Singa v. Corizon Health, Inc.
MEMORANDUM DECISION AND ORDER dated 1/8/18 granting defendant's 15 Motion to dismiss. The Clerk is directed to enter judgment, dismissing plaintiffs federal and state claims with prejudice, and her New York City claims without prejudice. ( Ordered by Judge Brian M. Cogan on 1/8/2018 ) *Forwarded for jgm. (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- against CORIZON HEALTH, INC.,
DECISION AND ORDER
COGAN, District Judge.
Plaintiff Saroja Singa brings this national-origin employment-discrimination case under
Title VII and state and local law, alleging that she was discriminated against, subjected to a
hostile work environment, and retaliated against for complaining about the alleged
discrimination. 1 Defendant Corizon Health, Inc., has moved to dismiss plaintiff’s complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to plead sufficient facts to state a
claim in her amended complaint. With respect to her federal and state claims, plaintiff has not
stated a claim, and those claims are therefore dismissed. I decline to exercise subject-matter
jurisdiction over plaintiff’s remaining claims under New York City law.
SUMMARY OF AMENDED COMPLAINT
The arguably factual and non-conclusory allegations of the amended complaint are as
follows: Plaintiff is a physician of Indian descent. She began working for defendant as a doctor
The amended complaint also attempted to plead a sex-discrimination claim, but plaintiff has abandoned that claim
in opposing defendant’s motion to dismiss.
in 2001, when defendant took over the contract for supplying medical services at Rikers Island
(presumably with the New York City Department of Corrections, although that is not alleged).
Before then, plaintiff had worked in the same capacity at Rikers Island, but the prior contractor
(her prior employer) was St. Barnabas Hospital.
Plaintiff had no problems until 2011, when defendant adopted a new computer system for
maintaining medical records. Before plaintiff could complete her training on the new system, as
all medical staff were required to do, she was transferred to the Communicable Disease Unit
(“CDU”). The CDU is a highly desired assignment for Rikers Island staff physicians.
Plaintiff’s supervisor in the CDU was Dr. Aung (first name unknown), who is of
Chinese-Burmese descent. On plaintiff’s first day in the CDU, Dr. Aung ignored her when she
greeted him. After joining the CDU, plaintiff was placed on a performance improvement plan
for the new computer program. Plaintiff did not complete the training for the new computer
system under Dr. Aung during her first six months, but she eventually completed the training in
only six hours under another supervisor.
There were other Chinese-speaking personnel in the CDU, and Dr. Aung would speak to
them in Chinese, which plaintiff did not understand. From 2011 to 2015, Dr. Aung gave plaintiff
bad write-ups that she feels she did not deserve. (They are described in some detail in the
amended complaint.). Some of these write-ups were rescinded when plaintiff proved to Dr.
Aung that he was wrong. On one occasion, plaintiff was written up for prescribing Tylenol and
Naprosyn for a patient; another doctor, Dr. Maungoo, who is of Chinese-Burmese descent, had
previously made the same prescription for the patient, but was not written up. On another
occasion, Dr. Maungoo replaced an oral methadone prescription with injectable methadone,
which would have threatened the patient’s life had nurses not caught the error. Dr. Aung did not
write up Dr. Maungoo for this mistake. On another occasion, plaintiff was written up for
ordering x-rays for a patient; Dr. Aung rescinded the write-up when plaintiff showed that she had
not ordered the x-rays, but Dr. Aung did not write up the (unnamed) Chinese-Burmese doctor
who had ordered them.
On one occasion, plaintiff was assigned to four different units in an 8-hour shift (this is
apparently called “floating,” and is allegedly dangerous because each unit is managed differently
with slightly different procedures), which did not happen to any other doctors. On two
occasions, plaintiff’s assigned shift was reassigned to Dr. Win (first name unknown), who is of
Chinese-Burmese descent, and plaintiff had to float. On many (unspecified) occasions, plaintiff
had to float for more than half of her weekly shift, and sometimes in the middle of her shift.
Plaintiff repeatedly requested overtime work, which Dr. Aung denied, but gave to
(unnamed) physicians of Chinese-Burmese descent. One such doctor was able to double his
original shifts, and Dr. Maungoo and Dr. Win received overtime on a weekly basis.
Dr. Aung did not permit plaintiff to use his office. Other (unnamed) non-Indian doctors
were allowed to use his office.
Plaintiff made several complaints that Dr. Aung was giving (unspecified) preferential
treatment to Burmese doctors. The first was on March 21, 2014, sent to “management.” On
June 28, 2015, plaintiff sent an email complaining “of the above discriminatory treatment,” again
to “management.” On August 2, 2015, she complained to Dr. Cintron (first name and position
unknown) that Dr. Aung was denying overtime to doctors who were not of Chinese-Burmese
descent. In response to this last complaint, defendant’s Department of Human Resources
scheduled a meeting between plaintiff, Dr. Aung, and Dr. Aung’s (unnamed) supervisors. At the
meeting, the supervisors “actually stood up,” and walked out, saying that plaintiff was “picking
on” Dr. Aung. No action came of the meeting.
Defendant’s contract with the Department of Corrections ended on December 20, 2015.
A new contractor (unnamed, but apparently the New York City Health & Hospitals Corporation)
took over the medical-services contract at Rikers Island. Most of defendant’s workers at Riker’s
Island were re-hired by the new provider, but plaintiff was not one of them. 2
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009), and Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007), require a plaintiff seeking to avoid dismissal to plead factual allegations in
her complaint sufficient to raise a right to relief above the speculative level. See also Brown v.
Daikin America, Inc., 756 F.3d 219, 228 n.10 (2d Cir. 2014). A complaint must allege “enough
facts to state a claim to relief that is plausible on its face.” Starr v. Sony BMG Music Entm’t,
592 F.3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570); see also Iqbal, 556 U.S.
at 678 (same).
To apply that standard, the court accepts as true all well-pleaded factual allegations, but
does not credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause
of action.” Iqbal, 556 U.S. at 678. If the court can infer no more than “the mere possibility of
misconduct” from the factual averments, id. at 679, or if, in other words, the well-pleaded
allegations of the Complaint have not “nudged [the] claims across the line from conceivable to
plausible,” dismissal is appropriate, Twombly, 550 U.S. at 570.
Attached to plaintiff’s opposition to the motion to dismiss is a newspaper article discussing the termination of
defendant’s contract with Riker’s Island. This newspaper article is not properly submitted on a Rule 12(b)(6)
motion, and in any event, adds nothing to the analysis.
Hostile-Work-Environment Claims under Title VII and State Law
To state a hostile-work-environment claim under Title VII, 42 U.S.C. § 2000e, or New
York State Human Rights Law, New York Executive Law § 290-301, a plaintiff must plead facts
showing that her workplace is “permeated with ‘discriminatory intimidation, ridicule, and insult’
that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(citation omitted) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)). The
plaintiff must also show “either that a single incident was extraordinarily severe, or that a series
of incidents were ‘sufficiently continuous and concerted’ to have altered the conditions of her
working environment.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (quoting
Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)), superseded on other grounds by
N.Y.C. Local L. No. 85.
There is not a single fact in the amended complaint alleging the kind of hostility required
by the caselaw. Plaintiff does not allege that she suffered racial epithets, disparaging remarks, or
insults delivered in front of co-workers, and certainly does not allege any physical
confrontations, or degrading or humiliating conduct. See Alfano v. Costello, 294 F.3d 365, 380
(2d Cir. 2002) (collecting cases); see also Petrosino v. Bell Atl., 385 F.3d 210, 223 (2d Cir.
The closest that plaintiff gets to a hostile-work-environment claim is that Dr. Aung was
rude to her by not greeting her on her first day. That is far from sufficient.
As shown below, if plaintiff has any claim at all, it is a discrimination claim for disparate
treatment. She cannot dress up that claim with the phrase “hostile work environment” and
thereby create a new claim for relief. Her hostile-work-environment claim is dismissed.
Discrimination Claims under Title VII and State Law
For a complaint asserting a discrimination claim, “[t]he Iqbal plausibility standard applies
in conjunction with employment discrimination pleading standards.” Jackson v. NYS Dep’t of
Labor, 709 F. Supp. 2d 218, 223-24 (S.D.N.Y. 2010) (citation omitted). Such complaints “need
not allege ‘specific facts establishing a prima facie case of discrimination’ . . . to survive a
motion to dismiss.” Boykin v. KeyCorp, 521 F.3d 202, 212 (2d Cir. 2008) (citation omitted)
(quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 (2002)). Rather, these complaints
need only “include a short and plain statement of the claim . . . . [which] ‘give[s] the defendant
fair notice of what the plaintiff’s claim is and the grounds upon which it rests.’” Swierkiewicz,
534 U.S. at 512 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
“[T]he Swierkiewicz holding applies with equal force to any claim . . . that the
McDonnell Douglas framework covers,” including claims of disparate treatment, and retains its
vitality in the wake of Twombly and Iqbal. Boykin, 521 F.3d at 213-14 (quoting Williams v.
N.Y.C. Hous. Auth., 458 F.3d 67, 72 (2d Cir. 2006) (per curiam)). There is thus no requirement
that a plaintiff plead all of the elements of a prima facie case to survive a motion to dismiss
under Rule 12(b)(6). Nevertheless, a plaintiff must plausibly allege facts showing that the
employer took an adverse action against her and that her race, color, religion, sex, or national
origin was a motivating factor in the adverse employment decision. Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015).
Plaintiff’s opposition to the motion lists four actions that she contends constitute adverse
employment actions: (1) failing to train her on the new computer system; (2) placing her in a
performance improvement plan; (3) imposing wrongful disciplinary write-ups; and (4)
wrongfully terminating her. 3 The first three allegedly adverse employment actions are not
“adverse” as a matter of law, and, as to her termination, plaintiff has adequately pleaded
As to the alleged adverse actions relating to the new computer system, the amended
complaint alleges that plaintiff “was placed on a performance improvement plan” for the new
computer program, and that she eventually “completed the training in its entirety successfully in
six hours” under a different supervisor. I see no harm to plaintiff based on her own allegations,
and therefore no foul. She received instruction in the computer program and she completed it. If
she meant to allege that her delay in completing the training somehow cost her money, there are
no such allegations.
Next, disciplinary write-ups or negative evaluations are not adverse actions sufficient to
support a discrimination claim unless they affect the employee’s terms and conditions of
employment (e.g., reducing wages, disqualifying plaintiff from a promotion opportunity, or
leading to demotion or termination). See Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir.
2008). Here, plaintiff does not allege that the write-ups affected her pay, led to her demotion, or
anything similar. Her employer provided a grievance process for obtaining redress, and, indeed,
the amended complaint recites several examples where Dr. Aung rescinded disciplinary writeups that he imposed incorrectly.
As far as plaintiff’s “termination,” although it is obviously an adverse employment
action, the amended complaint presents a fatal causation flaw. The amended complaint makes
The amended complaint also alleges denial of overtime opportunities, which could be an adverse employment
action. But in opposing the motion to dismiss, plaintiff does not cite denial of overtime as an adverse action; she
cites the conferral of overtime on Chinese-Burmese doctors as discriminatory preferential treatment. The Court
therefore deems plaintiff to have abandoned any claim based on denial of overtime as an adverse action. See
Jackson v. Fed. Exp., 766 F.3d 189, 196 (2d Cir. 2014).
clear that plaintiff’s dismissal from defendant’s employ could not possibly have been on the
basis of her national origin – defendant’s contract with the Department of Corrections ended, and
everyone, of every national origin, was terminated. The amended complaint itself thereby
conclusively refutes any claim that her termination or anyone else’s could have been motivated
in any part by national-origin discrimination.
Plaintiff’s amended complaint also asserts that she was terminated “[d]ue to the undue
amount of negative and falsified discipline she received from Dr. Aung.” But she does not allege
any facts that would tend to show that allegation, and even if she did, there are serious
proximate-cause problems that restrain her theory from crossing the line from “conceivable” to
“plausible.” There could have been all kinds of reasons why she was not hired by the new
medical-care provider. The closest plaintiff comes to linking Dr. Aung and the new provider’s
decision not to hire her is when she advances a conclusion that “upon information and belief, the
[defendant’s] supervisors were responsible, prior to transfer of Riker’s Island to the new
contractor, for declining to continue [plaintiff’s] employment . . . .” Alleging something “upon
information and belief” does not suffice to allege a fact under Iqbal and Twombly unless plaintiff
can point to some facts that make the allegations more than pure speculation. See Munoz-Nagel
v. Guess, Inc., No. 12-CV-1312, 2013 WL 1809772, at *3 (S.D.N.Y. Apr. 30, 2013). Plaintiff
has not pointed to any such facts; her allegation is just a conclusion, without factual support.
This is particularly true because the only individual employed by defendant about whom plaintiff
complains is Dr. Aung, and even her conclusory theory ascribes no role to him in deciding who
the new provider would hire.
It is worth noting that defendant, a major corporation, did not go out of business when it
gave up the Rikers Island contract. However, it does not employ any of the people whom it
previously employed at Rikers’ Island; it terminated them all at the same time. Plaintiff
therefore cannot plausibly allege that defendant terminated her based on her national origin.
Accordingly, plaintiff has failed to state a claim for national-origin discrimination.
Retaliation Claims under Title VII and State Law
Retaliation is actionable under Title VII when the plaintiff “engaged in a protected
activity, such as complaining about [national origin] discrimination” and, as a result, her
employer took an adverse action in retaliation. See Kirkland v. Cablevision Sys., 760 F.3d 223,
225 (2d Cir. 2014). To establish a prima facie case of retaliation under Title VII, a plaintiff must
show “(1) participation in a protected activity; (2) that the defendant knew of the protected
activity; (3) an adverse [retaliatory] action; and (4) a causal connection between the protected
activity and the adverse employment action.” Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)
(quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)). As noted above,
although a plaintiff need not establish a prima facie case to survive a motion to dismiss, “the
court should still consider the elements of a prima facie case of retaliation in making a
determination of whether a plaintiff’s complaint gives a defendant fair notice of the grounds of
his claim.” Corbett v. Napolitano, 897 F. Supp. 2d 96, 111 (E.D.N.Y. 2012)
Plaintiff’s retaliation claims suffer from one of the same deficiencies as her
discrimination claims – there is no causation between her protected activity and the only
employment action that she alleges to be adverse. Assuming, arguendo, that her complaints to
management (assuming Dr. Cintron was a manager) on March 21, 2014, and June 28 and August
2, 2015 constituted protected activity (although she gives little description of these complaints),
the only event that she attempts to tie to them is that defendant terminated her employment
nearly five months later. To state a retaliation claim, the adverse employment action has to be in
response to the protected activity. But, as noted above, defendant terminated everyone’s
employment, not just plaintiff’s, and there are no facts alleged which would tend to show that
defendant actually had any role in determining who the new Rikers Island contractor would hire.
Thus, plaintiff has failed to state a claim for retaliation.
Claims under New York City Law
I have addressed plaintiff’s claims under New York State Human Rights Law above in
conjunction with her claims under the Title VII, because the requirements for pleading a claim
under both statutes are the same. See Soloviev v. Goldstein, 104 F. Supp. 3d 232, 246 (E.D.N.Y.
2015). However, plaintiff’s claims under New York City Human Rights Law, N.Y.C. Admin.
Code § 8-107, have different elements and standards of proof, and they are therefore not
disposed of by the rulings above.
But having dismissed all of plaintiff’s federal and state claims, I decline to exercise
jurisdiction over plaintiff’s claims under New York City law. Under 28 U.S.C. § 1367(c)(3), a
district court is permitted to “decline to exercise supplemental jurisdiction over a claim” if the
district court “has dismissed all claims over which it has original jurisdiction.” Indeed, the
Supreme Court has directed that, except in unusual circumstances, “if the federal claims are
dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims
should be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
There are no circumstances justifying the Court’s retention of non-federal claims in this case.
Accordingly, plaintiff’s New York City claims are dismissed without prejudice.
Defendant’s motion to dismiss is granted. The Clerk is directed to enter judgment,
dismissing plaintiff’s federal and state claims with prejudice, and her New York City claims
Digitally signed by Brian M.
Dated: Brooklyn, New York
January 8, 2018
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