Equal Emp't Opportunity Comm'n v. 98 Starr Rd. Operating Co.

682 F.Supp.3d 414

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. 98 STARR ROAD OPERATING CO., LLC, doing business as Elderwood at Burlington, Defendant.

Case No. 2:22-cv-00168

United States District Court, D. Vermont

Signed July 17, 2023

Alison Bitterly, Esq., Katie N. Linehan, Esq., U.S. Equal Employment Opportunity Commission Boston Area Office, Boston, MA, Kimberly A. Cruz, Esq., U.S. Equal Employment Opportunity Commission, New York, NY, for Plaintiff.

Caroline J. Berdzik, Esq., Pro Hac Vice, Goldberg Segalla LLP, Princeton, NJ, Christopher P. Maugans, Esq., Pro Hac Vice, Goldberg Sgalla LLP, Buffalo, NY, Pietro J. Lynn, Esq., Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, VT, for Defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS

Christina Reiss, District Judge

Plaintiff Equal Employment Opportunity Commission ("EEOC") brings this action against Defendant 98 Starr Road Operating Co., LLC d/b/a Elderwood at Burlington ("Elderwood") alleging that Elderwood violated § 703(a)(1) of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000(e)-2(a)(1), and Title I of the Civil Rights Act of 1991 ("Title I") by subjecting a class of Black employees to racial harassment and creating and maintaining a hostile work environment due to their race.

EEOC filed its Complaint in this court on September 6, 2022. (Doc. 1.) Elderwood answered on November 7, 2022, asserting nineteen affirmative defenses. (Doc. 7.) On November 28, 2022, Elderwood moved to stay discovery (Doc. 25) pending the outcome of its motion for judgment on the pleadings, which the court granted in part with respect to all non-written discovery but denied with respect to the remainder of the motion. See Doc. 33. On December 5, 2022, the EEOC filed a motion to strike Elderwood's sixth and eighth affirmative defenses (Doc. 26), which the court granted on February 13, 2023. See Doc. 38.

On November 23, 2022, Elderwood moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) arguing Plaintiff has failed to state any viable claim as a matter of law. The EEOC responded on December 23, 2022 (Doc. 31) and Elderwood replied on January 6, 2023 (Doc. 35), at which point the court took Elderwood's motion under advisement.

The EEOC is represented by Alison Bitterly, Esq., Katie N. Linehan, Esq., and Kimberly A. Cruz, Esq. Elderwood is represented by Caroline J. Berdzik, Esq., Christopher P. Maugans, Esq., and Pietro J. Lynn, Esq.

I. Whether Elderwood's Exhibits are Incorporated by Reference in the Complaint, or Whether the Exhibits are Integral to the Complaint.

"[E]vidence outside of the pleadings may not be considered by the [c]ourt when deciding a motion to dismiss brought pursuant to Fed. R. Civ. P. 12(c)." Jureli, LLC v. Schaefer, 53 F. Supp. 3d 552, 554 (E.D.N.Y. 2014); see also Kouakou v. Fideliscare New York, 920 F. Supp. 2d 391, 396 (S.D.N.Y. 2012) ("When matters outside the pleadings are presented in support of, or in opposition to a [Rule 12(c)] motion, a district court must either exclude the additional material and decide the motion on the [pleading] alone or convert the motion to one for summary judgment[.]") (quoting Stephens v. Bayview Nursing & Rehabilitation Ctr., 2008 WL 728896, at *2 (E.D.N.Y. Mar. 17, 2008)) (alterations in original). However, "courts may on a Rule 12(c) motion—just as on a Rule 12(b)(6) motion—consider extrinsic material that the complaint 'incorporates by reference,' that is 'integral' to the complaint, or of which courts can take judicial notice[.]" Lively v. WAFRA Investment Advisory Grp., Inc., 6 F.4th 293, 305 (2d Cir. 2021) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)). "[W]here a court does draw from . . . extrinsic material, it must construe all reasonable inferences in the non-movant's favor." Id. at 305-06 (citing Dist. No. 1, Pac. Coast Dist., Marine Eng'rs Beneficial Ass'n v. Liberty Mar. Corp., 933 F.3d 751, 760-63 (D.C. Cir. 2019)).

"To be incorporated by reference, the complaint must make 'a clear, definite[,] and substantial reference to the documents.' " DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 60 (S.D.N.Y. 2010) (quoting Helprin v. Harcourt, Inc., 277 F. Supp. 2d 327, 330-31 (S.D.N.Y. 2003)). " '[L]imited quotation' of documents not attached to the complaint 'does not constitute incorporation by reference.' " Id. (quoting Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir. 1985)).

"A document is integral to the complaint where the plaintiff (1) has 'actual notice' of the document and its information and (2) has 'relied upon the documents in framing the complaint.' " McLennon v. City of New York, 171 F. Supp. 3d 69, 89 (E.D.N.Y. 2016) (internal citation omitted); see also Chambers, 282 F.3d at 153 (explaining that a document is integral to the complaint when the complaint "relies heavily upon its terms and effect") (quoting Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)).

Elderwood's motion for judgment on the pleading relies on two documents not attached to the Complaint: a "progress note" relating to a resident with probable Alzheimer's as well as other conditions who allegedly targeted a specific Elderwood staff member with a physical assault and racial harassment (Doc. 20-2); and an October 2020 article from Seven Days about the facts giving rise to this lawsuit (Doc. 20-3). The EEOC asserts that neither of these documents was integral to or incorporated in the Complaint, however, the Complaint alleges that:

Elderwood was on notice of the race-based comments and conduct to which the Aggrieved Individuals were subjected. Specifically:

. . .

Multiple Aggrieved Individuals noted race-based comments and conduct by Elderwood's residents contemporaneously in resident care notes (known as "Progress Notes"), which were routinely reviewed by Elderwood management;

Through the publication of an October 2020 article in a Vermont-based publication called "Seven Days" that detailed the racial abuse of Black employees at Elderwood, https://www.sevendaysvt.com/vermont/black-staff-say-burlington-nursing-home-failed-to-protect-them-from-abuse/Content?oid=31476734.

(Doc. 1 at 4-6, ¶¶ 12(g)(v), (vi).)

Because the Complaint specifically asserts that the "progress notes" put Elderwood on notice of residents' abuse of staff, the progress note attached to its motion for judgment on the pleadings may be considered without converting Elderwood's motion into one for summary judgment.

Similarly, the Complaint asserts the Seven Days article put Elderwood on notice and references the article by date and publication, and includes a hyperlink to it. When a plaintiff includes a hyperlink in their complaint, courts have found the linked item is incorporated by reference therein.¹ The Seven Days article is thus integral to the Complaint and may be considered in adjudicating the pending motion.

II. The Complaint's Allegations.

The EEOC is a federal agency charged with enforcing federal antidiscrimination laws, including Title VII. Elderwood is a Vermont corporation that operates a senior care facility in Burlington, Vermont. The Complaint alleges that at all relevant times Elderwood continuously had at least fifteen employees and was an employer engaged in an industry affecting commerce under §§ 701(b), 701(g), and 701(h) of Title VII, 42 U.S.C. §§ 2000e(b), (g), (h).

Felicia Ivy, Dian Murphy, Nicole Ferguson, Londia Bradstreet, Faith Robinson, and Papa Ndour (collectively, the "Aggrieved Individuals") are Black, and are former employees of Elderwood. Each filed a charge of discrimination with the EEOC alleging Title VII violations by Elderwood. On March 23, 2022, the EEOC issued Letters of Determination for each of the six charges, finding reasonable cause to believe that Elderwood violated Title VII. The Letters of Determination further requested that Elderwood engage with the EEOC in "informal methods of conciliation to endeavor to eliminate the unlawful employment practices and provide appropriate relief." (Doc. 1 at 2, ¶ 7.) Following the parties' failure to reach a conciliation agreement acceptable to the EEOC on any of the six charges, on June 7, 2022, the EEOC issued a Notice of Failure of Conciliation to Elderwood.

The Complaint alleges that since at least March 2020, Elderwood subjected the Aggrieved Individuals to severe or pervasive race-based harassment as follows:

White patients/residents of Elderwood including, but not limited to, a White male patient/resident housed in Elderwood's Chittenden Unit (hereafter "White Male Resident") and White female residents housed in Elderwood's Mansfield Unit (hereafter "White Female Residents") repeatedly subjected the Aggrieved Individuals to racist slurs including, but not limited to, calling them "n[******]," "coons," "monkeys," "Black bitches" and other racially offensive epithets. Further, the White Male Resident told many of the Aggrieved Individuals to "go back to Africa."

The White Male Resident subjected the Aggrieved Individuals to race-based threats and race-based assaults including, but not limited to stating that he wished that he could hang Black employees and that he wanted to get a gun to shoot Black employees.

The White Male Resident also subjected the Aggrieved Individuals to violent physical contact including, but not limited to punching LNA Ndour with fists while yelling racial epithets, intentionally hitting LPN Ferguson with a walker, smacking LPN Murphy, and putting his finger on the face of RN Robinson while threatening her.

The race-based comments and conduct were constant and ongoing and were unwelcome and offensive to the Aggrieved Individuals.

The race-based comments and conduct were not just limited to shifts when the Aggrieved Individuals were assigned to specifically care for the offending residents. For example, the White Male Resident would sit in a chair in the main hallway of Elderwood's Chittenden Unit or follow the

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