Albert v. Loksen, Docket No. 99-7520

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtSACK
Citation239 F.3d 256
Parties(2nd Cir. 2001) SAMUEL ALBERT, Plaintiff-Appellant, v. SALMEN LOKSEN, BROOKLYN HOSPITAL and KAREN BUONO, Defendants-Appellees
Docket NumberDocket No. 99-7520
Decision Date01 August 1999

Page 256

239 F.3d 256 (2nd Cir. 2001)
SAMUEL ALBERT, Plaintiff-Appellant,
Docket No. 99-7520
August Term, 1999
Argued: February 2, 2001
Decided: February 02, 2001

Appeal from a March 26, 1999 order of the United States District Court for the Eastern District of New York (Raymond J. Dearie, Judge) granting summary judgment in favor of the defendants on claims of breach of a contract of employment, defamation, and tortious interference with contractual relations. We hold that the defendants Brooklyn Hospital and Karen Buono were entitled to summary judgment on all claims against them, but that genuine questions of material fact remain with respect to the plaintiff's claims of defamation and tortious interference with contractual relations against the defendant Salmen Loksen.

Affirmed in part; reversed and remanded in part.

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RICHARD A. LEVIN, Proskauer Rose LLP, New York, NY, for Defendants-Appellees.

MICHAEL P. BARNES, Law Offices of Michael P. Barnes, New York, NY, for Plaintiff-Appellant.

Before: OAKES, CABRANES and SACK, Circuit Judges.

SACK, Circuit Judge:

Plaintiff-Appellant, Samuel Albert, a physicist formerly employed at Brooklyn Hospital (the "Hospital"), brought an action in the United States District Court for the Eastern District of New York alleging that the Hospital fired him in breach of his

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contract; that Salmen Loksen, his former supervisor, and Karen Buono, the chief administrator of the Hospital's radiology department, defamed him in the course of his discharge; that Loksen and Buono tortiously interfered with his employment relationship with the Hospital; and that the Hospital was liable for the defamatory statements of its employees. The district court (Raymond J. Dearie, Judge) granted summary judgment in favor of the defendants on all claims. We affirm the summary judgment as to Brooklyn Hospital and Buono, but reverse and remand with respect to the defamation and tortious interference claims against Loksen.


Albert's Role at the Hospital

Albert began work as an "assistant physicist" in the Hospital's radiology department in 1994. Loksen, one of the defendants, was his supervisor.

Albert did not have a written employment contract with the Hospital. Shortly after he was hired, however, he attended an orientation session at which Hospital policies were reviewed. Excerpts from the Hospital's "Policy and Procedure Manual" were distributed to those attending. Albert claims he was told throughout the hiring process that the Policy and Procedure Manual governed the terms and conditions of his employment and that it barred the Hospital from terminating him for reporting potentially dangerous conditions. He also asserts that he was told at the orientation session that no reprisals were ever taken against people who reported safety violations.

One of Albert's duties as an assistant physicist was to prepare a device called a "Fletcher Suit applicator" for use in brachytherapy treatment for cervical cancer. The applicator is a tube containing radioactive sources which is inserted into a patient's uterus during the brachytherapy procedure. The sources are sealed cylinders containing pellets of radioactive cesium 137 that have been loaded into the applicator by a physicist. In preparation for treating a patient, the radiation oncologist performing the procedure requests that a physicist prepare the applicator using sources of a specified strength, or level of radioactivity.

The parties dispute the appropriate procedure to be followed when a physician specifies a source of a particular strength that is unavailable at the Hospital. The controversy stems in part from the fact that there are two ways to indicate the strength of a source. A source's strength at the time it is fabricated is its "nominal value." Because of radioactive decay, its strength decreases over time. A source's decayed strength at a particular time post-fabrication is its "actual value."

Loksen asserts that doctors at the Hospital ordered sources using their nominal values, fully aware that such values were ordinarily greater than the actual values of the Hospital's stock, and that when a doctor requested a source of a particular nominal value, he or she wanted that source to be used irrespective of its actual strength. He testified that accordingly, he instructed Albert to have a physician change his or her orders in writing before Albert substituted sources of a different nominal value from those the physician had initially requested.

Albert insists to the contrary that Loksen had given him standing instructions to load the applicator with sources of the closest actual values to the nominal values requested by the doctor. He asserts that after an applicator containing loaded sources is inserted into a patient's body, a computer-generated radiation distribution map guides the supervising physicist in determining how long the applicator should be left there. Albert maintains that after loading an applicator he would ordinarily report the actual values of the sources he had used to Loksen, who would then calculate the appropriate exposure time. By adjusting the exposure time, Albert says, the resulting dose of radiation

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would be brought in line with the doctor's original prescription, even though the sources being used had an actual value different from the nominal value requested by the doctor. Albert suggests that because of this procedure, a variation in source strength between the nominal value specified by the doctor and the actual value supplied by Albert would not harm the patient or compromise the treatment.

The January 30 Incident

On January 30, 1995, while Albert was loading cesium sources stored in the Hospital's radioactive materials room into an applicator to be used by Dr. Nina Dlugy, a radiation oncologist, two of the sources fell to the floor. Albert was unable to find them. Because no sources of equal strength were available, he loaded the applicator with replacement sources that were weaker than those that had been misplaced.

The parties dispute when and to whom Albert first reported this incident. Albert claims he told Dlugy about the replacement sources as soon as he delivered the applicator to her. He asserts that at that time, Dlugy did not ask, and he did not tell her, about the radioactivity levels of the substituted sources. He further claims that he checked the delivery cart with a Geiger counter, in her presence, to make certain that the missing sources were not on the cart. Another employee, Lilya Fridman, said she overheard Albert tell Dlugy he had dropped the sources and saw him check the cart with the Geiger counter. She also stated that Dlugy was calm and did not ask Albert any questions about the dropped sources or their replacements. Dlugy testified that she does not remember any such conversation.

Loksen and Dlugy maintain that Albert did not inform Dlugy about the replacement sources when he delivered the applicator. Loksen was away from the Hospital at the time of the incident. When he returned later that afternoon, about an hour and a half after the two sources had been dropped, Albert told Loksen what had happened. According to Loksen and Dlugy, it was only then that Albert sought out Dlugy and told her about the substituted sources.

According to Loksen, after Albert provided Dlugy with the details of the source substitution, he returned to Loksen's office. The two then found the missing sources in the radioactive materials room using a Geiger counter. Albert alleges that he was unable to retrieve the sources earlier because Loksen had taken the particular Geiger counter necessary to find them with him when he left the Hospital.1

With the original sources recovered, Dlugy decided to remove the applicator from the patient and have the sources changed. Albert assisted her with this procedure. The parties agree that the patient was not injured or endangered by the use of the replacement sources or the subsequent exchange of sources.

Albert asserts that he was upset about what he perceived to be the consistently defective equipment that had caused the dropping of the sources in the first place. He claims that he told Loksen that he intended to inform the Hospital and the appropriate regulatory agencies of both the deficiency of the Hospital's equipment and Loksen's frequent absences from the Hospital. According to Albert, Loksen replied that if Albert made any such report he would be fired. Albert also claims to have mentioned to Loksen his concerns about the applicator several times in the weeks before the incident, including when Loksen first gave him the brachytherapy assignment for January 30. Dlugy also acknowledges having told Loksen before

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January 30 that the applicator had a defective part.

The day after the incident, Loksen met with Buono, the chief administrator of the radiology department, and told her his version of the event. Buono discussed the situation with others at the Hospital, including Dlugy and Dr.Huh, the senior physician in the radiology department. Buono testified that she decided, in accordance with Hospital policy, that Albert should be summarily discharged because of his behavior during the incident. She therefore completed a "Termination Report" to submit to the Hospital's director of labor relations. The report was, according to Buono, a "collaborative effort" by Loksen and her. It stated that on January 30, Albert had endangered the welfare of a patient; endangered the safety of co-workers through unnecessary radiation exposure; failed to follow the order of a physician and physicist; was dishonest to a physician and a physicist; and...

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