Amar v.

MARIAMA AMAR, Plaintiff, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendant.

14 Civ. 2503 (ER)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

June 15, 2015

OPINION AND ORDER

Ramos, D.J.:

Mariama Amar ("Plaintiff"), filed a pro se Complaint in this action on April 7, 2014 alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), against her employer, the New York City Health and Hospital Corporation ("Defendant") for hostile work environment based on Plaintiff's race, color, and national origin, and retaliation against Plaintiff for a 2011 complaint filed against Defendant. Doc. 2. Before the Court is Defendant's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons stated below, Defendant's motion is GRANTED in part and DENIED in part.

I. Factual Background¹

Plaintiff is an African American woman originally from Africa employed by Defendantas a patient care assistant at Harlem Hospital Center. Doc. 2 at I.C, 6;² Doc. 19 ¶ 3, Ex. A. Plaintiff alleges that she was harassed by two of her co-workers, Shelly Hendricks ("Hendricks") and Denise Mcclatchy-Jemison ("Jemison") based on her race, color, and national origin, and that Defendant failed to provide her with a "safe working environment." Doc. 2 at II.D, E. Plaintiff also alleges that Defendant "did not take action immediately to protect [her] from the hostile work environment" in retaliation for a complaint Plaintiff filed with the New York State Division of Human Rights ("NYSDHR") against Defendant in 2011. Id. at II.E, 9; Doc. 19 Ex. C; Doc. 28 at 4.

The alleged abuse began in September 2010, when Plaintiff alleges that Hendricks cursed her after asking her to take a patient's vital signs by calling her "fat ass," "retard," and "bitch." Doc. 2 at 12. Throughout November 2010, Jemison and Hendricks continued to harass Plaintiff and call her "monkey," "devil," "fat ass," "retard," and "one leg." Id. at 10. In a handwritten letter dated December 2, 2010 and addressed to Senior Morris ("Morris"), identified by Plaintiff as "supervisor ADN,"³ and copying Lauren Goodridge ("Goodridge") of Defendant's Human Resources/Labor Relations department, and Union Representative Belford Whitted ("Whitted"), Plaintiff notified them of Jemison's and Hendricks' conduct. Id. at 10-11.

On December 9, 2010, Jemison "continuously" called Plaintiff "bitch," "monkey," and "one leg." Id. at 11. On the same day, Hendricks told Plaintiff "she will make sure I get killed" and also called Plaintiff a "bitch," "retard," "asshole," "stupid African," and "devil." Id. at 11, 13. Hendricks also challenged Plaintiff to "get up and fight her" when Plaintiff did not reply toHendricks' request that she perform a vision and hearing evaluation on Jemison's patient.⁴ Id. at 13. The head nurse, who was present for the incident, told Hendricks to stop yelling and calling Plaintiff names because Plaintiff may report her. Id.

On December 10, 2010, Plaintiff again notified Goodridge and Whitted by handwritten letter of Jemison's and Hendricks' conduct and alleged that "nothing has been done to stop" Jemison and Hendricks. Id. at 11. In a handwritten letter dated December 20, 2010 and addressed "To Whom It May Concern," Plaintiff again described Hendricks' and Jemison's conduct. Id. at 12-14. The record does not reflect any action taken by Defendant as a result of Plaintiff's December 2, December 10, and December 20, 2010 letters.

Nine months later, on September 20, 2011, Hendricks allegedly pushed Plaintiff with both hands, causing Plaintiff to fall, when Plaintiff tried to remove a blood pressure machine from the asthma room. Id. at II.E, 8-9. Plaintiff reported the incident at the nursing station and notified Morris. Id. at 9. A Supervisor's Report of Occupational Accident/Injury was filed with Defendant on September 20, 2011. Id. at 8-9. On October 11, 2011, Plaintiff filed a claim with the NYSDHR against Defendant. Doc. 19 Ex. C. The case was resolved by stipulation and release approximately nine months later on June 26, 2012. Doc. 2 at II.E; Doc. 19 ¶ 8.

Plaintiff alleges that she returned to work on April 11, 2013. Id. Plaintiff does not state when she left work, whether she left work because of the September 20, 2011 incident, and does not otherwise provide any information regarding the eighteen month time period betweenOctober 11, 2011 and April 11, 2013. However, Plaintiff alleges that Jemison began harassing her again almost immediately upon her return to work.

On April 12, 2013, and repeatedly from April 15 through April 18, 2013, Plaintiff claims that Jemison called her "fat African" and "porch monkey" and told her "I wish you were dead and never came back to work." Doc. 28 at 3, 6. Plaintiff notified Human Resources/Labor Relations and Jorge Vidro ("Vidro"), identified by Plaintiff as a Director of Equal Employment for Defendant, of Jemison's conduct in a handwritten letter dated April 19, 2013. Id. at 6. On May 3, 2013, Vidro told Plaintiff that Labor Relations would handle the matter. Id. at 7. On May 6, 2013, Plaintiff again notified Vidro and Human Resources/Labor Relations by letter that Jemison continued to make racial remarks to Plaintiff and told Plaintiff that "I will cut your throat fat African [sic]." Id. As a result of these incidents, Plaintiff contends that she was afraid to go to work. Id.

On May 10, 2013, Plaintiff alleges that Jemison struck Plaintiff's left forearm twice with her elbow and called Plaintiff a "stupid African" when Plaintiff attempted to enter the vision and hearing examination room with her patient. Doc. 2 at II.E, 6-7; Doc. 28 at 8-9; Doc. 19 Ex. A. Plaintiff notified her supervisor of the incident. Doc. 2 at 7. A Supervisor's Report of Occupational Accident/Injury was filed with Defendant on May 10, 2013 by Victoria Kusi ("Kusi"), Associate Director of Nursing. Id. at 6-7. A Police Crime and Incident Report was also filed with the police on May 10, 2013 by Kusi detailing the "incident of workplace violence." Doc. 28 at 8. After the incident, "Jemison was escorted to HR where she was relieved of duty pending further investigation." Id. Defendant also "deemed it appropriate" that if Jemison returned to work, she would be assigned to another unit in order "to avoid any further altercation between the two employees." Doc. 19 Ex. C.

II. Procedural Background

On June 25, 2013, Plaintiff filed a complaint with the NYSDHR against Defendant regarding the May 10, 2013 incident, alleging violations of the New York State Human Rights Law § 296 ("NYSHRL") and Title VII. Doc. 19 Exs. A, C. A copy of Plaintiff's NYSDHR complaint was sent to the U.S. Equal Employment Opportunity Commission (the "EEOC") on the same day. Doc. 19 Ex. A. On December 20, 2013, a Determination and Order After Investigation by the NYSDHR found no probable cause existed to believe Defendant engaged in unlawful discriminatory practices. Doc. 19 Ex. C. On February 11, 2014, the EEOC sent a Dismissal and Notice of Rights to Plaintiff adopting the NYSDHR's findings and notifying Plaintiff that she may file a lawsuit against Defendant within ninety days of receipt of the notice. Doc. 2 at 5; Doc. 19 Ex. B.

On April 7, 2014, Plaintiff timely commenced this action by filing the pro se Complaint.⁵ Doc. 2. Defendant answered the Complaint on December 16, 2014. Doc. 19. On December 23,2014, the Court granted Defendant leave to file its motion for judgment on the pleadings. Defendant filed the instant motion on January 23, 2015. Doc. 22.

III. Standard of Review

a. Rule 12(c) Motion

Rule 12(c) provides that "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." FED. R. CIV. P. 12(c). "Judgment on the pleadings is appropriate if, from the pleadings, the moving party is entitled to judgment as a matter of law." Burns Int'l Sec. Servs., Inc. v. Int'l Union, United Plant Guard Workers of Am. (UPGWA) & Its Local 537, 47 F.3d 14, 16 (2d Cir. 1995) (citations omitted).

The Court applies the same standard of review on a motion for judgment on the pleadings under Rule 12(c) as on a motion to dismiss under Rule 12(b)(6). Caplaw Enters., 448 F.3d at 521. The Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in Plaintiff's favor. Id. However, the Court is not required to credit "mere conclusory statements" or "threadbare recitals of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Id. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). More specifically, a plaintiff must allege sufficient facts to show "more than a sheer possibility that a defendant has acted unlawfully." Id. If the plaintiff has not "nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Twombly, 550 U.S. at 570; Iqbal, 556 U.S. at 680.

In a discrimination action, the Iqbal plausibility standard applies in conjunction with the standard for pleading employment discrimination. The Supreme Court has held that in an employment discrimination action a complaint need not contain specific facts that establish a prima facie case of discrimination. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 515 (2002); E.E.O.C. v. Port Auth. of New York and New Jersey, 768 F.3d 247, 254 (2d Cir. 2014) (recognizing that "Swierkiewicz has continuing viability, as modified by Twombly and Iqbal); Trachtenberg v. Dept. of Educ. of City of...