no credible evidence that Drs. Ambrosino and/or Megibow lacked a foundation for the findings made in the letter, which Plaintiff himself countersigned. (See Burns Decl. Ex. D at 3.) 9 Plaintiff also now contends that his mock oral examination was administered and/or graded unfairly. (See, e.g., Pl.’s Rule 56.1 Stmt. ¶ 14.) 37 expected level of clinical competency for a resident in training.” (Ltr. from Dr. Robert Lembo to Dr. Carol Bernstein, Apr. 14, 2005, attached as Ex. O to Burns Decl., at 1.) The committee also found the mock oral examination to have been “an appropriate test of clinical competence” and carried out in accordance with the general policies of the American Board of Radiology. (Id. at 2.) While Plaintiff’s probation appeal was pending, Plaintiff again received two “below expectation” evaluations in a radiology rotation, which Plaintiff does not dispute. (See Termination Ltr. at 2, 4-5; Pl.’s Rule 56.1 Stmt. ¶ 21.) Several months later, yet still almost two weeks before Plaintiff sent his fax to the VA OIG from an NYU fax machine, Plaintiff received seven more “below expectation” scores in an NYU neuroradiology evaluation. (See Termination Ltr., at 7-9.) Finally, on May 18, 2005, NYU notified Plaintiff that he had been terminated from his educational program due to his performance deficiencies. (See id. at 1.) Plaintiff appealed his termination, and an ad hoc committee denied his appeal. (See Ltr. from Dr. Carol A. Bernstein to Dr. Terence Sasaki, Oct. 18, 2005, attached as Ex. I to Burns Decl.) In response to the above evidence, Plaintiff cites his own oral or written objections to some, though 38 not all, of NYU’s reprimands and warnings. at 23-24.) support, Plaintiff also contends, without evidentiary that diagnoses (See Pl. Mem. were other not residents placed who on had similarly remediation, missed that other residents who had failed oral examinations were not placed on probation, and that other residents whose performances were “comparable (or even worse)” than Plaintiff’s were not terminated from the program. (Id. at 23.) beliefs, enough however, judgment. are not Evidence is required.” to “Theories and survive summary DiFolco v. MSNBC Cable L.L.C., No. 06 Civ. 4728 (LAP), 2011 WL 5519824, at *9 (S.D.N.Y. Nov. 9, 2011); see also Luckey v. Baxter Healthcare Corp., 2 F. Supp. 2d 1034, 1057 (N.D. Ill. 1998) (evidence of retaliation in plaintiff’s violation beliefs 31 regarding U.S.C. § alleged 3730(h) “are insufficient to create a genuine issue of material fact”). “[D]efendants proffered a legitimate, non-retaliatory reason for [Plaintiff’s] termination and [Plaintiff] failed to raise a genuine issue of material fact as to whether that reason was a pretext for retaliation.” Liburd v. Bronx Lebanon Hosp. Ctr., 372 Fed. Appx. 137, 139 (2d Cir. 2010). Defendants are therefore entitled to summary judgment.10 10 Plaintiff attempts to establish a causal nexus between his complaint 39 conter:.ds Plaintiff Finally, t t NYU continued to retaliate against him a=ter his termi II 'b1 isting' defaming comm'Jnity, 1 medical the him iona his at on, with his ability to obtair:. hous inter""e 4.) However, these Plainti=f claims, agair:. and offers thus ion ff no summary (Pl. Mem. evidence in j endants is warranted. IV. Conclusion reasons summary judgment is 1 inti f's camp a is forth set above, Defendants' in its enti and smissec:i. SO ORDERED. :Jated: 201,1 Lawrence M. McKenna U.S.D.J. to the VA OIG and his in the ::inal ane also may have Plainti (PI. Mem. at 23.) However, ::inal May 0 ane Plain:::i::f did not send his fax see Pl« s I¥la}T 17, 2005[ Fax). J 40 :::hat Dr. Knopp was involved Plaintiff's termination refe his Termination Ltr., at May 17, 2005

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.