Lombardi v. Choices Women's Medical Center, Inc. et al
Filing
31
ORDER ADOPTING REPORT AND RECOMMENDATIONS --- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, and upon review and due consideration of the thorough and well reasoned Report and Recommendation ("R & R") issued on Janu ary 26, 2017 by the Hon. Cheryl L. Pollak, U.S.M.J., Plaintiffs' objections are overruled and the R & R is adopted in its entirety. Accordingly, Defendant's motion to dismiss the complaint is granted; Plaintiff's motion for leave to amend the complaint is denied as the claims are time barred, and this action is dismissed with prejudice. The Clerk of the Court is directed to close this case. SO ORDERED by Chief Judge Dora Lizette Irizarry on 3/23/2017. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------x
CHRISTINE LOMBARDI,
:
:
Plaintiff,
:
:
MEMORANDUM AND ORDER
-against:
ADOPTING REPORT &
:
RECOMMENDATION
CHOICES WOMEN’S MEDICAL CENTER,
:
15-CV-05542 (DLI) (CLP)
INC., and MERLE HOFFMAN,
:
:
Defendants.
:
----------------------------------------------------------------x
DORA L. IRIZARRY, Chief United States District Judge:
Plaintiff Christine Lombardi (“Plaintiff”) initiated this action against defendants Choices
Women’s Medical Center, Inc. (“Choices”) and Merle Hoffman (“Hoffman”) (collectively
“Defendants”) asserting disability and sexual orientation discrimination claims under the
Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794, the New York State Human
Rights Law (“NYSHRL”), N.Y. Exec. L. § 291 et seq., and the New York City Human Rights
Law (“NYCHRL”), N.Y.C. Admin. Code § 8-502(a). (See generally Complaint (“Compl.”), Dkt.
Entry No. 1.)
Pursuant to Rule 12 of the Federal Rules of Civil Procedure, Defendants moved to dismiss
the Complaint for failure to state a claim for relief. (See Defendants’ Mem. in Supp. of Mot. to
Dismiss, Dkt. Entry No. 9.) Plaintiff opposed and requested leave to amend the Complaint. (See
Pl.’s Resp. in Opp’n to Mot. to Dismiss, Dkt. Entry No. 21.)
On November 23, 2016, this Court referred Defendants’ motion to dismiss and Plaintiff’s
motion to amend the Complaint to the Hon. Cheryl L. Pollak, U.S.M.J., for a Report &
Recommendation (“R & R”). On January 26, 2017, Magistrate Judge Pollak issued a thorough
and well reasoned R & R recommending that Defendants’ motion to dismiss the Complaint be
granted and Plaintiff’s request for leave to amend the Complaint be denied. (See generally R &
R, Dkt. Entry No. 27.) In support of granting Defendants’ motion, the magistrate judge found that:
(1) Plaintiff’s claims were untimely; (2) the doctrine of equitable estoppel did not prevent
Defendants from asserting a statute of limitations defense; (3) Plaintiff was not entitled to toll the
statute of limitations based on insanity under N.Y. C.P.L.R. § 208; and (4) granting Plaintiff leave
to amend the Complaint would be futile because the proposed amended complaint did not provide
a basis for tolling the statute of limitations based on insanity. (See generally R & R.) On February
4, 2017, Plaintiff timely objected to the R & R. (See Objs. to R & R (“Objs.”), Dkt. Entry No. 28.)
On February 22, 2017, Defendants opposed Plaintiff’s objections. (See Defendants’ Opposition
to Objections (“Defs.’ Opp.”), Dkt. Entry No. 30.)
For the reasons set forth below, Plaintiff’s objections are overruled and the R & R is
adopted in its entirety.
DISCUSSION1
When a party objects to an R & R, a district judge must make a de novo determination as
to those portions of the R & R to which a party objects. See FED. R. CIV. P. 72(b)(3); United States
v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). However, if a party “simply relitigates his
original arguments, the Court reviews the Report and Recommendation only for clear error.”
Antrobus v. New York City Dep’t of Sanitation, 2016 WL 5390120, at * 1 (E.D.N.Y. Sept. 26,
2016) (internal citations and quotation marks omitted); see also Rolle v. Educ. Bus Transp., Inc.,
2014 WL 4662267, at *1 (E.D.N.Y. Sept. 17, 2014) (explaining that to allow “a rehashing of the
same arguments set forth in the original papers . . . would reduce the magistrate’s work to
something akin to a meaningless dress rehearsal”) (internal citations and quotation marks omitted).
1
The Court assumes the parties’ familiarity with the facts as outlined in the R & R. See R & R at 2-4.
2
A court will not “ordinarily . . . consider arguments, case law and/or evidentiary material which
could have been, but [were] not, presented to the magistrate judge in the first instance.” Santiago
v. City of New York, 2016 WL 5395837, at *1 (E.D.N.Y. Sept. 26, 2016) (internal citation and
quotation marks omitted). After its review, the district court may then “accept, reject, or modify
the recommended disposition; receive further evidence; or return the matter to the magistrate judge
with instructions.” FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).
Plaintiff challenges the magistrate judge’s conclusion that the statute of limitations could
not be tolled based on Plaintiff’s alleged insanity under N.Y. C.P.L.R. § 208. (Objs. at 1.) Plaintiff
contends that the magistrate judge improperly relied on the Second Circuit’s decision in La Russo
v. St. George’s Univ. Sch. of Med., 747 F.3d 90 (2d Cir. 2014), because, in that case, the plaintiff
“sought to toll the statute of limitations under C.P.L.R. § 208 based upon a transient condition[.]”
(Id.) Plaintiff states that the “critical measure” to toll the statute of limitations under C.P.L.R. §
208 is “whether the plaintiff’s debilitation is so severe that she is unable to protect her legal rights
because of an overall inability to function.” (Id.)
Plaintiff misconstrues the magistrate judge’s reliance on La Russo. The magistrate judge
did not rely on La Russo because she found Plaintiff had a “transient condition,” but rather for the
same legal standard relied on by Plaintiff, i.e., tolling based on insanity applies “to only those
individuals who are unable to protect their legal rights because of an over-all inability to function
in society.” (R & R at 13-14 quoting La Russo, 747 F.3d 90, 99 (2d Cir. 2014)). The magistrate
judge further relied on La Russo for the proposition that, in determining whether insanity tolls the
limitations period, “[d]ifficulty in functioning is not sufficient to establish insanity for purposes of
§ 208; rather, the plaintiff must be totally unable to function as a result of a ‘severe and
incapacitating’ disability.” Id. (internal citation omitted). Applying these legal principles, the
3
magistrate judge properly determined that the level of disability due to insanity alleged by Plaintiff
was insufficient to warrant tolling, and was much less severe than in those cases where tolling was
found warranted. (R & R at 19.) Plaintiff objects neither to this finding nor to the legal standard
applied by the magistrate judge. Instead, Plaintiff’s objection is based on a misreading of the R &
R and is improper because it is not “clearly aimed at [a] particular finding[] in the magistrate
judge’s proposal.” Whyte v. Commonwealth Fin. Sys., 2015 WL 7272195, at *2 (E.D.N.Y. Nov.
17, 2015) (internal citation and quotation marks omitted). While the Court need not consider the
objection at all, the Court, nonetheless, finds no clear error in the magistrate judge’s analysis.
Plaintiff also contends that the magistrate judge erred in finding that Defendants were not
estopped from invoking a statute of limitations defense. (Objs. at 1.) The doctrine of equitable
estoppel “‘applies where it would be unjust to allow a defendant to assert a statute of limitations
defense’—specifically, ‘where plaintiff was induced by fraud, misrepresentations or deception to
refrain from filing a timely action[.]’” Grosz v. Museum of Modern Art, 403 F. App’x 575, 577 (2d
Cir. 2010) (Summary Order) (internal citation omitted). The doctrine “does not apply where the
misrepresentation or act of concealment underlying the estoppel claim is the same act which forms
the basis of plaintiff's underlying substantive cause of action.” Wells Fargo Bank, N.A. v.
JPMorgan Chase Bank, N.A., 2014 WL 1259630, at *5 (S.D.N.Y. Mar. 27, 2014) (internal citation
and quotation marks omitted). It applies “when some conduct by a defendant after his initial
wrongdoing has prevented the plaintiff from discovering or suing upon the initial wrong.” Smith
v. Smith, 830 F.2d 11, 13 (2d Cir. 1987).
The magistrate judge correctly applied these standards and properly concluded that the
doctrine of equitable estoppel was inapplicable. (R & R at 10.) The magistrate judge reached this
determination based on “plaintiff[’s] claim[] that defendants’ concealment of facts regarding the
4
true reason for her discharge occurred when defendant Hoffman told plaintiff that it was ‘not
working out’ at the time that plaintiff was terminated[.]” (Id.) The magistrate judge consequently
found that “the alleged concealment occurred at the time of the alleged wrongdoing – namely, her
termination – which formed the basis of plaintiff’s Complaint.” (Id.) Plaintiff contends that the
alleged concealment was not Hoffman’s statement made at the time of her termination that
Plaintiff’s employment was “not working out,” as the magistrate judge concluded, but instead was
revealed “over a month” after Plaintiff’s termination when Tenille Washington, Choice’s Director
of Human Resources, “informed Plaintiff, that all medically disabled persons were being purged
from their employment by Choices[.]” (Obj. at 1.)
Plaintiff’s objection is improper because it is a new argument, based on facts not before
the magistrate judge. As such, it “cannot properly be raised for the first time in objections to the
[R & R], and indeed may not be deemed [an] objection[] at all.” Hill v. Miller, 2016 WL 7410715,
at *1 (S.D.N.Y. Dec. 21, 2016) (internal citation and quotation marks omitted). Before the
magistrate judge, Plaintiff argued that the concealment was Hoffman’s statement to Plaintiff that
her employment “was not working out.” (Pl.’s Resp. in Opp’n to Mot. to Dismiss at 8.) Plaintiff
never argued to the magistrate judge that Defendant’s “deception . . . was not revealed for over a
month” until such time as Washington informed Plaintiff that “all medically disabled persons were
being purged from their employment[.]” (Obj. at 1) This new factual assertion also is not found
in the Complaint and is an improper objection on that ground as well. Plaintiff cannot assert a new
argument or amend her factual allegations through objections to an R & R. See Yao Wu v. BDK
DSD, 2015 WL 5664534, at *1 (E.D.N.Y. Sept. 22, 2015) (refusing to consider “facts and
arguments [that] were not raised before” the magistrate judge). Accordingly, because Plaintiff’s
argument “is not properly before the Court,” DeMarco v. Hartford Life & Acc. Ins. Co., 2014 WL
5
3490481, at *1 (E.D.N.Y. July 11, 2014), the Court declines to consider it. Even if the Court were
to consider it, there is no clear error in the magistrate judge’s equitable tolling analysis.
Plaintiff’s final objection is that the magistrate judge erred in finding that Hoffman’s
reference to Ms. Washington, who is bisexual, as a “freak” was a “single stray remark” and
“insufficient as a matter of law to state a claim for discrimination” under NYSHRL and NYCHRL.
(R & R at 24; Obj. at 1-2.) Plaintiff asserts that the magistrate judge failed to consider the
Complaint’s allegation that Hoffman “used the offensive term toward [Ms. Washington]
frequently.” (Obj. at 1-2.) As an initial matter, the Court need not reach this objection because
there is no error in the magistrate judge’s conclusion that the Complaint is barred by the statute of
limitations and that the statute of limitations is not tolled either by her insanity disability claim or
equitable estoppel.
Even if the Complaint were timely, Plaintiff’s assertion is an improper objection because
Defendants made the argument to the magistrate judge that Hoffman’s comment to Ms.
Washington was “one stray remark, that without more, is insufficient to give rise to an inference
of discrimination,” and Plaintiff “did not respond to [this] argument[.]” (R & R at 24.) Plaintiff
cannot respond to this argument belatedly in her objection to the R & R. Plaintiff was required to
make all her arguments before the magistrate judge. See e.g., U.S. Bank Nat. Ass’n v. 2150
Joshua’s Path, LLC, 2014 WL 4542950, at *2 (E.D.N.Y. Sept. 10, 2014) (“A district court will
generally not consider arguments that were not raised before the magistrate judge.”) (internal
citation and quotation marks omitted); Baker v. Ace Advertisers' Serv., Inc., 153 F.R.D. 38, 43
(S.D.N.Y. 1992) (“[A] ‘party is not entitled as of right to a de novo review by the judge of an
argument never seasonably raised before the magistrate.’”) (internal citation omitted).
6
Accordingly, the Court finds that Plaintiff’s assertion is meritless and the magistrate judge’s
finding is not clearly erroneous.
CONCLUSION
Upon reviewing for clear error the remainder of the R & R to which Plaintiff does not
properly object and finding none, the R & R is adopted in its entirety. See Morris v. Local 804,
Int’l Bhd. of Teamsters, 167 F. App’x 230, 232 (2d Cir. 2006) (Summary Order) (“The district
court need not, however, specifically articulate its reasons for rejecting a party’s objections or for
adopting a magistrate judge’s report and recommendation in its entirety.”).
Accordingly,
Defendants’ motion to dismiss is granted, Plaintiff’s motion for leave to amend is denied because
the claims are time barred, and this action is dismissed with prejudice.
SO ORDERED.
Dated: Brooklyn, New York
March 23, 2017
/s/
DORA L. IRIZARRY
Chief Judge
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?