Labor - Whistleblower Law - Health Care - Covered Employee

Labor - Whistleblower Law - Retaliation - Temporal Proximity to Protected Conduct

Muriel Goode-Trufant, Corporation Counsel (Lawrence Profeta of counsel), for defendant.

Ricotta & Marks, P.C. (Thomas A. Ricotta of counsel) for plaintiff.

In this action to recover damages for violations of Labor Law § 741, defendant New York City Health and Hospitals Corporation (defendant or HHC) moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint.{**88 Misc 3d at 369} Plaintiff Lili Hutchison (plaintiff) opposes the motion. For the reasons set forth herein, the motion is denied.

Plaintiff, a laboratory worker employed by HHC at Kings County Hospital Center (KCHC), claims that she made various whistleblower complaints to hospital management and regulatory agencies regarding improper hiring practices and deficient laboratory procedures in defendant's Pathology Department. Specifically, she claims that beginning in 2001, she reported to state agencies patient safety violations and nepotistic hiring practices at HHC. On November 29, 2011, plaintiff submitted a complaint to the State Department of Health, asserting that nonclinical, unlicensed staff were performing tests and producing inaccurate results that endangered patient safety. Plaintiff further contends that her complaints led to findings that HHC violated the State Hospital Code. As a result, she alleges that defendant has subjected her to ongoing retaliation and harassment.

On November 4, 2013, plaintiff commenced this action by filing a summons and complaint, which sought to recover damages for violations of Labor Law § 740 and alleged retaliation based on her whistleblowing activities. The retaliatory acts allegedly included, among other things, reassignment of work duties, verbal and physical harassment, and denial of promotions. Plaintiff alleges that the retaliation began in June 2002, when she made her first complaints regarding the hiring of unlicensed and unqualified laboratory staff, and has been ongoing ever since then. The complaint alleges that the most recent retaliatory acts occurred in [*2]January, February, and June 2013. Plaintiff served a notice of claim upon defendant on February 15, 2013, and an amended notice of claim on March 21, 2013.

In lieu of answering, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (7), arguing that the notice of claim was untimely and the complaint was barred by the statute of limitations, Labor Law § 740 was inapplicable to public employees, and the complaint failed to state a cause of action. Plaintiff opposed the motion and cross-moved for leave to amend the complaint, seeking to withdraw her claim under Labor Law § 740 and replace it with a claim under Labor Law § 741. The substantive allegations supporting the cause of action remained unchanged.

By order dated October 28, 2014, the Honorable Dawn Jimenez-Salta granted plaintiff leave to amend the complaint, converted defendant's motion into one for summary judgment,{**88 Misc 3d at 370} and granted the motion, resulting in dismissal of the amended complaint. Specifically, the court first found that defendant made a prima facie showing that the action was time-barred due to plaintiff's failure to file a timely notice of claim. Plaintiff filed her first notice of claim on February 15, 2013, meaning that only conduct occurring on or after November 17, 2012 (90 days prior) could be considered. The court further found that the only allegation that might have occurred after that date was plaintiff's claim that she submitted a list of improperly licensed lab assistants to the State Departments of Health (DOH) and Education (SED), but that this allegation was problematic since plaintiff did not allege an actual date, only that it occurred in November 2012.

The court then found that since plaintiff had filed her complaint on November 4, 2013, her claims were limited to those that occurred on or after August 6, 2012, pursuant to the one year and 90-day statute of limitations. However, since plaintiff's complaint about the improperly licensed lab assistants on November 2012 was not a separate and distinct event but merely "an ongoing discussion of previous complaints," it was deemed to be time-barred and dismissed. The court also found that plaintiff did not fall within the definition of an "employee" under Labor Law § 741, citing Reddington v Staten Is. Univ. Hosp. (11 NY3d 80 [2008]). The court determined that plaintiff's "mere training and experience" were insufficient to state a claim where she had no responsibility, direct or indirect, for providing treatment or care to patients.

The Appellate Division, Second Department subsequently reversed in part and modified the order, holding that it was error to convert the motion to dismiss to one for summary judgment and reinstating so much of the amended complaint as alleged retaliatory acts occurring on or after November 17, 2012. (See Hutchison v Kings County Hosp. Ctr., 139 AD3d 673, 675 [2d Dept 2016].) The Second Department first found that although plaintiff had conceded that she did not file a timely notice of claim regarding retaliatory acts that occurred before November 17, 2012, the 90th day before the notice of claim was served on February 15, 2013, she did timely file for those retaliatory acts occurring on or after November 17, 2012 (i.e., within the 90 days preceding the service of the notice of claim) and that the lower court erred in dismissing so much of the cause of action that alleged retaliatory acts that occurred on or after this date. (Id. at 675.){**88 Misc 3d at 371}

The Second Department also found that the lower court had erred in dismissing the case pursuant to CPLR 3211 (a) (7) as the complaint alleged all the necessary elements for a cause of action pursuant to Labor Law § 741. (Id. at 676.) Contrary to the lower court's ruling that plaintiff was not an employee, the Second Department found that triable issues of fact existed as to [*3]whether plaintiff fell within the definition of employee (i.e., whether she was "qualified by virtue of training and/or experience to make knowledgeable judgments as to the quality of patient care" or required by virtue of said position to make those judgments). (Id.)

Thereafter, the case was restored to active status and the parties engaged in discovery. Following the completion of discovery, defendant filed the instant motion for summary judgment dismissing the amended complaint.

Plaintiff's highest level of education is an MBA and a master's degree in health care management. She is licensed as a clinical laboratory technologist and also works part-time as the executive director of an organization known as American Home Care Services. She is also a certified American Society of Clinical Pathologists member.

Plaintiff started working at KCHC in 1990 as a floating laboratory worker assigned to the Immunology, Serology, and Parasitology Labs and later assumed the title of Laboratory Technician Level I, which she currently holds. In 2005, she was transferred to the Hematology Lab, which plaintiff alleges was due to her whistleblowing activities. She remains assigned to the Hematology Lab. Although she is titled as a technician, plaintiff testified that her duties include various tasks ordinarily performed by the title Laboratory Technologist Level II, including processing and testing blood and urine samples, independently performing and evaluating diagnostic tests on the instruments and reviewing the tests to see if they are within the proper range, and reporting of test results, which go directly into patients' charts. If there are critical values for a patient, she reports those results to the physician. In addition, plaintiff performs quality control tests, maintains instruments, and trains newly hired staff.{**88 Misc 3d at 372}

In 2001 or 2002, plaintiff began making complaints and reports regarding alleged improprieties and violations occurring in defendant's Pathology Department. In December 2010, she filed a complaint with the DOH, which subsequently informed plaintiff on August 15, 2011, that it had found that defendant had violated 10 NYCRR 405.6 (a) (2) (i), which concerns the establishment and maintenance of a hospital quality assurance program. Between August 2009 and December 2011, plaintiff made numerous complaints in person, by email and regular mail to the Chief Operating Officer and Executive Director regarding "numerous life threatening errors and patient safety violations" made within the Pathology Department and that these errors and patient safety violations related to HIV testing and biopsy sample mislabeling. (Amended complaint 46.)

On November 28, 2011, plaintiff filed another complaint with the DOH concerning improper or nepotistic hiring practices by the individual in charge of the Pathology Department, Sajjad Ahmed. At her deposition, plaintiff testified that these practices resulted in unqualified and unlicensed laboratory staff performing diagnostic testing, which put patients' health and safety at risk. She testified that these staff members made serious errors, such as misdiagnoses, [*4]specimen number and sample mix-ups, reporting incorrect results, and failing to report critical test results. The DOH investigated the matter in January 2011 and found defendant to be in violation of patient safety and quality assurance standards by failing to follow DOH and public safety rules and standards of practice within the clinical laboratory. She further stated that Ahmed had the power to hire, fire, and promote laboratory workers in the Pathology Department, and that he improperly used his authority to hire and promote friends and associates lacking the requisite qualifications.

Plaintiff claims that her supervisors brought false disciplinary charges against her in retaliation for her whistleblowing activities. Specifically, in September 2011, defendant filed a charge against her alleging that she had been insubordinate by refusing to file a rebuttal to an annual performance evaluation.

In February and March 2012, plaintiff reported to DOH and the Joint Commission that patient biopsy sample labels had been improperly handled and switched by one of Ahmed's unqualified hires and that this posed a serious threat to patient welfare, for which defendant had previously been issued violations.{**88 Misc 3d at 373} Specifically, on February 9, 2012, plaintiff submitted a complaint to the College of American Pathologists (CAP), which was similar to the DOH complaints, which resulted in CAP visiting the Hematology Lab in March 2012 to investigate. In March 2012, plaintiff also filed complaints with the DOH and the Joint Commission that: (1) numerous HIV misdiagnoses had occurred and were covered up; (2) there were mix-ups in biopsy sample labeling; and (3) failure to report critical hemoglobin level changes for a patient resulted in a patient's death and incorrectly reporting hemoglobin A1c ratios in other patients resulted in their deaths. According to plaintiff, these complaints resulted in regulatory agencies issuing numerous violations to defendant and an investigation by the Joint Commission.

In the same month, plaintiff emailed defendant's president, Alan Aviles, reiterating her complaints and stating that she had been subjected to retaliation by her supervisors and hospital management. She claimed that this retaliation took the form of harassment and being passed over for promotions. In December 2012, plaintiff testified that she spoke with defendant's executive director, Ernest Baptiste, at a holiday party. She allegedly complained to him about violations of patient safety protocols and errors in HIV testing caused by unqualified laboratory workers.

Although plaintiff did not directly inform Ahmed of her complaints, she asserted that he and other staff in the Pathology Department were aware of her whistleblowing activities, since management and her coworkers made remarks indicating that it was widely known that she had made the complaints leading to the DOH violation and the subsequent visits and investigations. For example, after her complaint to the Joint Commission, Ahmed allegedly stated during a meeting, "I know who put the complaint in, and everybody knows who that is" and then referenced plaintiff. (Deposition tr at 88.) Her coworkers made comments, such as "what did you do now?" (Id. at 83.) Furthermore, plaintiff inferred Ahmed's awareness based on the intensification of the harassment and hostility towards her following visits by regulatory agencies to the Pathology Department. She testified that she heard her floor supervisor, Lyndia Gadsden, telling Teresa Glean, another administrator in the Pathology Department, that they "have to stick together like sisters to get [plaintiff]," allegedly due to her reporting of wrongdoings and mix-ups in the laboratory. (Id. at 46.){**88 Misc 3d at 374}

As a result of her complaints, plaintiff claims that she has been subjected to retaliation [*5]consisting of harassment and other adverse actions, which have continued to present date. She believes that Ahmed encouraged and coerced Gadsden to create a retaliatory hostile work environment by verbally and physically abusing her. Gadsden cursed at her, slapped her, drove her fist into plaintiff's back, and also hit her arm a few times. The alleged physical assaults occurred in "2010, 2011, 2012." (Plaintiff 50-h tr at 33.) Plaintiff testified during her General Municipal Law § 50-h hearing in May 2013 that the verbal abuse was ongoing and that it occurred "every day that [she] was at work." (Plaintiff deposition tr at 37-38.) From November 2012 through February 2013, Gadsden also allegedly threatened plaintiff that she would make sure she lost her job; this occurred at least three or four times during that period. Plaintiff testified that Gadsden threatened to "drive her fist in [plaintiff's] throat" in January 2013. (Plaintiff 50-h tr at 30-31.)

Plaintiff also alleges that as a result of her 2012 complaints to administrative agencies, defendant retaliated against her by bringing labor relations charges in April 2012 which resulted in plaintiff being suspended from work for two days without pay. Plaintiff then met with the director of the Pathology Department in June 2012 to discuss her laboratory technologist license situation and concern for patient safety due to defendant's "recklessness" in permitting unqualified lab assistants to perform the duties of a laboratory technologist. In November 2012, plaintiff provided to DOH and the SED a list of lab assistants assigned by defendant to KCHC to perform laboratory technologist work without the proper license.

Additionally, plaintiff testified that "she was humiliated" for not being able to perform the tasks permitted under her license. Ahmed allegedly refused to acknowledge her license and reassigned the work duties that she had previously performed to other individuals since 2011, left her off the work schedule on multiple occasions, and reassigned her daily to different workstations. Her duties were allegedly reassigned to a phlebotomist named Felicia Nash who was hired as a lab technician and was given credit for the work that plaintiff performed. Ahmed also allegedly assigned her excessive work. She testified that she was denied training and access to workstations and computers needed to enter the results for tests that she performs. This was in contrast to other laboratory{**88 Misc 3d at 375} workers, who had been provided training and permitted to enter their own results in the computer. Plaintiff testified that she was denied access to training and computers until 2014.

Finally, plaintiff claims that she was denied promotional opportunities in retaliation for her whistleblowing activities. She testified that she applied for promotional opportunities on multiple occasions, submitting at least 10 to 15 applications that were denied. Since 2011, she has allegedly been denied three to four promotional opportunities. In 2011, plaintiff applied for a position as a Clinical Laboratory Technologist Level V. While she met all the qualifications for the position, the position was instead given to another individual, who did not meet all the qualifications. In 2012 and 2013, plaintiff testified that she applied for positions as Director of the Ambulatory Outpatient Clinic and Associate Director of the Pathology Department, for which she allegedly met all qualifications and was denied with no reason provided.

Defendant argues that plaintiff's Labor Law § 741 claim must be dismissed because she [*6]cannot demonstrate any specific alleged retaliatory act occurring on or after November 17, 2012. According to defendant, plaintiff's 50-h and deposition testimony demonstrate that many of the specific retaliatory acts described in the amended complaint occurred or began prior to November 17, 2012, and thus are not actionable. Additionally, plaintiff does not qualify as an employee within the meaning of the statute because she does not actually provide health care services and her position was administrative and far removed from patient care. Therefore, plaintiff is not entitled to the protections of Labor Law § 741.

Even assuming that plaintiff meets the statutory criteria to be considered an employee, defendant argues that her Labor Law § 741 claim must still fail as she cannot prove causation given the significant time gaps between her complaints and the alleged retaliatory acts and promotion decisions. Additionally, defendant argues there is no evidence the decision-makers responsible for hiring and promotions were aware of her complaints. Furthermore, there are valid, non-retaliatory reasons for the personnel actions taken against plaintiff and gaps in plaintiff's proofs relative to her claims concerning the denied promotions. For example, defendant contends that plaintiff admitted that she was unaware of the qualifications of{**88 Misc 3d at 376} the successful candidates hired to fill the positions in question, and that in any event, plaintiff lacked sufficient qualifications for the positions and there is no evidence showing that she was more qualified for the position than the successful candidates.

In opposition, plaintiff argues that there are triable issues of fact precluding summary judgment. Citing to her deposition and 50-h testimony, she contends that there are timely acts of retaliation that occurred on or after November 17, 2012, and maintains that a reasonable juror could infer a causal link between her whistleblowing activities and the adverse actions. Contrary to defendant's characterization of her position, plaintiff asserts that she supplies health care services to patients by performing blood work, conducting laboratory testing, and communicating test results, which are sufficient to bring her within the scope of Labor Law § 741. Moreover, unlike the cases relied upon by defendant, plaintiff possesses professional licenses from the DOH and SED. She contends that diagnostic testing is an integral part of health care and that she is qualified to make knowledgeable judgments as to the quality of patient care. Plaintiff further notes that the Second Department previously determined that triable issues of fact exist as to her status as an employee under the statute and asserts that subsequent discovery has not altered this finding.

On a motion for summary judgment, the movant must "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact." (Feggins v Marks, 229 AD3d 691, 692 [2d Dept 2024]; see Richardson v County of Nassau, 156 AD3d 924, 925 [2d Dept 2017].) A defendant moving for summary judgment dismissing the complaint cannot satisfy its initial burden by pointing to gaps in the plaintiff's proof. (See Bourne v Martin Dev. & Mgt., LLC, 219 AD3d 684, 685 [2d Dept 2023].) In deciding the motion the court must view the evidence in the light most favorable to the nonmoving party. (See Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]; Morejon v New York City Tr. Auth., 216 AD3d 134, 136 [2d Dept 2023].) "A motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.' " (Abdenbi v Walgreen Co., 197 AD3d 1140, 1140 [2d{**88 Misc 3d at 377} Dept 2021], quoting Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010].)

Labor Law § 741 is a whistleblower statute that offers "specialized protection" to health care workers who complain about unsafe medical practices. (Reddington v Staten Is. Univ. Hosp., 11 NY3d 80, 89 [2008]; see also Trivelli v Putnam Hosp. Ctr., 2020 WL 7246904, *9, 2020 US Dist LEXIS 231262, *23 [SD NY, Dec. 9, 2020, No. 19-CV-09898 (PMH)].) The statute provides that "no employer shall take retaliatory action against any 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." (Labor Law § 741 [2] [a].) "Improper quality of patient care" means "any practice, procedure, action or failure to act of an employer which violates any law, rule, [or] regulation . . . where such violation relates to matters which may present a substantial and specific danger to public health or safety or a significant threat to the health of a specific patient." (Labor Law § 741 [1] [d]; see also Minogue v Good Samaritan Hosp., 100 AD3d 64, 69 [2d Dept 2012].)

For purposes of the statute, "employee" is defined as "any person who performs health care services for and under the control and direction of any public or private employer which provides health care services for wages or other remuneration." (Labor Law § 741 [1] [a].) In order to be covered, an employee of a health care provider must actually "supply health care services," rather than merely "coordinate" with those who do or perform administrative functions. (Reddington, 11 NY3d at 91.) In Reddington, after analyzing the language of the statute and legislative history, the Court of Appeals concluded that the statute was "meant to protect professional judgments regarding the quality of patient care." (Id. at 92.) "[T]he universe of covered employees must be smaller than all those employed by a health care provider, who are afforded the more generalized protection of section 740." (Id. at 91.) Thus, unlike the broad coverage afforded by Labor Law § 740, the Court determined that section 741 covers "only those employees who are qualified by virtue of training and/or experience to make knowledgeable judgments as to the quality of patient care, and whose jobs require them to make these judgments." (Id. at 93; see also Galbraith v Westchester County Health Care Corp., 113 AD3d 649, 651 [2d Dept 2014].){**88 Misc 3d at 378}

Reddington involved a hospital worker employed as a "coordinator of volunteer services" and then as "manager of volunteer services" and "Director-International Patient Program." (Reddington, 11 NY3d at 82-83.) Her duties included coordinating transportation and lodging for international patients, providing patients with translation services, and "[d]istribut[ing], collect[ing] and analyz[ing] patient satisfaction questionnaires to continually enhance services." (Id. at 84.) Ultimately, the Second Circuit (which had certified the case to the Court of Appeals) determined that the plaintiff, who merely coordinated the services of others and did not perform or supply health care services herself, was not an employee for purposes of Labor Law § 741. (See Reddington v Staten Is. Univ. Hosp., 543 F3d 91, 93 [2d Cir 2008].)

Subsequent cases have focused on whether a plaintiff was qualified to make informed judgments regarding the quality of patient care and whether the position actually required him/her to make such judgments. (See Matter of Moynihan v New York City Health & Hosps. Corp., 120 AD3d 1029, 1032-1033 [1st Dept 2014] [individual who reviewed hospital research documentation and paperwork for compliance with legal requirements not covered employee]; Galbraith v Westchester County Health Care Corp., 113 AD3d 649, 651 [2d Dept 2014] [triable issues of fact as to whether perfusionist was qualified to make judgment as to quality of patient care or required to make such judgments in position]; Landell v Life Bridge Dental PLLC, 2023 NY Slip Op 30711[U], *6-7 [Sup Ct, NY County 2023] [dental assistant whose duties were limited to "routine care and cleanings," with no allegation of any exercise of professional judgment, not covered as employee under the statute]; Trivelli, 2020 WL 7246904, *9-10, 2020 US Dist LEXIS 231262, *24-28 [radiology supervisor/nuclear medical technologist with associate's degree in nuclear medicine technology whose duties included, among other things, "administering nuclear isotopes into patients" qualified as a covered employee].)

In an instructive case, Scuderi v Family Residences & Essential Enters., Inc. (2014 NY Slip Op 32832[U], *7-8 [Sup Ct, Nassau County 2014]), the court succinctly observed that Reddington leaves open the possibility that certain employees, although not necessarily qualified to provide medical care or make treatment decisions, may nonetheless perform tasks that go beyond those of mere administrators, coordinators, janitors, or cafeteria workers. The key to section 741 protection under{**88 Misc 3d at 379} Reddington is that the employee possesses the kind of training and/or experience that would qualify him to make judgments regarding patient care, and that the employee's job requires him to make such judgments. Such circumstances justify insulating those employees from the repercussions of reporting employer violations because the statute reflects a policy to encourage the reporting of improper patient care by those in a position to do so. (Id. at *7-9.)

In Scuderi, the plaintiff worked for a residential facility providing program services to developmentally disabled individuals. She was employed as a "Direct Support Professional," whose overall responsibilities concerned the supervision and care of individuals in the programs at the facility. Her duties included assisting patients with everyday personal tasks and hygiene, administration of medications, and monitoring of their behavior. Since she provided direct, hands-on assistance to and supervision of patients in the context of their personal care, the court found that she was covered under the statute as an employee. The court noted that "healthcare" is broadly defined in dictionaries as being a field concerned with the maintenance or restoration of the health of the body. Moreover, the plaintiff was qualified to, and was in fact required by her job to, make judgments regarding the quality of health care services, at least within the scope of her training and experience. (Id. at *8-9.)

Based on the foregoing, the court finds that defendant failed to establish that plaintiff does not qualify as an employee for the purposes of Labor Law § 741. Although titled as a laboratory technician, plaintiff testified that she performs the duties of a laboratory technologist, including independently performing diagnostic tests, using laboratory instruments, reviewing results to determine if they fall within proper ranges, and reporting the findings which are inputted directly to patients' charts. In some cases, where she assesses that the values are critical [*8]and warrant immediate notification, she reports the results directly to the physician. Specifically, the complaints that plaintiff made concerning (1) numerous HIV misdiagnoses that occurred and were covered up; (2) mix-ups in biopsy sample labeling; and (3) failure to report critical hemoglobin level changes for a patient resulting in a patient's death and incorrectly reporting hemoglobin A1c ratios in other patients resulting in their deaths point to a level of expertise to make knowledgeable judgments as to the quality of patient care, and{**88 Misc 3d at 380} a job which required her to make these judgments. Neither Reddington nor the statute itself imposes any requirement that an employee must directly interact with patients.

The cases cited by defendant are distinguishable since the tasks performed by plaintiff are neither purely administrative nor merely coordinative of the services of others. Additionally, the licensing requirements for plaintiff's position and her credentials set this case apart from other cases involving technicians. (Cf. Phillips v Ralph Lauren Ctr. for Cancer Care & Prevention, 22 Misc 3d 1128[A], 2009 NY Slip Op 50320[U] [Sup Ct, NY County 2009] [an endoscopy technician whose primary tasks were administrative and whose position did not require licensing was not a covered employee].) Based on this record, triable issues of fact exist as to whether plaintiff was "qualified by virtue of training and/or experience to make knowledgeable judgments as to the quality of patient care" and required by her position to make such judgments. (Hutchison, 139 AD3d at 675-676; see also Galbraith, 113 AD3d at 651.)

Further, defendant's submissions in support of the motion do not affirmatively establish the absence of any actionable retaliatory acts occurring on or after November 17, 2012. In this regard, defendant relies primarily on plaintiff's 50-h and deposition testimony, which, contrary to defendant's contentions, articulates various acts of retaliation claimed to have occurred on or after November 2012. The characterization of her testimony as containing only "generalized" allegations of retaliation is inaccurate, as plaintiff testified to a number of specific retaliatory acts, including incidents of harassment and denial of promotions. Additionally, defendant's emphasis on plaintiff's purported failure to provide supporting evidence misapprehends the burden on a motion for summary judgment. As noted above, defendant cannot meet its initial burden by highlighting gaps in plaintiff's proof. (See Bourne, 219 AD3d at 685.) While plaintiff's purported inability to recall exact dates or cite corroborating evidence may pose challenges at trial, it does not warrant dismissal at the summary judgment stage.

To the extent that plaintiff's testimony is ambiguous regarding whether certain events occurred before or after November 17, 2012, or where differing inferences could reasonably be drawn, it is for the jury to evaluate her testimony and determine whether a specific retaliatory act falls within the actionable time period in this lawsuit. With respect to the denial of promotions, there is conflicting evidence as to when defendant{**88 Misc 3d at 381} posted the Associate Director of Pathology position. Plaintiff testified that she applied for this position in 2013, while defendant claims it was posted earlier in 2011. This factual dispute must be resolved by the jury.

The remaining arguments must similarly be denied due to factual issues. "[T]o fall afoul of the [whistleblower] statute, the adverse action must be taken 'because' the employee engaged in protected activity. In other words, the whistleblower statute . . . requires some causal connection between an adverse personnel action and a report of dangerous activity." (Varughese v Mount Sinai Med. Ctr., 2015 WL 1499618, *68, 2015 US Dist LEXIS 43758, *178 [SD NY, Mar. 27, 2015, No. 12 Civ. 8812 (CM)(JCF)] [citation omitted], affd 693 Fed Appx 41 [2d Cir 2017].) There is no "bright line to define the outer limits beyond which a [*9]temporal relationship is too attenuated to establish a causal relationship." (Summa v Hofstra Univ., 708 F3d 115, 128 [2d Cir 2013]; Collins v Indart-Etienne, 59 Misc 3d 1026 [Sup Ct, Kings County 2018].) The Second Circuit has thus "drawn different inferences about the causal connection between protected activities and adverse employment actions based upon the facts regarding temporal proximity that exist in a particular case." (Jackson v New York State Off. of Mental Health, 2012 WL 3457961, *11, 2012 US Dist LEXIS 114531, *30-32 [SD NY, Aug. 13, 2012, No. 11 Civ. 7832 (GBD)(KNF)]; accord Espinal v Goord, 558 F3d 119, 129 [2d Cir 2009]; see also Cayemittes v City of N.Y. Dept. of Hous. Preserv. & Dev., 2012 WL 406915, *5, 2012 US Dist LEXIS 16438, *15-16 [SD NY, Feb. 9, 2012, No. 10 Civ. 8486 (GBD) (THK)].)

Applying the foregoing principles to the instant case, defendant has failed to demonstrate that there is no causation based upon the absence of any temporal connection between the complaints and the adverse actions. Initially, it should be noted that defendant acknowledges that the current evidentiary record is unclear "as to when in 2012 and 2013 plaintiff presented her purported complaints." (Defendant's mem of law at 21.) This, in and of itself, militates against granting summary judgment to defendant. As summarized above, plaintiff testified to a number of alleged retaliatory actions and ongoing harassment during this period, including being subjected to ongoing verbal abuse that occurred "every day that [she] was at work." She testified that from November 2012 through February 2013, Gadsden threatened plaintiff around three to four times that she would make sure she lost her job, and that during this period{**88 Misc 3d at 382} Gadsden threatened to "drive her fist in [plaintiff's] throat" in January 2013. She also testified that she was denied training and access to workstations and computers needed to enter the results for tests that she performed through 2014.

Furthermore, plaintiff's allegations are not so remote that a jury would be precluded from inferring a causal link to her numerous whistleblowing complaint both internally and to outside agencies. There are various decisions that have recognized gaps of as long as seven or eight months as being sufficient to establish causation. (See e.g. Summa, 708 F3d at 127-128 ["The seven-month gap between Summa's filing of the instant lawsuit and the decision to terminate her employment privileges is not prohibitively remote" and sufficient "to permit a reasonable jury to find causation"]; Grant v Bethlehem Steel Corp., 622 F2d 43, 45-46 [2d Cir 1980] [finding causation based on eight-month time gap between complaint and adverse action]; Monsour v New York State Off. for People with Dev. Disabilities, 2017 US Dist LEXIS 151059 [ND NY, July 7, 2017, No. 1:13-CV-0336 (BKS/CFH)] [approximately seven months between plaintiff's protected activity of contacting the NY Times and employer's email which accused him of psychological abuse and his placement on list of staff who were found to have substantiated charges of abuse one month later]; Lyman v City of New York, 2003 US Dist LEXIS 16471 [SD NY, Sept. 19, 2003, No. 01 Civ. 3789 (RWS)]; see also Gorman-Bakos v Cornell Co-op Extension of Schenectady County, 252 F3d 545, 555 [2d Cir 2001] [five months].)

Furthermore, plaintiff's arguments regarding causation are not limited to mere temporal proximity—she also testified to various outwardly hostile remarks and actions taken by her supervisors, which were allegedly motivated by her whistleblowing activities. (Petyan v New York City Law Dept., 2015 WL 1855961, *14, 2015 US Dist LEXIS 53380, *40 [SD NY, Apr. 23, 2015, No. 14-CV-1434 (GBD)(JLC)] [Where a plaintiff cannot plausibly allege disparate treatment or retaliatory animus, he must rely on temporal proximity to plead causation].) Thus, summary judgment is unwarranted on this ground. There are also triable issues of fact as to whether any adverse personnel actions against plaintiff were [*10]premised upon non-retaliatory grounds and the merits of her claims regarding the alleged denial of promotions.{**88 Misc 3d at 383}

Accordingly, it is ordered that defendant's motion for summary judgment is denied.