Meyer, M.D. v. State of New York Office of Mental Health et al

Filing 26

ORDER granting in part and denying in part 16 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 16 Motion to Dismiss for Lack of Jurisdiction: For the reasons stated in the attached Memorandum & Order, Defendants' motion to dismiss the amended complaint is granted, in part, and denied, in part. Ordered by Judge Pamela K. Chen on 5/2/2014. (Doerr, Mark)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------x
NOT FOR PUBLICATION
JILL MEYER, M.D.,
Plaintiff,
MEMORANDUM & ORDER
12-CV-6202 (PKC)

v.
STATE OF NEW YORK OFFICE OF MENTAL
HEALTH; CREEDMOOR PSYCHIATRIC CENTER;
and CATERINA GRANDI, M.D., Chief of Psychiatry/
Chair, Department of Psychiatry, Creedmoor
Psychiatric Center,
Defendants.
----------------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:

Before the Court is Defendants’ motion to dismiss Plaintiff’s amended complaint,
pursuant to Federal Rules of Civil Procedure (“FRCP”) 12(b)(1) and 12(b)(6). The amended
complaint alleges employment discrimination and hostile work environment based on race, age
and gender. Because Plaintiff’s amended complaint sufficiently alleges violations of Title VII of
the Civil Rights Act of 1964, New York State Human Rights Law, and New York City Human
Rights Law, and because Plaintiff has sufficiently alleged the participation of the individual
Defendant, Dr. Caterina Grandi, in the State and City human rights law violations, Defendants’
motion is denied as to all counts of the amended complaint, except Count I. Count I, which
alleges a violation of the Age Discrimination Employment Act, is dismissed on the basis of
sovereign immunity. Lastly, the hostile work environment component of Plaintiff’s Title VII
claims is dismissed as time-barred.

BACKGROUND
A.

Relevant Procedural History
Plaintiff Jill Meyer filed this action on December 18, 2012. (Dkt. 1.) In response to

Defendants’ request to file a motion to dismiss, pursuant to FRCP 12(b)(1) and 12(b)(6), Plaintiff
requested, and was granted, leave to file an amended complaint. The amended complaint was
filed on March 25, 2013. (Dkt. 11.)
In her amended complaint, Plaintiff asserts claims of employment discrimination and
hostile work environment pursuant to the Age Discrimination in Employment Act (“ADEA”),
Title VII of the Civil Rights Act of 1964 (“Title VII”), New York State Executive Law §§ 296
and 297 (“NYSHRL”), and the New York City Administrative Code § 8-107 (“NYCHRL”),
based on her employment, and application for employment, at psychiatric facilities operated by
Defendant State of New York Office of Mental Health.

Plaintiff’s Title VII and ADEA

violations are alleged only as to OMH and Creedmoor; and her NYSHRL and NYCHRL
violations are alleged only as to Dr. Grandi. Specifically, the amended complaint sets forth the
following causes of action:
Count I:

ADEA violation based on age by OMH and Creedmoor

Count II:

NYSHRL violation based on age by Dr. Grandi 1

Count III:

NYCHRL violation based on age by Dr. Grandi

Count IV:

Title VII violation based on gender by OMH and Creedmoor

Count V:

NYSHRL violation based on gender by Dr. Grandi

1

Although Defendants, in their reply brief, appear to construe Plaintiff’s NYSHRL claims as
extending to OMH and Creedmoor (see Dkt. 21 at 2, 8–10), neither the plain language of the
amended complaint nor Plaintiff’s opposition brief (see Dkt. 25 at 13–15) supports that
conclusion. Accordingly, the Court interprets the amended complaint as alleging NYSHRL and
NYCHRL violations only as to Dr. Grandi.
2

Count VI:
Count VII:

Title VII violation based on religion by OMH and Creedmoor

Count VIII:

NYSHRL violation based on religion by Dr. Grandi

Count IX:
B.

NYCHRL violation based on gender by Dr. Grandi

NYCHRL violation based on religion by Dr. Grandi

Relevant Factual History
Plaintiff is a psychiatric physician licensed to practice medicine in the State of New

York. (Dkt. 1 ¶ 20.) 2 Plaintiff is a Jewish female born in 1953 (currently 60 or 61 years old).
(Dkt. 1 ¶ 23.) Plaintiff is a former employee of the Defendants.
Defendants are the State of New York Office of Mental Health (“OMH”), Creedmoor
Psychiatric Center (“Creedmoor”), and individual defendant Caterina Grandi (“Grandi”).
Grandi, at all relevant times, was employed by Creedmoor as the Director of the Department of
Psychiatry. (Dkt. 11 ¶ 19.) OMH is a New York State agency that operates Creedmoor, which is
a psychiatric hospital located in Queens Village, New York. (Dkt. 11 ¶¶ 17, 18.) Plaintiff
completed her post-graduate medical training in Brooklyn, New York in July 1982, and
completed a fellowship in June 1993. (Dkt. 11 ¶ 22.) Plaintiff then was employed as a
psychiatrist with the United States Veterans Affairs Administration for approximately 10 years.
(Dkt. 11 ¶ 22.) In 2004, Plaintiff began working at a series of hospitals in the New York area.
(Dkt. 11 ¶ 22.) Plaintiff was employed at Creedmoor from December 2004 until June 2005,
when she resigned. (Dkt. 11 ¶ 26.) From July 2005 to January 2007, Plaintiff was employed as
a psychiatrist at Bronx Psychiatric Center (“Bronx Psychiatric”) in New York, which also is

2

The facts set forth herein are from Plaintiffs’ complaint. For purposes of this motion, the Court
accepts these facts as true. See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007) (when deciding a 12(b)(6) motion for failure to state a claim, the Court “accept[s] as true
all factual statements alleged in the complaint and draw[s] reasonable inferences in favor of the
non-moving party”).
3

owned and operated by OMH. (Dkt. 11 ¶ 25.) Plaintiff generally received good performance
reviews during her employment at both Creedmoor and Bronx Psychiatric. (Dkt. 11 ¶¶ 26, 28.)
Plaintiff alleges that during her employment at Creedmoor her director “fostered an
environment that was needlessly demeaning and insulting to plaintiff,” “making it increasingly
difficult for plaintiff to work with [the director].” (Dkt. 11 ¶ 29.) After leaving Creedmoor,
Plaintiff experienced a similar pattern of mistreatment and disrespect at Bronx Psychiatric,
despite her satisfactory work performance. (Dkt. 11 ¶¶ 30–35.) The director of Plaintiff’s unit at
Bronx Psychiatric “would not even say ‘Hello’ to her and stated ‘We will see how long you will
be here.’” (Dkt. 11 ¶ 30.) Plaintiff alleges she was falsely accused of instigating an incident in
which she was assaulted by a patient, after which she was told by a director, Nigel Bark, that she
“‘will not go anywhere else’ and will ‘never be permanent in the OMH system.’” (Dkt. 11 ¶ 31.)
The staff also was disrespectful toward Plaintiff, and Dr. Bark “did nothing to correct the
situation.” (Dkt. 11 ¶ 32.)
During a meeting at Bronx Psychiatric in May 2006, Plaintiff was asked by the facility’s
director, Mr. Carmichael, whether she would accept a transfer from Bronx Psychiatric to another
facility within the OMH network. Plaintiff declined the request. (Dkt. 11 ¶ 35–36.) Plaintiff
was not given a reason for why she was being asked to transfer, except that, according to Mr.
Carmichael, “they did not like [her] and wanted her out.” (Dkt. 11 ¶ 36.) Also during that
meeting, Mr. Carmichael said to Plaintiff that, “We are both minorities here at Bronx
Psychiatric.” (Dkt. 11 ¶ 35.) 3 Approximately eight months later, in January 2007, Plaintiff was
terminated from Bronx Psychiatric, without being given a reason. (Dkt. 11 ¶ 37.) Plaintiff
alleges that she was terminated based on her age, religion, and gender. (Dkt. 11 ¶ 40.)

3

Plaintiff does not state any facts regarding Mr. Carmichael’s religion, race, or national origin.
4

Since Plaintiff’s employment at Bronx Psychiatric and Creedmoor, she has applied to
various OMH-operated mental health facilities, but has not been hired, despite many vacancies at
these facilities. (Dkt. 11 ¶ 41.) Most relevantly, in June 2011, more than four years after
Plaintiff was fired, Creedmoor advertised openings for two psychiatrist positions, for which
Plaintiff allegedly was qualified. (Dkt. 11 ¶¶ 43, 44, 47.) Plaintiff applied for the positions, and
when she inquired of the status of her applications, she was informed by Defendant Grandi that
she was an “excellent candidate,” but that she would not be hired. (Dkt. 11 ¶¶ 48–50.) Plaintiff
alleges, “[u]pon information and belief, [that] OMH hired other, less qualified, younger, male
and non-Jewish candidates to fill the advertised vacancies.” (Dkt. 11 ¶ 52.) She also “submits
that she was not hired for either of the advertised vacancies because of her age, gender, and
religion.” (Dkt. 11 ¶ 53.)
MOTION TO DISMISS STANDARD
To withstand a motion to dismiss pursuant to FRCP 12(b)(6), a complaint must plead
facts sufficient “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The liberal notice pleading standard of FRCP 8(a) only
requires that a complaint set forth “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Id. at 570. Under FRCP 8(a)(2), the complaint need not set forth
“detailed factual allegations,” but the plaintiff must present “more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. “Factual
allegations must be enough to raise a right to relief above the speculative level[.]” Id. In
evaluating a 12(b)(6) motion to dismiss, the district court must accept the factual allegations set
forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See
Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir. 2006). Nevertheless, a complaint must

5

contain enough factual material to “‘state a claim to relief that is plausible on its face,’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570), and it should be
dismissed where a plaintiff has not “nudged [its] claims across the line from conceivable to
plausible[.]” Twombly, 550 U.S. at 570. That “it may appear on the face of the pleadings that a
recovery is very remote and unlikely[,] . . . is not the test.” Swierkiewicz v. Sorema N.A., 534
U.S. 506, 515 (2002) (citing Scheur v. Rhodes, 416 U.S. 232, 236 (1974)).
The standard for reviewing a 12(b)(1) motion is essentially the same as the standard
under 12(b)(6), but “a plaintiff asserting subject matter jurisdiction has the burden of proving by
a preponderance of the evidence that it exists.” Hoops v. KeySpan Energy, 10-CV-2777(ADS),
2011 WL 846198, at *2 (E.D.N.Y. Mar. 8, 2011) (citing Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000)).
DISCUSSION
I.

Sovereign Immunity under the ADEA
Plaintiff concedes that OMH and Creedmoor cannot be held liable under the ADEA

pursuant to the Eleventh Amendment’s grant of sovereign immunity to the states and their
agencies. (Dkt. 25 at 6.) Accordingly, Plaintiff’s claim under the ADEA against OMH and
Creedmoor, 4 alleged in Count I, is dismissed.
II.

Title VII Failure-to-Hire Claim
In Counts IV and VII, Plaintiff alleges Title VII violations on the basis of gender and

religion, respectively, against OMH and Creedmoor. (Dkt. 11 at 12–13, 15–16.) 5

4

Plaintiff does not bring claims under the ADEA against Dr. Dr. Grandi. (See Dkt. 11 at 9.)

5

Although Plaintiff also asserts Title VII claims against the State Defendants, those claims are
not dismissed on the basis of sovereign immunity, as the Supreme Court has held that Congress
intended to abrogate the states’ Eleventh Amendment immunity from suit under Title VII. See
6

Title VII prohibits discrimination in employment based upon certain protected
characteristics, including gender, race, and religion. 42 U.S.C. § 2000e-2. Title VII makes it
unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment” based on a protected characteristic. Id. A plaintiff alleging a Title VII violation
must establish a prima facie case that: (1) she is a member of a protected class; (2) she is
qualified for the position; (3) she suffered an adverse employment action; and (4) there exist
circumstances that give rise to an inference of discrimination. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).
Specifically, in order to sustain a discrimination claim based on a failure to hire, “a plaintiff must
allege that she applied for an available position for which she was qualified and was rejected
under circumstances giving rise to an inference of unlawful discrimination.” Wang v. Phoenix
Satellite Television U.S., Inc., 13-CV-218(PKC), 2013 WL 5502803, at *9 (S.D.N.Y. Oct. 3,
2013) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
However, “[t]he prima facie case under McDonnell Douglas . . . is an evidentiary
standard, not a pleading requirement.” Swierkiewicz, 534 U.S. at 510–11, 514; see Boykin v.
KeyCorp., 521 F.3d 202, 212 (2d Cir. 2008). Accordingly, at the pleading stage, a plaintiff is not
required to plead facts sufficient to establish a prima facie case, and need only allege sufficient
facts to give the defendant “fair notice of the basis for [plaintiff’s] claims.” Boykin, 521 F.3d at
212. Consistent with this approach, the Second Circuit has affirmed that there is no heightened
pleading requirement in employment discrimination cases, even after Twombly and Iqbal. See

Fitzpatrick v. Blitzer, 427 U.S. 445, 449 n.2 (1976); Davis, 802 F.2d 638, 639 n.1 (2d Cir. 1986);
Brown v. N.Y. State Dep’t of Correctional Servs., 583 F. Supp. 2d 404, 413 (W.D.N.Y. 2008).
7

DiPetto v. U.S. Postal Serv., 383 Fed. App’x 102, 103 (2d Cir. 2010) (summary order). 6 As the
Supreme Court explained in Swierkiewicz, imposing a heightened pleading standard in
employment discrimination cases would be inappropriate because these cases frequently involve
facts not available to a plaintiff at the pleading stage. See Swierkiewicz, 534 U.S. at 512
(“Before discovery has unearthed relevant facts and evidence, it may be difficult to define the
precise formulation of the required prima facie case in a particular case. Given that the prima
facie case operates as a flexible evidentiary standard, it should not be transposed into a rigid
pleading standard for discrimination cases.”); see also Leibowitz v. Cornell Univ., 445 F.3d 586,
592 (2d Cir. 2006) (“‘[T]he Federal Rules do not contain a heightened pleading standard for
employment discrimination suits[.]’”) (quoting Swierkiewicz, 534 U.S. at 515).

Under the

pleading standard established in Swierkiewicz, a plaintiff need not allege with particularity facts
regarding the nature of the defendant’s state of mind or discriminatory intent. See Swierkiewicz,
534 U.S. at 510 (rejecting application of McDonnell Douglas’s prima facie case standard,
including evidence regarding “circumstances that support an inference of discrimination”).
Although Plaintiff’s amended complaint sets forth facts directly supporting the first
three elements of a prima facie employment discrimination claim—namely, that she was in one
or more protected classes, she was qualified for her position, and she suffered an adverse
employment action—she has not alleged any facts directly supporting her claim of
discriminatory intent. However, this is not fatal to her case.

6

However, neither the Second Circuit nor the Supreme Court has squarely addressed
Swierkiewicz’s “continued viability in light of Twombly and Iqbal.” Schwab v. Smalls, 435 Fed.
App’x 37, 40 (2d Cir. 2011) (summary order).
8

Plaintiff’s amended complaint is materially similar to the complaint upheld in Boykin. 7
In Boykin, the plaintiff sued a financial institution for denying her a home equity loan, alleging
race and gender discrimination. Boykin, 521 F.3d at 204–05. The district court granted the
defendant’s motion to dismiss, in part, based on the insufficiency of the complaint’s disparate
treatment allegations, which the panel summarized as follows:
[Plaintiff] Boykin alleged that (1) she was an African–American woman, who, on
August 1, 2001, sought a loan from [Defendant] KeyBank for property in a
predominantly African–American neighborhood; (2) she satisfied all of
KeyBank's credit requirements and KeyBank conditionally approved the loan that
day; (3) later the same day, KeyBank denied the loan, ostensibly on the basis of a
policy against loaning to out-of-state applicants of which the loan officer said he
had previously been unaware; (4) the true reason for the denial was her race, her
sex and the racial makeup of the neighborhood in which the property was located;
(5) similarly situated loan applicants who were not in the protected classes
received loans and were treated more favorably throughout the loan application
process; and (6) KeyBank relied on its policy as a pretext for discrimination, as
evidenced in part by the fact that KeyBank did not offer Boykin the counseling
and guidance it offers to other, non-minority loan applicants after denying their
loans.
Id. at 214–15 (citations to complaint omitted).
Applying Iqbal’s “flexible plausibility standard,” the panel found that Boykin’s
complaint was “sufficient to give KeyBank fair notice of her claim and the grounds upon which
it rests.” Id. at 213–14 (internal quotation marks omitted). More specifically, the panel found
that “Boykin identified the particular events giving rise to her claim and alleged that she was
treated less favorably than other loan applicants because of her race, her gender and location of
her property, just as the complaint in Swierkiewicz provided the date and circumstances of the

7

Notably, neither party referenced or discussed Boykin in their submissions. Boykin was decided
after the Supreme Court’s decision in Twombly and after the Second Circuit’s decision in Iqbal,
which was later affirmed by the Supreme Court. See Boykin, 521 F.3d at 213–14 (discussing
impact of Twombly and Iqbal on pleading requirements under Fed.R.Civ.P.8(a)). As in Boykin,
the Court construes Defendants’ motion to challenge Plaintiff’s Title VII claims under both
Federal Rules of Civil Procedure 12(b)(6) and 8(a).
9

plaintiff’s termination and alleged that employees of other nationalities were treated differently
than the plaintiff.” Id. at 215.
The panel also rejected KeyBank’s argument that Boykin had only alleged facts relating
to KeyBank’s preferential treatment of non-minority or male customers “upon information and
belief” and did not contain any specific assertions or instances of preferential treatment. Id. at
215. The panel explained:
[B]oth Twombly and Erickson [v. Pardus, 551 U.S. 89 (2007)] explicitly disavow
that Rule 8(a) requires any plaintiff—let alone a pro se plaintiff—to plead
“specific facts.” Twombly, 127 S. Ct. at 1973–74; Erickson, 127 S. Ct. at 2200.
Moreover, as Boykin correctly observes, the names and records, if any, of persons
who were not members of the protected classes and were more favorably treated
in the loan application process is information particularly within KeyBank's
knowledge and control. Pleading on the basis of information and belief is
generally appropriate under such circumstances. See 5 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1224 (3d ed. 2004) (“Pleading
on information and belief is a desirable and essential expedient when matters that
are necessary to complete the statement of a claim are not within the knowledge
of the plaintiff....”). Indeed, even in the context of Federal Rule of Civil Procedure
9's more stringent pleading requirements for pleading “special matters,” we have
held that “allegations may be based on information and belief when facts are
peculiarly within the opposing party's knowledge.” IUE AFL–CIO Pension Fund
v. Herrmann, 9 F.3d 1049, 1057 (2d Cir.1993) (internal quotation marks omitted).
Id. at 215. 8
Lastly, the panel held that Boykin “did not need to allege discriminatory animus for her
disparate treatment claim to be sufficiently pleaded[,]” because “[t]here is no heightened
pleading requirement for civil rights complaints alleging racial animus.” Id. (citing Phillip v.
Univ. of Rochester, 316 F.3d 291, 298–99 (2d Cir. 2003)).

8

The Court does not find that Boykin’s status as a pro se litigant materially distinguishes Boykin
from this case. The panel in Boykin focused its analysis on the substance of her complaint, only
noting the plaintiff’s pro se status to reinforce the conclusion that notice pleading was sufficient.
See Boykin, 521 F.3d at 215.
10

The allegations in the amended complaint in this case are materially indistinguishable
from those found sufficient to state a disparate treatment claim in Boykin. Plaintiff alleges that
she is a member of a protected class under Title VII with respect to her gender and religion, and
that she was qualified for the position for which she applied, but that she was not hired. (Dkt. 11
¶¶ 40, 47, 53.) Plaintiff further alleges that she was not hired because of her religion and gender,
and that, on information and belief, younger, non-Jewish males were hired instead. (Dkt. 11 ¶¶
40, 52, 53.) As in Boykin, Plaintiff has alleged sufficient facts to “identif[y] the particular events
giving rise to her claim” and has “alleged that she was treated less favorably than other
[employees] because of her race, her gender and [her age], just as the complaint in Swierkiewicz”
did. Boykin, 521 F.3d at 215. As was permitted in Boykin, Plaintiff has also alleged Defendant’s
discriminatory intent based “upon information and belief.” Id.; see, e.g., Morales v. Long Island
R.R. Co., 09-CV-8714(HB), 2010 WL 1948606, at *3 (S.D.N.Y. May 14, 2010) (finding
sufficient a complaint containing “specific factual allegations as to events leading up to an
adverse action, accompanied by conclusory allegations of discriminatory intent”) (citing Boykin,
521 F.3d at 214–15). Accordingly, because Plaintiff’s employment discrimination claim, based
on disparate treatment, is “plausible on its face,” Defendants’ motion as to Counts IV and VII
against OMH and Creedmoor is denied.
III.

Title VII Hostile Work Environment Claim
Defendants construe Plaintiff’s amended complaint to also assert a hostile work

environment claim against OMH and Creedmoor under Title VII.

(Dkt. 16-1 at 13–16.)

Although the amended complaint does not contain a specific count alleging hostile work
environment, Plaintiff argues in her opposition to the motion that she is, indeed, alleging hostile
work environment discrimination. (Dkt. 25 at 9.) Plaintiff’s complaint includes allegations that

11

“the hospitals’ administrations fostered an environment that was hostile, degrading and
disrespectful to female, Jewish and older Psychiatrists” and that a director “fostered an
environment that was needlessly demeaning and insulting to plaintiff.” (Dkt. 11 ¶¶ 27, 29.) The
Court therefore construes the complaint to assert hostile work environment discrimination.
To prevail on a claim of employment discrimination based on a hostile work
environment, a plaintiff must establish two elements: “‘(1) that the workplace was permeated
with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions
of [his or] her work environment, and (2) that a specific basis exists for imputing the conduct that
created the hostile environment to the employer.’” Petrosino v. Bell Atl., 385 F.3d 210, 220–221
(2d Cir. 2004) (citing Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003)).
Defendants allege that Plaintiff’s hostile work environment claim must be dismissed as
untimely and because it was not alleged in Plaintiff’s EEOC complaint. (Dkt. 16-1 at 13.) The
Court agrees. Plaintiff’s hostile work environment allegations relate to her prior employment at
Defendants’ hospitals. That employment ended in January 2007. The limitations period for
filing an EEOC complaint of discrimination is 300 days. Petrosino, 385 F.3d at 219 (“An
aggrieved employee wishing to bring a Title VII claim in district court must file an
administrative complaint with the EEOC within 300 days of the alleged discriminatory act.”); 42
U.S.C. § 2000e-5(e)). Plaintiff submitted the instant EEOC charge on or about February 22,
2012, approximately four years outside of the limitation period. (Dkt. 16-2.)
Plaintiff argues that her hostile work environment claims are not subject to dismissal
under the “continuing violation” exception to Title VII. (Dkt. 25 at 13.) This argument is
wholly without merit. There is no possibility that claims related to Plaintiff’s prior employment,
which was terminated in January 2007, could be deemed a “continuing violation” related to

12

Plaintiff’s failure-to hire claim, which arose in June 2011, nearly four and a half years later. The
hostile work environment that Plaintiff alleges occurred between July 2005 and January 2007
could not have “continued” during the 4-1/2 year period when Plaintiff was not working for
Defendants. Plaintiff, however, is seeking to have the entire period from approximately July
2005 to June 2011 construed as a single, continuous period of a hostile work environment
fostered by Defendants. Plaintiff cites no authority for this novel interpretation of the concept of
“continuing violation.” Indeed, such an interpretation would defeat the purpose of statutory time
limits, which is to encourage plaintiffs who genuinely have been aggrieved to bring their claims
expeditiously. See, e.g., United States v. Kubrick, 444 U.S. 111, 117 (1979) (“Statutes of
limitations . . . represent a pervasive legislative judgment that it is unjust to fail to put the
adversary on notice to defend within a specified period of time and that the right to be free of
stale claims in time comes to prevail over the right to prosecute them.”) (quotations omitted).
The time for Plaintiff to have filed suit based on a hostile work environment claim was within
300 days after the termination of her employment in January 2007. Accordingly, any hostile
work environment claim alleged in Plaintiff’s amended complaint is untimely and must be
dismissed.
IV.

NYSHRL and NYCHRL Claims
In Counts II, III, V, VI, VIII and IX, Plaintiff has alleged violations of NYSHRL and

NYCHRL, on the basis of age, gender and religion, by Dr. Grandi. (Dkt. 11 at 10–18.)
A.

Individual Liability under NYSHRL and NYCHRL

Both the NYSHRL and NYCHRL provide for individual liability of an employee where
the employee actually participates in the conduct giving rise to the plaintiff’s discrimination
claim. See Ross v. Mitsui Fudosan, Inc., 2 F. Supp. 2d 522, 530 (S.D.N.Y. 1998) (citing Tomka

13

v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995) (individual who “actually participates in the
conduct that gives rise to a discrimination claim” can be held liable under NYSHRL)); Malena v.
Victoria’s Secret Direct, LLC, 886 F. Supp. 2d 349, 366–67 (S.D.N.Y. 2012) (citing Banks v.
Correctional Servs. Corp., 475 F. Supp. 2d 189, 200 (E.D.N.Y. 2007)) (individual liability may
lie under the NYSHRL but is “limited to individuals with ownership interest or supervisors, who
themselves, have the authority to hire and fire employees.”) (citations and quotations omitted).
Here, Plaintiff has alleged that Dr. Grandi participated in the decision not to rehire her in June
2011. (Dkt. 11 ¶¶ 45–53.) Because Plaintiff has alleged Dr. Grandi’s participation in the
discriminatory conduct, she can be held liable under NYSHRL.
Defendants argue, however, that Dr. Grandi cannot be held liable for the alleged
NYSHRL violations because she is not an “employer” as defined under that law. (Dkt. 16-1 at
17–18; Dkt. 21 at 9–10.) Defendants cite Patrowich v. Chemical Bank, 63 N.Y.2d 541 (1984) in
support of their position. In Patrowich, the Court of Appeals held that an individual cannot be
held liable under the NYSHRL if “he is not shown to have any ownership interest or any power
to do more than carry out personnel decisions made by others.” Patrowich, 63 N.Y.2d at 542.
Here, it is unclear whether Grandi was merely informing Plaintiff of the decision of another, or
whether Grandi herself was in charge of personnel matters, such as hiring and firing.
Nevertheless, Plaintiff alleges, on information and belief, that Grandi “was the official
responsible for selecting the individuals to fill the advertised positions” at Creedmoor. (Dkt. 11
¶ 45.) At the pleading stage, this is adequate to withstand dismissal of the claims against Grandi,
who may be found to be an “employer” under the NYSHRL. The same is true for the NYCHRL.
See Feingold v. New York, 366 F.3d 138, 158 (2d Cir. 2004) (applying the NYSHRL’s standard

14

of analysis for aiding and abetting claims under the NYCHRL, because the pertinent language of
the two laws is “virtually identical”). 9
B.

Sufficiency of the NYSHRL and NYCHRL Claims against Dr. Grandi

The NYSHRL and NYCHRL proscribe discrimination in hiring on the basis of age,
gender, and religion, among other traits. N.Y. Exec. Law § 296(1)(a); N.Y. City Admin. Code §
8-107. In federal court, although the substantive laws may vary, the same Rule 8(a) pleading
standard applies to Plaintiff’s state and local law claims as to her federal claims. See, e.g., Novak
v. JPMorgan Chase Bank, N.A., 518 Fed. App’x 498, 501 (8th Cir. 2013) (“We apply federal
pleading standards–Rules 8 and 12(b)(6)–to the state substantive law to determine if a complaint
makes out a claim under state law.”) (citing Karnatcheva v. JPMorgan Chase Bank, N.A., 704
F.3d 545, 548 (8th Cir. 2013)); cf. Stern v. Gen. Elec. Co., 924 F.2d 472, 476 n.6 (2d Cir. 1991)
(applying FRCP 9 to state law fraud claim); Hoff v. WPIX, Inc., 11-CV-1591(LBS), 2011 WL
4809763, at 1 n.1 (S.D.N.Y. Oct. 11, 2011); see also FRCP 81(c)(1) (providing that Federal
Rules of Civil Procedure apply to state actions removed to federal court).
NYSHRL claims are evaluated under the same rubric as Title VII claims, see Kelly v.
Howard I. Shapiro & Assocs. Consulting Engineers, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (per
curiam), whereas the standard of review is more liberal for NYCHRL claims. See Mihalik v.
Credit Agricole Cheuvreux North America, Inc., 715 F.3d 102, 109 (2d Cir. 2013). 10 The Court
9

Although the NYCHRL has been amended since Feingold, and in some circumstances demands
a separate analysis, the amendments did not limit liability under the NYCHRL, but rather
expanded it. See Mihalik, 715 F.3d at 109. Accordingly, no additional analysis of the NYCHRL
is necessary.
10

For many years the NYCHRL was coextensive with the NYSHRL and Title VII, but, in 2005,
the New York City Council amended the NYCHRL by passing the Local Civil Rights
Restoration Act of 2005 (the “Restoration Act”). The Restoration Act made clear that federal
and state standards do not apply to NYCHRL claims, and that the NYCHRL was to be construed
more broadly than those provisions. Id.; see Campbell v. Cellco P’ship, 860 F. Supp. 2d 284,
15

finds that the allegation of Dr. Grandi’s direct participation in the decision not to rehire Plaintiff,
coupled with the Court’s finding that the amended complaint states an employment
discrimination claim under Title VII, satisfies the pleading requirements with respect to both the
NYSHRL and NYCHRL claims against Dr. Grandi. In any event, because these claims arise
from the same factual predicates as Plaintiff’s Title VII claims against OMH and Creedmoor,
which are proceeding in this matter, it is unnecessary to explore them in depth at this time. See
Audi Vision Inc. v. RCA Mfg. Co., 136 F.2d 621, 625 (2d Cir. 1943) (“[T]here seems no question
that in the long run fragmentary disposal of what is essentially one matter is unfortunate not
merely for the waste of time and expense caused the parties and the courts, but because of the
mischance of differing dispositions of what is essentially a single controlling issue.”);
Thibodeaux v. Travco Ins. Co., 13-CV-5599(ERK), 2014 WL 354656, slip op., at *2 (E.D.N.Y.
Jan. 31, 2014). Accordingly, Counts II, III, V, VI, VIII, and IX are not dismissed.
CONCLUSION
For the reasons stated above, Defendant’s motion to dismiss the amended complaint is
granted with respect to Count I, and also with respect to any claim of a hostile work
environment. The remainder of Plaintiff’s claims may proceed.
SO ORDERED:

/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: May 2, 2014
Brooklyn, New York

295 (S.D.N.Y. 2012) (citing Williams v. N.Y. City Hous. Auth., 872 N.Y.S.2d 27, 31 (1st Dep’t
2009)) (“[T]he NYCHRL ‘explicitly requires an independent liberal construction analysis in all
circumstances, even where [s]tate and federal civil rights laws have comparable language.’”).
16