Wooding v. Winthrop Univ. Hosp.

THOMAS WOODING, Plaintiff, v. WINTHROP UNIVERSITY HOSPITAL, HERBERT PERRYin his individual and official capacity, SCOTT GORENSTEINin his individual and official capacity, CHARLES OCCHIPINTIin his individual and official capacity, FRANCESCA BIENIEKin her individual and official capacity, DONNA HANGANin her individual and official capacity, Defendants.

16-cv-4477 (ADS)(ARL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

June 12, 2017

MEMORANDUM OF DECISION AND ORDER

APPEARANCES:

Law Offices of Frederick K. Brewington

Attorneys for the Plaintiff

556 Peninsula Boulevard

Hempstead, NY 11550

By: Frederick K. Brewington, Esq.,

Cathryn Harris-Marchesi, Esq.,

Olivier E. Roche, Esq., Of Counsel

Putney, Twombly, Hall & Hirson LLP

Attorneys for the Defendants

521 Fifth Avenue

New York, NY 10175

By: Mary Ellen Donnelly, Esq.,

Robert M. Tucker, Esq., Of Counsel

SPATT, District Judge:

The Plaintiff Thomas Wooding (the "Plaintiff") commenced this employment discrimination action against the Defendants Winthrop University Hospital ("Winthrop"), Herbert Perry ("Perry"), Scott Gorenstein ("Gorenstein"), Charles Occhipinti ("Occhipinti"), Francesca Bieniek ("Bieniek"), and Donna Hangan ("Hangan") (collectively, the "Defendants"), alleging various violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), the New York State Human Rights Law, N.Y. Exec. Law § 296 (the "NYSHRL"), 41 U.S.C. §1981 ("Section 1981"), and the New York Labor Law ("NYLL").

Presently before the Court is a motion by the Defendants to dismiss the complaint pursuant to Federal Rule of Civil Procedure ("FED. R. CIV. P." or "Rule") 12(b)(6). For the following reasons, the Defendants' motion is granted in part and denied in part.

I. BACKGROUND

A. Factual Allegations of the Complaint

The Plaintiff, an African American male, worked as a physician's assistant for Winthrop from November 2013 until March 21, 2016. He held the title of Chief Physician's Assistant for most of his tenure.

The Plaintiffs immediate supervisors were Perry, a white male; Gorenstein, a white male; Occhipinti, a white male; and Bieniek, a white female. Hangan who is a white female, worked at Winthrop.

The Plaintiff was the only African American in his department, and was the only African American physician's assistant at the hospital. One of the Plaintiff's co-workers, Patricia Rooney, told the Plaintiff that his superiors referred to him as a "nigger" in her presence. The Plaintiff avers that ten to fifteen people "were witness to these actions," though it is not clear from the face of the complaint whether "these actions" refer to the use of the racial slur, or to the general allegations made by the Plaintiff.

The complaint alleges that in January 2014, Perry "began to verbally attack [the] Plaintiff." (Complaint at ¶ 21). The complaint does not state how Perry verbally attacked him, or what the basis of the attack was. The Plaintiff informed his superiors throughout 2014 and 2015 about "the discriminatory and retaliatory treatment [the] Plaintiff was subjected to." (Id. at ¶ 21).

The complaint also alleges, without providing supporting facts, that Gorenstein treated the Plaintiff differently because of his race and color. The Plaintiff notified his superiors numerous times about this alleged differential treatment.

The Plaintiff does not cite to specific individuals or situations, but states that white employees failed to have charts on hand during treatment; yelled in front of patients; failed to properly assess patients before treatment; and failed to obtain consent forms, but were not subjected to the same discipline as the Plaintiff.

On April 10, 2014, Hangan was hired to work at Winthrop. The Plaintiff alleges that "Hangan and Gorenstein are close personal friends." (Id. at ¶ 24). The Plaintiff further claims that Hangan began throwing out the Plaintiff's medical documentation the day that Hangan was hired. The Plaintiff's co-workers purportedly told the Plaintiff that Hangan was "gunning for him." (Id. at ¶ 25). When the Plaintiff complained about Hangan's hiring and conduct to Occhipinti, Occhipinti referred the Plainitiff to Gorenstein.

In April 2014, Perry instructed the Plaintiff's Hyperbaric assistants to refrain from performing safety checks or instructing patients on a treatment's risks and benefits. About this time, Perry began "mistreating" the Plaintiff. Again, the complaint does not specify how the Plaintiff was mistreated, but the Plaintiff states that in response to the mistreatment, he arrived early to work to complete any work that would be seen by Perry. However, Perry was apparently not satisfied with the Plaintiff's work, and ripped up the Plaintiff's medical documentation in front of the Plaintiff, his co-workers, and his patients. Perry refused to accept the Plaintiff's charts, but accepted charts from white employees.

On April 25, 2014, Perry told the Plaintiff that if he did not perform shorter patient consults he would not be working at the hospital much longer. The Plaintiff claims that Perry gave himconflicting instructions on the amount of time he needed to spend on consults, and that Perry would reprimand him when he followed the conflicting instructions. Despite Perry's attitude towards the Plaintiff, he received praise from other doctors for his consults during this time.

On May 28, 2014, the Plaintiff asked Bienek to have Perry only speak with him about patient care. Despite the request, the Plaintiff states that Perry's conduct towards him did not change.

On June 5, 2014, Perry allegedly belittled the Plaintiff in front of co-workers while Perry was improperly filling out medical paperwork. The substance of the disparagement is not stated in the complaint, but the Plaintiff claims that Perry also objected to the Plaintiff countersigning Perry's medical charts.

On June 23, 2014, the Plaintiff told Bienek that Perry screamed profanities at him in front of patients.

On June 25, 2014, Perry substituted another doctor's treatment with his own. The Plaintiff contends that this resulted in an increased risk to patients, so the Plaintiff informed the supervising attending.

On July 14, 2014, the Plaintiff allegedly learned that Perry was fraudulently billing patients without seeing them. When the Plaintiff informed Gorenstein of this, he told the Plaintiff to refuse Perry's medical charts. The Plaintiff states that this request put him in an uncomfortable position—having to refuse the requests of a superior; and that no white employees were placed in such a position.

On August 5, 2014, Occhipinti disciplined the Plaintiff for being late. The Plaintiff was scheduled to start at 2:00p.m., and arrived at 2:04 p.m., which meant that he arrived one minute after the tardy grace period expired. The Plaintiff states that it was the only instance during hismore than two-year tenure when he was late. The Plaintiff further contends—without offering names, credentials, or specific instances—that similarly situated white employees were not disciplined when they were late. The Plaintiff states that Jose Ballicongan missed an entire shift during his tenure at Winthrop, but was not disciplined. It is not clear from the face of the complaint whether Ballicongan worked as a physician's assistant, or whether he was a member of the Plaintiff's protected class.

On August 7, 2014, the Plaintiff completed a quality assurance project, which was among his duties as Chief Physician's Assistant of the Hyperbarics Department. He noted a number of deficiencies in Hangan's work, and claims that the deficiencies were so severe that the Plaintiff was concerned for patients' well-being. Despite the Plaintiff's findings, Hangan was exempted from any discipline through Winthrop's "Just Culture Policy," which permits employees to make mistakes.

On August 8, 2014, Perry gave the Plaintiff advice that contradicted the attending doctor's orders. When the Plaintiff questioned Perry's advice, Perry belittled him in front of other staff.

About this time, the Plaintiff states that Gorenstein changed his policy regarding new consults. Previously, doctors had been present for the first hour of a new consult. In the summer of 2014, Gorenstein told physician's assistants that they would be solely responsible for initial consults.

As a result of this change, the Plaintiff canceled a certain treatment for a patient because he believed that there was a serious risk. Under the previous policy, a doctor would have had to evaluate the course of care before any change was approved. The Plaintiff and several medical technicians from the hyperbarics department attempted to contact Gorenstein to consult with him, but he could not be reached.

Hangan reported the Plaintiff's actions to Occhipinti, who "validated" the incident as a disciplinary matter. The complaint does not clarify what validate means in this context, or what type of disciplinary action was taken. The Plaintiff maintains that he based his decisions on Gorenstein's directions.

Hangan purportedly used other avenues to frustrate the Plaintiff's employment, including berating and harassing him; refusing to assist him; lying to him; refusing to care for patients during her shift; and challenging his authority.

On October 22, 2014, Perry told the Plaintiff to complete medical documents that Perry had already signed. The Plaintiff states that fulfilling Perry's request would have been illegal, because medical documents are supposed to be signed after they are completed. The Plaintiff objected to Perry's request, and emailed his superiors. As a result of the incident, the Plaintiff claims he was "isolated"; informed that he was overly condescending; and asked to not inject personal opinions. The Plaintiff alleges that Occhipinti, Gorenstein, and Bieniek all told him that he was being disrespectful and overbearing.

On November 14, 2014, the Plaintiff met with Bieniek, who told him that he was being disciplined for...