Collette v. St. Luke's Roosevelt Hosp.

Decision Date26 February 2001
Docket NumberNo. 00 CIV 4864 GEL.,00 CIV 4864 GEL.
Citation132 F.Supp.2d 256
PartiesJanine COLLETTE, Plaintiff, v. ST. LUKE'S ROOSEVELT HOSPITAL, Defendant.
CourtU.S. District Court — Southern District of New York

Robert J. Barsch, Brooklyn, NY, for Plaintiff Janine Collette.

David R. Marshall, Littler Mendelson PC, New York City (Erika L. Ozer, Littler Mendelson PC, New York City, of counsel) for Defendant St. Luke's Roosevelt Hospital.


LYNCH, District Judge.

Plaintiff Janine Collette ("Collette" or "plaintiff") sued her former employer, claiming among other things that it discriminated and retaliated against her on account of her raising various objections to its employment practices. Defendant St. Luke's Roosevelt Hospital ("St. Luke's" or "defendant") moves to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. St. Luke's argues that Collette's claims fail as a matter of law to justify relief, and that essentially all of them are barred because Collette waived them by asserting a claim for similar relief under New York's "whistleblower" statute, N.Y. Labor Law § 740, in an earlier lawsuit. For the reasons stated below, this Court rejects defendant's claim that New York law works a waiver of plaintiff's federal claims, but accepts the argument that certain of plaintiff's asserted causes of action do not state claims for which relief can be granted. Accordingly, defendant's motion is granted in part, and denied in part.

I. Facts

Except where noted, the following material facts are alleged in plaintiff's Complaint and accepted as true for purposes of defendant's motion. Collette was hired by St. Luke's in or about January 1997, first as an independent contractor working for defendant's Continuing Medical Education ("CME") program and later, on defendant's payroll, as the CME Coordinator. (Compl.¶ 9, Ex. E.¶ 13.) As CME Coordinator, Collette was asked to create a three-year business plan describing the structure, mission, and funding for a financially self-sufficient CME Department that could handle continuing education matters for St. Luke's, one of its sister hospitals, and its corporate parent, Continuum Health Partners ("Continuum"). (Id. ¶ 15.) Collette proposed a plan by which administrative functions were coordinated between the two hospitals by a full time staff led by a Director and Assistant Director of CME, and overseen by a manager at Continuum. (Id. ¶ 18, Ex. A. ¶ 8, Ex. D., Ex. E. ¶ 28.) St. Luke's adopted Collette's proposed plan in large measure. (Id. ¶ 16, Ex. E. ¶¶ 15, 27.)

Collette alleges that she acquired an understanding that she would be given one of the directorial positions once her plan was implemented, and that she had been told by defendant's representatives that she was "most qualified" for the new positions. (Id. ¶¶ 19, 27, 32.) However, St. Luke's selected other candidates — Lois Grossman for the position of Director and Ruth Weinstein for the position of Assistant Director. (Id. ¶¶ 27, 32.) Collette was told that she had not been seriously considered for a directorial position since she "was off to better things," and "wouldn't be interested in the position." (Id. ¶ 26.) During the initial implementation of the administrative plan, Collette made various complaints about the manner by which St. Luke's filled the managerial positions, and about the competence of Ruth Weinstein for the position of Director. In particular, Collette complained that St. Luke's violated equal employment opportunity requirements by failing to post a notice of the directorial job openings, and by considering only Jewish applicants for the directorial positions. (Id. ¶¶ 55-58.) Collette also charged that the CME program had violated accreditation standards by accepting donations from pharmaceutical companies. (Id. ¶ 33-34.) She reported these alleged violations to the American Council for Continuing Medical Education ("ACCME"), the national accrediting body for medical education programs. (Id.) In September 1999, Collette submitted a Petition of Grievance ("Petition") to St. Luke's Employee Resources Department, detailing all of the above complaints. (Id. Ex. E.) Subsequent to filing the Petition, Collette was isolated by her immediate supervisors and treated in a generally unfavorable manner. (Id. ¶ 31.) On November 11, 1999, she was terminated. Collette now alleges the sole basis for her termination was "[her] opposition to defendant's unlawful employment practices." (Id. ¶ 35.) At the time of her termination, St. Luke's claimed that she was no longer needed since the new administrative plan did not provide for the continuation of Collette's CME Coordinator position. (Id. Ex. G.)

II. Prior Proceedings

In December 1999, Collette commenced an action against St. Luke's in this Court (her "prior action"), alleging that St. Luke's had (1) violated New York's Whistleblower Protection Act, N.Y. Labor Law § 740 ("Whistleblower Act" or "Act"), by firing her in retaliation for her reporting to the ACCME "over one hundred thousand dollars" of illegal pharmaceutical contributions allegedly received by the directors of CME, and (2) violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), on account of unpaid overtime wages. (Marshall Aff. Ex. 2.)

The retaliation claim was based solely on plaintiff's "disclos[ure of] unlawful actions to the American Council for Continuing Education." (Id. Ex 2 ¶¶ 13-19.) The legal basis of the claim was New York's Whistleblower Act, which provides in pertinent part:

2. Prohibitions. An employer shall not take any retaliatory personnel action against an employee because such employee does any of the following:

(a) discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule, or regulation which violation creates and presents a substantial and specific danger to the public health or safety

N.Y. Labor Law § 740(2)(a). Collette claimed that the alleged unlawful payments "presented a substantial and specific danger to public health and safety" (Marshall Aff. Ex. 2 ¶ 16), that St. Luke's had fired her because she had reported those violations to her supervisors (id. ¶ 14), and that her termination therefore violated the Act (id. ¶ 17). On June 26, 2000, the parties entered a joint stipulation of settlement dismissing Collette's FLSA and Whistleblower Act claims. (Marshall Aff. Ex. 3.) The joint stipulation expressly reserved plaintiff's right to bring future "employment discrimination claims, as set forth in Collette's EEOC Charge ... and any claim for earned, unused, and unpaid vacation, holiday or personal pay for which Collette was eligible." (Barsch Aff. Ex. A.)1

Four days later, on June 30, 2000, plaintiff filed her complaint in this action, alleging seven causes of action. The Complaint does not allege retaliation on account of Collette's report to the ACCME, or violation of the FLSA, which were the bases of her prior action. Plaintiff's first cause of action alleges wrongful retaliation in violation of Title VII, claiming that Collette was fired because she had reported to her immediate supervisors, and to the defendant's Employee Resources Department, that St. Luke's had engaged in discriminatory hiring practices and had violated federal regulations requiring the posting of all available employment positions. (Compl.¶¶ 9-39.) Plaintiff's second and third causes of action allege similar retaliatory discharge claims under comparable New York State and New York City laws prohibiting employment discrimination, respectively, New York State Executive Law ("Exec.L.") § 296(7) (id. ¶¶ 40-46), and the New York City Administrative Code ("NYCAC") (id. ¶¶ 47-53). Like the first cause of action, these counts allege retaliation on account of Collette's reporting of defendant's disparate hiring practices and violation of federal posting requirements.

Plaintiff's fourth cause of action alleges that Defendant's purposeful failure to post the available directorial position had a disparate impact on candidates who were "non-Jewish," in violation of Title VII. (Id. ¶¶ 54-59.) Her fifth and sixth causes of action set forth parallel claims of disparate impact discrimination in violation of Exec. L. § 296 (id. ¶¶ 60-65), and the NYCAC (id. ¶¶ 66-71).2

Plaintiff's seventh cause of action (mislabeled in the Complaint as a second "sixth" claim) alleges that St. Luke's is in breach of her employment contract in that Collette is owed back pay and unused vacation time. (Id. ¶¶ 72-75.) The parties agree that this count is a pendent claim based on state common law, over which this Court has jurisdiction if but only if any of plaintiff's federal claims survive defendant's motion to dismiss. (Tr. 41.)

In the instant Complaint, defendant moves to dismiss all seven causes of action, chiefly on the ground that by filing a complaint pursuant to New York's Whistleblower Act, Collette waived her right to bring any other claim that may have arisen in the course her employment at St. Luke's. In the alternative, defendant moves to dismiss all but the seventh cause of action for failure to state a claim upon which relief can be granted. Oral argument was held on December 21, 2000.


In the context of a motion to dismiss the Court accepts "as true the facts alleged in the complaint," Jackson Nat'l Life Ins. Co. v. Merrill Lynch & Co., 32 F.3d 697, 699-700 (2d Cir.1994), and may grant the motion only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Thomas v. City of New York, 143 F.3d 31, 36 (2d Cir.1998) (internal citations omitted).

I. New York Labor Law § 740(7)

Defendant's principal argument is that plaintiff's employment discrimination claims are waived because plaintiff brought a prior action against defendant seeking reinstatement under New York's...

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