Gittens v. Winthrop Hospitalist Assocs.

DEON GITTENS, Plaintiff, v. WINTHROP HOSPITALIST ASSOCIATES, P.C., NYU WINTHROP HOSPITAL, NYU LANGONE HEALTH SYSTEM, and DORIS MCKEON, In Her Individual and Official Capacities, Defendants.

No. 19-CV-5070 (LDH) (LB)

United States District Court, E.D. New York

February 18, 2022

MEMORANDUM AND ORDER

LASHANN DEARCY HALL, UNITED STATES DISTRICT JUDGE.

Deon Gittens (“Plaintiff”) brings the instant action against Winthrop Hospitalist Associates, P.C., NYU Winthrop Hospital, NYU Langone Health System (collectively “Winthrop”), and Doris McKeon (“Mckeon ” and together with Winthrop, “Defendants”) alleging claims for discrimination, hostile work environment and retaliation in violation of 42 U.S.C. § 1981 and New York State Human Rights Law (“NYSHRL”). Defendants move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the second amended complaint in its entirety.

BACKGROUND^[1]

Plaintiff is African American. (See Second Am. Compl (“Compl.”) ¶¶ 23-24, ECF No. 18.) On November 7, 2005, Plaintiff was hired by Winthrop as a transporter, and thereafter, reported to Doris McKeon. (Id. ¶¶ 9, 18.) From Fall 2007, through some time in 2009, Plaintiff attended Winthrop's School of Radiography where he trained to become a radiologic technologist. (Id. ¶¶ 19, 21.) Plaintiff completed his studies in 2009. (Id. ¶ 21.)

Upon graduating from the school of radiography, Plaintiff applied for positions in Winthrop's radiology department. (Id. ¶ 22.) Winthrop did not extend Plaintiff a job in the radiology department but instead hired two white males who had no affiliation with Winthrop. (Id.) As a result of what Plaintiff perceived to be a pattern of discrimination, Plaintiff complained to Winthrop's human resources department that he was not hired in the radiology department because of his race. (Id. ¶ 24.) Subsequently, Plaintiff was interviewed and hired to work as a “per diem” radiologic technologist. (Id. ¶ 25.)

In or around May 2010, Plaintiff passed New York's examination and became a certified radiologic technologist. (Id. ¶ 26.) Plaintiff informed Winthrop's human resources department of his certification on June 9, 2010. (Id. ¶ 27.) At this time, and on different occasions through 2014, Plaintiff applied for positions, both full-time and part-time, in Winthrop's radiology department. (Id. ¶¶ 28, 30.) Each time Plaintiff applied, Winthrop hired non-Black employees to fill the vacancies, because according to Winthrop these other candidates were more qualified than Plaintiff. (Id. ¶¶ 29, 30.) By 2014, Plaintiff had five years of relevant experience. (Id. ¶ 33.)

On or about September 11, 2014, Plaintiff applied to work as a part-time radiologic technologist in Winthrop's Ambulatory Surgery Center, a position for which he was subsequently hired on October 1, 2014. (Id. ¶¶ 34-35.)^[2] As a part-time radiologic technologist, Plaintiff was given a three-day work schedule consisting of 30-40 hours per week. (Id. ¶ 36.) From 2014, to 2017, Plaintiff was required to perform tasks beyond the scope of his formal duties such as mopping the floor, taking out the trash, and cleaning the operating room after surgery. (Id. ¶ 37.) Other radiologic technologists, who were white, did not have to perform such tasks. (Id.) In or around October 2016, Plaintiff applied for a position as a full-time radiology technologist. (Id. ¶ 38.) By this time, Plaintiff had been certified as a radiologic technologist for six years. (Id.) Plaintiff was not offered the position. (Id.)

By December 2017, Plaintiff was “fed up” and “directly complained” of a “racially hostile work environment.” (Id. ¶ 39.) Plaintiff does not allege to whom he complained. In any event, after Plaintiff complained, in or around December 2017, he was “prevented” from applying for a full-time radiologic technologist position. (Id. ¶ 41.) Then, in or around January 2018, Plaintiff complained to Defendant McKeon that his pay had been improperly docked for lunch breaks he had not taken. (Id. ¶ 42.) According to the second amended complaint, other radiologic technologists who were white were paid correctly. (Id.) On or about February 26, 2018, Plaintiff's work schedule for that day was reassigned to an outside per diem technician, a white male. (Id. ¶ 43.) On and around March 2018, Plaintiff complained to Winthrop's human resources department about a “retaliatory hostile work environment.” (Id. ¶ 44.) Approximately three months later, in June 2018, Plaintiff again applied to be a full-time radiology technologist with Winthrop. (Id. ¶ 46.) The job was offered to a white woman. (Id.)

Plaintiff filed a charge of discrimination with Nassau County's Human Rights Commission “in or around October 2018.” (Id. ¶ 49.) “In or around October 2018, ” Winthrop transferred Plaintiff to its main hospital where his regular schedule was reduced to 15-20 hours per week. (Id. ¶ 50.) In or about May 2019, Plaintiff applied for yet another full-time radiology technologist position with Winthrop but was again denied an offer. (Id. ¶ 55.) Over the course of fourteen years with Winthrop, Plaintiff applied for and was denied positions on at least ten separate occasions. (Id. ¶¶ 57-58.)

STANDARD OF REVIEW

To withstand a Rule 12(b)(6) motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the alleged facts allow the court to draw a “reasonable inference” of defendants' liability for the alleged misconduct. Id. While this standard requires more than a “sheer possibility” of defendants' liability, id., “[i]t is not the Court's function to weigh the evidence that might be presented at trial” on a motion to dismiss, Morris v. Northrop Grumman Corp., 37 F.Supp.2d 556, 565 (E.D.N.Y. 1999). Instead, “the Court must merely determine whether the complaint itself is legally sufficient, and, in doing so, it is well settled that the Court must accept the factual allegations of the complaint as true.” Id. (citations omitted).

DISCUSSION

I. Timeliness of Plaintiff's Section 1981 Claims

The statute of limitations governing claims brought pursuant to Section 1981 is four years. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004) (concluding that cause of action under § 1981 is governed by § 1658's four-year statute of limitations). Defendants argue that Plaintiff's claim of discrimination is founded, in part, on conduct that is time-barred. (Defs.' Mem. L. Supp. Mot. Dismiss (“Defs.' Mem.”) 4-6, ECF No. 28.) Defendants are correct.

Plaintiff commenced the instant action on September 5, 2019. (See ECF No. 1.) Thus to be timely, the conduct at issue must have occurred no earlier than September 5, 2015. As pleaded, Plaintiff's discrimination claim rests, in part, on allegations concerning Winthrop's failure to hire or promote Plaintiff on multiple occasions between 2010 and 2014. (See Compl. ¶ 32.) Because that conduct falls outside the limitations period, it is time-barred. In other words, to the extent Plaintiff's § 1981 discrimination claim is premised upon Winthrop's alleged refusal to hire or promote Plaintiff prior to September 5, 2015, the claim is dismissed as untimely. See, e.g., Russell v. Cty. of Nassau, 696 F.Supp.2d 213, 230 (E.D.N.Y. 2010) (finding § 1981 discriminations claims arising four years prior to filing the complaint were time-barred).

Plaintiff's attempt to save his claim from dismissal by invoking the continuing violation doctrine is unpersuasive. (See Pl.'s Mem. L. Opp'n Mot. Dismiss (“Pl.'s Mem.”) 5-9, ECF No. 29.) The time-barred conduct-Winthrop's repeated failure to hire or promote Plaintiff between 2010 and 2014-can be properly characterized as discrete discriminatory acts, such that the continuing violation doctrine does not apply. See Valtchev v. City of New York, 400 Fed.Appx. 586, 588 (2d Cir. 2010) (“Termination, failure to promote, and refusal to hire are considered ‘discrete acts' which are ‘easy to identify[.]'”); Nat'l R.R Passenger Corp. v. Morgan, 536 U.S. 101, 110-15 (2002) (rejecting argument that the continuing violation doctrine applies to discrete acts of discrimination or retaliation); Washington v. Cty. of Rockland, 373 F.3d 310, 317 (2d Cir. 2004) (finding Title VII's continuing violations doctrine did not apply to § 1981 and § 1983 discrimination claims). And, as Defendants correctly note, each discriminatory act starts a new clock for the filing of a claim arising therefrom. (See Defs.' Mem. 5 (citing Nat'l R.R. Passenger Corp., 536 U.S. at 113).) Indeed, “[r]ecovery for discrete acts of discrimination that occur outside of the applicable limitations period is precluded, even if the acts are related to acts alleged in timely filed charges.” Lukasiewicz-Kruk v. Greenpoint YMCA, 404 Fed.Appx. 519, 520 (2d Cir. 2010). This is not to say, as Plaintiff argues (Pl.'s Mem. at 5-6), that conduct outside the limitations period may not be relevant or admissible as “background evidence” for timely claims. See, e.g., Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135, 146 (2d Cir. 2012) (holding that district court properly admitted background evidence predating the onset of the limitations period and that there was sufficient evidence for a reasonable juror to conclude that the defendant discriminated against plaintiffs within the limitations period); Thomson v. Odyssey House, No. 14-CV-3857, 2015 WL 5561209, at *10 (E.D.N.Y. Sept. 21, 2015) (collecting cases and applying on motion to dismiss), aff'd, 652 Fed.Appx. 44 (2d Cir. 2016). In any event, discrete acts occurring outside the statute of limitations cannot revive Plaintif...