neelu pal v nyu

IN THE

United States Court of AppealsFOR THE SECOND CIRCUIT

NEELU PAL, M.D.,

Plaintiff-Appellant,v.

NEW YORK UNIVERSITY,

Defendant-Appellee.

>> >>

BRIEF AND SPECIAL APPENDIX

FOR PLAINTIFF-APPELLANT

Jason Louis Solotaroff

GISKAN SOLOTAROFF ANDERSON

& STEWART LLP

Attorneys for Plaintiff-Appellant11 Broadway, Suite 2150

New York, New York 10004

212-847-8315

On Appeal from the United States District Courtfor the Southern District of New York (New York City)

13-3141-CVCase: 13-3141 Document: 41 Page: 1 12/04/2013 1106647 79

TABLE OF CONTENTS

Page

I. Preliminary Statement ................................................................................... 1

II. Statement of Subject Matter and Appellate Jurisdiction ............................... 2

III. Questions Presented ....................................................................................... 3 IV. Statement of the Case .................................................................................... 4

V. Statement of Facts .......................................................................................... 6

VI. Argument ...................................................................................................... 21

1. THE APPLICABLE STANDARD OF REVIEW ....................................... 21

2. THE DISTRICT COURT IMPROPERLY ALLOCATED THE BURDEN OF PROOF TO DR. PAL.. ............................................... 21

3. THE DISTRICT COURT ERRED IN FINDING THAT DR. PAL WAS NOT TERMINATED BECAUSE OF HER PATIENT SAFETY COMPLAINTS TO DR. BERNSTEIN. ................................................................................ 24

A. The District Court’s Key Findings Were Clearly Erroneous and Involved an Incorrect Application of Law to Facts .............................................. 24

i. The District Court’s Finding That Dr. Riles Was the Sole

Decision-maker Was Factually Wrong and, In Violation of Applicable Law, Failed To Consider Ren and Fielding’s

Influence on the Termination Decision ........................................ 25

a. The District Court’s Finding That Dr. Riles Was The Sole Decision-maker Is Clearly Erroneous ..................... 25

Case: 13-3141 Document: 41 Page: 2 12/04/2013 1106647 79

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b. The District Court Erred By Not Considering The Influence of Ren and Fielding on the Termination Decision .............................................................. 28 c. The Evidence Established that Ren and Dr. Fielding Acted With A Retaliatory Motive in Influencing The Termination Decision ............................... 29

4. THE DISTRICT COURT’S FINDING THAT DR. PAL WAS NOT

MOTIVATED BY A CONCERN ABOUT PATIENT CARE IS FACTUALLY INCORRECT AND LEGALLY IRRELEVANT .............. 33 A. The District Court’s Factual Findings Concerning Dr. Pal’s Motivation in Contacting Dr. Bernstein Were Clearly Erroneous .................................................................... 33

B. The District Court’s Findings Concerning Dr. Pal’s Motivation In Contacting Dr. Bernstein Were Legally Irrelevant. ............................................................................. 35

5. DR. PAL WAS ENTITLED TO A JURY TRIAL WITH RESPECT TO HER LEGAL CLAIMS OF LOST WAGES AND BENEFITS ............................................................... 36

VII. CONCLUSION ...................................................................................... 39


iii

TABLE OF AUTHORITIES

FEDERAL CASES Page(s)

Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004) .................................................................... 28

Bickerstaff v. Vassar College,

196 F.3d 435 (2d Cir. 1999) .................................................................... 28 Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry,

494 U.S. 558 (1990)................................................................................. 37 City of Monterey v. Del Monte Dunes,

526 U.S. 687 (1999)................................................................................. 37 Hawkins v. 1115 Legal Service Care,

163 F.3d 684 (2d Cir. 1998) .................................................................... 38 Holcomb v. Iona College,

521 F.3d 130 (2d Cir. N.Y. 2008) ........................................................... 28 LaMarca v. United States,

31 F.Supp. 2d 110 (E.D.N.Y. 1998) ........................................................ 23 See Luiso v. Northern Westchester Hosp. Center,

65 A.D.3d 1296 (2d Dept. 2009) ............................................................. 22 Majer v. Metropolitan Transp. Authority,

1990 U.S. Dist. LEXIS 16971 (S.D.N.Y. Dec. 14, 1990) ....................... 36 Noble v. 93 Univ. Place Corp.,

303 F. Supp. 2d 365 (S.D.N.Y. 2003) ................................................ 22,23 N.Y. Progress & Prot. PAC v. Walsh,

__ F.3d ___, 2013 U.S. App. LEXIS 21579 (2d Cir. 2013) ................... 21 Pal v. New York Univ.,

2013 U.S. Dist. LEXIS 110593 (S.D.N.Y. Aug. 6, 2013) ........................ 6


iv

Timberlake v.New York Presbyterian Hospital,

2009 U.S. Dist. LEXIS 89949 (S.D.N.Y. Sept. 20, 2009) ...................... 22 Roberts v. Royal Atl. Corp.,

542 F.3d 363 (2d Cir. N.Y. 2008) ........................................................... 21 Sanders v. Madison Square Garden, L.P.,

525 F. Supp. 2d 364 (S.D.N.Y. 2007). .................................................... 35 Scelfo v. Aurora Concept, Inc.,

2006 U.S. Dist. LEXIS 5473 (S.D.N.Y. Feb. 9, 2006) ........................... 22 Simler v. Conner,

372 U.S. 221 (1963)................................................................................. 36 STATE CASES

Whitman v. City of Burton, 493 Mich. 303 (2013) .............................................................................. 35

OTHER AUTHORITIES

28 U.S.C. §1291 ................................................................................................... 3 28 U.S.C. §1332. .................................................................................................. 3 Federal Rule of Civil Procedure 52(c) ...................................... 1,2,4,5,6,23,24,36 N.Y. Labor Law §741 ................................................................................. passim


1

I. Preliminary Statement

This is an appeal from a judgment of the United States District Court for the

Southern District of New York (Crotty, J.), entered on August 8, 2013, (Special

Appendix (“SPA”) 31), upon a Memorandum Order dated August 6, 2013, (SPA

16) granting the motion of Defendant-Appellee New York University (“NYU”)

pursuant to Federal Rule of Civil Procedure 52(c) and entering judgment for NYU

against Appellant Neelu Pal (“Dr. Pal”). Dr. Pal had claimed that NYU terminated

her employment in retaliation for her complaints of improper patient care in

violation of N.Y. Labor Law §741.

After the close of Dr. Pal’s case in a bench trial, the district court granted

NYU’s Rule 52(c) motion on the grounds that Dr. Pal did not establish she was

terminated in retaliation for her patient care complaints.

The district court made a clear error of law in effectively requiring Dr. Pal to

establish she was terminated for retaliatory reasons instead of requiring NYU to

establish, as an affirmative defense, that Dr. Pal was terminated for non-retaliatory

reasons. The district court also committed a clear error in making a factual finding

that Dr. Thomas Riles, the chairman of NYU’s Department of Surgery was the sole

decision-maker in the termination of Dr. Pal and misapplied the law in ignoring the


2

role and influence in the decision of Dr. Christine Ren and Dr. George Fielding,

who were Dr. Pal’s supervisors and the targets of Dr. Pal’s complaints. The

district court also committed clear error in making a factual finding, despite NYU’s

stipulation to the contrary, that Dr. Pal’s complaints relating to patient safety to Dr.

Carol Bernstein, NYU’s Assistant Dean for Graduate Medical Education, were

made in bad faith, and misapplied the law in considering that finding relevant to

her claim.

Had the district court allocated the burden of proof properly, made correct

factual findings and applied the law correctly, it would have found that NYU did

not meet its burden of establishing that Dr. Pal was terminated for a non-retaliatory

reason and that therefore, the Rule 52(c) motion should have been denied.

The district court also erred in striking Dr. Pal’s jury demand on the grounds

that Dr. Pal’s claims were equitable when, in fact, Dr. Pal sought not only wages

wrongfully withheld by NYU but wages she would have received from other

employers had she not been terminated.

Accordingly, the judgment of the district court should be reversed and the

case should be remanded for a jury trial.

II. Statement of Subject Matter and Appellate Jurisdiction

This is an action alleging violation of New York’s medical whistleblower


3

statute, Labor Law §741 by Dr. Pal, who was domiciled in New Jersey, against

NYU, a New York domiciliary.

The district court had jurisdiction over Dr. Pal’s claim by virtue of diversity

of citizenship of the parties pursuant to 28 U.S.C. §1332.

This Court’s appellate jurisdiction arises under 28 U.S.C. §1291. Dr. Pal

timely filed the notice of appeal on August 20, 2013. (SPA32).

III. Questions Presented

1. Whether the district court improperly allocated the burden of proof to

Dr. Pal to prove she was terminated for retaliatory reasons even though N.Y. Labor

Law §740 requires the employer to establish an affirmative defense that it

terminated the employee for non-retaliatory reasons.

2. Whether the district court erroneously made a factual finding that Dr.

Riles was the sole decision-maker responsible for Dr. Pal’s termination.

2. Whether the district court erroneously failed to consider the role and

influence of Ren and Riles in the termination decision.

3. Whether the district court erroneously made a factual finding that Dr.

Pal was not motivated by concern about patient safety in making her complaint.

4. Whether the district court erroneously based its decision on Dr. Pal’s

subjective motivation in making the complaints.


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5. Whether the district court erroneously struck Dr. Pal’s jury demand

where Dr. Pal sought lost wages that included wages she would have received from

other employers had she not been terminated.

IV. Statement of the Case

1. Relevant Procedural History

Dr. Pal filed the complaint in this action on August 4, 2006. (A21)

NYU filed an answer in this action on March 10, 2008. (A31)

In connection with NYU’s motion for summary judgment, on August 10,

2009, the district court judge, Crotty, J., held that calls Dr. Pal had made to patients

scheduled for bariatric surgery warning them that there were safety issues in the

bariatric surgery practice did not constitute protected activity pursuant to N.Y.

Labor Law §741. (A38)

The district court denied NYU’s motion for summary judgment and struck

Dr. Pal’s jury demand on January 25, 2010. (Special Appendix (“SPA”) 1).

The district court conducted a bench trial in this matter beginning on May 3,

2010 and ending on May 6, 2010. (A38-A684).

On May 6, 2010, at the close of Dr. Pal’s case, NYU moved for judgment

pursuant to Federal Rule of Civil Procedure 52(c). (A638). NYU contended that

Dr. Pal had not met her burden of establishing that she had made complaints


5

regarding patient care to Dr. Bernstein or that she was terminated because of those

complaints. NYU argued specifically that the evidence established that Dr. Pal had

made complaints to Dr. Bernstein about other issues but not patient care issues and

that Dr. Riles was the sole decision-maker for Dr. Pal’s termination and he

terminated her because of the phone calls she had made to the patients. (A638-

655).

Dr. Pal defended herself against NYU’s motion by contending that the

evidence showed that Dr. Pal had made patient care complaints to Dr. Bernstein

both in a meeting on January 25, 2006 and in an email she sent Dr. Bernstein

subsequent to the meeting. (A656). Dr. Pal argued that the evidence established

retaliatory motive on the part of Ren and Fielding and that the evidence established

they were participants, or at minimum had input, in the termination decision and

that accordingly NYU had not met its burden to show that Dr. Pal was terminated

for non-retaliatory reasons. (A656-A668).

The district court reserved decision on the motion. (A668).

Thereafter, prior to the close of the trial, the parties reached a settlement in

principle. The parties were not, however, able to agree on a settlement agreement.

On November 20, 2010, the parties appeared before the district court and

when the parties were still not able to reach a settlement, the district court stated


6

that it would decide the Rule 52(c) motion. (A790-796).

On November 1, 2011, counsel for Dr. Pal wrote the district court requesting

a decision on the motion. (A797).

On August 6, 2013, the district court issued a memorandum opinion and

order granting NYU’s Rule 52(c) motion, Pal v. New York Univ., 2013 U.S. Dist.

LEXIS 110593 (S.D.N.Y. Aug. 6, 2013) (SPA 16) and on August 8, 2013 issued a

judgment in NYU’s favor. (SPA31).

On August 20, 2013, Dr. Pal filed a timely notice of appeal. (SPA32).

V. Statement Of Facts

The evidence at the trial of this case was as follows.

In October 2005, Dr. Pal began working as a fellow in the bariatric surgery

practice at the New York University School of Medicine (“NYU” or “School of

Medicine”) under the supervision of Drs. Christine Ren (“Ren”) and George

Fielding (“Fielding”). (A487). Dr. Pal’s performance as a fellow was characterized

as excellent, (A52,126) and Ren considered making her a partner in the practice.

(A126).

Soon after beginning to work for Ren and Fielding, Dr. Pal became

concerned about patient safety. Dr. Pal found that the histories and physicals for

the bariatric patients were inaccurate in that they were missing important


7

information about the patients, such as sleep apnea and included incorrect

diagnoses. (A488). Dr. Pal also found that there was inadequate care for the post-

operative patients in the hospital. Ren had told Dr. Pal that a team of surgical

residents identified as Group 1 was designated to provide that care but those

doctors told Dr. Pal that they had been instructed not to care for the bariatric

patients. (A490). Indeed, Dr. Yael Bergknoff, a surgical resident in that group at

the time, testified that she was not aware of that responsibility and was asked to

provide care, on a seemingly ad hoc basis, for post-operative bariatric patients

about whom she knew nothing, which she described as “strange,” (A297) and

which she thought endangered the patients. (A306-307).

In addition, Dr. Pal learned that another bariatic fellow, Dr. Kim Chan, had

been instructed by NYU to not care for patients because of a licensing problem but

that Ren had instructed her to disregard NYU’s instructions. (A494).

In December 2005, prior to making the calls to the patients, Dr. Pal had

communicated these patient care complaints to Ren and Fielding, (A53,156) and

had sent an email concerning patient care issues to other administrators in NYU’s

Department of Surgery, including Dr. Thomas Riles, the chairman. (A768). Ren

reprimanded Dr. Pal for sending that email and instructed her to never raise issues

with hospital personnel again. (A496). Yet, by Ren’s own admission, these


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problems had not been resolved by the time Dr. Pal called the patients. (A767).

In January 2006, Dr. Pal’s concerns were realized in the most unfortunate

way. A bariatric patient of Fielding, Rhonda Freiberg, died in the hospital two

days after surgery. (A44-45). During the surgery, there was a concern that

Fielding had accidentally injured Ms. Freiberg’s spleen. (A496-497). Post-

operatively, Ms. Freiberg’s urine output was very low – a clinical indication that

something could be seriously wrong with her. (A56). Dr. Pal raised concerns about

Ms. Freiberg with Fielding, (A56), but Fielding was dismissive. (A498) .

The evening of Ms. Freiberg’s death, Dr. Pal transferred responsibility for

her care to Dr. Marcia Harris, a surgical resident (A499) who was working with

Dr. Bergknoff that evening. (A60). Dr. Bergknoff knew nothing about the patient,

(A300, 304), did not know that Ren was on call, (A60, 299), and took no action

even after being repeatedly called by concerned nurses. (A305).

After Ms. Freiberg’s death, Ren blamed Dr. Bergknoff for the care of this

patient, (A767,61,141), and accused Dr. Bergknoff of falsely stating that Dr. Pal

had instructed her to remove an IV from Ms. Freiberg. (A66). Indeed, Fielding

and Ren believed that Dr. Bergknoff had made a chart entry relating to that alleged

instruction out of sequence in an effort to protect herself. (A106,182).

Ren and Fielding asked Dr. Pal to prepare a timeline of the events related to


9

Ms. Freiberg (A504) and also requested that she prepare a Morbidity and Mortality

(“M&M”) report about the case. (A507). After Dr. Pal sent the M&M report and

chronology to Fielding, he said the report was “fine to send” and the chronology

was “excellent.” (Sealed Appendix 16). Fielding also stated that Dr. Pal had done

“nothing incorrect or deficient in the care of this woman.” (Id., A505). The

following week, another patient almost died because of an adrenal reaction which

might have been avoided had a more comprehensive medical history of the patient

been taken. (A514-515).

On Friday, January 21, 2006, Dr. Pal was reviewing the charts of the patients

scheduled for surgery the following Monday. (A516). She noticed that many of

the histories and physicals seemed incomplete and inaccurate. (Id.). Dr. Pal spoke

to Ren who was dismissive of her concerns. (Id.). Dr. Pal became so concerned for

the safety of patients scheduled for surgery the following week that she called them

and, after indentifying herself as a person who worked in the operating room,

advised them that there had been problems with the bariatric surgery practice and

to discuss the risks and benefits of the surgery with the surgeons and with hospital

administrators. (A517-518).

Notably, there is no evidence that Dr. Pal was instructed on the proper steps

to take when a resident or fellow has concerns about patient care. Deborah


10

Considine, an NYU administrator, testified that the only training NYU offered on

these procedures was an online training course that was not mandated for residents

and fellows. (A403-404)

NYU learned about the calls on Saturday, January 21, the day they were

made, when some of the patients who had been called told NYU administrators

about them. (A670). At that time, NYU personnel advised Ren that that the

individual who had called the patients was a woman, spoke with an accent, and

identified herself as someone who worked in the operating room. (A70,159). Dr.

Pal was female, spoke with an accent, and worked in the operating room. (A71).

Both Ren and Fielding believed that Dr. Pal had been acting strangely at the time

the calls were made. (A72,159). Yet both Fielding and Ren claimed that they had

no suspicion Dr. Pal was the caller, (A72,161) with Ren testifying that she did not

know Dr. Pal had an accent because “[s]he doesn't have an accent to me. She was

my friend.” (A167).

Mona Sonnenshein, a senior administrator at NYU, had identified Dr. Pal

has the person who had called the patients on Monday, January 23, 2006.

(A161,673). Ms. Sonnenshein did not take or request any action that day against

Dr. Pal. (A679). Instead, Ms. Sonnenshein told Ren. (Id.). Ren told Ms.

Sonnenshien that she did not believe that Dr. Pal had made the phone calls and


11

requested that Ms. Sonnenshein not tell anyone at NYU about the matter. (A162).

Ren also did not seek immediate disciplinary action against Dr. Pal, seek or pursue

a further investigation into the telephone calls, (A164), speak to Dr. Thomas Riles,

the Chairman of NYU’s Department of Surgery, or speak to Dr. Max Cohen,

NYU’s Chief Medical Officer. (A165). Ren did not even attempt to speak to Dr.

Pal about the calls. (A165). Ren did tell Fielding on Monday that Dr. Pal had been

identified as the caller, (A165), even though Fielding testified at trial, in

contradiction to his deposition testimony, that he was unaware that Dr. Pal had

called the patients until Tuesday, January 24. (A106).

Even on Tuesday January 24, after Ren and Fielding indisputably knew Dr.

Pal had called the patients, Ren and Fielding continued to conduct normal business

with Dr. Pal (A708,75). Ren even had email correspondence that day with Dr. Pal

in which she did not mention the calls to the patients but mentioned speaking to

Dr. Pal about Dr. Pal’s patient safety concerns at the next staff meeting. (A706).

On Monday, January 23, Dr. Pal called Dr. Carol Bernstein, the Associate

Dean of Graduate Medical Education at NYU and arranged to meet with her the

next day, January 24, 2013. (A323, 521-522). Dr. Bernstein had oversight for the

residency and fellowship training programs at NYU. (A322). Dr. Pal told Dr.

Bernstein of her concerns about patient safety and that she had called the patients.


12

(A522). Dr. Bernstein told Dr. Pal not to inform Ren about having made the calls

until Dr. Bernstein spoke to Dr. Pal again. (A523). Dr. Bernstein then called Dr.

Richard Levin, who was her supervisor, (A329), and Dr. Max Cohen, NYU’s Chief

Medical Officer, to discuss her meeting with Dr. Pal but did not mention the calls

to the patients to either of them. (A329).

Although Dr. Bernstein testified that she did not believe Dr. Pal’s primary

concern in speaking to her was patient safety, (A346-347), according to Dr.

Bernstein’s contemporaneous notes of that meeting, the first thing Dr. Pal told Dr.

Bernstein was that she was concerned about the safety of the patients. (A775, 366).

Dr. Pal specifically told Dr. Bernstein that she was concerned that the histories and

physicals for bariatric patients were missing important information, (A366), that

she did not have time to obtain meaningful consent from the patients, (A368), that

she was being asked to sign off on histories and physicals when she had not seen

the patients, (A327), and was being asked to put in orders for patients she had not

seen. (A328). Moreover, Dr. Bernstein admitted at her deposition that Dr. Pal had

come to her to complain about patient care deficiencies. (A371-373). Finally, Dr.

Pal emailed Dr. Bernstein a summary of the patient care concerns that she had

raised, (A709), for which Dr. Bernstein had thanked Dr. Pal, (A375), and in an

interview with the appeals committee that reviewed Dr. Pal’s subsequent


13

termination, Dr. Bernstein stated that the email was “a fairly accurate summary” of

the meeting. (A738).

On Tuesday, January 24, Ren called Dr. Pal. Even though Ren had been told

the day before that the investigation had revealed that Dr. Pal had made the calls to

patients, Ren did not call Dr. Pal to question her about the calls but to see how Dr.

Pal was feeling. (A165). In this conversation, Dr. Pal told Ren that she had spoken

to Dr. Bernstein, including that she had raised patient safety concerns and that she

had made the calls to the patients. (A526).

Fielding and Ren knew that Dr. Bernstein was involved in the investigation

of Ren by NYU for employing and supervising unlicensed physicians.

(A79,126,171). Fielding called Dr. Bernstein at 11:00 at night on January 24.

(A331). Dr. Bernstein was surprised that Fielding was calling her at that time. (Id.).

Fielding told Dr. Bernstein that he believed Dr. Pal was having a psychotic break.

(A81). Dr. Bernstein told Fielding that if he felt that way he should have contacted

her earlier. (A332).

At a meeting on Wednesday, January 25 that was attended by Dr. Thomas

Riles, who was the chairman of the NYU Department of Surgery, Dr. Max Cohen,

who was the Chief Medical Officer at NYU and Ren, (A83), Fielding again

questioned Dr. Pal’s mental state, and characterized her preparation of the M & M


14

reports as bizarre. (A425). The participants at the meeting decided Dr. Pal would

be suspended. At that meeting, the fact that Dr. Pal called Dr. Bernstein to

complain about patient safety was also discussed. (A427).

Dr. Pal then attended a subsequent meeting with Ren, Fielding, Dr. Riles and

Dr. Bernstein at which Dr. Pal was given a suspension letter. (A527). Dr.

Bernstein, who Ren perceived was at the meeting as an advocate for Dr. Pal,

(A176-177), stated at the meeting that Ren and Fielding would be investigated.

(A176).

On February 4, 2006, Fielding wrote an email on behalf of both he and Ren

to Dr. Cohen, regarding Dr. Pal. (A711,176). Fielding testified that he sent the

email to Dr. Cohen because Dr. Cohen “was a person who was going to have some

decisions to make about [Dr. Pal’s situation].” (A85). Fielding stated that what

was more distressing than Dr. Pal’s calls to the patients was that Dr. Pal’s

complaints about patient safety were to Dr. Bernstein were “being given some

credence at NYU.” (A711). Fielding stated that he believed the comments were

being given credence because Dr. Bernstein had “shifted the whole thing from Dr.

Pal has done a bad thing which is our honest opinion to Dr. Pal says she did that

bad thing because we were dangerous, and to me that was nonsense.” (A85). Ren

was also upset at that time that Dr. Bernstein had suggested that her program


15

should be investigated and believed that NYU was afraid that Dr. Pal would take

legal action. (A183).

In the email, Fielding also provided a narrative of the events that led to the

calls to the patients. (A712-713). The narrative, however, changed important facts.

While prior to Dr. Pal speaking to Dr. Bernstein, Ren had blamed Dr. Bergknoff

for falsely accusing Dr. Pal of telling Dr. Bergknoff to remove the IV from the

patient, (A144) now Fielding stated that Dr. Pal had instructed Dr. Bergknoff to

remove the IV and that Dr. Bergknoff had acted correctly. (A713).

In the email, Fielding faulted Dr. Pal for her preparation of a Morbidity and

Morality (“M & M”) report relating to Ms. Freiberg that he claimed was “awful,”

(Id.) even though at the time of his trial testimony Fielding could not identify

anything awful in the various drafts of the M & M. (A94). Fielding also faulted

Dr. Pal for preparing a timeline of the Freiberg case, (A713) even though in

response to an email from Dr. Pal enclosing the timeline, he thanked her for it and

said it was “excellent.” (Sealed Appendix 16). Fielding also proposed, however,

that Dr. Pal be reinstated but only so long as “she gets rid of the lawyers.” (A714).

Fielding was aware at that time that Dr. Pal had retained an attorney. (A97).

Fielding explained his willingness to reinstate Dr. Pal on the ground that “everyone

can make mistakes.” (A714).


16

Dr. Cohen forwarded Fielding’s email to Lynn Lowy, an NYU attorney

assigned to the matter, with the message, “I don’t think he and Chris understand

the risks they are exposed to. I’m not inclined to change our current strategy.”

(A715). At that time, NYU was considering a proposal from Dr. Pal’s attorney,

Paul Rooney, to permit Dr. Pal to compete her fellowship by performing rotations

at other hospitals. (A726,529).

Shortly after Fielding sent his email, he and Ren learned that NYU had

reported Ren to the New York State Office of Professional Misconduct (“OPMC”).

(A101-102). NYU made this report based on an investigation that found that 1)

Ren had permitted unlicensed physicians to practice in the bariatric program,

potentially endangering patients; 2) that Ren disregarded instructions from NYU to

not permit the unlicensed physicians to practice; 3) that Ren intentionally deleted

one of the physicians’ names from operative reports; 4) and that Ren paid one of

the physicians improperly using a “fraudulent independent contractor agreement”

to circumvent NYU’s procedures. (A702-703,184).

On February 9, 2006, Fielding wrote another email to Dr. Cohen, retracting

his offer to reinstate Dr. Pal. Fielding began the email by repeating that he made

the reinstatement offer because he felt “everyone could make mistakes,” and added

that he also offer, in part, “to help NYU, knowing that the hospital wanted to avoid


17

any enquiry.” (A723). Fielding went on to draw a contrast between NYU’s

reporting of Ren to the New York State Office of Professional Misconduct and

what he perceived to be NYU’s handling of Dr. Pal. He stated “at the very

mention of Pal getting a lawyer to challenge us and the hospital, the hospital’s

inclination to is cave in to her.” (Id.). Fielding went on to castigate the hospital for

investigating Dr. Pal’s concerns about patient care:

At the meeting with Pal to inform her of her suspension on January 25th, Carol Bernstein, in her role as Pal’s advocate, emphasized the importance of

investigating our practice as well as deciding Pal’s future. What total drivel.

(Id.).

Even though the email makes no mention of patients’ reactions to the calls,

Fielding and Ren testified at trial that they changed their minds about Dr. Pal’s

reinstatement because in the five days between the emails they had seen two of the

patients who continued to be upset about the calls. (A103,185-186). Fielding had

not, however, offered this explanation for the change in position when he testified

at an internal appeals proceeding related to Dr. Pal’s termination. (A754). Ren also

had not testified to that explanation at her deposition. (A186).

After Ren and Fielding changed their mind about Dr. Pal’s reinstatement,

Dr. Pal was terminated. (A188). According to NYU’s regulations, the process of

terminating a resident or fellow such as Dr. Pal begins with the recommendation of


18

termination by the program director, here Ren, and the decision is made by the

department chair, who was Dr. Riles. (A784). In this case, however, Ren and

Fielding met with Dr. Riles and Dr. Cohen to decide NYU’s course of action with

respect to Dr. Pal. Fielding and Ren stated that they would not take Dr. Pal back

into their program, (A190), advocated for Dr. Pal’s dismissal (A107,190), and Ren

described herself as “one of the people who made the decision” to terminate Dr.

Pal. (A188). Ren elsewhere testified that “[a]s a group we decided that we were not

going to take [Dr. Pal] back into the NYU program.” (A191). Dr. Riles testified

that “everybody that was there that was involved … all unanimously agreed that

she should be terminated.” (A226). Although Dr. Riles also testified that he had

made the termination decision himself, (A227), he also admitted that a factor in

that decision was that he did not believe that Dr. Pal “would be able to come back

and work for Ren and Fielding, after what had happened.”(A228). Deborah

Considine, the director of graduate medical information, testified that the decision

was made by an ad hoc committee of Dr. Riles, Ren and Dr. Cohen. (A403). Lynn

Lowy, the NYU lawyer assigned to the matter, testified at trial that it was a

collective decision of the persons present at the meeting. (A451).

Dr. Pal appealed her termination pursuant to NYU’s procedures. The

appeals panel upheld the termination on the ground that it was not arbitrary or


19

capricious. The appeals panel, however, was not shown Fielding’s email in which

he rescinded his termination proposal. (A442-443).

In contrast to NYU’s harsh, uncompromising and retaliatory treatment of Dr.

Pal, NYU has generally been lenient with its physicians who take actions that

actually endanger patients. The mistakes made by other residents and fellows that

have endangered patients have been considered part of the learning process,

(A235), and those residents have received letters of reprimand. (A237).

More specifically, even the discovery of the facts of this case revealed

NYU’s extraordinary lenience and forgiveness for physicians whose errors actually

endangered patients and which, in one case, resulted in the death of a patient.

Ren permitted physicians under her supervision to practice medicine even

though she had been specifically informed that the physicians were not licensed

and could not practice, (A702-703) thereby potentially endangering patients.

(A703). Ren had also gone back and altered medical records to remove the names

of the unlicensed physicians. (A213-214). Dr. Riles testified that Ren’s conduct

needed to be taken seriously. (A311). Yet the only discipline imposed by NYU on

Ren, other than the mandatory report of the incident to the New York State Office

of Professional Medical Conduct, was the placing of a letter of reprimand in her

file that was subsequently removed. (A192).


20

Even more seriously, according to the New York State Department of

Health, Fielding’s care of two patients had been highly improper in that he did not

ensure that Ms. Freiberg was cared for post-operatively, (A761) and that, with

respect to another patient who was enrolled in one of Fielding’s research studies,

Fielding falsified an operative report and performed an appendectomy where there

was no indication of appendicitis, apparently to conceal an adverse outcome

related to the bariatric procedure. (A760). NYU has not disciplined Fielding in any

way for these errors. (A108).

Fielding was not the only NYU physician at fault in Ms. Freiberg’s death.

Ren specifically blamed Dr. Yael Bergknoff for her deficient care of Ms. Freiberg

in an email accusing her of “dangerous behavior” and “poor care.” (A767). In

addition, Dr. Bergknoff post-dated an entry in Ms. Freiberg’s chart to protect

herself and blame Dr. Pal. (A68,134).

Dr. Bergknoff was not disciplined for any of these matters. (A241,305). Dr.

Bergknoff testified that she never was even spoken to about any deficient

performance with respect to Ms. Freiberg. (A305).

The New York State Department of Health, in response to a complaint from

Dr. Pal, issued a statement of deficiencies to NYU with respect to the bariatric

program including specific findings that the bariatric program permitted unlicensed


21

physicians to practice, entered false information on an operative report, and

provided inadequate care to Ms. Freiberg. (A757). In its cover letter to Dr. Pal, the

Department of Health noted that Dr. Pal’s “report of this situation should prevent a

recurrence of this problem to other patients,” and thanked her “for bringing this

matter to our attention.” Id.

NYU stipulated that Dr. Pal had a reasonable good faith belief that NYU

was engaged in improper quality of patient care within the meaning of N.Y. Labor

Law §741. (A637,755).

VI. Argument

1. THE APPLICABLE STANDARD OF REVIEW.

After a bench trial, this Court reviews the district court's conclusions of law

and its conclusions on mixed questions of law and fact de novo and its findings of

fact for clear error. Roberts v. Royal Atl. Corp., 542 F.3d 363, 367 (2d Cir. N.Y.

2008). A finding is “clearly erroneous when although there is evidence to support

it, the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed." N.Y. Progress & Prot. PAC v.

Walsh, __ F.3d ___, 2013 U.S. App. LEXIS 21579, 3-4 (2d Cir. 2013).

2. THE DISTRICT COURT IMPROPERLY ALLOCATED THE BURDEN OF PROOF TO DR. PAL.

Although the district court failed to specifically make a conclusion of law


22

about the burden of proof, as set forth below, it appears that the district court

erroneously allocated the burden to Dr. Pal.

New York Labor Law §741(2) prohibits an employer from engaging in

“retaliatory action” against an employee who provides health care services and

who makes a complaint relating to improper patient care. The statute provides a

defense to the employer that the personnel action was “predicated upon grounds

other than the employee's exercise of any rights protected by this section.” New

York Labor Law §741(5).

Based on the statute’s structure, the employer has the burden of proof to

establish an affirmative defense that the personnel action was non-retaliatory. See

Scelfo v. Aurora Concept, Inc., 2006 U.S. Dist. LEXIS 5473,*48 (S.D.N.Y. Feb. 9,

2006)(holding “[i]t is the defendant's burden to prove that there is a lack of a causal

connection between the job action and the protected activity.”); Noble v. 93 Univ.

Place Corp., 303 F. Supp. 2d 365, 374 (S.D.N.Y. 2003)(similarly holding “burden

of proof lies with the employer to show a lack of causal connection between the

employee's protected conduct and the employer's adverse personnel action.”);

Luiso v. Northern Westchester Hosp. Center, 65 A.D.3d 1296, 1298 (2d Dept.

2009)(affirming summary judgment where employer established non-retaliatory

basis for adverse employment action); Timberlake v. New York Presbyterian


23

Hospital, 2009 U.S. Dist. LEXIS 89949, *17 (S.D.N.Y. Sept. 20, 2009) (granting

summary judgment where defendant offered “ample evidence” to establish non-

retaliatory basis for termination).

In denying summary judgment, the district court noted that both sides

contended that the other had the burden of proof, cited Noble for the proposition

that the burden of proof was on NYU but then denied summary judgment without

ruling on the issue, finding that summary judgment was inappropriate even if Dr.

Pal had the burden of proof. (SPA 8-9).

In its decision on the 52(c) motion the district court did not explicitly

address the issue of burden of proof on the causation element but appears to have

applied the burden to Dr. Pal. The district court noted that an element of a claim

under §741 is that the “plaintiff was terminated because of protected activity.”

(SPA19). Moreover, in dismissing the action pursuant to Rule 52(c), and by

making a finding that the termination was based on the calls to patients and not the

communications to Dr. Bernstein, the district court implicitly imposed the burden

of proof on Dr. Pal. After all, the district court could only grant the Rule 52(c)

motion at the close of Dr. Pal’s case if it found that Dr. Pal had not established an

element of her claim. See LaMarca v. United States, 31 F.Supp. 2d 110, 123

(E.D.N.Y. 1998)(cited by district court for the proposition that Rule 52(c)


24

“authorize[s] a dismissal at the close of the plaintiff’s case if the plaintiff ha[s]

failed to carry an essential burden of proof.”).

Although the district court elsewhere in its decision noted that Dr. Pal’s

communications to Dr. Bernstein were sufficient to “shift the burden to NYU to

demonstrate that Pal’s termination was not due to her complaints to Bernstein,”

and made a finding that “NYU has demonstrated that Pal’s termination was not

caused by her disclosures ….” (SA13), the district court did not explain how it had

done so in the context of a Rule 52(c) motion at the conclusion of Dr. Pal’s case.

Accordingly, the district court appeared to allocate the burden of proof to

Dr. Pal and did so erroneously.1

3. THE DISTRICT COURT ERRED IN FINDING THAT DR. PAL WAS NOT TERMINATED BECAUSE OF HER PATIENT SAFETY COMPLAINTS TO DR. BERNSTEIN.

A. The District Court’s Key Findings Were Clearly Erroneous and Involved

an Incorrect Application of Law to Facts.

The district court’s decision was premised on two essential factual holdings

both of which were clearly wrong: 1) that Dr. Riles was the sole decision maker

with respect to Dr. Pal’s termination and Ren and Fielding “were not responsible”

for the termination decision; (SA14-15) and 2) that Dr. Pal’s communications with

1 To the extent this Court holds that the district court properly imposed the burden of proof on NYU, Dr. Pal contends that the district court erroneously found that NYU established that she was terminated for non-retaliatory reasons.


25

Dr. Bernstein were not primarily about inadequate patient care but made in an

effort to protect herself for being blamed for a patient’s death. (SA14). Moreover,

for each of the findings, the district court did not perform the appropriate legal

analysis. Even if the district court’s finding that Dr. Riles was the sole decision-

maker was correct, the district court failed to consider the effect of the retaliatory

animus of Ren and Fielding on Dr. Riles’ decision. Similarly, even the district

court was correct in that Dr. Pal’s motivation in speaking to Dr. Bernstein was to

protect herself, that motivation was in no way relevant so long as it was known to

the decision-makers that Dr. Pal had in fact raised concerns about patient care

issues to Dr. Bernstein.

i. The District Court’s Finding That Dr. Riles Was The Sole Decisionmaker Was Factually Wrong and, In Violation of Applicable Law, Failed To Consider Ren and Fielding’s Influence

on the Termination Decision.

a. The District Court’s Finding That Dr. Riles Was The Sole

Decision-maker Is Clearly Erroneous.

The district court disregarded a mountain of evidence that showed that Dr.

Riles was not the sole, or even the primary decision-maker with respect to Dr.

Pal’s termination.

This evidence begins with NYU’s actual disciplinary procedures. (A777). As

the district court noted elsewhere in its opinion, (SA11), these procedures required


26

Ren, as the program director of the bariatric program, to recommend Dr. Pal’s

dismissal before Dr. Riles could make any decision. (A784). The procedures also

specified that the termination decision would be made by Dr. Riles as the

department chair “in consultation with the director [Ren].” Id. Accordingly, even

to the extent NYU strictly followed its procedures, Ren was significantly involved

in the decision.

Moreover, the evidence concerning the way the actual decision was made

established that the decision was a collaborative decision involving Ren, Fielding

and others. Deborah Considine, the director of graduate medical information,

testified that the decision was made by an ad hoc committee of Dr. Riles, Ren and

Dr. Cohen. (A403). Lynn Lowy, the NYU lawyer assigned to the matter and who

was present at the termination meeting, testified that it was a collective decision of

the persons present at the meeting. (A451). Ren herself described herself as “one

of the people who made the decision” to terminate Dr. Pal, (A188), and testified

that “[a]s a group we decided that we were not going to take [Dr. Pal] back into the

NYU program.” (SA191). Even Dr. Riles, while claiming that he made the

decision himself, described a collective decision, “everybody that was there that

was involved … all unanimously agreed that she should be terminated.” (SA216).

Moreover, circumstantial evidence established that Dr. Riles was not even


27

the primary decision-maker. When Fielding and Ren offered to reinstate Dr. Pal,

Fielding directed the email containing the offer not to Dr. Riles (who was copied)

but to Dr. Cohen, the chief medical officer for NYU. (A711). Fielding testified

that he sent the email to Dr. Cohen because Dr. Cohen “was a person who was

going to have some decisions to make about [Dr. Pal’s situation].” (A85). When

Fielding and Ren changed their minds and decided they would no longer take her

back, Fielding communicated this in an email addressed to Dr. Cohen and other

senior personnel at NYU without even copying Dr. Riles. (A723). Most

significantly, after Dr. Cohen received the reinstatement email, he sent an email

with his reaction, that he “was not inclined to change our current strategy,” not to

Dr. Riles but to Lynn Lowy, NYU’s attorney, as “relevant” to Ms. Lowy’s

discussions with Dr. Pal’s attorney. (A715).

This was consistent with the way Dr. Cohen orchestrated other disciplinary

matters at NYU. With respect to Ren’s disciplinary proceeding, the process began

when Dr. Cohen instructed Dr. Riles to request an investigation of Ren. (A208-

209). Although the process required Dr. Riles to appoint the members of an

investigatory committee, Dr. Cohen rejected Dr. Riles’ selections for that

committee and instructed Dr. Riles to appoint different members. (A210).

Accordingly, the evidence clearly established that Dr. Riles was not the sole


28

decision-maker with respect to Dr. Pal’s termination and the district court’s finding

was clearly erroneous.

b. The District Court Erred By Not Considering The Influence of

Ren and Fielding on the Termination Decision.

Even if the district court was correct that Dr. Riles was the decision-maker,

the district court erred in not considering the effect Ren and Fielding had on that

decision. Ren commenced the process that resulted in the termination decision, she

and Fielding stated that they would not take Dr. Pal back, (A191) and advocated

for her termination, (A107) and Dr. Riles made clear that Ren and Fielding’s

unwillingness to work with Dr. Pal in the future was one of the reasons she was

terminated. (A228).

This Court has held in other wrongful termination contexts that an unlawful

motive on the part of a non-decision-maker may result in an unlawful employment

action if “the individual shown to have the impermissible bias played a meaningful

role in the [decision-making] process.” Bickerstaff v. Vassar College, 196 F.3d

435, 450 (2d Cir. 1999). In Holcomb v. Iona College, 521 F.3d 130 (2d Cir. N.Y.

2008), a basketball coach claimed that he had been terminated based on racial

prejudice. Even though there was no evidence that the formal decision-maker was

motivated by racial bias, this Court reversed summary judgment for the college

based on evidence that two individuals motivated by race animus had influence on


29

the decision. Id. at 143. See also Back v. Hastings on Hudson Union Free Sch.

Dist., 365 F.3d 107,126 (2d Cir. 2004)(reversing summary judgment where

supervisors with discriminatory animus communicated criticisms of employee’s

performance to the decision-maker).

Accordingly, it was error for the district court to focus solely on Dr. Riles

and ignore the influence Ren and Fielding had on the termination decision.

c. The Evidence Established that Ren and Fielding Acted With A

Retaliatory Motive in Influencing The Termination Decision.

Although the district court made a finding that it “recognizes Ren and

Fielding had mixed motives, and frequent changes of position on retaining or

terminating Pal,” (SPA29), the district court does not state specifically how it

reached that conclusion, what it found to be Ren and Fielding’s “mixed” motives,

or whether those motives included an intention to retaliate against Dr. Pal for

speaking to Dr. Bernstein about patient care.

The evidence, however, clearly established that Ren and Fielding were

angry that Dr. Pal had complained about the safety of the bariatric program and

retaliated against Dr. Pal for doing so.

This is made clear by Fielding’s own words. In Fielding’s first email to Dr.

Cohen, he wrote that what is “more distressing [than Dr. Pal’s calls to the patients]

is for us to realize that her comments are being given some credence at NYU.”


30

(A711). Fielding was only willing to reinstate Dr. Pal “if she gets rid of the

lawyers,” (A714), who were representing her connection with NYU. Similarly, in

Fielding’s second email to Dr. Cohen, he characterized as “total drivel” a statement

by Dr. Bernstein that the bariatric practice would have to be investigated as a result

of Dr. Pal’s complaints. (A723).

Moreover, an inference of retaliation should have been drawn based on the

timing of the events and actions in the case.

Dr. Pal had claimed that Fielding and Ren likely knew almost immediately

that she was the person who called the patients based on the fact that both the

caller and Dr. Pal were female, worked in the operating room, spoke with an accent

and were concerned with patient care and that Fielding and Ren believed that Dr.

Pal was acting strangely in the week before the calls were made. (A70-71,167,619-

20). The district court dismissed this argument on the ground that “many others”

had these attributes, (SPA25, n.5), without providing any record citation and

despite the absence of any evidence in the record whatsoever that even one other

hospital employee had all of those attributes.2

Moreover, even if the district court was correct in rejecting Dr. Pal’s

argument that Ren and Fielding likely realized she was the caller almost

2 The district court also ignored Ren’s incredible testimony that she did not notice

Dr. Pal’s accent because Dr. Pal was her friend. (A167).


31

immediately, it was uncontested at trial that Ren and Fielding knew on Monday

afternoon, January 24, that Dr. Pal had made the calls. (A165). Yet not only did

they do nothing about it at that time, Ren actually directed Mona Sonnenshein, a

senior administrator at NYU, to tell no one. (A162). As a result, Dr. Pal was not

subject to any type of disciplinary, corrective or preventive action, such as the

confiscation of her hospital identification. (A679)

There was no evidence that Ren, Fielding or anyone else at NYU took any

action against Dr. Pal the next day, Tuesday, January 25, either. In fact, both Ren

and Fielding corresponded by email with Dr. Pal that day, about patient care

issues, no less, and neither mentioned the calls to the patients. (A706,708)(A75).

Fielding made no calls that day to Dr. Bernstein to raise concerns about Dr. Pal’s

psychiatric state. There is no evidence that any further action would have been

taken against Dr. Pal had she not met with Dr. Bernstein that day and raised patient

care issues. It was not until Dr. Pal called Ren and told her that she had made the

calls and had spoken to Dr. Bernstein about patient care issues that disciplinary

process began. It was also not until Fielding knew that Dr. Pal had spoken to Dr.

Bernstein that he called Dr. Bernstein to express concerns about Dr. Pal’s

psychiatric fitness. (A81).

The timing is also important in another sense. At the time, Dr. Pal spoke to


32

Dr. Bernstein, Ren was being investigated for serious misconduct involving the

licensing status of the prior bariatric fellows and Dr. Bernstein had been involved

in that investigation. (A79,126,171). This likely explains the anger of Ren and

Fielding concerning any further investigation of their practice. Their anger

exploded after NYU reported Ren to the Office of Professional Medical Conduct,

resulting in Ren and Fielding withdrawing their offer to reinstate Dr. Pal.

Finally, NYU did not controvert the inference of improper animus that arose

from Ren and Fielding’s contradictory and untruthful explanations for their

actions. These included Ren claiming at trial that she had suspected an employee

in the admitting office of being the caller, (A160), when in her deposition she

claimed to have no specific suspect in mind; (Id.) and Fielding claiming at trial that

he was not told Dr. Pal was the caller until Tuesday, January 25, (A64), when he

had admitted in his deposition, (A106) and Ren had testified, (A162) that he knew

Dr. Pal was the caller on Monday, January 24.

The most significant contradictions related to the attempts of Ren and

Fielding to come up with a non-retaliatory explanation for why they were willing

to reinstate Dr. Pal on February 4th but not willing to do so on February 9th. These

explanations ranged from Fielding’s statement to the appeals committee that their

change of heart was the result of speaking to doctors from Dr. Pal’s residency


33

program and further reflection, (A754), even though Ren had spoken to those

doctors before the offer to reinstate was made, (A178), to Ren and Fielding’s

completely different testimony at trial that they changed their mind because during

those five days they happened to meet with patients who had been called by Dr.

Pal and the alleged continued distress of those patients made them realize they

could not take Dr. Pal back. (A103,185-186).

Accordingly, the “mixed motives” the district court ascribed to Ren and

Fielding included a strong desire to punish Dr. Pal for raising patient care issues

with Dr. Bernstein, and given Ren and Fielding’s influence on the termination

decision, should have caused the district court to find that NYU had not met its

burden to establish that Dr. Pal was terminated for non-retaliatory reasons.

4. THE DISTRICT COURT’S FINDING THAT DR. PAL WAS NOT MOTIVATED BY A CONCERN ABOUT PATIENT CARE IS FACTUALLY INCORRECT AND LEGALLY IRRELEVANT.

A. The District Court’s Factual Findings Concerning Dr. Pal’s Motivation in Contacting Dr. Bernstein Were Clearly Erroneous.

Dr. Carol Bernstein, who during Dr. Pal’s disciplinary proceedings had been

perceived as Dr. Pal’s advocate, (A723), reversed course at trial and provided

demonstrably false testimony at trial to malign Dr. Pal and assist NYU. Dr.

Bernstein testified that during her meeting with Dr. Pal, Dr. Pal was mainly

concerned with being blamed for the death of Rhonda Freiberg – not with patient


34

safety – and that the email Dr. Pal sent to Dr. Bernstein summarizing the meeting

was a misleading “set up.” (A346-347).

Dr. Bernstein’s testimony was, however, flatly discredited by highly

persuasive evidence.

First, Dr. Bernstein’s contemporaneous notes of the meeting showed that the

first thing Dr. Pal mentioned to her was Dr. Pal’s concern about the patients.

(A775, 356). Second, in the email Dr. Bernstein sent in response to Dr. Pal’s email,

Dr. Bernstein did not in any way suggest that Dr. Pal’s email was in any way

misleading. Instead, Dr. Bernstein wrote, “thanks for the summary, Neelu.”

(A375-376). Third, when Dr. Bernstein was interviewed by the Appeals

Committee, she apologized that she did not have her contemporaneous notes but

that she could rely on Dr. Pal’s email, that was, in Dr. Bernstein’s words, “a fairly

accurate summary of the meeting.” (A738). Finally, and perhaps most

significantly, Dr. Bernstein was sufficiently impressed by Dr. Pal’s patient safety

concerns that she insisted, during the meeting in which Dr. Pal was told about her

suspension, that the bariatric practice be investigated, thereby angering Fielding

and leading him to believe that NYU was giving Dr. Pal’s complaints credence.

(A176,723).

Accordingly, the district court’s finding crediting Dr. Bernstein’s testimony


35

and finding, based on that testimony, that Dr. Pal’s email only “purportedly” …

summarize[d] what was discussed,” and was was “a set-up for . . . a way for [Pal]

to protect herself,” (SA14) was clearly erroneous.

B. The District Court’s Findings Concerning Dr. Pal’s Motivation In Contacting Dr. Bernstein Were Legally Irrelevant.

Even though the district court held that Dr. Pal’s complaints of improper

patient care to Dr. Bernstein were “sufficient … to shift the burden to NYU to

demonstrate that Pal’s termination was not due to her complaints …,” (SPA29), the

district court went on to make the finding about Dr. Pal’s bad faith motive in

contacting Dr. Bernstein that, along with the finding that Dr. Riles was the sole

decision-maker, appeared to be central to the district court’s decision. (SPA30).

There appears to be no legal basis for the district court to have incorporated

the finding concerning Dr. Pal’s motive into its decision. Once NYU stipulated

that Dr. Pal had a “reasonable good faith belief that NYU was engaged in improper

quality of patient care” and the district court found that Dr. Pal had communicated

those beliefs to Dr. Bernstein, any additional motivations on the part of Dr. Pal

were irrelevant.

An analogous situation was presented in Sanders v. Madison Square

Garden, L.P., 525 F. Supp. 2d 364 (S.D.N.Y. 2007). There Judge Lynch held that

so long as a Title VII retaliation plaintiff has a good faith belief that the employer


36

is engaging in discriminatory conduct, it is irrelevant whether the employer

believes the employee is acting in bad faith. Id. at 367.

Here, not only did NYU stipulate that Dr. Pal had a good faith belief that

patients were being endangered but there was no credible evidence that NYU’s

decision-makers believed her patient care complaints were made in bad faith. The

district court, however, apparently believed that it could deny Dr. Pal relief based

on its own finding that Dr. Pal acted in bad faith. This was clearly erroneous. See

Whitman v. City of Burton, 493 Mich. 303,319 (2013)(finding plaintiff’s subjective

motivation irrelevant to action under analogous whistleblower statute.)

Accordingly, had the district court made the correct findings that Ren and

Fielding had input and influence into the decision to terminate Dr. Pal, and were

motivated by retaliatory animus, and had the district court not improperly

considered what it erroneously found to be Dr. Pal’s bad faith, the district court

would have found that NYU did not establish its affirmative defense and would

have denied the Rule 52(c) motion.

5. DR. PAL WAS ENTITLED TO A JURY TRIAL WITH RESPECT TO HER LEGAL CLAIMS OF LOST WAGES AND BENEFITS.

Relying on Majer v. Metropolitan Transp. Authority, 1990 U.S. Dist. LEXIS

16971 (S.D.N.Y. Dec. 14, 1990), the district court held that Dr. Pal was not


37

entitled to a jury trial. However, the district court was incorrect as was the district

court in Majer.

In determining whether Dr. Pal has a right to jury trial here, the inquiry must

be made pursuant to federal – not state – law. See e.g., Simler v. Conner, 372 U.S.

221, 222 (1963) (“The characterization of [a] state created claim as legal or

equitable for purposes of whether a right to jury trial is indicated must be made by

recourse to federal law.” )

Pursuant to the Seventh Amendment to the United States Constitution, a

party’s right to jury trial shall attach in “suits in which legal rights are to be

ascertained and determined, in contradistinction to those where equitable rights

alone are recognized, and equitable remedies are administered.” City of Monterey

v. Del Monte Dunes, 526 U.S. 687, 708 (1999)(internal cites omitted).

In Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558,

564 (1990), the plaintiffs sued their union for breach of the duty of fair

representation, seeking relief in the form of an injunction and compensatory

damages for back pay and lost wages. The Court found that while the duty of fair

representation – viewed alone – was equitable in nature, the back pay sought by

plaintiffs was not money wrongfully held by the union, but rather money that

would have been paid to the plaintiffs from employers had their grievances been


38

properly processed. Id. Thus, because this relief was not restitutionary in nature,

the Court held that the Seventh Amendment entitled plaintiffs to a jury trial on all

issues. Id.

Similarly, here, the district court held in its summary judgment decision that

Dr. Pal, if she prevailed, was entitled to seek back pay beyond what she would

have earned from NYU. (SPA12). The district court held that her back pay could

include money that she would have received from other employers had she not

been terminated from the fellowship. (SPA12-13).

Accordingly, the district court was permitting Dr. Pal to claim not just that

NYU had wrongfully withheld money, but also that NYU caused her money

damages by terminating her employment. The fact that the district court would

have been required to navigate factual challenges posed by NYU to the

“speculative” nature of Dr. Pal’s back pay claim and the causal connection

between NYU’s conduct and Dr. Pal’s inability to find comparable work are just

the type of factual issues generally reserved for a jury. See Hawkins v. 1115 Legal

Service Care, 163 F.3d 684,696 (2d Cir. 1998) (question whether an employee has

made reasonably diligent efforts to find a new job is one of fact for the jury).

Accordingly, the availability and amount of Dr. Pal’s lost wages are


39

questions as to which she is entitled to a jury trial and the district court’s decision

striking her jury demand was erroneous.

CONCLUSION

This Court should reverse the district court’s decision and remand the case

to the district court for trial before a jury.

Dated: December 2, 2013 New York, New York

GISKAN SOLOTAROFF ANDERSON & STEWART, LLP

By: _______s/______________________

Jason L. Solotaroff 11 Broadway, Suite 2150 New York NY 10004 (212) 847-8315 Counsel for Appellant


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SPECIAL APPENDIX


Table of Contents

Page

Memorandum Opinion and Order of the Honorable Paul A. Crotty, dated January 25, 2010 ................................................................... SPA1

Memorandum Opinion and Order of the Honorable Paul A. Crotty, dated August 6, 2013 ..................................................................... SPA16

Judgment of the United States District Court Southern District of New York, entered August 8, 2013 ............................. SPA31

Notice of Appeal, dated August 20, 2013 ........................................... SPA32


1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x : NEELU PAL, M.D., : : Plaintiff, : 06 Civ. 5892 (PAC) (FM) : - against - : MEMORANDUM : OPINION & ORDER NEW YORK UNIVERSITY, : : Defendant. : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x HONORABLE PAUL A. CROTTY, United States District Judge:

Plaintiff Neelu Pal, M.D. (“Pal”) brings this action against Defendant New York

University (“NYU”) asserting claims for fraudulent inducement under New Jersey law

and retaliatory discharge in violation of N.Y. Lab. Law § 741. Pal’s claims, which arise

out of her termination as a fellow in the NYU Program for Surgical Weight Loss, have

been the subject of two previous decisions of the Court. On August 23, 2007, the Court

entered an order dismissing Pal’s fraudulent inducement claim pursuant to Federal Rule

of Civil Procedure 12(b)(6). On August 20, 2009, the Court entered another order

holding that Pal’s anonymous phone calls to patients were not protected by § 741 because

the calls were not made to a “supervisor” or “public body” as required by the statute.

Pal’s sole remaining claim is that she was terminated in violation of § 741 because she

voiced her concerns regarding the quality of patient care at NYU.

NYU moves for summary judgment on the remaining claim. According to NYU,

Pal was suspended and ultimately terminated as a fellow because she made inappropriate

phone calls to patients, not because she complained about patient care. NYU also

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contends that Pal’s request for back pay is too speculative and that under § 741 she is not

entitled to recover front pay. Finally, NYU moves to strike Pal’s request for a jury trial.

At present, the question of whether Pal was terminated because she made

inappropriate phone calls or because she expressed her concern over the quality of patient

care at NYU is subject to a genuine factual dispute which cannot be resolved as a matter

of law. If impermissibly terminated, there is a factual question of the amount of back pay

she may be entitled to recover. As a matter of law, Pal is not entitled to recover front

pay. Since Pal’s claim under § 741 is equitable in nature, she is not entitled to a jury trial.

Accordingly, and for the reasons that follow, NYU’s motion for summary judgment is

GRANTED in part, and DENIED in part. NYU’s motion to strike Pal’s request for a jury

trial is GRANTED and the jury demand is STRICKEN.

BACKGROUND

I. Facts

Familiarity with the facts of this action is assumed in light of this Court’s previous

decisions, and the decisions of Magistrate Judge Frank Maas to whom the action was

referred. See Pal v. New York Univ., No. 06 Civ. 5892(BSJ)(FM), 2007 WL 1522618, at

*1-2 (S.D.N.Y. May 22, 2007) (Maas, M.J.); Pal v. New York Univ., No. 06 Civ.

5892(PAC)(FM), slip op. at 1-3 (S.D.N.Y. Aug. 23, 2007) (Crotty, J.); Pal v. New York

Univ., No. 06 Civ. 5892(PAC)(FM), 2007 WL 4358463, at *1-3 (S.D.N.Y. Dec. 10,

2007) (Maas, M.J.); Pal v. New York Univ., No. 06 Civ. 5892(PAC)(FM), 2008 WL

2627614, at *1-2 (S.D.N.Y. June 30, 2008) (Maas, M.J.). What follows is a brief

statement of the facts relevant to the present motion.1

1 Local Rule 56.1(a) requires parties moving for summary to submit a “short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue



3

After finishing her residency in New Jersey, on or about October 4, 2005, Pal

began working as a fellow in the NYU Program for Surgical Weight Loss under the

supervision of Drs. Christine Ren (“Ren”) and George Fielding (“Fielding”). According

to Pal, soon after arriving at NYU, she became concerned for the safety of the program’s

patients. Pal testified that her concern was primarily due to incomplete medical histories

being prepared for patients prior to surgery, and a lack of attending physicians covering

patients staying in the hospital after their surgeries. (Dep. Tr. of Neelu Pal (“Pal Dep.”)

at 111:4-113:18, Krebs Decl., Ex. 1.) Pal voiced her concerns to Ren and Fielding, (id. at

115:24-116:3), and on December 13, 2005, she sent an email to a number of her

superiors, including Ren and Fielding, setting forth some of her concerns. (Pal 12/13/05

email, Krebs Decl., Ex. 50.)

On or about January 12, 2006, Fielding performed bariatric surgery2 on a female

patient at NYU and Pal assisted. Two days later, the patient died while hospitalized for

postoperative care. On January 19, 2006, another patient became hypotensive3 after

surgery and at Pal’s suggestion was taken back into the operating room to ensure there

was no internal bleeding. It was later determined that the patient had suffered an adrenal

crisis, which means that the patient lacked certain hormones or steroids. According to

to be tried.” NYU’s 85 page, 315 paragraph, statement of material facts is neither short nor concise. Pal raises numerous objections in her response to NYU’s statement and has submitted her own counter-statement of material facts, to which NYU has responded. While the Court declines Pal’s request to deny NYU’s motion for summary judgment based on its prolix Rule 56.1 statement, (Pl.’s Mem. in Opp’n to Def.’s Mot. Summ. J. (“Pl.’s Opp’n”) at 13-14), NYU’s inability to set forth a concise statement of the allegedly undisputed material facts presages the Court’s denial of its motion for summary judgment on liability. Despite the numerous factual disputes evidenced by the parties’ opposing statements of material facts, the facts in this section are taken from the uncontested portions of the parties’ statements. Where useful, the Court provides citations to relevant exhibits. 2 NYU explains that “[b]ariatric surgery is used to promote significant weight loss and improvement in obesity-related illness.” (Def.’s Rule 56.1 Statement ¶ 29.) Some bariatric surgeries are performed laparoscopically, which requires only a small incision, while others are more invasive. (Id.) 3 “Hypotensive” is defined as “characterized by low blood pressure or causing reduction in blood pressure.” Stedman’s Medical Dictionary (27th ed. 2000).



4

Pal, the adrenal crisis might have been avoided had an adequate preoperative medical

history been obtained. (Pal Dep. at 223:10-23.)

Several days later, on Saturday, January 21, 2006, Pal decided to call several

patients scheduled to receive bariatric surgery the following Monday. She made the calls

from “same day admit” area of an NYU operating room. Pal entered an NYU database to

obtain the patients’ telephone numbers. She then took it upon herself to call the patients;

but did not identify herself or indicate that she was a doctor. During each call, Pal stated

that the NYU bariatric program was under review or investigation, that there had been a

recent death and that she had witnessed multiple complications. (Pal Dep. at 213-214.)

Pal also recommended that the patients talk to their surgeons and hospital administrators

before having surgery. (Id.) While Pal contends she made the calls out of concern for

the patients’ safety, she admits that it is possible that surgery was medically necessary for

at least some of the patients she called. (Id. at 219:16.) Pal testified that after making the

calls she realized that she could have raised her concerns without calling the patients.

(Id. at 226:6-9.) Pal testified further that she did not identify herself when she made the

calls because she feared the “repercussions when and if Ren and Fielding found out that I

made the[] phone calls.” (Id. at 221:5-7.)

Concomitantly with Pal’s calls to the patients, the NYU admitting office was

contacting patients scheduled for surgery on Monday to remind them of their

appointments. In the course of calling the patients, NYU learned that someone had made

the anonymous phone calls. Ren, Fielding, and others at NYU were told of the calls, and

NYU commenced an investigation into the caller’s identity. At some point between

Saturday, January 21, 2006, and the end of the day on Monday, January 23, 2006, NYU



5

determined that the calls had been made from the “same day admit” area of the operating

room and that Pal was the only person in the area when the calls were made.

Pal reported for work on Monday morning, January 23, 2006, and participated in

a number of surgeries, including surgeries on patients she had called on Saturday. At

around noon, Pal told Ren and Fielding she was not feeling well and was allowed to leave

work. Upon leaving work, Pal called Dr. Carol Bernstein (“Bernstein”), NYU’s assistant

dean for graduate medical education, and said that she was upset about something and

wanted to meet. They scheduled a meeting for the following day, Tuesday, January 24,

2006. While Pal did not go to work on Tuesday, later in the day she met with Bernstein

at Bernstein’s office. At the meeting, Pal told Bernstein that she was concerned about

patient care at NYU and explained the reasons for her concern. Pal also told Bernstein

that she had made the anonymous phone calls on Saturday, which Pal described as

“something she shouldn’t have done.” (Dep. Tr. of Carol Bernstein (“Bernstein Dep.”)

at 64:10-13, Krebs Decl., Ex. 12.) At the end of the meeting, Bernstein told Pal that she

would look into the situation.

On January 25, 2006, the day after Pal met with Bernstein and explained her

concerns about patient care, and the fact she had made the anonymous phone calls, Ren,

Fielding and other NYU administrators and directors held a meeting to discuss Pal’s

conduct and determine how to proceed. At the meeting, it was decided that Pal would be

suspended for four weeks pending further review of the situation. At another meeting

held later that day, with Ren, Fielding, Bernstein and the chair of NYU’s department of

surgery, Dr. Thomas Riles (“Riles”), Pal was informed of her suspension and handed a

letter from Riles explaining that she was being suspended because of the anonymous



6

phone calls. Riles’ letter describes Pal’s calls to the patients as “an egregious example of

unprofessional and irresponsible behavior.” (Riles 1/25/2006 Letter, Krebs Decl., Ex.

54.)

Fielding and Ren were initially of the mind to allow Pal to return to work, and on

February 4, 2006, Fielding sent an email to Dr. Max Cohen (“Cohen”), the Chief Medical

Officer for NYU Medical Center, expressing his and Ren’s willingness to afford Pal the

opportunity to complete her fellowship. (Fielding Letter 2/4/2006, Krebs Decl., Ex. 53.)

But Fielding and Ren’s readiness to allow Pal to remain in the fellowship program was

short-lived, and on February 9, 2006, Fielding sent Cohen another email revoking his

offer “to help Neelu Pal.” (Fielding Letter 2/9/2006, Krebs Decl., Ex. 55.) On February

16, 2006, Fielding, Ren, Riles, Cohen and others met to discuss Pal’s actions and her

future at NYU. After everyone at the meeting expressed their views on how to proceed,

they unanimously agreed that Pal should be terminated. Approximately five days later,

Pal received a letter from Riles dated February 21, 2006, stating that she was dismissed

from the NYU fellowship program as of February 22, 2006. (Riles 2/21/2006 Letter,

Krebs Decl., Ex. 57.) Pal appealed both her suspension and termination, and following a

hearing both actions were upheld.

II. Pal’s Remaining Claim

Pal commenced this law suit on August 6, 2006. Her Complaint asserts two

claims, one for fraudulent inducement and the other for retaliatory discharge under N.Y.

Lab. Law § 741. As noted, the fraudulent inducement claim has been dismissed, and the

Court has rejected Pal’s contention that the anonymous phone calls she made constitute

protected activity under § 741. Pal’s remaining claim is that NYU’s proffered reason for



7

ending her fellowship – the improper anonymous phone calls – is pretextual. According

to Pal, she was suspended and then terminated because she complained about patient care

to her supervisor, Bernstein. (Compl. ¶ 32.)

DISCUSSION

III. Standard of Review for a Motion for Summary Judgment

Summary judgment is appropriate where the record demonstrates that “there is no

genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). A fact is material if it “might affect the outcome of

the suit under governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). The moving party bears the initial burden of producing evidence on each

material element of its claim or defense demonstrating that it is entitled to relief. See

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The evidence on each material

element must be sufficient to entitle the movant to relief as a matter of law. Vt. Teddy

Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).

Once the moving party has made an initial showing that no genuine issue of

material fact remains, the nonmoving party may not refute this showing solely by means

of “[c]onclusory allegations, conjecture, and speculation,” Niagara Mohawk Power Corp.

v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003) (internal citations and quotations

omitted), but must instead present specific evidence in support of its contention that there

is a genuine dispute as to material facts. Fed. R. Civ. P. 56(e). The Court resolves all

ambiguities and draws all factual inferences in favor of the nonmovant, but “only if there

is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (citing

Fed. R. Civ. P. 56(c)).



8

IV. Liability

Section 741 of the New York Labor Law, also known as “New York’s Health

Care Whistleblower Law,” prohibits employers from taking “retaliatory action” against

an employee “because the employee . . . discloses or threatens to disclose to a supervisor,

or to a public body an activity, policy, or practice of the employer or agent that the

employee, in good faith, reasonably believes constitutes improper quality of patient

care[.]” N.Y. Lab. Law § 741(2)(a). It is undisputed that NYU is an “employer,” and

that Pal was an “employee,” within the meaning of § 741. See § 741(1)(a),(b). Pal’s

suspension and discharge are both within § 741’s definition of “retaliatory action.” See §

741(1)(f). The parties have stipulated that NYU will not contest the issue of whether Pal

had a “reasonable, good faith belief’ that NYU was engaging in “improper quality of

patient care” when she disclosed her concerns about patient care to Bernstein on January

24, 2006. (Stipulation, Krebs Decl., Ex. 75.) The only question, then, is, whether Pal

was suspended and then discharged because of the anonymous phone calls, or because of

her complaints about patient care to Bernstein. To withstand NYU’s motion for summary

judgment, Pal need only show that this question raises a genuine issue of material fact.

Pal has made such a showing; and accordingly, NYU’s motion for summary judgment on

the issue of liability must be denied.

Each party contends that the other party bears the burden of proof to show, or

show the absence of, a causal relationship between Pal’s protected disclosures to

Bernstein and her suspension and termination. Section 741(5) provides that “it shall be a

defense that the personnel action was predicated upon grounds other than the employee’s

exercise of any rights protected by this section.” In the context of construing a



9

substantially identical provision in N.Y. Lab. Law § 740, which prohibits similar

retaliatory employment actions outside the patient care context, 4 this Court has noted that

“the affirmative defense afforded employers under Section 740(4)(c) indicates that the

burden of proof lies with the employer to show a lack of causal connection between the

employee’s protected conduct and the employer’s adverse personnel action.” Noble v. 93

Univ. Place Corp., 303 F. Supp. 2d 365, 374 (S.D.N.Y. 2003). But, even if Pal is

required show a causal connection, she has raised genuine issues of material fact as to

whether her suspension and termination were precipitated by her complaints about patient

care to Bernstein.

First, there is a question of when NYU, and particularly Fielding and Ren,

discovered that Pal was the one who made the calls to patients. Pal has offered evidence

which tends to show that even after Ren was told that Pal was the only one who could

have made the anonymous phone calls, Ren took no action against her, until after Pal

disclosed her concerns about patient care to Bernstein. Second, the fact that Fielding and

Ren were initially willing to allow Pal to complete her fellowship undermines NYU’s

argument that the phone calls were so egregious that it is beyond dispute that they were

the sole reason for Pal’s suspension and discharge. Third, it is unclear who ultimately

decided to terminate Pal, and the extent of Fielding and Ren’s influence on the decision.

Fourth, Pal has submitted evidence that other NYU employees committed infractions,

which are arguably similar to Pal’s phone calls, but who were not suspended or

discharged. Finally, and perhaps most importantly, Pal’s simultaneous disclosure to

4 N.Y. Lab. Law § 740, New York’s so-called “Whistleblower Law,” prohibits employers from taking retaliatory personnel action against employees who, among other things, 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, or which constitutes health care fraud . . . .” § 740(2)(a).



10

Bernstein of her concerns about patient care and the fact that she made the phone calls

precludes a determination, as a matter of law, that NYU suspended and terminated Pal for

one reason or the other. Since questions of fact remain as to NYU’s reason for

suspending and terminating Pal, NYU’s motion for summary judgment on the issue of

liability must be denied.

V. Front Pay

Section 741 does not create its own private right of action, instead “Labor Law §

741 contemplates enforcement through a Labor Law § 740(4) civil suit.” Reddington v.

Staten Island Univ. Hosp., 11 N.Y.3d 80, 89, 893 N.E.2d 120, 125 (2008); see § 741(4).

Section 740(5), which lists the relief available in actions brought under §§ 740 and 741,

provides:

In any action brought pursuant to subdivision four of this section, the court may order relief as follows:

(a) an injunction to restrain continued violation of this section; (b) the reinstatement of the employee to the same position held before the retaliatory personnel action, or to an equivalent position; (c) the reinstatement of full fringe benefits and seniority rights; (d) the compensation for lost wages, benefits and other remuneration; and (e) the payment by the employer of reasonable costs, disbursements, and attorney’s fees.

§ 740(5); see also § 740(4)(d) (health care employee suing for violation of § 741 may

institute action for relief provided for in § 740(5)). Pal contends that she is entitled to

recover front pay because § 740(5)(d) provides for recovery of “lost wages . . . and other

remuneration.” The weight of authority is, however, against Pal’s contention. See Kraus



11

v. New Rochelle Hosp. Med. Ctr., 216 A.D.2d 360, 365, 628 N.Y.S.2d 360, 364 (2d

Dep’t 1995) (holding that § 740(5) “does not authorize recovery of future lost wages and

future lost benefits.”); Hoffman v. Altana, Inc., 198 A.D.2d 210, 210 , 603 N.Y.S.2d 499,

500 (2d Dep’t 1993) (holding that the relief set forth in § 740(5) is exclusive and that the

statute “does not authorize recovery for loss of anticipated lost wages . . . .”); Scaduto v.

Rest. Assocs. Indus., Inc., 180 A.D2d 458, 460, 579 N.Y.S.2d 381, 382 (1st Dep’t 1992)

(“Labor Law § 740 only provides for equitable relief which mandates back pay, but, no

more.”).

While the New York Court of Appeals has never addressed the question of

whether front pay can be recovered under § 740(5), “[t]he holding of ‘an intermediate

appellate state court . . . is a datum for ascertaining state law which is not to be

disregarded by a federal court unless it is convinced by other persuasive data that the

highest court of the state would decide otherwise.” Michalski v. The Home Depot, Inc.,

225 F.3d 113, 116 (2d Cir. 2000) (quoting West v. AT&T, 311 U.S. 223, 237 (1940)).

Pal’s cases in support of her request for front pay are not convincing that the Court of

Appeals would reject the teachings of Kraus, Hoffman, and Scaduto. Indeed, in Collette

v. St. Luke’s Roosevelt Hospital, 132 F. Supp. 2d 256 (S.D.N.Y. 2001), a case relied on

by Pal for the proposition that the § 740(5) should be broadly construed, this Court

pointed out the “narrow scope of the statutory right and remedy” provided for in § 740,

and noted that “[r]elief available under the Act . . . is limited to specifically-defined

statutory remedies.” Collette, 132 F. Supp. 2d at 268. Further, “under New York law . . .

[front pay] is a legal remedy to be determined by a jury.” Quinby v. WestLB AG, No. 04

Civ. 7406(WHP), 2008 WL 382695, at *6 (S.D.N.Y. Aug. 15, 2008); see also Jattan v.



12

Queens Coll. of City Univ. of New York, 64 A.D.3d 540, 542, 883 N.Y.S.2d 110, 113

(2d Dep’t 2009). Yet, § 740(5) explicitly provides that relief is to be ordered by “the

court.” Pal is not entitled to recover front pay, and NYU’s motion for summary judgment

on Pal’s request for front pay is granted.

VI. Back Pay

It is undisputed that back pay is recoverable under § 740(5). See Scaduto,180

A.D2d at 460, 579 N.Y.S.2d at 382. NYU argues that Pal has failed to show that she is

entitled to recover back pay beyond the balance of her contract with NYU because she

has not established a causal connection between her termination and her subsequent

inability to secure a position as a surgeon. (Def.’s Mem. in Supp. Mot. Summ. J. (“Def.’s

Mem.”) at 21.) According to NYU, “it cannot be disputed that there are many possible

factors that could cause Plaintiff to have difficulty in securing a bariatric surgeon

position.” (Id.) This is entirely true, but surely a substantial factor could be her

termination.

Pal testified that after she disclosed that she had been terminated by NYU to

several potential employers, she was dropped from consideration and had offers of

employment withdrawn. Pal’s contract with NYU ended in June, 2006. While in July,

2007, Pal ultimately completed a fellowship in bariatric surgery at New Jersey Bariatrics,

P.C., she has submitted the report of an expert in economics which sets forth the

compensation Pal would have received after the end of her NYU fellowship had she not

been terminated. (Shapiro Report, Krebs Decl., Ex. 76.) This, at a minimum, raises a

question of fact regarding the compensation Pal would have received during the thirteen

months from June, 2006, through July, 2007, had she been able to complete her



13

fellowship with NYU. Accordingly, NYU’s motion for summary judgment on the issue

of back pay is denied.5

VII. Jury Demand

NYU moves pursuant to Fed. R. Civ. P. 39(a)(2) to strike Pal’s request for a jury

trial. Under New York law, Pal is not entitled to a jury trial, and because her § 741 claim

is equitable in nature, the Seventh Amendment does not guarantee her a trial by jury.

(Def.’s Mem. at 17-18.) As noted, § 741 is enforced through an action under § 740(4),

and the relief available in such an action is set forth in § 740(5). Section 740(5) states

that “the court may award relief as follows . . . .” § 740(5) (emphasis added). Given this

statutory directive, and the fact that “only equitable relief such as injunction,

reinstatement, back pay and the like are available,” § 740 actions are tried to the court,

and not to a jury. Scaduto, 180 A.D.2d at 458-60, 579 N.Y.S.2d at 381-82; see also

McGrane v. The Reader’s Digest Ass’n., Inc., 822 F. Supp. 1044, 1045 (S.D.N.Y. 1993)

(“New York’s “whistle blower” statute (N.Y. Labor Law § 740) provides for judicial

enforcement . . . it provides for reinstatement and similar equitable relief but precludes

suits for tort-like damages.”).

Pal apparently concedes that she is not entitled to a jury trial under New York

law, but asserts that whether the Seventh Amendment guarantees her a trial by jury is a

question of federal, not state, law. See Simler v. Conner, 372 U.S. 221, 222 (1963) (“the

characterization of . . . [a] state-created claim as legal or equitable for purposes of

whether a right to jury trial is indicated must be made by recourse to federal law.”). This

5 NYU argues that Pal cannot recover back pay in addition to being reinstated because such relief would amount to double recovery. (Def.’s Mem. at 20-21.) Pal concedes as much, and states that she does not seek reinstatement in addition to back pay. (Pls.’ Opp’n at 25). Even assuming Pal succeeds at trial, at this juncture the Court need not determine whether back pay or reinstatement is the appropriate form of relief.



14

Court has, however, previously held – as a matter of federal law – that actions under §

740 are equitable in nature and thus outside the purview of the Seventh Amendment.

In Majer v. Metropolitan Transportation Authority, No. 90 Civ. 4680(LLS), 1992

WL 11095, at *3 (S.D.N.Y. May 7, 1992), the Court observed that the relief provided for

in § 740(5) is analogous to the relief that was available under Title VII prior to its

amendment in 1991. See 42 U.S.C. § 2000e-5(g),(k) (1988).6 Noting that “‘[i]t is well

established that because the relief traditionally available under Title VII is equitable in

nature, such actions are tried to the court[,]’” Majer, 1992 WL 11095, at *3 (quoting

Song v. Ives Labs., Inc., 957 F.2d 1041, 1047-48 (2d Cir. 1992)), the Court held that

“[u]nder principles of federal law . . . [the plaintiff’s claim under § 740] is an equitable

claim.” Id. The Court then struck the plaintiff’s demand for a jury trial. Majer, 1992

WL 11095, at *3; see also Clark v. TRW, Inc., 921 F. Supp. 927, 936 (N.D.N.Y. 1996)

(considering claim under § 740 and holding that “plaintiffs are not entitled to a jury

trial.”). The analysis in Majer is sound; Pal is not entitled to have her claim tried to a jury

and NYU’s motion to strike Pal’s jury demand is granted.

6 In 1991, Congress passed the Civil Rights Act of 1991, which amended Title VII to permit plaintiffs to recover compensatory and punitive damages and authorized trial a by jury for those claims. 42 U.S.C. § 1981a(a)(1), (c).



CONCLUSION

For the foregoing reasons, NYU's motion for summary judgment is DENIED on

the issues of liability and back pay; and GRANTED on the issue of front pay. NYU's

motion to strike Pal's jury demand is GRANTED; the jury demand is STRICKEN. The

Clerk is directed to close the motion.

Dated: New York, New YorkJanuary 25, 2010

SO ORDERED

&~United States District Judge

15



UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------x NEELU PAL, M.D., :

Plaintiff, : v. 06 Civ. 5892 (PAC)(FM)

: MEMORANDUM OPINION & ORDER NEW YORK UNIVERSITY, :

Defendant. ---------------------------------------------------------------x HONORABLE PAUL A. CROTTY, United States District Judge: This is a fraudulent inducement and whistle blower action instituted on August 6, 2006

by plaintiff Neelu Pal (“Pal”) who alleges that defendant New York University School of

Medicine (“NYU”) fraudulently induced her, in violation of New Jersey law, to take a fellowship

in NYU’s bariatric surgery program; and thereafter fired her in retaliation for her complaints

about the bariatric surgery program’s substandard conditions and patients’ care, in violation of

New York Labor Law § 741, also known as “New York’s Health Care Whistle Blower Law.”

On August 23, 2007, the Court granted NYU’s Fed. R. Civ. P. 12(b)(6) motion to dismiss

Pal’s fraudulent inducement claim (Order dated August 23, 2007, Docket No. 45).

Discovery followed, supervised by U.S. Magistrate Judge Frank Maas. Discovery

revealed certain facts which are not disputed. On Saturday, January 21, 2006, Pal called bariatric

surgery patients, who were to be operated on the following week, and said in substance that

NYU’s operating procedures were substandard and that their forthcoming surgery was not safe.

Pal called anonymously. Upon investigating, NYU determined that Pal made these anonymous

calls. She was suspended and subsequently terminated.

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: August 6, 2013



2

NYU moved for summary judgment on Pal’s retaliation discharge claim. On August 29,

2009, the Court entered the following order:

In connection with the oral argument of the motion for summary judgment, now scheduled for Monday, September 21, 2009 at 3:00 p.m., the Court has determined that the plaintiff’s secret, anonymous communications and disclosures, during the weekend of January 21 and 22, 2007, to patients scheduled for bariatric surgery during the following week, are not protected by New York Labor Law § 741 because they were not made to a “public body” or a “supervisor,” as required by statute. Argument should address whether there were other communications or disclosures which fell within the statute, and whether plaintiff’s termination was in retaliation for said communications and disclosures. (Order, dated August 20, 2009, Docket No. 81).1

NYU argued that Pal was suspended and subsequently terminated as a fellow because of

her inappropriate phone calls to pre-operative patients, not because of any complaint about

patient care. Pal maintained that her termination was attributable to her complaints about

inadequate patient care. Those complaints were made to a person authorized by NYU to receive

complaints. The Court denied summary judgment, determining that there was a genuine factual

dispute over whether Pal was terminated because she made inappropriate phone calls; or because

she expressed her concern over the quality of patient care at NYU. (Memorandum Opinion and

Order, dated January 25, 2010, Docket No. 86).

1 New York Labor Law § 741 provides: “Prohibition; health care employer who penalizes employees because of complaints of employer violations . . . 2. Retaliatory action prohibited. Notwithstanding any other provision of law, no employer shall take retaliatory action against any employee because the 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 or agent that the employee, in good faith, reasonably believes constitute improper quality of patient care.” “Supervisor” and “public body” are defined in New York Labor Law § 741(1)(e)(g) and neither definition covers disclosures to hospital patients.



3

The case was tried by the Court on May 3-6, 2010.2 Pal called ten witnesses, including

eight witnesses who were employed by NYU. At the conclusion of Pal’s case, NYU moved for

judgment pursuant to Rule 52(c) of the Fed. R. Civ. P. The Court held separate conferences with

counsel for Pal and NYU at which the parties were encouraged to settle. The parties reached a

preliminary agreement to resolve their differences, but they were unable to enter into a final

settlement agreement.

The Court now turns to defendant’s pending Rule 52 motion.

Both sides agree that there are three elements to establishing a retaliation discharge claim

under New York Labor Law § 741: (1) plaintiff must act in good faith and have a good faith

belief that NYU was engaging in practices that constitute improper quality of care; (2) plaintiff

engaged in protective activity; and (3) Pal was terminated because she engaged in protective

activity (Trial Tr., pg 600, 617). Further, the parties stipulated that Pal had acted in good faith,

thereby satisfying the first element. The resolution of the matter depends on how the second and

third elements are decided. (Id. at 600-601, 617).

At the commencement of the trial, Pal’s counsel outlined Pal’s theory of recovery:

(1) Pal was not fired because of the telephone calls she made to the patients who were to be operated on.

(a) Doctors Ren and Fielding knew about the phone calls and “were willing to let it slide”, rather than impose any discipline. (b) The real reason Pal was fired was because of Pal’s complaints to Dr. Bernstein about the conditions in NYU’s bariatric surgery program run by Drs. Fielding and Ren. (c) As soon as Drs. Fielding and Ren learned of Pal’s disclosure to Bernstein, they began to malign, disparage and discredit her, accusing Pal of “erratic” and “weird” “psychotic” behavior.

2 The Memorandum Opinion and Order, dated January 25, 2010, also struck Pal’s jury demand, pursuant to Fed. R. Civ. P. 39(a)(2). The New York State law claim is equitable in nature and thus outside the purview of the Seventh Amendment jury trial provision.



4

(2) NYU tolerated far worse conduct by others, and NYU would forgive those transgressions, but not Pal’s because she complained about the system.3 (3) NYU has no credible explanation for termination of Dr. Pal. The NYU senior medical staff cannot explain the termination; and the explanations lack credibility. They offer no coherent explanation for how the decision to terminate Pal was reached.

(Trial Tr., pgs 3-8) The question to be resolved is whether NYU’s suspension and termination of Pal was due

to her anonymous and inappropriate phone calls to patients or because of her complaints to Dr.

Bernstein about the substandard quality of patient care at NYU. For the reasons set forth below,

the Court finds that NYU has proved by a preponderance of the credible evidence that Pal was

suspended and terminated because of her anonymous and inappropriate phone calls to pre-

operative bariatric surgery patients. Her suspension and termination cannot be attributed to Pal’s

subsequent expressions of concerns about patient safety to Dr. Bernstein. Her complaints and

concerns were not made until January 24, 2006, long after her wrongful conduct had occurred;

and were more concerned about her being blamed than patient safety. Her January 24, 2006 e-

mail to Bernstein must be viewed as an attempt by Pal at damage control, rather than a complaint

about improper quality of patient care.

In October, 2005, Pal began working as a fellow in the NYU Program for Surgical

Weight Loss under the supervision of Drs. Christine Ren (“Ren”) and George Fielding

(“Fielding”), who are both attending surgeons and associate professors of surgery at NYU. They

are partners in their medical practice and they are married. Ren is also the Director of NYU’s

Weight Management Program.

3 Pal attacks Ren’s integrity and credibility, for example, because Ren allowed unlicensed (in N.Y) fellows to practice medicine under her supervision. This is a serious transgression, but it pales in comparison to Pal’s conduct. Ren’s conduct is not an appropriate comparator because it is different in both kind and degree from Pal’s conduct.



5

As a fellow, Pal would assist Ren and Fielding perform surgery. She also performed

other tasks, including, reviewing patients’ medical histories and physical examinations (“H &

P’s”), obtaining consents from patients, and writing orders for post-operative care.

Pal’s relationship with Fielding and Ren was initially friendly. Indeed, Fielding and Ren

had Pal and her husband over for dinner on at least one occasion. As shown by text messages

between Pal and Ren, their friendly association continued, at minimum, through December,

2005. (Def. Ex. C2). Up until January, 2006, Fielding thought Pal’s performance as a fellow

was “excellent,” and he thought Pal was of “very high caliber.” (Trial Tr., pg 14).

Pal testified that she got along “relatively well with the people” at NYU. (Trial Tr., pg

449). As she settled into her fellowship, however, she said she became concerned for the safety

of the patients in the Surgical Weight Loss Program. Pal noted there were incomplete and

erroneous H&P’s prepared for patients prior to surgery. (Trial Tr. at 450). Further, there was

inadequate post-operative coverage for patients staying in the hospital after their surgeries.

(Trial Tr. at 452). Pal voiced her concerns to Ren and Fielding concerning both the H&P’s and

post-operative coverage. Fielding told her “you don’t need to worry about it, just calm down,

take a deep breath, game over.” (Trial Tr. at 451). On December 13, 2005, she sent an e-mail to

a number of her superiors, including Ren and Fielding, expressing her concerns. (Pl. Ex. 31).

No discipline was imposed on Pal for raising these concerns.

On or about January 12, 2006, Pal assisted Fielding perform bariatric surgery on an obese

female patient at NYU. Two days later, in the early morning of January 14, 2006, the patient

died.4 The death had an effect on all involved, including Pal. Dr. Fielding testified that a patient

4 There is a dispute over the level of care this patient received. An intern called Pal at home on January 13, 2006 to report on the patient’s condition. But Pal did nothing and did not return to the hospital. The patient passed away hours later. In preparing the morbidity and mortality report (“M&M”) on the deceased patient, Pal said she did not want to turn the issue of patient safety into a “blame game for the intern.” (Trial Tr. at 467). That is what the initial



6

death was “a terrible thing.” (Trial Tr., pg 17). As it would turn out, Pal was more concerned

that she would be blamed for the death, than she was about the quality of care.

On January 19, 2006, another bariatric surgery patient became hypotensive (low blood

pressure). At Pal’s suggestion, the patient was taken back into the operating room to ensure

there was no internal bleeding. After finding the patient had no internal bleeding, Fielding then

left the hospital. Pal felt that Fielding should have stayed, but he left to go to a basketball game.

(Trial Tr. at 475). It was later determined that the patient had suffered an adrenal crisis. After

consultation with an anesthesiologist, Pal suggested steroids to increase the patient’s blood

pressure. The patient’s blood pressure returned to normal and the patient recovered. According

to Pal, the adrenal crisis might have been avoided had an adequate preoperative H&P been

obtained.

Following these two incidents, Pal examined 23-25 patients’ charts who were scheduled

for surgery, starting on the following Monday, January 23, 2006. She claimed to observe

inconsistencies and discrepancies in the H&P’s for the patients; and brought them to Ren’s

attention. According to Pal, Ren was “quite dismissive.” (Trial Tr. at 478).

On Saturday, January 21, 2006, Pal took it upon herself to personally contact the patients

and “alert” them about her concerns over the patient care at NYU. When she arrived at the

hospital, she went to the “same day admit” hospital operating area, a secure, limited access area,

retrieved patients’ phone numbers from the hospital computer database, and proceeded to call 17

or 18 patients. (Trial Tr. at 479). Pal reached and spoke with at least three patients.

The parties continue to dispute over exactly what Pal said to the patients. Dr. Fielding

testified that the patients who were called were told that NYU was “killing people.” (Trial Tr. at

M&M suggested however. The M&M report went through several drafts. The Court need not comment further on the specifics of the case, except to note that it raises questions about the quality of care, as well as Pal’s concerns about being blamed.



7

33). Dr. Ren testified that Pal told the patients that the “program was under investigation” and

that they “should report us to a government agency” (Trial Tr. at 107). Pal objected to the

admission into evidence of NYU’s records indicating that what the anonymous caller said and

the suggestions she made that patients take more drastic actions. The Court, for this limited

purpose, accepts Pal’s version of what she said:

“I told them I worked in the operating room at NYU, that I was calling them because I was concerned about some of the conditions there relating to their surgery or their upcoming surgery, that I had witnessed multiple complications and one recent patient death, that there was some kind of investigation going on with the program and then I suggested to them that they speak to Dr. Ren and Dr. Fielding and possibly the hospital administrator to make sure that conditions for their surgery were safe.” (Id. at 479-480).

She identified herself to the patients she spoke with as “someone who worked in the

operating room at NYU.” Pal, however, did not disclose her name, nor did she say she was a

doctor on the N.Y.U. staff. (Trial Tr., pg 479). Even at trial, Pal could offer no explanation for

why she proceeded anonymously. (Id. at 480). She did not tell Dr. Ren about her

communications with the patients, until Tuesday afternoon, January 24, 2006, long after

Saturdays calls. Pal admitted that she knew that calling patients was wrong (Trial Tr., pg 562,

568) and that NYU provided alternative methods and means to raise any concerns about patient

care. (Trial Tr., pg 568).

It must be noted that Pal had previously voiced her concerns about the surgical weight

loss program directly to various NYU personnel, including Doctors Ren and Fielding. This

makes her behavior all the more inexplicable—and certainly Pal offered no explanation—why

she took it upon herself to proceed to call patients and to do so anonymously. She recognized

what she was doing was wrong, but did it anyway. She testified she felt “terrible” after making



8

the calls, saying that it “did not feel right.” (Trial Tr. at 480 and 481). Pal understood that

calling patients and advising them as she did was grossly inappropriate.

NYU soon learned of the anonymous calls. NYU’s admitting office was contacting the

same patients to facilitate their admission. The admissions office immediately called Dr.

Fielding to advise him that patients were being called and told not to come in for surgery. (Trial

Tr. at pg 32). Fielding and Ren then proceeded to call the involved patients to reassure them

about the safety of their scheduled surgeries. All the patients appeared as scheduled for surgery;

surgery was performed; and the results were satisfactory. (Trial Tr. at pg 35).

Pal reported to work as usual on Monday, January 23, 2006, but said nothing about her

calls. She began working with Dr. Ren on obtaining a patient “consent” from one of the patients

who Pal had spoken to on Saturday. Pal testified that the patient was very upset and tearful

(Trial Tr. at 482), but Pal continued to maintain her anonymity. Pal then proceeded to assist Ren

and Fielding in surgery, where she was allowed to operate as the lead surgeon on two patients.

By mid-day, but before all scheduled surgeries were completed, Pal told Ren and Fielding that

she felt ill and wanted to leave work. When she arrived home, she called Dr. Carol Bernstein,

NYU’s Associate Dean for graduate medical education. They scheduled a meeting for the next

day, Tuesday, January 24, 2006.

NYU wanted to know who was responsible for making the anonymous calls. Bruce

Baulch, an employee in NYU’s technical department, was directed to ascertain where the

anonymous calls were made from; and if possible, to determine who made the calls. By the

afternoon of January 23, 2006, Baulch determined that the Saturday, January 21, 2006 calls were

made from the same day surgery area. This area is a restricted space and a security swipe card is



9

needed to gain access. Baulch ascertained that Pal was the only person who swiped into the area

on Saturday, at the time when the calls were made (Trial Tr. at 354 et seq.).

This is the first that anyone knew of Pal’s role in making the anonymous calls. Her

testimony that Dr. Ren and Dr. Fielding must have known of her role by early Monday is sheer

speculation, designed to support her legal theory of recovery, but totally lacking in factual

support5. If there were changes in Ren’s and Fielding’s behavior on Monday, as Pal claimed, it

was because of the phone calls, which (quite naturally) put everyone on edge. Both Dr. Ren and

Dr. Fielding denied knowing of Pal’s role until Monday afternoon, at the earliest. The Court

credits their testimony as to when they first learned that Pal made the anonymous calls.

On Tuesday, January 24, 2006, Pal did not go to work. She went into the hospital later

that day to meet with Bernstein. At their meeting, Pal told Bernstein that she was concerned

about the patient care at NYU. Pal then admitted that she made the anonymous calls that

previous weekend, which Pal described as something she should not have done. (Trial Tr. at

323). Bernstein, who is also a psychiatrist, testified that while Pal appeared upset and scared

(Trial Tr. at 286), her primary concern was not with patient safety. Instead, Bernstein concluded

that Pal was concerned that she was “going to be blamed, if there were things that went wrong in

the care of patients, . . . [she] was frightened and scared that she was going to be blamed for the

death of this patient” (who died on January 14, 2006) (Trial Tr. at 306).

After the meeting, Pal sent Bernstein a follow-up email, at 8 p.m. on January 24, 2006,

purportedly memorializing their earlier conversation (Pl. Ex. 15). Bernstein was “surprised at

the way she chose to characterize their meeting . . . She started off [the e-mail] by talking how I

definitely felt better after sharing my concerns regarding patient care which was certainly not the

5 Pal’s argument that because the anonymous caller was a woman , who worked at NYU, was concerned about patient safety and spoke with an accent (all attributes of Pal–and many others, as well) that Ren and Fielding must have known Pal was the caller is rejected as sheer speculation (Trial Tr. at 32-34; 121-123).



10

thrust of the meeting I had with her” (Trial Tr. at 308). The main thrust was Pal’s worry “that

she was going to be blamed for things she didn’t do” (Trial Tr. at 309). At their meeting on

January 24, 2006, Bernstein asked Pal not to say anything further, but Pal reported in her email

that she had talked to Dr. Ren and confessed that she made the calls. Ren was upset. The Court

credits Bernstein’s account of the meeting and finds that Pal’s concerns were of a personal nature

and were not primarily about patient care, or the quality of care patients were receiving.

Also on Tuesday, January 24, 2006, Dr. Thomas Riles (“Riles”), the Chairman of the

Department of Surgery, was informed that Pal had made the anonymous calls. Riles used a

previously scheduled meeting for Wednesday, January 25, 2006, to review what had happened.

Riles, Ren, Fielding, and Ms. Lyn Lowy, an attorney for NYU, attended. (Trial Tr. at 227).

Upon review, in which everyone was given an opportunity to voice their opinions and make

recommendations, the unanimous consensus was that Pal should be suspended. Riles, however,

had the ultimate authority to decide on Pal’s suspension. (Trial Tr. at 228). After their meeting,

Riles met with Pal and handed her a letter, dated January 25, 2006, notifying her that she was

suspended pending further investigation. (Def. Ex. A1). Riles found that Pal presented a threat

to the welfare of patients and suspended Pal pursuant to Section IV(A) of NYU’s Evaluation,

Corrective Action and Disciplinary Policy for Residents.

Even after learning of Pal’s complaint to Bernstein about Ren and Fielding, they were

willing to support Pal to remain as a fellow. On February 4, 2006, they emailed Dr. Max Cohen

(“Cohen”), Chief Medical Officer at NYU. Subsequently, they reversed that position, however,

and on February 9, 2006, Ren emailed Cohen revoking their earlier support for Pal’s retention.

Ren testified that she came to realize the gravity of the situation after a meeting with a patient

and could not maintain her support.



11

NYU Disciplinary Policy, Section IV(E), provides that the Director, Ren, shall

recommend whether a fellow be dismissed to the Department Chair, Riles. (Def. Ex. Y).

Section IV(E)(ii) calls for dismissal if a fellow “engaged in a conduct that threatens the welfare

or safety of patients.” Id.

On February 16, 2006, Riles convened another meeting with Ren, Fielding, Bernstein and

Cohen to discuss how to proceed with Pal. They unanimously agreed that Pal should be

terminated. (Trial Tr. at 233). While the consensus was unanimous, NYU Disciplinary Policy

dictated that the final determination on termination was to be made by the head of surgery, Dr.

Riles. Riles testified that he alone decided to terminate Pal. (Trial Tr. at 233-234). In making

his decision to terminate Pal, Riles was aware of the Pal’s complaints and her conversations with

Bernstein. Nonetheless, his decision to terminate Pal was based on the anonymous calls she

admitted making. In his view, she had endangered patient safety. Pal’s conduct was neither an

accident nor a mistake; it was deliberate. Pal provided false information to pre-operative patients

who were both vulnerable and frightened. Delaying or postponing surgery was a risk to the

patient’s health (Trial Tr. at 195-196, 234-235). Riles testified that Pal’s reported concerns to

Bernstein about patient safety had absolutely no effect on his decision. Riles is a wholly credible

witness, and the Court finds his testimony truthful and reliable.

On February 21, 2006, Riles sent Pal a letter terminating her employment with NYU,

effective February 22, 2006. (Def. Ex. F1). The letter recounted the specifics of Pal’s calls to

patients and stated that, in Riles words, “I am taking this action due to my belief that your

continued participation in the program would threaten the welfare and safety of patients,

employees, or other staff members or the integrity of the residency training program.”



12

Pal appealed her suspension and termination. Pursuant to Section V of NYU Disciplinary

Policy, a committee of two residents and two attending physicians was convened. Following a

hearing, the committee, in a written decision dated May 30, 2006, unanimously upheld Pal’s

suspension and termination. Pal commenced this lawsuit in August, 2006.

DISCUSSION

Federal Rule of Civil Procedure 52(c) provides: “If a party has been fully heard on an

issue during a non-jury trial and the court finds against the party on that issue, the court may

enter judgment against the party on a claim . . . that, under the controlling law, can be maintained

. . . only with a favorable finding on that issue.” See MacDraw, Inc. v. CIT Grp. Equip. Fin.,

Inc., 157 F.3d 956, 959 n.2 (2d Cir. 1998) See also Conopco, Inc. v. Campbell Soup Co., 95 F.3d

187, 194 (2d Cir. 1996). Rule 52(c) “authorize[s] a dismissal at the close of the plaintiff’s case if

the plaintiff ha[s] failed to carry an essential burden of proof.” LaMarca v. United States, 31 F.

Supp. 2d 110, 123 (E.D.N.Y. 1998) (alteration in original) (internal quotation marks omitted)

(quoting Fed. R. Civ. P. 52(c)); see also Wechsler v. Hunt Health Sys. Ltd., 330 F. Supp. 2d 383,

433 (S.D.N.Y. 2004). Unlike Rule 50, which governs judgment as a matter of law in jury trials,

under Rule 52(c), “the court does not consider the evidence in the light most favorable to the

non-moving party”, but rather weighs the evidence, resolves any conflicts and determines for

itself where the preponderance of evidence lies. Id.

New York Labor Law § 741(2) prohibits employers from taking “retaliatory action”

against an employee who “discloses or threatens to disclose to a supervisor, or to a public body

an activity, policy or practice of the employer or agent that the employee, in good faith,

reasonably believes constitutes improper quality of patient care.” The Court has previously ruled

that § 741(2) does not protect anonymous disclosures to pre-operative patients. The same statute



13

also provides the employer with a defense that “the (adverse) personnel action was predicated

upon grounds other than the employee’s exercise of any rights protected by this section.” NY

Labor Law § 741(5) See Luiso v. Northern Westchester Hosp. Center, No. 2008-03026, 2009

N.Y. App. Div. LEXIS 6684 (2d Dep’t 2009) (defendant obtained summary judgment dismissing

a Section 741 claim because it established that the plaintiff had been transferred out of her

management position in the operating room based on her work performance); and Timberlake v.

New York Presbyterian Hospital, No. 05 Civ. 5616 (LAP), 2009 U.S. Dist. LEXIS 89949

(S.D.N.Y. Sept. 20, 2009) (defendant prevailed on its motion for summary judgment on the

plaintiff’s 741 claim after offering “ample evidence” that the plaintiff’s reprimand and

termination were based on her insubordination and deficient performance).

In the instant case, Pal contends that her complaint to Bernstein about her concerns

regarding patient safety at NYU resulted in her suspension and termination. The parties

stipulated that Pal had a “reasonable, good faith belief” that NYU engaged in improper quality of

patient care. (Ex. 28). She did express, albeit after the fact, those concerns to her employer and

she was subsequently suspended and then terminated. This is a sufficient showing to shift the

burden to NYU to demonstrate that Pal’s termination was not due to her complaints to Bernstein.

The Court finds that NYU has demonstrated that Pal’s termination was not caused by her

disclosures to Bernstein; but rather to Pal’s egregious conduct on January 21, 2006. Prior to her

anonymous calls on Saturday, January 21, 2006, Pal had voiced her concerns to NYU without

any reprisals or retaliation. In December 2005, she sent an email to her superiors and directly

confronted both Ren and Fielding without adverse consequences. Moreover, Pal concedes that

none of her previous complaints prior to January 21, 2006, were the basis for any retaliation or

discipline by NYU. (Tr. at 615). There is neither evidence nor contention that anyone at NYU



14

acted adversely towards Pal because of her expression of concern until after her misguided calls

to the patients.

Pal’s own actions after her phone calls are best described as self-serving. Pal sought a

meeting with Bernstein only after she realized the true consequences of her calling the patients.

After her disclosure to Bernstein, Pal sent Bernstein an email purportedly to summarize what

was discussed. But the memo masked what Pal’s real concern was: fear of being blamed for a

patient’s death. Her e-mail was an obvious attempt to garner some form of legal protection. The

Court credits the testimony of Bernstein who testified that her meeting with Pal was less about

patient safety, and more about Pal’s concerns for herself. Bernstein recognized that Pal’s email,

dated January 24, 2006, was “a set-up for . . . a way for [Pal] to protect herself.” (Trial Tr. at

309). Bernstein was a credible witness; and the Court credits her testimony, including her

description of the January 24, 2006 meeting and the purpose of Pal’s subsequent email.

Pal’s termination was not because of her complaints about patient care at NYU, but rather

because she made grossly inappropriate, inexplicable, anonymous phone calls to patients who

were already anxious about their forthcoming surgery. Her calls created risk to the patients’

health. The Court recognizes Ren and Fielding had mixed motives, and frequent changes of

position on retaining or terminating Pal. The Court finds that they were not responsible for

NYU’s decision to terminate. Instead, Riles, as the Department Chair, had the sole authority to

suspend and terminate Pal; and after consulting with others, he came to his own conclusions

based primarily on the fact that Pal made the anonymous phone calls. The Court finds Riles

credible. Riles’ actions were made pursuant to the written disciplinary policies of NYU. Riles

was entrusted with final decisional authority over the issue, and he discharged his responsibilities

in a fair and proper way, in accordance with NYU’s written procedures. After Pal’s suspension,



Riles took another month to examine and reflect on the findings and consequences ofPa]'5

conduct belare deciding that her actions of Saturday, January 21, 2006 were 50 egregious that

she had to be terminated. Accordingly, based on the credible evidence, the Court finds and

concludes that Pal's suspension and subsequent termination were not retaliatory actions

proteered by New York Labor Law § 741(2), but rather, were legitirnale1y based upon her

improper, anonymous phone calls 10 pre-operative patienls.

CONCLUSION

For the foregoing reasons. NYU's Rule 52(c) motion is GRANTED. The Clerk of the

Court is directed to enter judgment for NYU and close this case.

Dated: New York, New YorkAugust 6, 20 I ]

United States District Judge

15



1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------X NEELU PAL, M.D., Plaintiff, -against- NEW YORK UNIVERSITY, Defendant.

Dkt. No. 06 CV 5892 (PAC) (FM)

----------------------------------------------------------------X

NOTICE OF APPEAL Notice is hereby given that Neelu Pal, Plaintiff in the above-captioned case,

hereby appeals to the United States Court of Appeals for the Second Circuit from the

final judgment entered in this action on August 8, 2013.

Dated: August 20, 2013 New York, New York /s/ ___________________________________ Jason L. Solotaroff GISKAN SOLOTAROFF ANDERSON & STEWART LLP 11 Broadway, Suite 2150 New York, NY 10004 Tel: (212) 847-8315 Counsel for Plaintiff


neelu pal v nyu

Documents

district courts findings

district courts key

termination decision

york university

sole decisionmaker

statement of facts

circuitneelu pal

influence of ren