Mai v. New York City Health and Hospital Corporation et al
MEMORANDUM AND ORDER: Defendants' motion to dismiss is granted. the complaint is dismissed for failure to state a claim. The clerk is directed to close the case. so Ordered by Judge Raymond J. Dearie on 10/18/2017. (Ramesar, Thameera)
IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y.
UNITED STATES DISTRICT COURT
OCT 1 9 2017 *
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
- against -
15 CV 4676(RJD)(RLM)
NEW YORK CITY HEALTH AND
HOSPITALS CORPORATION and KINGS
COUNTY HOSPITAL CENTER,
Plaintiff Kai Jing Mai, a former attending physician at Kings County Hospital Center
("KCHC"), which is operated by New York City Health and Hospitals Corporation("HHC"),
brings this lawsuit pursuant to 42 U.S.C. § 1983, alleging violations ofthe Due Process Clause of
the Fourteenth Amendment and breach ofcontract. She alleges that she had a protected property
interest in her employment that was taken without due process and a contractual right to such
employment that was breached when KCHC placed her on pre-hearing suspension. Defendants
move to dismiss the complaint pursuant to Rule 12(b)(6). For the reasons set forth below,the
motion to dismiss is granted.
The following facts are alleged in the complaint. Plaintiff is an optometrist and former
attending physician at KCHC.Plaintiff began working in 2006 and in March 2014, she was
reappointed to the position for the period from April 1, 2014,to March 31, 2016.
On or about June 4, 2014, plaintiff alleges she received a letter from a "Labor Relations
Officer" ofthe hospital that instructed her to report to a specified doctor at a specified time and
location to receive an evaluation of her fitness to perform her duties. Plaintiff presented the
notice to her supervisor at KCHC, who told plaintiff she could disregard the letter or see the
doctor if she desired. Out of an abundance of caution, plaintiff went to her personal doctor for an
On or about June 19, 2014, plaintiff was informed that she was suspended and prohibited
from returning to work at the hospital. All of plaintiffs privileges at the hospital were revoked
and she did not receive any salary or benefits from that time forward.
On or about July 1, 2014, plaintiff received another notice from the hospital, which
included several charges against her and informed her of an upcoming disciplinary conference on
July 2,2014.' Plaintiff contacted her union representative, who began negotiations with the
hospital to try to resolve the dispute. Over the following months, plaintiff repeatedly contacted
her union representative and was told that negotiations were ongoing.
On or about November 19, 2014, plaintiff filed a notice of claim against the defendants
for, among other things, wrongful suspension, violation of her due process rights, and property
loss, claiming $600,000 in damages. On January 8,2015, plaintiff resigned from the hospital to
"mitigate damages," because the suspension "threatened the plaintiffs ability to renew her
license and/or maintain her status as a service provider in some health care insurance networks."
Compl.1119, EOF No. 1.
Plaintiff filed this lawsuit on August 10, 2015. She alleges violations of due process and
breach of contract and she seeks $600,000 in compensatory damages and $300,000 in punitive
'The parties have offered no indication as to whether the hearing scheduled for July 2,2014
actually took place.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead "'enough
facts to state a claim to relief that is plausible on its face.'" Brown v. Daikin Am. Inc.. 756 F.3d
219,225(2d Cir. 2014)(quoting Bell Atl. Com,v. Twomblv. 550 U.S. 544, 570(2007)). In
reviewing the complaint, this Court "accept[s] all well-pleaded allegations in the complaint as
true [and] draw[s] all reasonable inferences in the plaintiffs favor." Chabad Lubavitch of
Litchfield Ctv. Inc. v. Litchfield Historic Dist. Comm'n.768 F.3d 183, 191 (2d Cir.
2014)(second alteration in original)(citation omitted)."A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Ashcroft v. lobaL 556 U.S. 662,678(2009).
A. Due Process Claim
"The Supreme Court has established that '[w]e examine procedural due process questions
in two steps: the first asks whether there exists a liberty or property interest which has been
interfered with by the State; the second examines whether the procedures attendant upon that
deprivation were constitutionally sufficient.'" Valmonte v. Bane. 18 F.3d 992,998(2d Cir.
1994)(alteration in original)(quoting Kentuckv Department of Corrections v. Thompson.490
U.S. 454,460(1989)). Defendants do not dispute plaintiffs property interest in her employment,
but argue that plaintiff had available avenues sufficient to satisfy her due process rights.
Specifically, defendants argue that plaintiff was provided with a pre-deprivation notice asking
her to see a specialist but she ignored this letter and saw her own doctor instead. Plaintiff was
then notified that she was being suspended and given a hearing date. Plaintiff was represented by
her union in ongoing negotiations with HHC,but voluntarily resigned while the negotiations
were ongoing. Plaintiff did not plead that she filed for any post-deprivation relief, in particular,
she did not bring a petition pursuant to New York C.P.L.R. Article 78 challenging any ofthe
decisions made by HHC.
Plaintiff responds that she was suspended without pay before any meaningful hearing was
given, and that the availability of a post-deprivation hearing does not alleviate the due process
violation because ofthe severity of her deprivation. On this point, plaintiff cites Goldberg v.
Kelly, 397 U.S. 254(1970), where the Supreme Court found New York City's deprivation ofthe
plaintiffs welfare benefits without a pre-deprivation hearing violated due process. Goldberg's
outcome relied specifically on that fact that welfare benefits are uniquely important benefits, and
deprivation of welfare without a hearing "may deprive an eligible recipient of the very means by
which to live while he waits." Id at 264. Plaintiff, however, argues that her own situation is akin
to that ofthe plaintiff in Goldberg because "Mai has built a life and maintains a standard of
living in accordance with her earnings from [KCHC]." PI. Mem. 8,ECF No. 51. Due to this
suspension, she is "facing the same difficulties to meet her daily needs after she was suspended
without pay." PI. Mem. 10.
Plaintiff also argues that the question of whether she was forced to resign is a question of
fact. In determining the nature and length of a hearing, she argues, the Court must "balance the
importance of the private interest and the length or finality of the deprivation [against] the
likelihood of governmental interests involved." Logan v. Zimmerman Brush Co.. 455 U.S. 422,
434(1982). Plaintiff argues that an Article 78 hearing would not have provided an adequate
safeguard because plaintiffs interest in her livelihood was "unarguably great" and she had been
forced to wait six months while the union's negotiations were ongoing. This wait, she argues,
amounted to a forced discharge.
In the Second Circuit,"there is no due process violation where ... pre-deprivation notice
is provided and the deprivation at issue can be fully remedied through the grievance procedures
provided for in a collective bargaining agreement." Adams v. Suozzi. 517 F.3d 124,128(2d Cir.
2008). Moreover,"the failure to take advantage of[the collective bargaining] procedure
forecloses a due process argument." Gonzalez v. Citv ofNew York. 135 F. Supp. 2d 385, 398
(E.D.N.Y. 2001)fciting Narumanchi v. Board of Trustees of Connecticut State Univ.. 850 F.2d
70, 72-73(2d Cir.1988)).
The Second Circuit has also held that the availably of a post-deprivation hearing under
Article 78 ofthe C.P.L.R. satisfies the requirements of due process. S^ Locurto v. Safin 264
F.3d 154,175(2d Cir. 2001)("An Article 78 proceeding therefore constitutes a wholly adequate
post-deprivation hearing for due process purposes."); Giglio v. Dunn,732 F.2d 1133,1135 (2d
Cir. 1984)("Where a pre-deprivation hearing is impractical and a post-deprivation hearing is
meaningful, the State satisfies its constitutional obligations by providing the latter.... Where, as
here. Article 78 gave the employee a meaningful opportunity to challenge the voluntariness of
his resignation, he was not deprived of due process simply because he failed to avail himself of
Plaintiffs due process claim is without merit. She received notice of her suspension on
July 1, 2014 and was informed that a hearing would take place the next day. Shortly afterward,
her union began negotiations with defendants were ongoing until plaintiff resigned her position
at KCHC.Plaintiff did not allow the grievance procedure to come to completion, nor did she
pursue any post-hearing relief in the form of an Article 78 petition. The availability ofthese
grievance mechanisms, and plaintiffs failure to utilize them,foreclose her due process claim.
Plaintiffs reference to Goldberg is unpersuasive. Plaintiff ignores the fact that Goldberg
itself narrowly circumscribed its holding to welfare beneficiaries who,if deprived of benefits
without hearing, would have trouble meeting their day-to-day needs. 397 U.S. at 264. Goldberg
explicitly stated that its plaintiffs circumstances differed from a situation where a government
employee was terminated from his or her employment.^
Where, as here, the plaintiff had meaningful access to pre- and post-deprivation hearings,
due process is not violated. Defendants' motion to dismiss the due process claim is granted.
B. Breach of Contract Claim
"To state a claim in federal court for breach of contract under New York law,a complaint
need only allege (1)the existence of an agreement,(2)adequate performance ofthe contract by
the plaintiff,(3)breach of contract by the defendant, and(4)damages." Harsco Corp. v. Segui,
91 F.3d 337, 348(2d Cir. 1996).
Defendants argue that no contract exists between plaintiff and defendants. Defendants
note that, to the extent the complaint is referring to the collective bargaining agreement between
HHC and plaintiffs union, plaintiff may not sue HHC directly and must instead proceed against
HHC through her union in accordance with the grievance procedures in the collective bargaining
Plaintiff responds that, pursuant to her reappointment on March 31,2014, she had a
contractual right to work as an attending physician at the hospital until at least March 31,2016.
She claims that defendants unilaterally breached their contractual agreement with her on June 19,
^ As Goldberg noted,"the crucial factor in this context—a factor not present in the case ofthe
blacklisted government contractor, the discharged government employee, the taxpayer denied a
tax exemption, or virtually anyone else whose governmental entitlements are ended—is that
termination of aid pending resolution of a controversy over eligibility may deprive an eligible
recipient of the very means by which to live while he waits." 397 U.S. at 264(emphasis added).
2014, by placing plaintiff on pre-hearing suspension, prohibiting her from returning to work, and
denying her salary and benefits. At a minimum, plaintiff states that she has not been paid for the
period from June 12, 2014 to June 19, 2014, which is the pay period immediately before she was
Under New York law,"when an employer and a union enter into a collective bargaining
agreement that creates a grievance procedure, an employee subject to the agreement may not sue
the employer directly for breach ofthat agreement but must proceed, through the union, in
accordance with the contract." Bd. of Educ.. Commack Union Free Sch. Dist. v. Ambach. 70
N.Y.2d 501,508(1987)."nly when the union fails in its duty offair representation can the
employee go beyond the agreed procedure and litigate a contract issue directly against the
employer." Id This process is analogous to the procedure required by Section 301 ofthe Labor
Management Relations Act,29 U.S.C. § 185(a), whereby a plaintiff may sue both her union for
breach of its duty offair representation and her employer, but only after exhausting the grievance
process. See McLeod v. Verizon New York. Inc.> 995 F. Supp. 2d 134, 142(E.D.N.Y. 2014).
Plaintiff has not alleged that her union failed in its duty of fair representation. Because
plaintiff voluntarily resigned from her post rather than proceeding through the dispute resolution
procedure specified in her collective bargaining agreement, plaintiff fails to state a claim for
breach of contract. Defendants' motion to dismiss is granted.
As set forth above, the complaint is dismissed for failure to state a claim. The clerk is
directed to close the case.
Dated: Brooklyn, New York
United States District Judge
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