MCCORMICK v. NYU LANGONE MEDICAL CENTER (2020)

Order, Supreme Court, New York County (Lucy Billings, J.), entered on or about December 2, 2019, which, to the extent appealed from, denied the motion by defendant NYU Langone Hospitals (s/h/a NYU Langone Medical Center and NYU Hospital Center) for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff commenced this action pursuant to Labor Law § 741, alleging that defendant terminated her employment as a respiratory therapist in retaliation for her filing of a complaint with the State Department of Health (DOH), on May 22, 2015, about an event that occurred at the hospital on May 21, 2015.

Defendant failed to establish prima facie that its termination of plaintiff's employment was not motivated by a retaliatory animus (see Labor Law § 741[2][a] ).  Defendant relies on the absence of evidence that it knew when it fired her that plaintiff had filed such a complaint (see Bendeck v. NYU Hosps. Ctr., 77 A.D.3d 552, 909 N.Y.S.2d 439 [1st Dept. 2010] ).  However, defendant did not submit an affidavit or other sworn statement by Charles Catanzaro, the person who decided to fire plaintiff.  Thus, it cannot be determined that, as a matter of law, Catanzaro did not know about the DOH complaint at the time of his decision.

In any event, regardless of defendant's proof of nonretaliatory reasons for the termination, plaintiff raised an issue of fact as to whether defendant knew of her DOH complaint at the time of her termination and whether she would have been fired absent a retaliatory motive (e.g. Ji Sun Jennifer Kim v. Goldberg, Weprin, Finkel, Goldstein LLP, 120 A.D.3d 18, 25–26, 987 N.Y.S.2d 338 [1st Dept. 2014] ).  Plaintiff submitted evidence of a May 30, 2015 anonymous call to defendant's internal complaint hotline in which the caller used the term “whistleblower” to describe plaintiff and said that plaintiff was going to be fired as a result of blowing the whistle.  While defendant argues that the anonymous caller could not have been at management level because the decision to terminate plaintiff's employment was made on May 29, the day before the call, the termination letter from Catanzaro to plaintiff is dated June 1. Thus, a management-level caller could have made the anonymous call on May 30.

The motion court correctly declined to dismiss the complaint pursuant to Labor Law § 741(3) (see Skelly v. New York City Health & Hosps. Corp., 161 A.D.3d 476, 75 N.Y.S.3d 178 [1st Dept. 2018] ).  The record shows that plaintiff had reason to believe, in good faith, that reporting the matters at issue to defendant before bringing them to the attention of DOH would not have resulted in corrective action.

We have considered defendant's remaining arguments, including the hearsay argument and the argument about the grievance process, and find them unavailing.