Kelly v. N. Shore-Long Island Jewish Health Sys.

Decision Date15 January 2016
Docket Number13–CV–1284(JS)(SIL)
Parties Anne Marie Kelly, Plaintiff, v. North Shore–Long Island Jewish Health System, Defendant.
CourtU.S. District Court — Eastern District of New York

For Plaintiff: Louis D. Stober, Jr., Esq., Albina Kataeva, Esq., Law Offices of Louis D. Stober, Jr., LLC, 350 Old Country Road, Suite 205, Garden City, NY 11530

For Defendants: Christopher G. Gegwich, Esq., Alexander Elliott Gallin, Esq., Nixon Peabody LLP, 50 Jericho Quadrangle, Suite 300, Jericho, NY 11753

MEMORANDUM & ORDER

SEYBERT

, District Judge:

Presently pending before the Court is defendant North Shore–Long Island Jewish Health System's (“LIJ” or Defendant) motion to dismiss plaintiff Ann Marie Kelly's (Plaintiff) Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and (b)(6)

. (Defs.' Mot., Docket Entry 19.) For the following reasons, Defendant's Motion is GRANTED IN PART and DENIED IN PART.

BACKGROUND1
I. Factual Background

The Court assumes familiarity with the background of this case, which is set forth in the Memorandum and Order dated June 22, 2014. Kelly v. North Shore–Long Island Health Sys., No. 13–CV–1284, 2014 WL 2863020 (E.D.N.Y. Jun. 22, 2014)

. Plaintiff is a registered nurse who worked for LIJ as a part-time “field registered nurse” from February 2008 until her resignation on August 17, 2011. (Am. Compl., Docket Entry 16, ¶¶ 8, 23, 117.) Plaintiff also worked as a registered nurse for Nassau Health Care Corporation (“NHCC”). (Am.Compl.¶¶ 20, 37.)

In March 2011, Plaintiff submitted retirement documents to NHCC. (Am.Compl.¶ 25.) On March 26, 2011, Plaintiff fell and injured her back while on vacation in Mexico. (Am. Compl. ¶ 26.) Plaintiff exacerbated the injury when she helped her friend and another individual out of the water after a jet-ski accident. (Am.Compl.¶¶ 27, 28.) Plaintiff alleges that she was in a significant amount of pain and purchased morphine

, which is legal to purchase and use in Mexico without a prescription. (Am.Compl.¶ 28.)

In April, 2011, NHCC subjected Plaintiff to a random drug test that returned a positive result for morphine

sulfate. (Am. Compl. ¶¶ 30–31.) NHCC then reported Plaintiff to the Office of Professional Discipline (“OPD”). (Am. Compl. ¶ 32.) Plaintiff spoke with an investigator from OPD in late April 2011. (Am. Compl. ¶ 51.) OPD did not impose sanctions against Plaintiff and “found that she was not a threat to patients and could continue to see and treat patients.” (Am. Compl. ¶ 52.) Plaintiff was advised that OPD “could not inform LIJ of the circumstances surrounding the investigation because they were not the reporting party or the party involved in the investigation.” (Am. Compl. ¶ 53.) Plaintiff retired from NHCC in or about April 2011. (Am. Compl. ¶ 37.)

Plaintiff is a recovering alcoholic who consumed significant amounts of alcohol when she was off-duty and not scheduled to work the following day. (Am. Compl. ¶¶ 56–57.) Plaintiff's alcoholism substantially limited her ability to perform activities like walking, talking, eating, and standing for extended periods of time. (Am. Compl. ¶ 59.) Plaintiff admitted she was an alcoholic, joined a support group sponsored by the Statewide Peer Assistance for Nurses program, and attended Alcoholics Anonymous meetings three times per week. (Am. Compl. ¶¶ 39, 62.) Additionally, [t]o address the positive test result and address any potential or perceived substance abuse issues, [Plaintiff] voluntarily entered the Employee Assistance Program at NHCC and the Kenneth Peters Rehabilitation Center in Syosset.” (Am.Compl.¶ 36.) Plaintiff also voluntarily applied for a spot in the Professional Assistance Program (“PAP”), a program run by the State of New York that “assists professionals who have substance abuse problems but who have not harmed patients or clients.” (Compl.¶¶ 39–41.) Participants in PAP voluntarily surrender their licenses during their treatment instead of facing professional misconduct charges. (Am.Compl.¶¶ 41, 44.)

Plaintiff alleges that in or about April 2011, she advised her LIJ Nursing Supervisor, Diane Asquino (“Asquino”), of her positive drug test results [t]hough she was under no obligation to do so.” (Am.Compl.¶ 33.) Plaintiff explained why her drug test was positive and “that she was taking all necessary steps to successfully continue her career as a Registered Nurse.” (Am.Compl.¶ 34.) Plaintiff also advised Asquino that she was undergoing treatment for substance abuse, which Asquino reported to the Director of Nursing, Barbara Maidhoff (“Maidhoff”). (Am.Compl.¶¶ 48–49.) Plaintiff believes that Maidhoff reported this information to Maria Caravello (“Caravello”), who worked in LIJ's human resources department. (Am.Compl.¶ 50.)2

In or about May 2011, Plaintiff began speaking with an assigned PAP case manager, Bonnie Lochner (“Lochner”), regarding the requirements for her participation in the program. (Am.Compl.¶ 63.) Lochner advised that Plaintiff needed to be sober for three months, at which time PAP would need Plaintiff's job description and LIJ's “policy on handling narcotics.” (Am.Compl.¶ 64.) On or about June 23, 2011, after three months of sobriety, Plaintiff spoke with Maidhoff to request a copy of her job description and LIJ's narcotics policy. (Am.Compl.¶ 65.) Maidhoff requested that Lochner e-mail her directly to obtain that information. (Am.Compl.¶ 66.) Plaintiff advised Lochner of Maidhoff's request and Lochner subsequently contacted Maidhoff. (Am.Compl.¶ 67.) Plaintiff indicated to her supervisors that she would be meeting with PAP to determine whether she would be accepted into the program. (Am.Compl.¶ 68.)

From April 2011 through July 1, 2011, Plaintiff continued to work for LIJ and interacted with patients, administered medication, and performed her duties. (Am. Compl. ¶ 54.) No complaints were made with respect to Plaintiff's performance from April through July 2011. (Am.Compl.¶ 55.)

On or about June 29, 2011, Caravello inquired about Plaintiff's availability for a meeting with LIJ's Associate Executive Director of Human Resources, Robert Sabatino (“Sabatino”), to “discuss and learn more about the PAP program.” (Am. Compl. ¶¶ 69, 72.) Plaintiff asked if she should be represented during the meeting and Sabatino advised that it would just be a “friendly chat.” (Am. Compl. ¶¶ 70–71.) On July 1, 2011, Plaintiff met with Caravello and Sabatino. (Am. Compl. ¶ 73.) Plaintiff alleges that she explained the events that occurred in Mexico and also explained that she was a recovering alcoholic. (Am. Compl. ¶¶ 74–76.) Caravello called Plaintiff approximately two hours later and informed her that she was being placed on administrative leave and that she could no longer see her patients because they were reassigned.” (Am. Compl. ¶¶ 82–83.)

In early July 2011, OPD completed its investigation of Plaintiff's failed drug test and “determined that there were no concerns with her ability to care for and treat patients, and that she did not pose a risk to patients.” (Am. Compl. ¶ 84.) Thereafter, on July 12, 2011, Plaintiff went to LIJ to speak with Sabatino. (Am. Compl. ¶¶ 85–86.) Plaintiff asked Sabatino “what the length of her administrative leave would be and why she was so abruptly removed from her position.” (Am. Compl. ¶ 87.) According to Plaintiff, Sabatino stated, “in sum and substance, that he was not aware of [Plaintiff's] ‘problem,’ referencing her addiction to alcohol

, prior to their July 1, 2011 meeting but [since he became aware of it], he [has to] protect the public.” (Am.Compl.¶ 88.) However, Plaintiff advised Sabatino that OPD had already concluded that she was “not a threat to the public or her patients.” (Am.Compl.¶ 88.) That same day, Sabatino “confirmed via letter that [Plaintiff] was assigned to administrative leave for an undetermined period of time.” (Am.Compl.¶ 91.)

On July 13th, Plaintiff received “accusatory” correspondence from Sabatino stating that she consistently made phone calls to case managers in an attempt to discuss her employment status.3 (Am.Compl.¶ 92.) The letter also “stated that if [Plaintiff] continued to make phone calls to Home Care Case Managers in reference to her job status, other stricter measures would have to be put in place.” (Am.Compl.¶ 93.) Plaintiff never made phone calls to case managers to discuss her employment status. (Am.Compl.¶ 94.)

On July 23, 2011, Plaintiff learned that she was accepted into the PAP program and LIJ was notified. (Am.Compl.¶¶ 96–97.) On July 27, 2011, Plaintiff telephoned Sabatino and inquired as to why she was still on administrative leave. (Am.Compl.¶ 98.) [Plaintiff] explained that she felt she was being discriminated against because she was a recovering alcoholic. She further explained that she would not let this stand.” (Am.Compl.¶ 98.) Plaintiff also told Sabatino that she planned to “pursue this further and file a complaint” as she did not understand why she was “being treated or viewed as a ‘threat.’ (Am.Compl.¶ 99.) Thereafter, Plaintiff spoke with Lochner, who advised Plaintiff that she would speak with Sabatino about Plaintiff returning to work. (Am.Compl.¶¶ 101–02). Plaintiff did not receive any response regarding her employment status. (Am.Compl.¶ 103.)

On August 11, 2011, Caravello asked Plaintiff to meet with her and Sabatino to discuss a “Last Chance Agreement” that LIJ was offering to Plaintiff (the “Last Chance Agreement”). (Am.Compl.¶ 106.) Plaintiff alleges that the Last Chance Agreement “required Plaintiff to acquiesce to its terms and sign the Agreement within eight (8) days or it would result in her automatic and immediate termination from her employment with LIJ.” (Am. Compl. ¶ 107.) Plaintiff also alleges that the Last Chance Agreement contained a “full waiver and release of any and all claims that she may have against LIJ for her July 2011 suspension (when she was placed on administrative leave indefinitely).” (Am.Compl.¶ 110.)

Subsequently, Plaintiff spoke with Caravello by telephone...

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