Eari v. Good Samaritan Hosp. of Suffern

OPINION & ORDER

NELSON S. ROMÁN, UNITED STATES DISTRICT JUDGE

Plaintiff Nicholas Earl (“Plaintiff”), a nurse, brings this action against Good Samaritan Hospital of Suffern (the “Hospital”), Bon Secours Charity Health System (“Bon Secours”), and Westchester County Health Care Corporation d/b/a WMCHealth^[1] (“WMC” and, together with the Hospital and Bon Secours, “Defendants”) alleging that in March 2020, at the beginning of the COVID-19 pandemic, while he was working for the Hospital as a critical care nurse, Defendants denied him access to necessary protective equipment-a Powered Air Purifying Respirator

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(PAPR)-and assigned him to a special needs patient who spread COVID-19 to him. He further avers that after he was out with COVID-19 for nearly a month, the Hospital refused to accommodate him upon his return either by providing him a PAPR or transferring him to a non-COVID-19 or “clean” unit and, therefore, constructively discharged him. Plaintiff asserts claims sounding in failure to accommodate and discrimination in violation of the Rehabilitation Act and Americans With Disabilities Act (“ADA”), discrimination and retaliation in violation of the New York State Human Rights Law (“NYSHRL”), violation of New York Labor Law Section 741, intentional infliction of emotional distress, and fraud or other intentional tort. Defendants' motion to dismiss, which Plaintiff opposed, is now before the Court. For the reasons that follow, the Court GRANTS Defendants' motion and dismisses Plaintiff's claims without prejudice.

BACKGROUND

The facts herein are drawn from the Amended Complaint (“AC” (ECF No. 20)), ^[2] presumed to be true for the purposes of this motion and construed in the light most favorable to the Plaintiff. See Caro v. Weintraub, 618 F.3d 94, 97 (2d Cir. 2010).

I. Factual Allegations

Plaintiff has had chronic kidney disease since he was an infant. (AC ¶47.) Plaintiff graduated from nursing school in 2018 and was hired to work as a nurse in the surgical intensive care unit at the Hospital beginning in October 2018. (AC ¶ 22.) Plaintiff alleges that the Hospital is “governed by co-employers Bon Secours and Westchester Health Care Network.” (AC ¶ 1.) He further avers that the Hospital is “controlled and funded by Bon Secours and Westchester Health.” (AC ¶ 8, 14, 16-17.)

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In October 2019, Plaintiff underwent a “fit test” to ensure that he was outfitted with a mask with a proper seal. (AC ¶¶ 27, 30.) Plaintiff alleges that his original fit test indicated that he needed a PAPR (AC ¶ 28), and the Hospital “registered on his card . . . that he would fit for a PAPR” (AC ¶ 31). Though Plaintiff repeatedly asked for a PAPR, he was never provided with one. (AC ¶ 31.) Plaintiff alleges that a PAPR usually costs about $300 and, to properly function, requires a $125 cartridge, which lasts about five years. (AC ¶ 30.) Plaintiff acknowledges that at the time of the incidents alleged, PAPRs could be purchased for $1, 700 on Amazon.com. (AC ¶ 30; see AC ¶ 91 (acknowledging that at the time of the incidents alleged, the PAPR and cartridge together would have cost Defendants about $1, 800).)

On an unspecified date in or around March 2020, at the beginning of the COVID-19 pandemic, Plaintiff was assigned to care for a gravely ill special-needs patient (the “Patient”) the night before he died. (AC ¶ 36.) Plaintiff alleges that he was assigned to this patient because he is male, and Plaintiff was one of the few male nurses at the Hospital. (AC ¶ 12 and 4 n.3.) The Patient had pneumonia and had earlier been in a negative-pressure room (AC ¶ 37) but at some point the doctor told Plaintiff that pneumonia needed to be on both sides of the lungs to justify a COVID test and therefore the Patient did not need a COVID test or to be treated as COVID-positive. (AC ¶¶ 39-40.) Plaintiff alleges that the failure to test the patient for COVID-19 or treat him as COIVD-19 positive was significant because at the time, all N95 masks were being kept by the supervisors or designated only for use with suspected COVID-19 patients. (AC ¶ 52.) Additionally, the Patient was removed from the negative-pressure room and was not fitted with a non-rebreather mask, which was not allowing him to absorb enough oxygen. (AC ¶¶42-43.)

Plaintiff alleges that when he cared for him, the Patient was showing “classic symptoms of COVID” including a fever of 103 degrees, low oxygen saturation, profusely sweating, and brain

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stat. (AC ¶¶ 36, 41, 42.) He alleges that another nurse assigned to the Patient also believed the Patient had COVID. (AC ¶ 51.)

Plaintiff reported to the day nurse and his night supervisor that the Patient did not have any protections and that Plaintiff could not get a satisfactory mask for his own protection. (AC ¶44.) One of the nurses responded, “I've lived through three of these end-of-the-world pandemics, and we'll be ok.” (AC ¶45.) Plaintiff then texted his direct manager, Megan Hanys and told her that he lives with parents who have risk factors for COVID-hypertensive, diabetic, and obese-and that Plaintiff has chronic kidney disease and that reports from China indicate that COVID-19 can shut the kidneys down. (AC ¶¶46-47.) Hanys told Plaintiff to “calm down.” (AC ¶ 48.) Plaintiff went above Hanys and told the charge nurse that he and the Patient needed better care. (AC ¶ 49.) Plaintiff spoke to the evening supervisor, Marie Van DeVere about how uncomfortable he was caring for the Patient with his “air passages fully exposed.” (AC ¶ 52.) Plaintiff searched for supplies to protect himself and was able to find one surgical mask, which was inadequate because part of Plaintiff's duties including suctioning “virus-laden gunk out of the disabled patient's windpipe.” (AC ¶ 50.) Plaintiff left after his evening shift. (AC ¶ 53.)

When Plaintiff returned to work two or three days later, he learned that the patient had died. (AC ¶ 53.) The Patient's family insisted on a post-mortem COVID test, which came back positive. (AC 54.) Plaintiff was tested and began feeling COVID-19 symptoms during the five days it took to receive his positive test result. (AC ¶ 54.) Plaintiff's primary care doctor told him that given his kidney disease and the COVID-19 infection, “he should not be in contact with immunocompromised people.” (AC ¶ 57.) Plaintiff's occupational health nurse at the Hospital said that he could not care for critical patients without a proper mask. (AC ¶ 82.) Because of Centers for Disease Control guidelines and the fact that he still felt poorly for nearly a week after he tested

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negative for COVID-19, Plaintiff was out of work for approximately three weeks. (AC ¶¶ 58-59.) Plaintiff alleges that while he was out with COVID-19, he spoke to his regular manger about his need for a PAPR and the manager said, “just get fit tested again.” (AC ¶ 72.) Plaintiff responded that he could not accurately be fit-tested now since the test measures taste and smell, which he had lost due to COVID-19. (AC ¶ 72.)

Plaintiff admits that at the time of the incidents alleged, after a 14-day quarantine, someone who has been released from quarantine was not considered a risk for spreading COVID-19. (AC ¶ 83.) Nonetheless, Plaintiff points to an early case of a Hong Kong man being diagnosed with COVID-19 a second time and while he acknowledges that “epidemiologists were quick to report that this reinfection was not a cause for panic” (AC ¶ 84), he asserts that he feared reinfection (AC ¶ 78).

Upon his return to work, Plaintiff reported to the fit-testing station where he told the tester that it was his first night back after having COVID-19. (AC ¶ 60.) Plaintiff alleges that he failed the fit test with both available masks as he still tasted the solution during the test. (AC ¶ 60.) He worked for two nights with an N95 respirator. (AC ¶ 61.) On the first night, “the mask would just come off his face.” (AC ¶ 61.) The next day, he went back to the fit-testing station but they had no new masks. (AC ¶ 62.) When he raised the issue with his supervisor, Nurse Adrianne said “didn't you get fit tested yesterday, ” to which Plaintiff responded that he had but the mask was too small, to which Nurse Adrianne responded “You passed yesterday. What games are you playing.” (AC ¶ 65.) When Nurse Adrienne asked what Plaintiff wanted, he said “All I want is a mask that fits.” (AC ¶¶ 68-69.) An occupational health nurse said, “He needs a PAPR, ” to which Nurse Adrienne said “We don't have any. We need to find something else that will work.” (AC ¶¶ 71-72.) There was no search for a suitable mask. (AC ¶ 72.) The occupational health nurse then said to Nurse

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Adrienne “Can't he go to a clean unit?”-referring to a newly opened unit for non-COVID patients-to which Nurse Adrienne responded, “He's a critical care nurse.” (AC ¶¶ 74-76). Plaintiff alleges that based on his experience and education there were other jobs of lesser risk- such as in a “clean unit”-for which Plaintiff was qualified. (AC ¶ 77.)

Plaintiff submitted his resignation, providing two-weeks' notice, suggesting that he would be willing to work in a non-COVID unit or, with a PAPR, in the critical care unit. (AC ¶¶ 79-80.) Plaintiff received a call from Phyllis M. Yezzo, the Chief Nursing Officer, who indicated that she wanted Plaintiff to return to the Hospital but that the Hospital could not give him a PAPR because they did not have the requisite $125 cartridges. (AC ¶ 94.) The next day, Plaintiff responded by email indicating that he would not return to the Hospital unless he received a PAPR or was placed in a clean unit. (AC ¶ 96.) Nurse Yezzo responded “Thank you for getting back to me. I...