PAMELA K. CHEN, District Judge.
Before the Court is Defendants' motion to dismiss Plaintiff's amended complaint, pursuant to Federal Rules of Civil Procedure ("FRCP") 12(b)(1) and 12(b)(6). The amended complaint alleges employment discrimination and hostile work environment based on race, age and gender. Because Plaintiff's amended complaint sufficiently alleges violations of Title VII of the Civil Rights Act of 1964, New York State Human Rights Law, and New York City Human Rights Law, and because Plaintiff has sufficiently alleged the participation of the individual Defendant, Dr. Caterina Grandi, in the State and City human rights law violations, Defendants' motion is denied as to all counts of the amended complaint, except Count I. Count I, which alleges a violation of the Age Discrimination Employment Act, is dismissed on the basis of sovereign immunity. Lastly, the hostile work environment component of Plaintiff's Title VII claims is dismissed as time-barred.
Plaintiff Jill Meyer filed this action on December 18, 2012. (Dkt. 1.) In response to Defendants' request to file a motion to dismiss, pursuant to FRCP 12(b)(1) and 12(b)(6), Plaintiff requested, and was granted, leave to file an amended complaint. The amended complaint was filed on March 25, 2014. (Dkt. 11.)
In her amended complaint, Plaintiff asserts claims of employment discrimination and hostile work environment pursuant to the Age Discrimination in Employment Act ("ADEA"), Title VII of the Civil Rights Act of 1964 ("Title VII"), New York State Executive Law §§ 296 and 297 ("NYSHRL"), and the New York City Administrative Code § 8-107 ("NYCHRL"), based on her employment, and application for employment, at psychiatric facilities operated by Defendant State of New York Office of Mental Health. Plaintiff's Title VII and ADEA violations are alleged only as to OMH and Creedmoor; and her NYSHRL and NYCHRL violations are alleged only as to Dr. Grandi. Specifically, the amended complaint sets forth the following causes of action:
Plaintiff is a psychiatric physician licensed to practice medicine in the State of New York. (Dkt. 1 ¶ 20.)
Defendants are the State of New York Office of Mental Health ("OMH"), Creedmoor Psychiatric Center ("Creedmoor"), and individual defendant Caterina Grandi ("Grandi"). Grandi, at all relevant times, was employed by Creedmoor as the Director of the Department of Psychiatry. (Dkt. 11 ¶ 19.) OMH is a New York State agency that operates Creedmoor, which is a psychiatric hospital located in Queens Village, New York. (Dkt. 11 ¶¶ 17, 18.) Plaintiff completed her post-graduate medical training in Brooklyn, New York in July 1982, and completed a fellowship in June 1993. (Dkt. 11 ¶ 22.) Plaintiff then was employed as a psychiatrist with the United States Veterans Affairs Administration for approximately 10 years. (Dkt. 11 ¶ 22.) In 2004, Plaintiff began working at a series of hospitals in the New York area. (Dkt. 11 ¶ 22.) Plaintiff was employed at Creedmoor from December 2004 until June 2005, when she resigned. (Dkt. 11 ¶ 26.) From July 2005 to January 2007, Plaintiff was employed as a psychiatrist at Bronx Psychiatric Center ("Bronx Psychiatric") in New York, which also is owned and operated by OMH. (Dkt. 11 ¶ 25.) Plaintiff generally received good performance reviews during her employment at both Creedmoor and Bronx Psychiatric. (Dkt. 11 ¶¶ 26, 28.)
Plaintiff alleges that during her employment at Creedmoor her director "fostered an environment that was needlessly demeaning and insulting to plaintiff," "making it increasingly difficult for plaintiff to work with [the director]." (Dkt. 11 ¶ 29.) After leaving Creedmoor, Plaintiff experienced a similar pattern of mistreatment and disrespect at Bronx Psychiatric, despite her satisfactory work performance. (Dkt. 11 ¶¶ 30-35.) The director of Plaintiff's unit at Bronx Psychiatric "would not even say `Hello' to her and stated `We will see how long you will be here.'" (Dkt. 11 ¶ 30.) Plaintiff alleges she was falsely accused of instigating an incident in which she was assaulted by a patient, after which she was told by a director, Nigel Bark, that she "`will not go anywhere else' and will `never be permanent in the OMH system.'" (Dkt. 11 ¶ 31.) The staff also was disrespectful toward Plaintiff, and Dr. Bark "did nothing to correct the situation." (Dkt. 11 ¶ 32.)
During a meeting at Bronx Psychiatric in May 2006, Plaintiff was asked by the facility's director, Mr. Carmichael, whether she would accept a transfer from Bronx Psychiatric to another facility within the OMH network. Plaintiff declined the request. (Dkt. 11 ¶ 35-36.) Plaintiff was not given a reason for why she was being asked to transfer, except that, according to Mr. Carmichael, "they did not like [her] and wanted her out." (Dkt. 11 ¶ 36.) Also during that meeting, Mr. Carmichael said to Plaintiff that, "We are both minorities here at Bronx Psychiatric." (Dkt. 11 ¶ 35.)
Since Plaintiff's employment at Bronx Psychiatric and Creedmoor, she has applied to various OMH-operated mental health facilities, but has not been hired, despite many vacancies at these facilities. (Dkt. 11 ¶ 41.) Most relevantly, in June 2011, more than four years after Plaintiff was fired, Creedmoor advertised openings for two psychiatrist positions, for which Plaintiff allegedly was qualified. (Dkt. 11 ¶¶ 43, 44, 47.) Plaintiff applied for the positions, and when she inquired of the status of her applications, she was informed by Defendant Grandi that she was an "excellent candidate," but that she would not be hired. (Dkt. 11 ¶¶ 48-50.) Plaintiff alleges, "[u]pon information and belief, [that] OMH hired other, less qualified, younger, male and non-Jewish candidates to fill the advertised vacancies." (Dkt. 11 ¶ 52.) She also "submits that she was not hired for either of the advertised vacancies because of her age, gender, and religion." (Dkt. 11 ¶ 53.)
To withstand a motion to dismiss pursuant to FRCP 12(b)(6), a complaint must plead facts sufficient "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The liberal notice pleading standard of FRCP 8(a) only requires that a complaint set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Id. at 570. Under FRCP 8(a)(2), the complaint need not set forth "detailed factual allegations," but the plaintiff must present "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level[.]" Id. In evaluating a 12(b)(6) motion to dismiss, the district court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir. 2006). Nevertheless, a complaint must contain enough factual material to "`state a claim to relief that is plausible on its face,'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570), and it should be dismissed where a plaintiff has not "nudged [its] claims across the line from conceivable to plausible[.]" Twombly, 550 U.S. at 570. That "it may appear on the face of the pleadings that a recovery is very remote and unlikely[,] . . . is not the test." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002) (citing Scheur v. Rhodes, 416 U.S. 232, 236 (1974)).
The standard for reviewing a 12(b)(1) motion is essentially the same as the standard under 12(b)(6), but "a plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Hoops v. KeySpan Energy, 10-CV-2777(ADS), 2011 WL 846198, at *2 (E.D.N.Y. Mar. 8, 2011) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).
Plaintiff concedes that OMH and Creedmoor cannot be held liable under the ADEA pursuant to the Eleventh Amendment's grant of sovereign immunity to the states and their agencies. (Dkt. 25 at 6.) Accordingly, Plaintiff's claim under the ADEA against OMH and Creedmoor,
In Counts IV and VII, Plaintiff alleges Title VII violations on the basis of gender and religion, respectively, against OMH and Creedmoor. (Dkt. 11 at 12-13, 15-16.)
Title VII prohibits discrimination in employment based upon certain protected characteristics, including gender, race, and religion. 42 U.S.C. § 2000e-2. Title VII makes it unlawful "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment" based on a protected characteristic. Id. A plaintiff alleging a Title VII violation must establish a prima facie case that: (1) she is a member of a protected class; (2) she is qualified for the position; (3) she suffered an adverse employment action; and (4) there exist circumstances that give rise to an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). Specifically, in order to sustain a discrimination claim based on a failure to hire, "a plaintiff must allege that she applied for an available position for which she was qualified and was rejected under circumstances giving rise to an inference of unlawful discrimination." Wang v. Phoenix Satellite Television U.S., Inc., 13-CV-218(PKC), 2013 WL 5502803, at *9 (S.D.N.Y. Oct. 3, 2013) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
However, "[t]he prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement." Swierkiewicz, 534 U.S. at 510-11, 514; see Boykin v. KeyCorp., 521 F.3d 202, 212 (2d Cir. 2008). Accordingly, at the pleading stage, a plaintiff is not required to plead facts sufficient to establish a prima facie case, and need only allege sufficient facts to give the defendant "fair notice of the basis for [plaintiff's] claims." Boykin, 521 F.3d at 212. Consistent with this approach, the Second Circuit has affirmed that there is no heightened pleading requirement in employment discrimination cases, even after Twombly and Iqbal. See DiPetto v. U.S. Postal Serv., 383 Fed. App'x 102, 103 (2d Cir. 2010) (summary order).
Although Plaintiff's amended complaint sets forth facts directly supporting the first three elements of a prima facie employment discrimination claim—namely, that she was in one or more protected classes, she was qualified for her position, and she suffered an adverse employment action—she has not alleged any facts directly supporting her claim of discriminatory intent. However, this is not fatal to her case.
Plaintiff's amended complaint is materially similar to the complaint upheld in Boykin.
(5) similarly situated loan applicants who were not in the protected classes received loans and were treated more favorably throughout the loan application process; and (6) KeyBank relied on its policy as a pretext for discrimination, as evidenced in part by the fact that KeyBank did not offer Boykin the counseling and guidance it offers to other, non-minority loan applicants after denying their loans.
Id. at 214-15 (citations to complaint omitted).
Applying Iqbal's "flexible plausibility standard," the panel found that Boykin's complaint was "sufficient to give KeyBank fair notice of her claim and the grounds upon which it rests." Id. at 213-14 (internal quotation marks omitted). More specifically, the panel found that "Boykin identified the particular events giving rise to her claim and alleged that she was treated less favorably than other loan applicants because of her race, her gender and location of her property, just as the complaint in Swierkiewicz provided the date and circumstances of the plaintiff's termination and alleged that employees of other nationalities were treated differently than the plaintiff." Id. at 215.
The panel also rejected KeyBank's argument that Boykin had only alleged facts relating to KeyBank's preferential treatment of non-minority or male customers "upon information and belief" and did not contain any specific assertions or instances of preferential treatment. Id. at 215. The panel explained:
Id. at 215.
Lastly, the panel held that Boykin "did not need to allege discriminatory animus for her disparate treatment claim to be sufficiently pleaded[,]" because "[t]here is no heightened pleading requirement for civil rights complaints alleging racial animus." Id. (citing Phillip v. Univ. of Rochester, 316 F.3d 291, 298-99 (2d Cir. 2003)).
The allegations in the amended complaint in this case are materially indistinguishable from those found sufficient to state a disparate treatment claim in Boykin. Plaintiff alleges that she is a member of a protected class under Title VII with respect to her gender and religion, and that she was qualified for the position for which she applied, but that she was not hired. (Dkt. 11 ¶¶ 40, 47, 53.) Plaintiff further alleges that she was not hired because of her religion and gender, and that, on information and belief, younger, non-Jewish males were hired instead. (Dkt. 11 ¶¶ 40, 52, 53.) As in Boykin, Plaintiff has alleged sufficient facts to "identif[y] the particular events giving rise to her claim" and has "alleged that she was treated less favorably than other [employees] because of her race, her gender and [her age], just as the complaint in Swierkiewicz" did. Boykin, 521 F.3d at 215. As was permitted in Boykin, Plaintiff has also alleged Defendant's discriminatory intent based "upon information and belief." Id.; see, e.g., Morales v. Long Island R.R. Co., 09-CV-8714(HB), 2010 WL 1948606, at *3 (S.D.N.Y. May 14, 2010) (finding sufficient a complaint containing "specific factual allegations as to events leading up to an adverse action, accompanied by conclusory allegations of discriminatory intent") (citing Boykin, 521 F.3d at 214-15). Accordingly, because Plaintiff's employment discrimination claim, based on disparate treatment, is "plausible on its face," Defendants' motion as to Counts IV and VII against OMH and Creedmoor is denied.
Defendants construe Plaintiff's amended complaint to also assert a hostile work environment claim against OMH and Creedmoor under Title VII. (Dkt. 16-1 at 13-16.) Although the amended complaint does not contain a specific count alleging hostile work environment, Plaintiff argues in her opposition to the motion that she is, indeed, alleging hostile work environment discrimination. (Dkt. 25 at 9.) Plaintiff's complaint includes allegations that "the hospitals' administrations fostered an environment that was hostile, degrading and disrespectful to female, Jewish and older Psychiatrists" and that a director "fostered an environment that was needlessly demeaning and insulting to plaintiff." (Dkt. 11 ¶¶ 27, 29.) The Court therefore construes the complaint to assert hostile work environment discrimination.
To prevail on a claim of employment discrimination based on a hostile work environment, a plaintiff must establish two elements: "`(1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [his or] her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer.'" Petrosino v. Bell Atl., 385 F.3d 210, 220-221 (2d Cir. 2004) (citing Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003)).
Defendants allege that Plaintiff's hostile work environment claim must be dismissed as untimely and because it was not alleged in Plaintiff's EEOC complaint. (Dkt. 16-1 at 13.) The Court agrees. Plaintiff's hostile work environment allegations relate to her prior employment at Defendants' hospitals. That employment ended in January 2007. The limitations period for filing an EEOC complaint of discrimination is 300 days. Petrosino, 385 F.3d at 219 ("An aggrieved employee wishing to bring a Title VII claim in district court must file an administrative complaint with the EEOC within 300 days of the alleged discriminatory act."); 42 U.S.C. § 2000e-5(e)). Plaintiff submitted the instant EEOC charge on or about February 22, 2012, approximately four years outside of the limitation period. (Dkt. 16-2.)
Plaintiff argues that her hostile work environment claims are not subject to dismissal under the "continuing violation" exception to Title VII. (Dkt. 25 at 13.) This argument is wholly without merit. There is no possibility that claims related to Plaintiff's prior employment, which was terminated in January 2007, could be deemed a "continuing violation" related to Plaintiff's failure—to hire claim, which arose in June 2011, nearly four and a half years later. The hostile work environment that Plaintiff alleges occurred between July 2005 and January 2007 could not have "continued" during the 4-1/2 year period when Plaintiff was not working for Defendants. Plaintiff, however, is seeking to have the entire period from approximately July 2005 to June 2011 construed as a single, continuous period of a hostile work environment fostered by Defendants. Plaintiff cites no authority for this novel interpretation of the concept of "continuing violation." Indeed, such an interpretation would defeat the purpose of statutory time limits, which is to encourage plaintiffs who genuinely have been aggrieved to bring their claims expeditiously. See, e.g., United States v. Kubrick, 444 U.S. 111, 117 (1979) ("Statutes of limitations . . . represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.") (quotations omitted). The time for Plaintiff to have filed suit based on a hostile work environment claim was within 300 days after the termination of her employment in January 2007. Accordingly, any hostile work environment claim alleged in Plaintiff's amended complaint is untimely and must be dismissed.
In Counts II, III, V, VI, VIII and IX, Plaintiff has alleged violations of NYSHRL and NYCHRL, on the basis of age, gender and religion, by Dr. Grandi. (Dkt. 11 at 10-18.)
Both the NYSHRL and NYCHRL provide for individual liability of an employee where the employee actually participates in the conduct giving rise to the plaintiff's discrimination claim. See Ross v. Mitsui Fudosan, Inc., 2 F.Supp.2d 522, 530 (S.D.N.Y. 1998) (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995) (individual who "actually participates in the conduct that gives rise to a discrimination claim" can be held liable under NYSHRL)); Malena v. Victoria's Secret Direct, LLC, 886 F.Supp.2d 349, 366-67 (S.D.N.Y. 2012) (citing Banks v. Correctional Servs. Corp., 475 F.Supp.2d 189, 200 (E.D.N.Y. 2007)) (individual liability may lie under the NYSHRL but is "limited to individuals with ownership interest or supervisors, who themselves, have the authority to hire and fire employees.") (citations and quotations omitted). Here, Plaintiff has alleged that Dr. Grandi participated in the decision not to rehire her in June 2011. (Dkt. 11 ¶¶ 45-53.) Because Plaintiff has alleged Dr. Grandi's participation in the discriminatory conduct, she can be held liable under NYSHRL.
Defendants argue, however, that Dr. Grandi cannot be held liable for the alleged NYSHRL violations because she is not an "employer" as defined under that law. (Dkt. 16-1 at 17-18; Dkt. 21 at 9-10.) Defendants cite Patrowich v. Chemical Bank, 63 N.Y.2d 541 (1984) in support of their position. In Patrowich, the Court of Appeals held that an individual cannot be held liable under the NYSHRL if "he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others." Patrowich, 63 N.Y.2d at 542. Here, it is unclear whether Grandi was merely informing Plaintiff of the decision of another, or whether Grandi herself was in charge of personnel matters, such as hiring and firing. Nevertheless, Plaintiff alleges, on information and belief, that Grandi "was the official responsible for selecting the individuals to fill the advertised positions" at Creedmoor. (Dkt. 11 ¶ 45.) At the pleading stage, this is adequate to withstand dismissal of the claims against Grandi, who may be found to be an "employer" under the NYSHRL. The same is true for the NYCHRL. See Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004) (applying the NYSHRL's standard of analysis for aiding and abetting claims under the NYCHRL, because the pertinent language of the two laws is "virtually identical").
The NYSHRL and NYCHRL proscribe discrimination in hiring on the basis of age, gender, and religion, among other traits. N.Y. Exec. Law § 296(1)(a); N.Y. City Admin. Code § 8-107. In federal court, although the substantive laws may vary, the same Rule 8(a) pleading standard applies to Plaintiff's state and local law claims as to her federal claims. See, e.g., Novak v. JPMorgan Chase Bank, N.A., 518 Fed. App'x 498, 501 (8th Cir. 2013) ("We apply federal pleading standards—Rules 8 and 12(b)(6)—to the state substantive law to determine if a complaint makes out a claim under state law.") (citing Karnatcheva v. JPMorgan Chase Bank, N.A., 704 F.3d 545, 548 (8th Cir. 2013)); cf. Stern v. Gen. Elec. Co., 924 F.2d 472, 476 n.6 (2d Cir. 1991) (applying FRCP 9 to state law fraud claim); Hoff v. WPIX, Inc., 11-CV-1591(LBS), 2011 WL 4809763, at 1 n.1 (S.D.N.Y. Oct. 11, 2011); see also FRCP 81(c)(1) (providing that Federal Rules of Civil Procedure apply to state actions removed to federal court).
NYSHRL claims are evaluated under the same rubric as Title VII claims, see Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (per curiam), whereas the standard of review is more liberal for NYCHRL claims. See Mihalik v. Credit Agricole Cheuvreux North America, Inc., 715 F.3d 102, 109 (2d Cir. 2013).
For the reasons stated above, Defendant's motion to dismiss the amended complaint is granted with respect to Count I, and also with respect to any claim of a hostile work environment. The remainder of Plaintiff's claims may proceed.
SO ORDERED:
