Afzal v. Flushing Hospital, New York

Filing 4

MEMORANDUM DECISION AND ORDER dated 3/22/16 granting 2 Motion for Leave to Proceed in forma pauperis. Plaintiff is given twenty days leave to amend complaint. No summons shall issue at this time and all further proceedings shall be stayed 30 days until further order of the Court. ( Ordered by Judge Brian M. Cogan on 3/22/2016 ) c/m (Guzzi, Roseann)

UNITED STATES DISTRICT COURT
C/M
EASTERN DISTRICT OF NEW YORK
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:
FIAZ AFZAL, M.D.,
:
Plaintiff,
: MEMORANDUM DECISION AND
: ORDER
- against :
: 16 Civ. 1287 (BMC) (RML)
FLUSHING HOSPITAL, NEW YORK,
:
:
Defendant.
:
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COGAN, District Judge.
Plaintiff pro se, a resident of Toronto, Canada, and a licensed physician in the state of
New Jersey, filed this in forma pauperis action alleging employment discrimination by Flushing
Hospital, where he completed his residency in internal medicine in 1996. He seeks damages and
injunctive relief. The Court grants plaintiff’s request to proceed in forma pauperis pursuant to
28 U.S.C. § 1915, but dismisses the complaint without prejudice.
BACKGROUND
The following facts are drawn from plaintiff’s complaint and its attachments, the
allegations of which are assumed to be true for purposes of this Memorandum and Order. On
June 29, 1994, plaintiff filed an action in Queens County civil court alleging employment
discrimination on the basis of plaintiff’s race, religion, national origin and age, against defendant
hospital where he was to conduct his residency in internal medicine. The matter was settled on
September 27, 1994 and plaintiff was able “to complete his graduate medical education training
in Internal Medicine in 1996.” Defendant issued a certificate on June 30, 1996, verifying that
plaintiff satisfactorily fulfilled the training program requirements of internal medicine residency
for the period of July 1, 1994 to June 30, 1996. Plaintiff was issued a license to practice

medicine by the state of New Jersey on October 21, 1996; that license is active but expires June
30, 2017.
Plaintiff has relocated to Toronto and is seeking to be licensed as a physician in Canada,
which requires him to take an examination. Part of the application for that examination is
verification of successful completion of residency and the submission of “assessment forms” of
the applicant’s training which are to be completed by the hospital at which the residency
occurred. Plaintiff alleges that defendant has “refused to verify [his] completed graduate medical
education for more than one year.” Plaintiff’s complaint attaches emails regarding these
requests, including a December 2015 email from a credentials agent at the Royal College of
Physicians to plaintiff stating that “assessment forms for your training between 07/01/9406/30/96” were sent four times to three employees of defendant. The complaint also attaches
January 2016 emails from plaintiff to Mr. William Jackson and Dr. Karen Beekman, two of those
same employees of defendant. The content of the emails to Dr. Beekman is not provided, but
plaintiff demanded from Mr. Jackson verification of his medical education, and stated that his
failure to provide the verification was “a discrimination issue” that he would raise in court.
Plaintiff alleges employment discrimination. Specifically, he alleges that defendant is
failing to provide the information he needs in retaliation for the breach of contract action he filed
against defendant in 1994. He seeks damages and an order directing defendant to provide the
information to the Royal College of Physicians and “any other credentialing/licensing agency in
USA or Canada as required by law.”
STANDARD OF REVIEW
It is axiomatic that pro se complaints are held to less stringent standards than pleadings
drafted by attorneys, and that the Court must read a pro se complaint liberally and interpret it

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raising the strongest arguments it suggests. See Erickson v. Pardus, 551 U.S. 89 (2007). Under
28 U.S.C. § 1915(e)(2)(B), a district court shall dismiss an in forma pauperis action where it is
satisfied that the action is frivolous or fails to state a claim on which relief may be granted. An
action is “frivolous” when the claim is based on an indisputably meritless legal theory.
Livingston v. Adirondack Beverage Co., 141 F.3d 434 (2d Cir. 1998) (internal quotation marks
omitted).
Further, the plaintiff, even if proceeding pro se, must establish that the court has subject
matter jurisdiction over the action. See, e.g., Hamm v. United States, 483 F.3d 135 (2d Cir.
2007); Ally v. Sukkar, 128 F. App’x 194 (2d Cir. 2005). Federal jurisdiction is available when a
federal question is presented, 28 U.S.C. § 1331, or when the plaintiff and defendant are of
diverse citizenship and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332. The
requirement of subject matter jurisdiction cannot be waived, United States v. Cotton, 535 U.S.
625 (2002), and its absence may be raised by the court sua sponte. See Henderson v. ex rel.
Henderson v. Shinseki, 562 U.S. 428 (2011). When a court lacks subject matter jurisdiction,
dismissal is mandatory. Arbaugh v. Y & H Corp., 546 U.S. 500 (2006); Fed. R. Civ. P. 12(h)(3).
DISCUSSION
A. Title VII Claim
Although plaintiff may be able to bring a Title VII claim against defendant, this Court
cannot determine the viability of that claim for two reasons. First, it is unclear whether plaintiff
exhausted his administrative remedies by filing an EEOC charge against defendant before
commencing this action. Second, he has failed to state a plausible claim of retaliation.
1. Failure to Exhaust Administrative Remedies
Before filing an employment discrimination complaint in this court, plaintiff must

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exhaust his administrative remedies. See Legnani v. Alitalia Linee Aeree Italiane, S.P.A, 274
F.3d 683 (2d Cir. 2001). Individuals may bring Title VII claims in federal court only after filing
a timely charge of discrimination with the Equal Employment Opportunity Commission, the
New York State Division of Human rights or the New York City Commission on Human Rights.
See 42 U.S.C. § 2000e-5(e)(1); Weeks v. New York State (Div. of Parole), 273 F. 3d 76 (2d Cir.
2001). “[F]iling a timely charge of discrimination with the EEOC is not a jurisdictional
prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject
to waiver, estoppel, and equitable tolling.” Fernandez v. Chertoff, 471 F.3d 45, 58 (2d Cir.
2006) (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)).
Plaintiff’s complaint does not indicate whether plaintiff has filed a charge of
discrimination against defendant regarding this current controversy. The complaint does not
refer to the filing of such a charge with an administrative agency, and a right-to-sue letter is
neither referenced in, nor attached to, the complaint. Thus, the compliant fails to state a claim
for employment discrimination on which relief may be granted. Should plaintiff wish to pursue
an employment discrimination complaint, he must amend his complaint to either (1) demonstrate
that he has exhausted his administrative remedies or (2) suggest a basis for waiver, estoppel or
equitable tolling.
2. Failure to State a Claim of Retaliation
Although the pleading threshold is low, the complaint also fails to properly plead an
employment discrimination claim. The Second Circuit has held that at the pleadings stage of an
employment discrimination case, plaintiff has a “minimal burden” of alleging facts “suggesting
an inference of discriminatory motivation.” Littlejohn v. City of New York, 795 F.3d 297, 307
(2d Cir. 2015). Even under the most liberal interpretation of plaintiff’s allegations, he provides
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no facts that could possibly connect or link any adverse employment action to a protected status.
Id. at 311.
The thrust of plaintiff’s complaint is that defendant is retaliating against him for filing a
discrimination claim against defendant in 1994. Under 42 U.S.C. § 2000e-3(a), it is unlawful for
an employer to discriminate against an employee “because he has opposed any practice made an
unlawful employment practice by [Title VII] or because he has made a charge in an
investigation, proceeding, or hearing under [Title VII].” In order to establish a prima facie case
of retaliation, plaintiff must show (1) that he participated in an activity protected by Title VII, (2)
that his participation was known to his employer, (3) that his employer thereafter subjected him
to a materially adverse employment action, and (4) that there was a causal connection between
the protected activity and the adverse employment action. See Kaytor v. Electric Boat Corp.,
609 F. 3d 537 (2d Cir. 2010).
The complaint, as currently drafted, does not state a plausible claim because plaintiff has
failed to plead factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged, particularly as to a causal connection between
plaintiff’s 1994 lawsuit and defendant’s current failure to respond to inquiries seeking
verification of his completed internal medicine training. See Iqbal, 556 U.S. at 678. The nexus
between plaintiff’s 1994 lawsuit and his 2015 attempts to obtain verification is far too attenuated
to state a claim, even under the most liberal interpretation of plaintiff’s allegations. See
Littlejohn, 795 F.3d at 311.
B. Breach of Contract Claim
Plaintiff’s Title VII claim is brought pursuant to the court’s federal question jurisdiction.
There is another possible basis for the exercise of this court’s subject matter over plaintiff’s

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complaint: breach of contract under New York state law where plaintiff and defendant are of
diverse citizenship and the amount in controversy exceeds $75,000.00. If the defendant has an
obligation to provide the information plaintiff seeks, this claim could possibly be raised under
this Court’s diversity jurisdiction because plaintiff is a resident of Canada and defendant is
located in New York.
Even if plaintiff had invoked this court’s diversity jurisdiction, there are at least two
problems with proceeding on this basis of subject matter jurisdiction: (1) it is unclear if plaintiff
is seeking to raise a breach of contract claim; and (2) there is no indication that the amount in
controversy exceeds $75,000.00. See 28 U.S.C. § 1332. Should plaintiff wish to pursue a state
law contract claim in this court, he should file an amended complaint to clarify his theory of
liability, allege facts to support a claim of breach of contract, and satisfy the requirements of
diversity jurisdiction, including providing with specificity how the amount in controversy
exceeds the statutory amount. The court makes no comments on the merits of such a claim. See
Don King Productions, Inc. v. Douglas, 742 F.Supp. 741 (S.D.N.Y.1990) (citing Filner v.
Shapiro, 633 F.2d 139 (2d Cir.1980)); but see Meller v. Tancer, 174 A.D.2d 374 (1st Dep’t
1991).
CONCLUSION
Accordingly, the complaint fails to state a claim on which relief may be granted. See 28
U.S.C. § 1915(e)(2)(B). Specifically, plaintiff has not exhausted his Title VII employment
discrimination claim nor set forth facts sufficient to state a retaliation claim. However, in light of
this Court’s duty to liberally construe pro se complaints, plaintiff is given twenty days leave to
file an amended complaint. The amended complaint must provide the defendant with notice of
the claims against it and a short, plain statement of the relevant facts supporting his claim or
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claims against each defendant. The complaint must “plead enough facts to state a claim to relief
that is plausible on its face,” Twombly, 550 U.S. at 570, and provide a basis for the exercise of
this court’s subject matter jurisdiction.
Plaintiff is advised that the amended complaint will completely replace his first
complaint. The amended complaint must be signed and submitted to the Court within twenty
days from the date of this Order, be captioned “AMENDED COMPLAINT” and bear docket
number 16-CV-1287 (BMC) (RML). No summons shall issue at this time and all further
proceedings shall be stayed for 30 days or until further order of the Court. If Plaintiff fails to
amend his complaint within twenty days from the date of this Order is entered on the docket, the
Court shall dismiss this complaint for failure to state a claim on which relief may be granted and
judgment shall enter. If submitted, the amended complaint will be reviewed for compliance with
this Order and for sufficiency under 28 U.S.C. § 1915(e)(2)(B). The Court certifies pursuant to
28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and
therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United
States, 369 U.S. 438 (1962).

SO ORDERED.

Digitally signed by Brian M.
Cogan
U.S.D.J.

Dated: Brooklyn, New York
March 22, 2016

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