Neelu Pal V NYU

IN THE
United States Court of Appeals

FOR 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-Appellant
11 Broadway, Suite 2150
New York, New York 10004
212-847-8315
On Appeal from the United States District Court
for the Southern District of New York (New York City)
13-3141-CV
Case: 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 Courts Key Findings Were
Clearly Erroneous and Involved an
Incorrect Application of Law to Facts .............................................. 24

i. The District Courts Finding That Dr. Riles Was the Sole
Decision-maker Was Factually Wrong and, In Violation of
Applicable Law, Failed To Consider Ren and Fieldings
Influence on the Termination Decision ........................................ 25

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


ii
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 COURTS FINDING THAT DR. PAL WAS NOT
MOTIVATED BY A CONCERN ABOUT PATIENT CARE IS
FACTUALLY INCORRECT AND LEGALLY IRRELEVANT .............. 33

A. The District Courts Factual Findings Concerning
Dr. Pals Motivation in Contacting Dr. Bernstein
Were Clearly Erroneous .................................................................... 33

B. The District Courts Findings Concerning Dr. Pals
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. Pals case in a bench trial, the district court granted
NYUs 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 NYUs 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. Pals supervisors and the targets of Dr. Pals complaints. The
district court also committed clear error in making a factual finding, despite NYUs
stipulation to the contrary, that Dr. Pals complaints relating to patient safety to Dr.
Carol Bernstein, NYUs 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. Pals jury demand on the grounds
that Dr. Pals 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 Yorks 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. Pals claim by virtue of diversity
of citizenship of the parties pursuant to 28 U.S.C. 1332.
This Courts 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. Pals 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. Pals
subjective motivation in making the complaints.

4
5. Whether the district court erroneously struck Dr. Pals 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 NYUs 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 NYUs motion for summary judgment and struck
Dr. Pals 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. Pals 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. Pals termination and he
terminated her because of the phone calls she had made to the patients. (A638-
655).
Dr. Pal defended herself against NYUs 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 NYUs 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 NYUs 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. Pals 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 NYUs 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 NYUs
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 Rens own admission, these

8
problems had not been resolved by the time Dr. Pal called the patients. (A767).
In January 2006, Dr. Pals 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. Freibergs spleen. (A496-497). Post-
operatively, Ms. Freibergs 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. Freibergs 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. Freibergs 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 NYUs Department of Surgery, or speak to Dr. Max Cohen,
NYUs 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. Pals 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, NYUs 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. Pals primary
concern in speaking to her was patient safety, (A346-347), according to Dr.
Bernsteins 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. Pals 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. Pals 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. Pals situation]. (A85). Fielding stated that what
was more distressing than Dr. Pals calls to the patients was that Dr. Pals
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 Fieldings email to Lynn Lowy, an NYU attorney
assigned to the matter, with the message, I dont think he and Chris understand
the risks they are exposed to. Im not inclined to change our current strategy.
(A715). At that time, NYU was considering a proposal from Dr. Pals 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 NYUs 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 NYUs
reporting of Ren to the New York State Office of Professional Misconduct and
what he perceived to be NYUs handling of Dr. Pal. He stated at the very
mention of Pal getting a lawyer to challenge us and the hospital, the hospitals
inclination to is cave in to her. (Id.). Fielding went on to castigate the hospital for
investigating Dr. Pals concerns about patient care:
At the meeting with Pal to inform her of her suspension on January 25
th
,
Carol Bernstein, in her role as Pals advocate, emphasized the importance of
investigating our practice as well as deciding Pals 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. Pals
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. Pals termination. (A754). Ren also
had not testified to that explanation at her deposition. (A186).
After Ren and Fielding changed their mind about Dr. Pals reinstatement,
Dr. Pal was terminated. (A188). According to NYUs 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 NYUs 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. Pals 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 NYUs 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 Fieldings email in which
he rescinded his termination proposal. (A442-443).
In contrast to NYUs 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
NYUs 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 Rens 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, Fieldings 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 Fieldings 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. Freibergs 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. Freibergs 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. Pals 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 statutes 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. Pals 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 plaintiffs 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. Pals
communications to Dr. Bernstein were sufficient to shift the burden to NYU to
demonstrate that Pals termination was not due to her complaints to Bernstein,
and made a finding that NYU has demonstrated that Pals 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. Pals 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 Courts Key Findings Were Clearly Erroneous and Involved
an Incorrect Application of Law to Facts.

The district courts 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. Pals termination and Ren and Fielding were not responsible
for the termination decision; (SA14-15) and 2) that Dr. Pals 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 patients death. (SA14). Moreover,
for each of the findings, the district court did not perform the appropriate legal
analysis. Even if the district courts 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. Pals 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 Courts Finding That Dr. Riles Was The Sole
Decisionmaker Was Factually Wrong and, In Violation of
Applicable Law, Failed To Consider Ren and Fieldings Influence
on the Termination Decision.

a. The District Courts 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.
Pals termination.
This evidence begins with NYUs 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. Pals
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. Pals 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, NYUs attorney, as relevant to Ms. Lowys
discussions with Dr. Pals attorney. (A715).
This was consistent with the way Dr. Cohen orchestrated other disciplinary
matters at NYU. With respect to Rens 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. Pals termination and the district courts 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 Fieldings
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 employees
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 Fieldings 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 Fieldings own words. In Fieldings first email to Dr.
Cohen, he wrote that what is more distressing [than Dr. Pals 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
Fieldings 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. Pals 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. Pals
argument that Ren and Fielding likely realized she was the caller almost

2
The district court also ignored Rens incredible testimony that she did not notice
Dr. Pals 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. Pals
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. Pals
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 Fieldings 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 4
th
but not willing to do so on February 9
th
. These
explanations ranged from Fieldings statement to the appeals committee that their
change of heart was the result of speaking to doctors from Dr. Pals 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 Fieldings
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 Fieldings 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 COURTS FINDING THAT DR. PAL WAS NOT
MOTIVATED BY A CONCERN ABOUT PATIENT CARE IS
FACTUALLY INCORRECT AND LEGALLY IRRELEVANT.

A. The District Courts Factual Findings Concerning Dr. Pals
Motivation in Contacting Dr. Bernstein Were Clearly Erroneous.

Dr. Carol Bernstein, who during Dr. Pals disciplinary proceedings had been
perceived as Dr. Pals 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. Bernsteins testimony was, however, flatly discredited by highly
persuasive evidence.
First, Dr. Bernsteins contemporaneous notes of the meeting showed that the
first thing Dr. Pal mentioned to her was Dr. Pals concern about the patients.
(A775, 356). Second, in the email Dr. Bernstein sent in response to Dr. Pals email,
Dr. Bernstein did not in any way suggest that Dr. Pals 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. Pals email, that was, in Dr. Bernsteins words, a fairly
accurate summary of the meeting. (A738). Finally, and perhaps most
significantly, Dr. Bernstein was sufficiently impressed by Dr. Pals 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. Pals complaints credence.
(A176,723).
Accordingly, the district courts finding crediting Dr. Bernsteins testimony

35
and finding, based on that testimony, that Dr. Pals 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 Courts Findings Concerning Dr. Pals Motivation In
Contacting Dr. Bernstein Were Legally Irrelevant.

Even though the district court held that Dr. Pals complaints of improper
patient care to Dr. Bernstein were sufficient to shift the burden to NYU to
demonstrate that Pals termination was not due to her complaints , (SPA29), the
district court went on to make the finding about Dr. Pals 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 courts decision. (SPA30).
There appears to be no legal basis for the district court to have incorporated
the finding concerning Dr. Pals 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 NYUs
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 plaintiffs 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. Pals 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
partys 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. Pals back pay claim and the causal connection
between NYUs conduct and Dr. Pals 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. Pals lost wages are

39
questions as to which she is entitled to a jury trial and the district courts decision
striking her jury demand was erroneous.
CONCLUSION
This Court should reverse the district courts decision and remand the case
to the district court for trial before a jury.
Dated: December 2, 2013
New York, New York

& STEWART, LLP

By:
_______s/______________________
Jason L. Solotaroff
New York NY 10004
(212) 847-8315
Counsel for Appellant
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December 2, 2013
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. Pals 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 Pals fraudulent inducement claim pursuant to Federal Rule
of Civil Procedure 12(b)(6). On August 20, 2009, the Court entered another order
holding that Pals 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.
Pals 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
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: January 25, 2010
Case 1:06-cv-05892-PAC-FM Document 86 Filed 01/25/2010 Page 1 of 15
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contends that Pals request for back pay is too speculative and that under 741 she is not
entitled to recover front pay. Finally, NYU moves to strike Pals 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 Pals claim under 741 is equitable in nature, she is not entitled to a jury trial.
Accordingly, and for the reasons that follow, NYUs motion for summary judgment is
GRANTED in part, and DENIED in part. NYUs motion to strike Pals 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 Courts 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
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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 programs
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 surgery
2
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 hypotensive
3
after
surgery and at Pals 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. NYUs 85 page, 315 paragraph, statement of material facts is neither short nor concise. Pal
raises numerous objections in her response to NYUs statement and has submitted her own counter-
statement of material facts, to which NYU has responded. While the Court declines Pals request to deny
NYUs motion for summary judgment based on its prolix Rule 56.1 statement, (Pl.s Mem. in Oppn to
Def.s Mot. Summ. J. (Pl.s Oppn) at 13-14), NYUs inability to set forth a concise statement of the
allegedly undisputed material facts presages the Courts 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.
Stedmans Medical Dictionary (27th ed. 2000).
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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 Pals 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 callers identity. At some point between
Saturday, January 21, 2006, and the end of the day on Monday, January 23, 2006, NYU
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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), NYUs 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 Bernsteins 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 shouldnt 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 Pals
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 NYUs 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
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phone calls. Riles letter describes Pals 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 Rens willingness to afford Pal the
opportunity to complete her fellowship. (Fielding Letter 2/4/2006, Krebs Decl., Ex. 53.)
But Fielding and Rens 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 Pals 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. Pals 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 Pals contention that the anonymous phone calls she made constitute
protected activity under 741. Pals remaining claim is that NYUs proffered reason for
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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)).
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IV. Liability
Section 741 of the New York Labor Law, also known as New Yorks 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). Pals
suspension and discharge are both within 741s 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 NYUs 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, NYUs 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 Pals 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 employees
exercise of any rights protected by this section. In the context of construing a
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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
employees protected conduct and the employers 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 NYUs
argument that the phone calls were so egregious that it is beyond dispute that they were
the sole reason for Pals suspension and discharge. Third, it is unclear who ultimately
decided to terminate Pal, and the extent of Fielding and Rens influence on the decision.
Fourth, Pal has submitted evidence that other NYU employees committed infractions,
which are arguably similar to Pals phone calls, but who were not suspended or
discharged. Finally, and perhaps most importantly, Pals simultaneous disclosure to

4
N.Y. Lab. Law 740, New Yorks 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).
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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 NYUs reason for
suspending and terminating Pal, NYUs 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 attorneys 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 Pals contention. See Kraus
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v. New Rochelle Hosp. Med. Ctr., 216 A.D.2d 360, 365, 628 N.Y.S.2d 360, 364 (2d
Dept 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 Dept 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 Dept 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)).
Pals 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. Lukes 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.
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Queens Coll. of City Univ. of New York, 64 A.D.3d 540, 542, 883 N.Y.S.2d 110, 113
(2d Dept 2009). Yet, 740(5) explicitly provides that relief is to be ordered by the
court. Pal is not entitled to recover front pay, and NYUs motion for summary judgment
on Pals 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. Pals 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
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fellowship with NYU. Accordingly, NYUs 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 Pals 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 Readers Digest Assn., Inc., 822 F. Supp. 1044, 1045 (S.D.N.Y. 1993)
(New Yorks 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. Oppn 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.
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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 plaintiffs claim under 740] is an equitable
claim. Id. The Court then struck the plaintiffs 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 NYUs motion to strike Pals 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).
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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 York
January 25, 2010
SO ORDERED

United States District Judge
15
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---------------------------------------------------------------x

NEELU PAL, M.D., :

Plaintiff, :
v. 06 Civ. 5892 (PAC)(FM)
: MEMORANDUM OPINION & ORDER
:
Defendant.
---------------------------------------------------------------x

HONORABLE PAUL A. CROTTY, United States District J udge:

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 J ersey law, to take a fellowship
in NYUs bariatric surgery program; and thereafter fired her in retaliation for her complaints
about the bariatric surgery programs substandard conditions and patients care, in violation of
New York Labor Law 741, also known as New Yorks Health Care Whistle Blower Law.
On August 23, 2007, the Court granted NYUs Fed. R. Civ. P. 12(b)(6) motion to dismiss
Pals fraudulent inducement claim (Order dated August 23, 2007, Docket No. 45).
Discovery followed, supervised by U.S. Magistrate J udge Frank Maas. Discovery
revealed certain facts which are not disputed. On Saturday, J anuary 21, 2006, Pal called bariatric
surgery patients, who were to be operated on the following week, and said in substance that
NYUs 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
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NYU moved for summary judgment on Pals 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 plaintiffs secret,
anonymous communications and disclosures, during the weekend
of J anuary 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 plaintiffs 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 J anuary 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.

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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 Pals 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 defendants 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, Pals counsel outlined Pals 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 Pals
complaints to Dr. Bernstein about the conditions in NYUs
bariatric surgery program run by Drs. Fielding and Ren.
(c) As soon as Drs. Fielding and Ren learned of Pals
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 J anuary 25, 2010, also struck Pals 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.
SPA18
4

(2) NYU tolerated far worse conduct by others, and NYU would
forgive those transgressions, but not Pals 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 NYUs 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 Pals
subsequent expressions of concerns about patient safety to Dr. Bernstein. Her complaints and
concerns were not made until J anuary 24, 2006, long after her wrongful conduct had occurred;
and were more concerned about her being blamed than patient safety. Her J anuary 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 NYUs
Weight Management Program.

3
Pal attacks Rens 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 Pals conduct.
Rens conduct is not an appropriate comparator because it is different in both kind and degree from Pals conduct.
SPA19
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 &
Ps), obtaining consents from patients, and writing orders for post-operative care.
Pals 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 J anuary, 2006, Fielding thought Pals 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&Ps 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&Ps and
post-operative coverage. Fielding told her you dont 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 J anuary 12, 2006, Pal assisted Fielding perform bariatric surgery on an obese
female patient at NYU. Two days later, in the early morning of J anuary 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 J anuary 13, 2006 to
report on the patients 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
SPA20
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 J anuary 19, 2006, another bariatric surgery patient became hypotensive (low blood
pressure). At Pals 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 patients blood
pressure. The patients 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, J anuary 23, 2006. She claimed to observe
inconsistencies and discrepancies in the H&Ps for the patients; and brought them to Rens
attention. According to Pal, Ren was quite dismissive. (Trial Tr. at 478).
On Saturday, J anuary 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 Pals concerns
about being blamed.
SPA21
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 NYUs 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 Pals 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, J anuary 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 inexplicableand certainly Pal offered no explanationwhy
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
SPA22
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. NYUs 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, J anuary 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,
NYUs Associate Dean for graduate medical education. They scheduled a meeting for the next
day, Tuesday, J anuary 24, 2006.
NYU wanted to know who was responsible for making the anonymous calls. Bruce
Baulch, an employee in NYUs 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 J anuary 23, 2006, Baulch determined that the Saturday, J anuary 21, 2006 calls were
made from the same day surgery area. This area is a restricted space and a security swipe card is
SPA23
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 Pals 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
support
5
. If there were changes in Rens and Fieldings 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 Pals 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, J anuary 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 J anuary 14, 2006) (Trial Tr. at 306).
After the meeting, Pal sent Bernstein a follow-up email, at 8 p.m. on J anuary 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
Pals 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 Paland 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).
SPA24
10

thrust of the meeting I had with her (Trial Tr. at 308). The main thrust was Pals worry that
she was going to be blamed for things she didnt do (Trial Tr. at 309). At their meeting on
J anuary 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 Bernsteins account of the meeting and finds that Pals concerns were of a personal nature
and were not primarily about patient care, or the quality of care patients were receiving.
Also on Tuesday, J anuary 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, J anuary 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 Pals suspension. (Trial Tr. at 228). After their meeting,
Riles met with Pal and handed her a letter, dated J anuary 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 NYUs Evaluation,
Corrective Action and Disciplinary Policy for Residents.
Even after learning of Pals 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 Pals 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.
SPA25
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 Pals 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. Pals 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
patients health (Trial Tr. at 195-196, 234-235). Riles testified that Pals 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 Pals 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.
SPA26
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 Pals
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 plaintiffs 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
SPA27
13

also provides the employer with a defense that the (adverse) personnel action was predicated
upon grounds other than the employees 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 Dept 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
plaintiffs 741 claim after offering ample evidence that the plaintiffs 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 Pals termination was not due to her complaints to Bernstein.
The Court finds that NYU has demonstrated that Pals termination was not caused by her
disclosures to Bernstein; but rather to Pals egregious conduct on J anuary 21, 2006. Prior to her
anonymous calls on Saturday, J anuary 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 J anuary 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
SPA28
14

acted adversely towards Pal because of her expression of concern until after her misguided calls
to the patients.
Pals 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 Pals real concern was: fear of being blamed for a
patients 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 Pals concerns for herself. Bernstein recognized that Pals email,
dated J anuary 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 J anuary 24, 2006 meeting and the purpose of Pals subsequent email.
Pals 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
NYUs 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 NYUs written procedures. After Pals suspension,
SPA29
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 York
August 6, 20 I ]
United States District Judge
15
SPA30

SPA31
1
----------------------------------------------------------------X
NEELU PAL, M.D.,

Plaintiff,

-against-


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
& STEWART LLP
New York, NY 10004
Tel: (212) 847-8315

Counsel for Plaintiff

SPA32

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