United States v. N. Metro. Found. for Healthcare, Inc.
| Decision Date | 14 April 2019 |
| Docket Number | 13-CV-4933 (MKB) |
| Parties | UNITED STATES OF AMERICA and NEW YORK STATE ex rel. ORLANDO LEE, MELVILLE LUCKIE, and LUZ GONZALEZ, Plaintiffs, v. NORTHERN METROPOLITAN FOUNDATION FOR HEALTHCARE, INC., NORTHERN MANOR MULTICARE CENTER, INC., and NORTHERN MANOR ADULT DAY HEALTH CARE PROGRAM, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Relators Orlando Lee, Melville Luckie, and Luz Gonzalez ("Relators") brought this qui tam action on behalf of the United States of America and the State of New York (the "State") against Defendants Northern Adult Daily Health Care Center and Galena Deverman on September 4, 2013, alleging violations of the False Claims Act, 31 U.S.C. § 3729 et seq. (the "FCA"), and the New York State False Claims Act, N.Y. State Fin. Law § 187 et seq. (the "NYFCA"). (Compl. ¶¶ 175-241, Docket Entry No. 1.) Relators subsequently amended the Complaint twice, and in the Second Amended Complaint ("SAC") filed on October 7, 2016, Relators brought claims against Defendants Northern Metropolitan Foundation for Healthcare, Inc., Northern Manor Multicare Center, Inc., and Northern Manor Adult Day Health Care Program1 realleging claims for violations of the FCA and the NYFCA, and, in addition, alleging claims of retaliation under the FCA and NYFCA, and discrimination and retaliation under the New York City Human Rights Law (the "NYCHRL"). (SAC, Docket Entry No. 55.) Defendants moved for summary judgment as to all claims, (Defs. Mot. for Summ. J. ("Defs. Mot."), Docket Entry No. 94; Defs. Mem. in Supp. of Defs. Mot. ("Defs. Mem."), Docket Entry No. 94-1), and Relators opposed the motion, (Relators' Opp'n to Defs. Mem. ("Relators' Opp'n"), Docket Entry No. 98-4.)
Currently before the Court is a report and recommendation from Magistrate Judge James Orenstein, recommending that the Court grant Defendants' motion for summary judgment as to Relators' FCA and NYFCA claims and deny Defendants' motion as to Relators' FCA and NYFCA retaliation claims and NYCHRL discrimination and retaliation claims (the "R&R"). (R&R, Docket Entry No. 105.) Both parties filed objections to the R&R on March 27, 2019, (Relators' Obj. to R&R ("Relators' Obj."), Docket Entry No. 107; Defs. Obj. to R&R ("Defs. Obj."), Docket Entry No. 108), and the parties filed their respective replies on April 9, 2019, (Defs. Reply to Relators' Obj. to R&R, Docket Entry No. 111; Relators' Reply to Defs. Obj. to R&R, Docket Entry No. 112). By Order dated March 31, 2019, the Court granted Defendants' motion and dismissed Relators' FCA and NYFCA retaliation claims and NYCHRL discrimination and retaliation claims. (Order dated Mar. 31, 2019.) The Court reserved decisionas to Relators' qui tam claims and scheduled oral argument for April 26, 2019. (Id.) The Court explains the reasons for its decision below.
The following facts are undisputed unless otherwise noted. Defendants Northern Metropolitan Foundation for Healthcare, Inc., Northern Manor Multicare Center, Inc., and Northern Manor Adult Day Health Care Program operated an adult day care center located in Brooklyn, New York ("Northern Manor"). (Defs. Rule 56.1 Statement of Undisputed Material Facts ("Defs. 56.1") ¶ 2, Docket Entry No. 95.) Relators are former employees of Northern Manor. (Relators' Rule 56.1 Statement of Undisputed Material Facts ("Relators' 56.1") ¶¶ 1, 33, 37, Docket Entry No. 99.) Relators Lee, Luckie, and Gonzalez all worked at Northern Manor at various times and made similar complaints about alleged discriminatory treatment of Asian, African American, and Latino registrants that they observed at Northern Manor. (See generally Orlando Lee Dep. ("Lee Dep.") 21-66, annexed to Defs. Mot. as Exhibit Part 01, Docket Entry No. 94-8; Melville Luckie Dep. ("Luckie Dep.") 6-19, annexed to Defs. Mot. as Exhibit Part 01, Docket Entry No. 94-8; Luz Gonzalez Dep. ("Gonzalez Dep.") 28-51, annexed to Defs. Mot. as Exhibit Part 03, Docket Entry No. 94-10.)
Orlando Lee began working for Northern Manor in 2008 and worked at Northern Manor until approximately 2010 or 2011. (Lee Dep. 8:24, 198:4-5; Defs. Resp. to Relators' 56.1 Statement ("Defs. Resp. 56.1") ¶ 1, Docket Entry No. 97.) Because a majority of registrants at Northern Manor were Russian, Lee was responsible for recruiting Latino, Asian, and African American registrants. (Lee Dep. 12:18-13:14; Defs. Resp. to 56.1 ¶ 2.)
Lee testified that while at Northern Manor, he witnessed discrimination against Asian registrants (Lee Dep. 16, 29-30), Latino registrants (Lee Dep. 41:1-43:25; 146-147), and African American registrants (Lee Dep. 50:1-52:25, 146:7-10), (collectively, the "minority registrants"). Lee witnessed segregation of the minority registrants from Russian registrants during meals and group activities (Lee Dep. 18:1-20:25, 41:1-42:25, 50:1-51:25, 85:8-11), exclusion of minority registrants from outings, (Lee Dep. 20:1-22:25, 109:1-117:3), and discriminatory treatment of minority registrants while being transported to and from Northern Manor, (Lee Dep. 51:1-54:25, 73:1-74:25, 83:4-9, 97:1-98:25). Lee observed that Asian and Russian registrants were segregated; Asian registrants "were in [one] part of the facility . . . [and] Russian [registrants] were in another." (Lee Dep. 18:18-25.) In addition to discriminatory treatment of minority registrants, Lee testified at his deposition that Northern Manor did not provide diabetic meals to a diabetic registrant and served him food with "too much salt . . . sugar . . . [and] starches." (Lee Dep. 135:22-138:25.) On one occasion he observed two registrants outside of Northern Manor unattended "and wandering around the [Prospect Park] area." (Lee Dep. 163:1-25.) Lee complained after he encountered the couple, but is unsure whether Galena Deverman2 was informed of the incident. (Lee Dep. 164:1-25.) Lee also testified that Northern Manor employed two unlicensed social workers. (Lee Dep. 169:1-170:9.)
Lee repeatedly brought up his concerns about discrimination and the adequacy of services provided to registrants with Deverman, and was either ignored or reprimanded. (Lee Dep. 28:1-8.) "Whenever [Lee] brought . . . up that there was something going wrong . . . [and] that [Deverman] need[ed] to pay attention to it, [Deverman] would always push it aside." (Lee Dep.35:16-25.) Lee was aware that Northern Manor was not permitted to discriminate on the basis of race, creed, color, or religion, but he did not speak to a compliance officer about discrimination at Northern Manor because he "felt [he] would be fired." (Lee Dep. 38:1-25.) Lee did not want to "rock the boat more than [it was] already rocked." (Lee Dep. 38:19-25.) He was also told by Deverman not to write any email complaints, but to come to her office when he had any issues. (Lee Dep. 110:21-111:9.)
When Lee did send email complaints, Lee did not explicitly mention racism or discrimination to Northern Manor because he wanted to be "diplomatic" and did not want to be characterized as "a militant on [his] job and be fired the next day." (Lee Dep. 155:19-25.) Lee believes that Northern Manor "discriminat[ed] against [him] . . . because [he stood] up for residents. (Lee. Dep. 154:2-25.) Although Deverman never explicitly threatened to fire Lee due to his complaints about discrimination at Northern Manor, Deverman would tell him "look, you're just an employee here . . . keep your nose straight." (Lee Dep. 204:23-205:10.)
Lee left Northern Manor in 2010 or 2011. (Lee Dep. 8:24, 198:4-5; Defs. Resp. 56.1 ¶ 1.) He testified that he left Northern Manor because he was uncomfortable and felt pressured to leave because Deverman gave him a hard time about the Chinese registrants he recruited and would reprimand him whenever he raised any concerns. 3 (Lee Dep. 27:23-24, 148:1-149:25, 34:18-21, 205:5-20). Lee could not "stomach" the "discrimination [he saw] going on in front of [him]," and "felt like a threat was looming over [him]." (Lee Dep. 152:1-6.) Lee also felt like Deverman or one of the Russian staff was "going to take [him], stab [him], [or] hit [him]," because he stood up for the registrants. (Lee Dep. 152:1-154:25.) Lee further testified that hefelt physically threatened because he was getting "the look of doom and gloom," at Northern Manor, everyone was "quiet" and "cold," and because Northern Manor had "long passageways," which were dark. (Lee Dep. 152:1-153:25.)
Defendants dispute any deliberate segregation of minority registrants from Russian registrants during group activities, dining, or outings, stating that any segregation during meals or activities would have been voluntary due to differences in the languages spoken by the registrants. (Defs. Resp. 56.1 ¶¶ 4-12, 15-18, 30-32.) In addition, Defendants assert that the company responded to complaints regarding transportation by bringing in a third transportation company and then transitioning to having transportation managed in-house. (Deverman Dep. 61:2-5, 84-85, annexed to Defs. Mot. as Exhibit Part 03, Docket Entry No. 94-10.) Further, Defendants assert that its daily menu was approved by a nutritionist and dietician with full knowledge of all of the registrants' needs, (Deverman Dep. 47:1-50:25), and that the regulations at the time did not mandate that social workers be licensed, (Defs. Resp. 56.1 ¶ 29).
Defendants also dispute that Lee truly felt uncomfortable at Northern Manor or that anyone pressured him to leave. (Defs. Resp. 56.1 ¶ 13.) In addition, Defendants dispute that Lee felt that he would be fired if he talked about discrimination with a compliance officer at Northern Manor. (Id. ¶ 14.) Defendants asserts that "Lee repeatedly characterized Northern as a wonderful organization," and provided good wishes to Deverman months after his voluntary resignation. (Id. ¶ 25.)
1. Employment
Melville Luckie worked at Northern Manor...
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