Anyachebelu v. Brooklyn Hospital Center et al

Filing 33

ORDER ADOPTING REPORT AND RECOMMENDATIONS -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, upon due consideration and review, and including those portions of the Report and Recommendation ("R & R") issued on July 2 0, 2017 by the Hon. Vera M. Scanlon, U.S.M.J., to which the parties did not object, the R & R are adopted in its entirety. Accordingly, the motion to dismiss is granted to the extent that the following causes of action are dismissed, without prejudic e: (1) all claims against Rodriguez; (2) the retaliation and constructive discharge claims against Brooklyn under 42 U.S.C. § 1981, NYSHRL, and NYCHRL; and (3) the COBRA claim against Brooklyn. Plaintiff is granted leave to file an Amended Compl aint to re-plead these insufficient claims in accord with the R & R within thirty days (30) from the entry of this Order, i.e., NO LATER THAN NOVEMBER 22, 2017. If Plaintiff fails to file an Amended Complaint by November 22, 2017, those claims will b e dismissed with prejudice.Moreover, as Plaintiff inexplicably has failed to serve Defendants Spears and Pinnoch, despite having more than adequate time to do so, those claims are dismissed for failure to prosecute. The Clerk of the Court shall note the termination of these parties on the docket. Closure of this case shall be held in abeyance pending compliance with this Order. SO ORDERED by Chief Judge Dora Lizette Irizarry on 9/22/2017. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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PATRICIA ANYACHEBELU,
:
:
Plaintiff,
:
:
SUMMARY ORDER
-against:
ADOPTING REPORT AND
:
RECOMMENDATION
BROOKLYN HOSPITAL CENTER, Ms. INGRID :
16-CV-3159 (DLI)(SJB)
SPEARS, Ms. MAKEDA PINNOCH, Ms. HEALY :
RODRIGUEZ, TRUSTEES OF THE NEW YORK :
STATE NURSES ASSOCIATION BENEFITS
:
FUND,
:
:
Defendants.
:
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DORA L. IRIZARRY, Chief United States District Judge:
On June 16, 2016, Plaintiff Patricia Anyachebelu (“Plaintiff”) initiated this action against
Defendants Brooklyn Hospital Center (“Brooklyn”), Ingrid Spears (“Spears”), Makeda Pinnoch
(“Pinnoch”), Healy Rodriguez (“Rodriguez”), and the Trustees of the New York State Nurses
Association (“NYSNA”) (collectively, “Defendants”), alleging employment discrimination on the
basis of age, race, and national origin under various federal, state, and local laws. See Complaint
(“Compl.”), Dkt. Entry No. 1. Plaintiff also alleges that Brooklyn and the NYSNA failed to provide
her with timely notice of the termination of her health insurance and her rights under the
Consolidated Omnibus Budget Reconciliation Act of 1983 (“COBRA”). See Id.
Defendants Brooklyn and Rodriguez moved to dismiss the Complaint on September 30,
2016. 1 Mem. of Law in Supp. of Mot. to Dismiss by Brooklyn & Rodriguez (“Mot.”), Dkt. Entry
No. 15. Plaintiff opposed. Pl. Mem. of Law in Opp. to Mot. to Dismiss (“Opp.”), Dkt. Entry No.

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The NYSNA filed an Answer to the Complaint on August 26, 2016, and thereafter, on December 16, 2016,
filed an Amended Answer alleging crossclaims against Brooklyn. See NYSNA Answer, Dkt. Entry No. 10; NYSNA
Amended Answer, Dkt. Entry No. 23. Neither Spears nor Pinnoch have been served, despite the fact that Plaintiff was
granted an extension of time to do so.

21. Reply papers were filed on January 6, 2017. See Reply Mem. of Law on Behalf of Brooklyn
& Rodriguez (“Reply”), Dkt. Entry No. 25.
On April 12, 2017, this Court referred the motion to dismiss to the Hon. Vera M. Scanlon,
United States Magistrate Judge, for a Report and Recommendation (“R & R”). The magistrate
judge issued her R & R on July 20, 2017. See R & R, Dkt. Entry No. 28. The magistrate judge
recommended that the motion be granted in part and denied in part, finding that Plaintiff had failed
to plead: (1) any personal involvement on the part of Rodriguez; (2) any retaliation or constructive
discharge claims under 42 U.S.C. § 1981, the New York State Human Rights Law (“NYSHRL”),
or the New York City Human Rights Law (“NYCHRL”) against Brooklyn; or (3) a cognizable
COBRA claim against Brooklyn. Id. at 27-41. The magistrate judge further recommended that
“Plaintiff be given [thirty] days from entry of the District Court’s Order . . . to replead her factually
deficient claims in a manner consistent with this” R & R. Id. at 41. Plaintiff filed timely objections
to the R & R. See Pl. Objs. to the R & R (“Objs”), Dkt. Entry No. 29. Neither Brooklyn nor
Rodriguez responded to the objections or filed their own objections to the R & R.
For the reasons set forth below, Plaintiff’s objections are overruled, and the R & R is
adopted in its entirety.
DISCUSSION 2
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). Pursuant to the standard often articulated by the
district courts of this Circuit, “[i]f 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

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The Court assumes the parties’ familiarity with the facts as outlined in the R & R. See R & R at 2-7.

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of Sanitation, No. 11-CV-5434 (CBA) (LB), 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., No. 13CV-1729 (SJF) (AKT), 2014 WL 4662267, at *1 (E.D.N.Y. Sept. 17, 2014) (“[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). On the other hand, the Second Circuit Court of Appeals has suggested that a clear error
review may not be appropriate “where arguably ‘the only way for [a party] to raise . . . arguments
[is] to reiterate them.’” Moss v. Colvin, 845 F.3d 516, 520 n.2 (2d Cir. 2017) (quoting Watson v.
Geithner, No. 11-CV-9527 (AJN), 2013 WL 5441748, at *2 (S.D.N.Y. Sept. 27, 2013)).
Nonetheless, 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, No. 15-CV-517 (NGG) (RER), 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).
A.

PLAINTIFF’S OBJECTIONS
Plaintiff makes two objections. First, she argues that the magistrate judge erred in finding

that Plaintiff failed to state any retaliation claim under § 1981, NYSHRL, or NYCHRL. Objs. at
4-5. Plaintiff claims that her suspension and termination were retaliation for complaining that her
immediate supervisor discriminated against because of her national origin. See Compl. at ¶¶ 75,
85. The purported protected speech that supposedly gave rise to Brooklyn retaliation consists of
complaints that her supervisor: (1) would not approve a request to switch her vacation schedule;

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and (2) would not authorize a change to her assigned shift. Id. at ¶¶ 25-27, 34. Plaintiff does not
allege she complained that these decisions were motived by discriminatory reasons. See generally,
Id.
In framing this objection, Plaintiff makes the same argument that she pressed in her
opposition papers: a “reasonable” employer would have understood, from context, that Plaintiff
was complaining about discrimination based upon her national origin. See Opp. at 11; Objs. at 5.
However, looking to applicable precedent, the magistrate judge determined that Plaintiff’s
complaints did not qualify as a “protected activity” because they were so generalized they could
not put her employer on notice that she was complaining about discrimination. See R & R at 2731. Reviewing the magistrate judge’s analysis for clear error and finding none, the Court overrules
Plaintiff’s objection as to the accuracy of the magistrate judge’s analysis on this issue.
Alternatively, Plaintiff argues that if this Court adopts the magistrate judge’s
recommendation on this point, she should “be given opportunity when amending her complaint to
replead her retaliation claims.” Objs. at 5. As the magistrate judge recommended that the claims
be dismissed without prejudice and that Plaintiff be granted leave to file an Amended Complaint,
this “objection” is overruled as moot.
Plaintiff’s second objection concerns the magistrate judge’s examination of her COBRA
claim against Brooklyn. Objs. at 2-4. Plaintiff argues that Brooklyn is liable to her because it did
not timely give NYSNA notice of her termination, and that, in turn, the NYSNA failed to notify
her of her rights under COBRA within the statutory fourteen-day period. See Id. at 3-4; See also
Opp. at 12-14. In evaluating this claim, the magistrate judge determined that, according to relevant
precedent in the Second Circuit, as well as the COBRA statute itself, Plaintiff may only pursue a
claim against the insurance plan administrator, the NYSNA. See R & R at 39-40. Plaintiff has

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asserted a claim against the NYSNA. See Compl. at ¶¶ 90-92. As there is no clear error in the
magistrate judge’s determination that Plaintiff may only maintain this COBRA claim against the
insurance plan administrator, this objection also is overruled.
CONCLUSION
For the reasons set forth above, upon due consideration and review, and including those
portions of the R & R to which the parties did not object, the recommendations contained in the R
& R are adopted in their entirety. Accordingly, the motion to dismiss is granted to the extent that
the following causes of action are dismissed, without prejudice: (1) all claims against Rodriguez;
(2) the retaliation and constructive discharge claims against Brooklyn under 42 U.S.C. § 1981,
NYSHRL, and NYCHRL; and (3) the COBRA claim against Brooklyn. Plaintiff is granted leave
to file an Amended Complaint to re-plead these insufficient claims within thirty days from the
entry of this Order, i.e., NO LATER THAN NOVEMBER 22, 2017. If Plaintiff fails to file an
Amended Complaint within thirty days of the entry of this Order, those claims will be dismissed
with prejudice.
Moreover, as Plaintiff inexplicably has failed to serve Defendants Spears and Pinnoch,
despite having more than adequate time to do so, those claims are dismissed for failure to
prosecute. The Clerk of the Court shall note the termination of these parties on the docket.

SO ORDERED.

Dated: Brooklyn, New York
September 22, 2017
/s/
DORA L. IRIZARRY
Chief Judge

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