Levy v. NYC Health + Hosps.

660 F.Supp.3d 220

Kristin LEVY, Plaintiff, v. NYC HEALTH + HOSPITALS and Medical Staffing Services, Inc., Defendants.

21-CV-9142 (VEC)

United States District Court, S.D. New York

Signed March 10, 2023

Timothy J. Brock, Benjamin J. Wyatt, Chandan Panigrahi, Law Offices of Wyatt & Associates PLLC, Keene, NH, for Plaintiff.

Joseph Birton Reynolds, New York City Law Dept. Labor and Employment, New

York, NY, for Defendant NYC Health + Hospitals.

OPINION & ORDER

VALERIE CAPRONI, United States District Judge:

Kristin Levy has sued a city-owned hospital and a medical staffing agency for employment discrimination. Am. Compl., Dkt. 26. Plaintiff brings claims pursuant to Title VII, the New York State Human Rights Law ("NYSHRL"), the New York City Human Rights Law ("NYCHRL"), section 1981, and section 1983. Id. Defendants separately moved to dismiss, Dkts. 30, 33, and Plaintiff opposed the motions, Dkts. 42, 44. For the reasons discussed below, Defendant Medical Staffing Services, Inc.'s motion to dismiss is GRANTED, and Defendant NYC Health + Hospitals' motion to dismiss is GRANTED except as to Plaintiff's hostile work environment and retaliation claims pursuant to Title VII and section 1981, as to which the motion is DENIED.

BACKGROUND¹

Ms. Levy is Black woman with "dark skin color." Am. Compl. ¶ 8. She worked for Defendant Medical Staffing Services, Inc. ("Medical Staffing") and Defendant NYC Health + Hospitals ("the Hospital") as a mortuary technician from April 28, 2020 to May 21, 2020. Id. ¶¶ 8-10, 43-44. Plaintiff alleges that Defendants were joint employers and that her supervisors, Shruti Dimri and Jennifer Coard, were employed by the Hospital.² Id. ¶¶ 10-11, 15. Ms. Dimri is South Asian, and her skin is a lighter color than Plaintiff's. Id. ¶ 20.

Ms. Levy alleges that Ms. Dimri discriminated against her on the basis of her race and skin color. Id. ¶ 19. Beginning on May 6, 2020, Ms. Dimri "repeatedly" used a racial slur with reference to Ms. Levy and Ms. Levy's Black coworkers. Id. ¶¶ 22-23, 26-27, 37-40. After Ms. Levy objected, Ms. Dimri began reprimanding Ms. Levy and other Black employees for misconduct, such as returning late from lunch, for which non-Black employees of lighter skin color were not disciplined. Id. ¶¶ 29-31. Ms. Dimri persisted in using the slur throughout Ms. Levy's employment. Id. ¶¶ 24-27, 33, 40.

On May 15, 2020, Ms. Levy complained about Ms. Dimri's use of the racial slur to Ms. Coard, who was Ms. Dimri's supervisor. Id. ¶¶ 32-33. Ms. Coard accused Ms. Levy of lying. Id. ¶¶ 34-35. On May 20, 2020, Ms. Levy again complained to Ms. Coard about Ms. Dimri's continued use of a racial slur. Id. ¶¶ 37, 40. Ms. Coard asked Ms. Levy to write a statement detailing her experiences of discrimination; the day after Ms. Levy emailed Ms. Coard the statement, Ms. Coard fired her at a meeting called to discuss Ms. Levy's complaint. Id. ¶¶ 41-44. Ms. Levy alleges, "[u]pon information and belief," that she was replaced by an individual with lighter skin color who was not Black. Id. ¶ 49.

On March 9, 2021, Plaintiff filed complaints with the New York City Commission on Human Rights ("NYCCHR") and the United States Equal Employment Opportunity Commission ("EEOC"). Am. Compl. ¶ 50; see also Reynolds Decl. Ex. 1 ("Admin. Compl."), Dkt. 32.

DISCUSSION

I. Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), "a complaint must allege sufficient facts, taken as true, to state a plausible claim for relief." Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we 'are not bound to accept as true a legal conclusion couched as a factual allegation.' " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). "[T]o survive a motion under Rule 12(b)(6), a complaint does not need to contain detailed or elaborate factual allegations, but only allegations sufficient to raise an entitlement to relief above the speculative level." Keiler v. Harlequin Enters., Ltd., 751 F.3d 64, 70 (2d Cir. 2014) (citation omitted).

II. This Court Lacks Jurisdiction Over Plaintiff's NYCHRL and NYSHRL Claims

The Court does not have subject matter jurisdiction over Plaintiff's claims brought pursuant to the NYCHRL and the NYSHRL because she previously brought those claims to the NYCCHR. Am. Compl. ¶ 50; see also Admin. Compl.³ Although Defendants failed to raise this issue in their briefs, it is black letter law that federal courts may raise the issue of subject matter jurisdiction sua sponte. See Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105, 107-108 (2d Cir. 1997).

Pursuant to the " 'election of remedies' doctrine, a complainant who files a complaint with . . . the New York City Commission on Human Rights . . ." generally is barred from bringing those same claims under the NYCHRL or the NYSHRL in federal court. Chakraborty v. Soto, No. 16-CV-9128, 2017 WL 5157616, at *7 (S.D.N.Y. Nov. 6, 2017); see also York v. Assoc. of Bar of City of New York, 286 F.3d 122, 127 (2d Cir. 2002). Courts may exercise subject matter jurisdiction over claims brought before the NYCCHR only if the complaint was dismissed "on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled." Bryan v. Mem. Sloan Kettering Cancer Ctr., No. 18-CV-1300, 2022 WL 4096862, at *7 n.2 (S.D.N.Y. May 18, 2022) (cleaned up).

Plaintiff, who bears the burden of demonstrating that this Court has subject matter jurisdiction, see Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), has alleged no facts suggesting that any of those exceptions apply. Although Plaintiff alleges that the NYCCHR "granted [her] an administrative closure," Am. Compl. ¶ 51, she has not alleged that "[t]he Administrative Closure order . . . indicat[ed] that the dismissal of plaintiff's complaint was for 'administrative convenience,' " Hourahan v. Ecuadorian Line, Inc., No. 95-CV-10698, 1997 WL 2518, at *7 (S.D.N.Y. Jan. 3, 1997) (dismissing plaintiff's NYSHRL claims under the election of remedies doctrine). See also Adeniji v. Harman Firm, LLP, No. 19-CV-8032, 2022 WL 254939, at *3-4, *4 n.7 (Jan. 27, 2022).

Because the Court lacks subject matter jurisdiction over Ms. Levy's NYCHRL and NYSHRL claims, they are dismissed.⁴

III. The Hospital's Motion to Dismiss Plaintiff's § 1983 Claim Is Granted

Plaintiff fails plausibly to allege that the Hospital violated section 1983.⁵ See Am. Compl. To state a claim pursuant to section 1983, Plaintiff must allege that the Hospital has a "policy, custom, or practice" that proximately caused her injuries. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Amended Complaint is devoid of any allegations that the Hospital has a policy or practice that violates section 1983.

Plaintiff claims that Ms. Coard is a final policymaker because she had "final decision-making authority related to th[e] decision to terminate Ms. Levy," and, therefore, Ms. Coard's actions constitute a municipal policy. Am. Compl. ¶ 48; see also id. ¶¶ 32, 75, 124. Ms. Coard's ability to make final personnel decisions does not make her a final policymaker within the meaning of Monell. See Ahmad v. New York City Health and Hosps. Corp., No. 20-CV-675, 2021 WL 1225875, at *34 (S.D.N.Y. Mar. 31, 2021) (holding that a supervisor at New York City Health and Hospitals Corp. was not a final policymaker). Just "because an employee of the municipality has the authority to make decisions that are unreviewable does not make that employee a policymaker." Id. (citing Agosto v. New York City Dep't of Educ., 982 F.3d 86, 98 (2d Cir. 2020)). The contrary rule would subject municipalities to liability under section 1983 for "any adverse employment action by a manager." Huda v. New York City Health and Hosps. Corp., No. 19-CV-11556, 2021 WL 1163975, at *5 (S.D.N.Y. Mar. 26, 2021).

Because Plaintiff has failed to allege adequately that she was harmed by a policy, custom or practice of New York City Health + Hospitals, the Hospital's motion to dismiss her claims brought pursuant to section 1983 is granted.

IV. Plaintiff's Claims Pursuant to Title VII and § 1981

A. Legal Standard

As is relevant here, Title VII prohibits employers from discriminating on the basis of race and color. 42 U.S.C. § 2000e-2(a)(1). A plaintiff alleging discrimination in violation of Title VII must allege "sufficient facts to make [her] claim plausible . . . in light of the presumption that arises in plaintiff's favor under [McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),] in the first stage of the litigation." Littlejohn v. City of New York, 795 F.3d 297, 310 (2d Cir. 2015). The pleading requirements for claims brought pursuant to 42 U.S.C. § 1981 is substantively similar to the pleading standard for claims brought pursuant to Title VII. See Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 225-27 (2d Cir. 2004).

To defeat a motion to dismiss, a plaintiff need only plead facts from which the Court can plausibly infer a prima facie case of discrimination. See Menaker v. Hofstra Univ., 935 F.3d 20, 30 (2d Cir. 2019). "[W]hile a discrimination complaint need not allege facts establishing each element of a prima facie case of discrimination to survive a motion to dismiss, it must at a minimum assert nonconclusory factual matter sufficient to nudge its claims across the line from conceivable to plausible to proceed." Equal Emp. Opportunity Comm'n v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014) (cleaned up). The elements of a prima facie case are "an outline of what is necessary to render a plaintiff's...