Earl v. Good Samaritan Hosp. of Suffern N.Y.

• Decision Date: 06 September 2022
• Docket Number: 20 Civ. 3119 (NSR)
• Parties: NICHOLAS EARL, Plaintiff, v. GOOD SAMARITAN HOSPITAL OF SUFFERN NY, BON SECOURS CHARITY HEALTH SYSTEM, and WESTCHESTER HEALTH CARE FOUNDATION, INC., d/b/a WESTCHESCHESTER HEALTH CARE NETWORK, INC., Defendants.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

NICHOLAS EARL, Plaintiff, v. GOOD SAMARITAN HOSPITAL OF SUFFERN NY, BON SECOURS CHARITY HEALTH SYSTEM, and WESTCHESTER HEALTH CARE FOUNDATION, INC., d/b/a WESTCHESCHESTER HEALTH CARE NETWORK, INC., Defendants.

No. 20 Civ. 3119 (NSR)

United States District Court, S.D. New York

September 6, 2022

OPINION & ORDER

NELSON S. ROMAN, UNITED STATES DISTRICT JUDGE

Plaintiff Nicholas Earl, a critical care nurse, commenced this action against Good Samaritan Hospital of Suffern (the “Hospital”), Bon Secours Charity Health System (“Bon Secours”), and Westchester County Health Care Corporation, doing business as WMCHealth^[1](“WMC”). He alleges that in March 2020, at the beginning of the COVID-19 pandemic, while he was working for the Hospital as a critical care nurse Defendants denied him access to necessary protective equipment-a Powered Air Purifying Respirator (PAPR)-and assigned him to a special needs patient who spread COVID-19 to him. He further avers that after he was out with COVID-19 for nearly a month, the Hospital refused to accommodate him upon his return either by providing him a PAPR, transferring him to a non-COVID-19 (or “clean” unit) and, therefore, constructively discharged him. Plaintiff asserts claims for failure to accommodate and discrimination in violation of the Rehabilitation Act and the Americans With Disabilities Act (“ADA”), for discrimination and retaliation in violation of the New York State Human Rights Law (“NYSHRL”), for violation of New York Labor Law Section 741, for intentional infliction of emotional distress, and an unspecified tort claim he styles as “intentional or reckless of COVID transmission.”

Presently before the Court is Defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 44). For the reasons that follow, the Court GRANTS Defendants' motion.

BACKGROUND

The following facts are derived from the Second Amended Complaint (“SAC”, ECF No. 37) and are taken as true and constructed in the light most favorable to Plaintiff for the purposes of this motion.^[2]

I. Factual Background

Plaintiff has had chronic kidney disease since he was an infant. (SAC ¶ 52.) Plaintiff graduated from nursing school in 2018 and began working as a nurse in the surgical intensive care unit at the Hospital in October 2018. (Id. ¶ 27.) Plaintiff alleges that the Hospital is “governed by co-employers Bon Secours and Westchester Health Care Network.” (Id. ¶ 6.) He further avers that the Hospital is “controlled and funded by Bon Secours and Westchester Health.” (Id. ¶¶ 14, 20 22-23.)

In October 2019, Plaintiff underwent a “fit test” to ensure that he was outfitted with a mask with a proper seal. (Id. ¶ 32.) Plaintiff alleges that his original fit test indicated that he needed a PAPR (id. ¶ 33), and the Hospital “registered on his card that he would fit for a PAPR” (id. ¶ 36 (emphasis in original)). Though Plaintiff repeatedly asked for a PAPR, he was never provided with one. (Id. ¶¶ 34-36.) Plaintiff alleges that a PAPR usually costs about $300 and, to properly function, requires a $125 cartridge, which lasts about five years. (Id. ¶ 35.) Plaintiff acknowledges that at the time of the incidents alleged, PAPRs could be purchased for $1,700 on Amazon.com. (Id. ¶ 35; see also id. ¶ 97 (alleging that at the time of the incidents alleged, the PAPR and cartridge together would have cost Defendants about $1,800).)

In March 2020, at the beginning of the COVID-19 pandemic, Plaintiff was assigned to care for a gravely ill special-needs patient the night before he died. (Id. ¶ 41.) Plaintiff alleges that he was assigned to this patient because he is male, and Plaintiff was one of the few male nurses at the Hospital. (Id. ¶ 18.) The patient had pneumonia and had earlier been in a negative-pressure room. (Id. ¶ 42.) At some point, one of the Hospital's doctors told Plaintiff that pneumonia needed to be on both sides of the lungs to justify a COVID test, and thus, the patient did not need a COVID test or to be treated as COVID-positive. (Id. ¶¶ 43-45.) Plaintiff alleges that the failure to test the patient for COVID-19 or treat him as COVID-19 positive was significant because at the time, all N95 masks were being kept by the supervisors or designated only for use with suspected COVID-19 patients. (Id. ¶ 57.) Additionally, the patient was removed from the negative-pressure room and was not fitted with a non-rebreather mask, which was not allowing him to absorb enough oxygen. (Id. ¶¶ 47-48.)

Plaintiff alleges that when he cared for him, the patient showed “classic symptoms of COVID” including a fever of 103 degrees, low oxygen saturation, profusely sweating, and brain stat. (Id. ¶¶ 41, 46-47.) He alleges that another nurse also believed the patient had COVID. (Id. ¶ 56.) Plaintiff reported to the day nurse and his night supervisor that the patient did not have any protections and that Plaintiff could not get a satisfactory mask for his own protection. (Id. ¶ 49.) One of the nurses responded, “I've lived through three of these end-of-the-world pandemics, and we'll be ok.” (Id. ¶ 50.) Plaintiff then texted his direct manager, Megan Hanys and told her that he lives with parents who have risk factors for COVID-hypertensive, diabetic, and obese-and that Plaintiff has chronic kidney disease and that reports from China indicate that COVID-19 can shut the kidneys down. (Id. ¶¶ 51-52.) Hanys told Plaintiff to calm down. (Id. ¶ 53.) Plaintiff went above Hanys and told the charge nurse that he and the patient needed better care. (Id. ¶ 54.) Plaintiff spoke to the evening supervisor, Marie Van DeVere about how uncomfortable he was caring for the patient with his “air passages fully exposed.” (Id. ¶ 57.) Plaintiff searched for supplies to protect himself and was able to find one surgical mask, which was inadequate because part of Plaintiff's duties including suctioning “virus-laden gunk out of the disabled patient's windpipe.” (Id. ¶ 55.) Plaintiff left after his evening shift. (Id. ¶ 58.)

When Plaintiff returned to work two or three days later, he learned that the special-needs patient had died. (Id.) The patient's family insisted on a post-mortem COVID test, which came back positive. (Id. ¶ 8.) Plaintiff then tested for COVID-19 and began feeling the virus's symptoms during the five days it took to receive his positive test result. (Id. ¶¶ 59-60.) Plaintiff's primary care doctor told him that given his kidney disease and the COVID-19 infection, “he should not be in contact with immunocompromised people.” (Id. ¶ 63.) Plaintiff's occupational health nurse at the Hospital said that he could not care for critical patients without a proper mask. (Id. ¶ 88.)

Due to the Centers for Disease Control (“CDC”) guidelines and that he still felt poorly for nearly a week after he tested negative for COVID-19, Plaintiff was out of work for approximately three weeks. (Id. ¶¶ 61-65.) Plaintiff alleges that while he was out with COVID-19, he spoke to his regular manager about his need for a PAPR and that the manager said, “just get fit tested again.” (Id. ¶ 78.) Plaintiff responded that he could not accurately fit-test at the time because the test measures taste and smell, which he had lost due to COVID-19. (Id.)

Upon his return to work, Plaintiff reported to the fit-testing station where he told the tester that it was his first night back after having COVID-19. (Id. ¶ 66.) Plaintiff alleges that he failed the fit test with both available masks as he still tasted the solution during the test. (Id.) He worked for two nights with an N95 respirator. (Id. ¶ 67.) On the first night, “the mask would just come off his face.” (Id.) The next day, he went back to the fit-testing station but they had no new masks. (Id. ¶ 68.) When he raised the issue with his supervisor, Nurse Adrianne, said “didn't you get fit tested yesterday,” to which Plaintiff responded that he had but that the mask was too small, to which Nurse Adrianne responded “You passed yesterday. What games are you playing?” (Id. ¶¶ 69-71.) When Nurse Adrienne asked what Plaintiff wanted, he said “All I want is a mask that fits.” (Id. ¶¶ 74-75.) An occupational health nurse said, “He needs a PAPR,” to which Nurse Adrienne said “We don't have any. We need to find something else that will work.” (Id. ¶¶ 77-78.) The occupational health nurse then said to Nurse Adrienne “Can't he go to a clean unit?”-referring to a newly opened unit for non-COVID patients-to which Nurse Adrienne responded, “He's a critical care nurse.” (Id. ¶¶ 80-82.) Plaintiff alleges that based on his nurse education and training, there were other jobs of lesser risk-such as in a “clean unit”-for which Plaintiff was qualified. (Id. ¶ 83.)

After some time, Plaintiff submitted his resignation by providing two-weeks' notice, suggesting that he would be willing to work in a non-COVID unit or with a PAPR in the critical care unit. (Id. ¶¶ 84-85.) Plaintiff received a call from Phyllis M. Yezzo, the Chief Nursing Officer, who indicated that she wanted Plaintiff to return to the Hospital, but that the Hospital could not give him a PAPR because they did not have the requisite $125 cartridges. (Id. ¶ 99.) The next day, Plaintiff responded by email indicating that he would not return to the Hospital unless he received a PAPR or was placed in a clean unit. (Id. ¶ 102.) Nurse Yezzo responded “Thank you for getting back to me. I was hoping you would reconsider returning to [the Hospital]. I am disappointed you have not reconsidered. Please know we are open to exploring your return in future should you change your mind.” (Id. ¶ 119.)

II. Procedural Background

Plaintiff commenced this action on April 18, 2020. (ECF No. 1.) Plaintiff filed an Amended Complaint on September 21, 2020. (ECF No. 20.) After Defendants...