Plaintiff Sufficiently Alleges False Claims Act and Sexual Orientation Discrimination (Hostile Work Environment) Claims Against NYU Langone Medical Center

In Malanga v. NYU Langone Med. Ctr., No. 14CV9681, 2015 WL 7019819, (S.D.N.Y. Nov. 12, 2015), the Southern District of New York held that plaintiff sufficiently alleged her claims of retaliation under the False Claims Act and sexual orientation discrimination (hostile work environment) under the NYC Human Rights Law (NYCHRL). Here is her amended complaint.

False Claims Act Whistleblower Claim

In sum, plaintiff alleged that she was harassed and terminated “because she attempted to stop NYU’s false and improper billings to the federal government.”

The court rejected defendant’s argument that plaintiff was “subject to more stringent pleading standards because she was a ‘fraud alert’ employee whose job duties required her to address the very billing problems she raised during the course of her employment” and held that even if it applied she adequately pled her claim:

[I]t is doubtful that those heightened pleading standards survive FERA [the Fraud Enforcement and Recovery Act of 2009], which was enacted to counter perceived judicial interpretations of the protected activity prong. Those decisions establishing a higher pleading standard for fraud alert employees were concerned with ensuring that the employer was on notice of an employee’s intentions of bringing or assisting in an FCA action. Under FERA, a retaliation claim can be stated so long as the employee was engaged in efforts to stop an FCA violation, even if the employee’s actions were not necessarily in furtherance of an FCA claim. Moreover, even if a heightened pleading standard for so-called fraud alert employees exists, Malanga alleges [in her amended complaint] that as a Director of Research, Defendants’ billing practices were outside the scope of Plaintiff’s job duties. Accepting her allegation as true, this Court cannot determine whether Malanga qualified as a fraud alert employee on this motion. Accordingly, Malanga has adequately pled an FCA retaliation claim.

Discrimination/Hostile Work Environment

Plaintiff alleged that she was subjected to sexual orientation discrimination under both the NYS Human Rights Law (NYSHRL) and the NYC Human Rights Law. Specifically, she asserted that her former supervisor, Silvia Formenti, “routinely made insulting comments regarding her sexuality, and that another NYU employee touched her in 2011 and asked questions that made her uncomfortable.”

While the court dismissed her NYSHRL claim (as she did not allege that the discrimination was “severe or pervasive enough”), it held that she sufficiently alleged a hostile work environment claim under the broader NYCHRL:

[T]he NYCHRL is broader than the NYSHRL. It must be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title have been so construed. To state a hostile work environment claim under the NYCHRL, Plaintiff need not allege that Defendants’ conduct was severe or pervasive, and need only show differential treatment-that she is treated less well-because of a discriminatory intent. Under this minimal standard, Plaintiff has alleged a hostile work environment claim under NYCHRL.

Aiding and Abetting Discrimination

It dismissed plaintiff’s aiding and abetting claims against the supervisor (Formenti), since her “alleged actions give rise to the discrimination claim” based on case law that “[a]n individual cannot aid and abet his own alleged discriminatory conduct” where one individual’s “alleged actions give rise to the discrimination claim.”

Healthcare Whistleblower Law Claim

The court also dismissed plaintiff’s whistleblower claim under New York Labor Law § 741 (the so-called healthcare whistleblower law), since her complaint did “not plausibly allege that Malanga actually rendered medical treatment.”