Reddington v. Staten Island University Hosp.

• Citation: 511 F.3d 126
• Decision Date: 14 December 2007
• Docket Number: Docket No. 06-4179-cv(XAP).,Docket No. 06-4152-cv(L),
• Parties: Carmel REDDINGTON, Plaintiff-Appellant-Cross-Appellee, v. STATEN ISLAND UNIVERSITY HOSPITAL and North Shore Long Island Jewish Health System, Defendants-Appellees-Cross-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

511 F.3d 126

Carmel REDDINGTON, Plaintiff-Appellant-Cross-Appellee, v. STATEN ISLAND UNIVERSITY HOSPITAL and North Shore Long Island Jewish Health System, Defendants-Appellees-Cross-Appellants.

Docket No. 06-4152-cv(L),

Docket No. 06-4179-cv(XAP).

United States Court of Appeals, Second Circuit.

Argued: October 11, 2007.

Decided: December 14, 2007.

Jonathan Behrins, Behrins & Behrins, P.C., Staten Island, NY, for Plaintiff-Appellant-Cross-Appellee.

James D. Williams, Jr. (David O. Simon, on the brief), Epstein Becker & Green, P.C., New York, NY, for Defendants-Appellees-Cross-Appellants.

Before: KATZMANN, LIVINGSTON, Circuit Judges, and KORMAN, District Judge.^*

LIVINGSTON, Circuit Judge:

Plaintiff-appellant Carmel Reddington appeals from a judgment of the United States District Court for the Eastern District of New York (I. Leo Glasser, J.) dismissing her claims against her former employer, defendants-appellees Staten Island University Hospital and North Shore Long Island Jewish Health System, Inc. (the "Hospital"), for termination in violation of New York's whistleblower protection law and for breach of an employment contract. This case calls upon us to resolve two significant questions arising under section 740 of the New York Labor Law, New York's general whistleblower protection law, and section 741, a whistleblower protection statute enacted in 2002 that provides certain protections to employees performing "health care services." For the reasons that follow, we believe these questions should be answered by the New York courts, and we accordingly certify them to the New York Court of Appeals.

The district court also held that Reddington failed to allege facts sufficient to show the existence of an employment contract between the parties and that Reddington had therefore failed to state a claim for breach of such a contract. As to this claim, we agree with the decision of the district court and accordingly affirm the judgment of dismissal. We retain jurisdiction to consider the Hospital's cross-appeal after we have learned the views of the New York Court of Appeals regarding the certified questions or that court declines certification.

BACKGROUND

The following facts are taken from Reddington's amended complaint and supporting documents, which we must assume to be true in reviewing a Fed.R.Civ.P. 12(b)(6) dismissal. Lentell v. Merrill Lynch & Co., 396 F.3d 161, 165 (2d Cir. 2005).

Reddington was an employee of the Hospital from December 19, 1994, to October 30, 2002. She was hired as a Coordinator of Volunteer Services and in March 1998 received a promotion to Manager of Volunteer Services. In February 2002, Reddington attended a meeting at which Joseph Conte, one of the Hospital's Vice Presidents, discussed his plans to offer radiation treatment to cancer patients coming from Italy. After the meeting, Reddington told Conte that she spoke Italian knew Italian culture and customs, and would be able to assist.

In May 2002, Conte invited Reddington to meet with him and Dr. Gilbert Lederman, the Hospital's Director of Radiation Oncology. At this meeting, Conte and Dr. Lederman told Reddington that several Italian families were at the Hospital and asked her if she would serve as a translator for them while continuing to perform her duties as Manager of Volunteer Services. Reddington agreed to do so until the Hospital hired a full-time employee to serve as a translator.

Upon meeting the Italian families for the first time, Reddington was "besieged with complaints of inadequate and non-treatment, abandonment, and failure to provide a translator." (Am.Compl.¶ 21.) Reddington reported these complaints to Dr. Lederman and later to Conte; nevertheless, the patients' complaints were not addressed and persisted for the next several days.

On May 21, 2002, Dr. Lederman asked Reddington to notify the Italian patients of an upcoming meeting. At this meeting, Reddington translated the patients' needs and concerns to Dr. Lederman and other officers of the Hospital.

In June 2002, Reddington served as a translator at another meeting attended by, among others, Conte, Dr. Lederman, and two supposed doctors from Italy. The attendees at this meeting discussed the possibility of opening a second office in Italy that would be managed by one of the Italian doctors. This doctor would receive a referral fee for each patient he referred to the Hospital for treatment, just as the other doctor was already receiving referral fees in connection with an existing Italian office. Reddington expressed concerns regarding the propriety and legality of this referral fee arrangement to Conte on several occasions, but he did not respond to these concerns or otherwise take any action.

Over the next two months, Reddington continued to work with the Hospital's Italian patients, and they continued to report concerns. In August 2002, Reddington met with Andrew Passeri, whose position with the Hospital is not alleged in the complaint, to again report the inadequate care being afforded the Italian patients. Passeri expressed surprise that Conte had not addressed the patients' concerns and then asked Reddington to be the director of a new International Visiting Patient Program. Reddington alleges that she inquired whether she would be able to return to her position as Manager of Volunteer Services if the opportunity did not work out favorably and that Passeri assured her that she would always be able to return to her former job.

Reddington met with Anthony Ferreri, the Hospital's Senior Vice President of Human Resources, on August 20, 2002, to discuss her new position. She reiterated her concerns about being able to return to her former position, and Ferreri gave her the same assurances she had received from Passeri. She also expressed concern that she was leaving for a vacation and would not be able to train the person who would be hired to replace her as Manager of Volunteer Services. Ferreri assured her that she should not be alarmed, for the Hospital already had a candidate for the job in mind.

Reddington returned from her vacation and, on August 30, 2002, received and signed a written job description for her new position as "Director — International Patient Program," reporting to Conte. Her duties and 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.

7. Maintain up to date data base on patients serviced.

8. Distribute, collect and analyze patient satisfaction questionnaires to continually enhance services.

9. Communicate with consulate to coordinate patient's letters of service.

In her new position, Reddington continued to report complaints to Conte. In September 2002, for example, one of the Italian physicians with whom the Hospital worked expressed to Reddington his frustration that he was required to send prospective patients' pathology slides to the Hospital. Conte explained to Reddington that the pathology slides were necessary because the Hospital, which had previously treated two patients who did not have cancer, was attempting to avoid unnecessary treatments. In October 2002, Reddington went to see Conte again to discuss concerns of inadequate patient care. Reddington complained that her management of the Program was being undermined by Elaine Burke, Ferreri's administrative assistant. Reddington later reported this concern to Ferreri. Conte and Ferreri were unresponsive.

On October 25, 2002, Reddington received a phone call from Margaret D'Alto, a Vice President of Human Resources at the Hospital, asking Reddington to meet. At this meeting, Reddington related her concerns, including the concerns that she had previously expressed to Conte and Ferreri. D'Alto responded by saying that Reddington's concerns were legitimate and that D'Alto would investigate further. D'Alto also stated that Conte was very concerned that Reddington had spoken to Passeri's wife and told Reddington that in the future Burke would be the go-between if Reddington needed to contact Conte. Finally, D'Alto asked Reddington to meet again on October 30.

At the meeting on October 30, D'Alto accused Reddington of calling Conte directly after being told to contact Burke if she wished to reach Conte. Reddington replied that she had not understood that she was not permitted to call Conte and that she had done so to coordinate the transportation of a dead patient's body to England. D'Alto said that Reddington's job responsibilities related only to Italian patients, but Reddington replied that D'Alto's understanding was incorrect and that she had spent several hours during the previous day with the British patient's family. At the conclusion of this meeting, D'Alto dismissed Reddington from her job. Reddington asked if she could return to her former position as Manager of Volunteer Services, and D'Alto refused. Reddington asked what she had done wrong, and D'Alto replied that she had disobeyed orders.

In November 2002, Reddington contacted the New York State Department of Labor, which advised Reddington to obtain a written statement of the Hospital's reasons for terminating her. After several requests by Reddington, the Hospital sent her a letter dated December 10, 2002, stating that she was terminated for...