     06-4152-cv, 06-4179-cv
     Reddington v. Staten Island University Hospital


 1                          UNITED STATES COURT OF APPEALS
 2                              FOR THE SECOND CIRCUIT
 3
 4                                            August Term 2007
 5
 6
 7   (Argued: October 11, 2007                                   Decided: September 22, 2008)
 8
 9                          Docket Nos. 06-4152-cv(L), 06-4179-cv(XAP)
10
11                             _____________________________________
12
13                                     CARMEL REDDINGTON,
14                                 Plaintiff-Appellant-Cross-Appellee,
15
16                                                     -v.-
17
18                   STATEN ISLAND UNIVERSITY HOSPITAL and
19               NORTH SHORE LONG ISLAND JEWISH HEALTH SYSTEM,
20                       Defendants-Appellees-Cross-Appellants.
21                       _____________________________________
22
23   Before:         KATZMANN, LIVINGSTON, Circuit Judges, and
24                   KORMAN, District Judge.*
25
26           Employee brought claims against former employer for age discrimination,

27   violation of whistleblower protection law, and breach of contract. The United

28   States District Court for the Eastern District of New York, I. Leo Glasser, J., 373

29   F. Supp. 2d 177, dismissed the whistleblower and contract claims. The parties

30   agreed to dismiss the age discrimination claims with prejudice.               Employee

31   appealed the dismissal of her whistleblower and contract claims, and employer


             *
             The Honorable Edward R. Korman, Senior District Judge, United States District
     Court for the Eastern District of New York, sitting by designation.
 1   cross-appealed, seeking attorneys’ fees. We affirmed in part and certified two

 2   questions to the New York Court of Appeals, 511 F.3d 126, and the New York

 3   Court of Appeals, Read, J., 11 N.Y.3d 80, answered questions. In light of the

 4   answers, we affirm.

 5                                  JONATHAN BEHRINS, Behrins & Behrins, P.C.,
 6                                  Staten Island, NY, for Plaintiff-Appellant-Cross-
 7                                  Appellee.
 8
 9                                  JAMES D. WILLIAMS, JR. (David O. Simon, on
10                                  the brief), Epstein Becker & Green, P.C., New
11                                  York, NY, for Defendants-Appellees-Cross-
12                                  Appellants.
13
14   LIVINGSTON, Circuit Judge:

15         Plaintiff Carmel Reddington appeals from a judgment of the United States

16   District Court for the Eastern District of New York (Glasser, J.) dismissing her

17   claims against her former employer, defendants Staten Island University

18   Hospital and North Shore Long Island Jewish Health System, Inc. (the

19   “Hospital”), for termination in violation of New York’s whistleblower protection

20   law and for breach of an employment contract. See Reddington v. Staten Island

21   Univ. Hosp. (Reddington I), 373 F. Supp. 2d 177 (E.D.N.Y. 2005). We set forth

22   the underlying facts and procedural history in Reddington v. Staten Island

23   University Hospital (Reddington II), 511 F.3d 126 (2d Cir. 2007). In Reddington

24   II, we affirmed the judgment of the district court insofar as it dismissed

25   Reddington’s claim for breach of contract, id. at 137-38, and we certified to the

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 1   New York Court of Appeals the following two questions related to the whistle-

 2   blower law: (1) “Does the institution of a time-barred claim pursuant to New

 3   York Labor Law § 740 simultaneously with a claim pursuant to New York Labor

 4   Law § 741 trigger section 740(7)’s waiver provision and thereby bar the section

 5   741 claim, even if the section 740 claim is subsequently withdrawn?”; (2) “Does

 6   the definition of employee in New York Labor Law § 741 encompass an

 7   individual who does not render medical treatment, and under what circum-

 8   stances?” Id. at 136. The Court of Appeals accepted certification, Reddington

 9   v. Staten Island Univ. Hosp. (Reddington III), 9 N.Y.3d 1020, 881 N.E.2d 214,

10   851 N.Y.S.2d 118 (2008), and answered both questions in the negative,

11   Reddington v. Staten Island Univ. Hosp. (Reddington IV), 11 N.Y.3d 80 (2008).

12   As we explain, the Court of Appeals’s answers to the certified questions require

13   us to affirm the judgment of the district court.

14         The district court determined that, by instituting an action under section

15   740 of the New York Labor Law, Reddington triggered the claim-waiver

16   provision of section 740(7) and thereby waived the claim under section 741 that

17   she asserted in her amended complaint. Observing that section 741 contem-

18   plates enforcement through the private right of action established in section

19   740(4), the Court of Appeals determined that “no election of remedies is

20   implicated when sections 741 and 740 are pleaded together, or section 741 is


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 1   pleaded after a plaintiff has instituted a section 740 claim, because section 741

 2   provides no independent remedy.” Id. at 89. Accordingly, although Reddington

 3   triggered section 740(7)’s waiver by instituting an action under section 740, cf.

 4   Reddington II, 511 F.3d at 133-34, Reddington did not waive her section 741

 5   claim because that claim does not fall within the scope of the waiver, cf. id. at

 6   134-35.

 7         Nonetheless, we must affirm the dismissal of her section 741 claim

 8   because section 741 applies only to “a[] person who performs health care

 9   services.” N.Y. Lab. Law § 741(1)(a). As Reddington IV makes clear, “section

10   741 . . . is meant to safeguard only those employees who are qualified by virtue

11   of training and/or experience to make knowledgeable judgments as to the quality

12   of patient care, and whose jobs require them to make these judgments.”11

13   N.Y.3d at 93. The statute, therefore, applies to employees who “actually supply

14   health care services,” but does not apply to employees who “merely . . .

15   coordinate with those who do.” Id. at 91. As we described in our prior opinion,

16   Reddington’s complaint alleges that she coordinated and developed certain

17   services for the Hospital’s patients, took charge of patient satisfaction

18   questionnaires, and managed and trained personnel who provided translation

19   assistance, but it does not allege that she supplied any treatment. Reddington

20   II, 511 F.3d at 135.   According to the definition of health care services as


                                             4
 1   explained in Reddington IV, these allegations are insufficient to establish that

 2   Reddington was an employee within the meaning of section 741(1)(a). Because

 3   the remedies available for violations of section 741 are available only to health

 4   care employees, see N.Y. Lab. Law § 740(4)(d), we affirm the district court’s

 5   dismissal of Reddington’s section 741 claim.

 6         Finally, we consider the Hospital’s cross-appeal, in which it argues that it

 7   is entitled to attorneys’ fees under section 740(6). The district court declined to

 8   award attorneys’ fees because Reddington withdrew her section 740 claim at an

 9   early stage of the litigation. See Reddington I, 373 F. Supp. 2d at 189 (denying

10   the Hospital’s request for attorneys’ fees because Reddington “served her

11   amended complaint before defendants filed an answer to the original complaint

12   containing the § 740 claim” and because “there ha[d] been no discovery

13   conducted in this litigation to date”). Section 740, however, requires the court

14   to determine whether “an action brought by an employee under this section was

15   without basis in law or in fact,” N.Y. Lab. Law § 740(6), and thus the district

16   court appears to have employed an erroneous legal standard. Nevertheless, in

17   view of the decision that Reddington did not waive her claim under section 741

18   because that claim is enforced pursuant to section 740(4), and in light of the

19   previously unclear scope of section 741’s definition of employee, we are of the

20   opinion that Reddington’s “action under this section” — construed as a whole —


                                              5
1   was nonfrivolous. As a matter of law, therefore, the Hospital is not entitled to

2   attorneys’ fees.

3         For the foregoing reasons, we affirm the district court’s dismissal of

4   Reddington’s claims under section 741, and we also affirm the district court’s

5   refusal to award attorneys’ fees to the Hospital. We thank the New York Court

6   of Appeals for its assistance in construing these provisions of New York law.




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