Fields v. Kings County Hospital et al

Filing 25

ORDER granting 11 18 Motions to Dismiss for Failure to State a Claim: For the reasons stated in the attached Memorandum and Order, the Court grants Defendant's motion to dismiss the complaint in this action, as well as the claims raised in P laintiff's amended complaint and at oral argument. While the Court appreciates that Plaintiff genuinely feels aggrieved by the conduct of her supervisors at Kings County Hospital Center and that Plaintiff's termination from the hospital ha s had significant consequences for Plaintiff and her family, she has not adequately alleged facts from which to infer that this conduct was motivated, in any way, by racial or ethnic animus. The Court certifies pursuant to 28 U.S.C. 1915(a)(3) that any appeal 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, 444-45 (1962). The Clerk of Court is respectfully requested to enter judgment and terminate this case. Ordered by Judge Pamela K. Chen on 7/20/2018. (Rediker, Ezekiel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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KELLI FIELDS,
Plaintiff,
MEMORANDUM & ORDER
17-CV-6042 (PKC) (CLP)

- against NEW YORK CITY HEALTH AND
HOSPITAL CORPORATION,
Defendant.
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PAMELA K. CHEN, United States District Judge:

Plaintiff Kelli Fields, appearing pro se and proceeding in forma pauperis, brings this action
against Defendant New York City Health and Hospitals Corporation (“Defendant”) 1 pursuant to
Title VII of the Civil Rights Act of 1964 (“Title VII”), as codified, 42 U.S.C. Sections 2000e et.
seq. and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et.
seq. Before the Court is Defendant’s motion to dismiss. For the following reasons, Defendant’s
motion to dismiss is granted and this action is terminated.
RELEVANT FACTS2
Plaintiff began working as a Clerical Assistant Level III at Kings County Hospital Center
(“KCHC”) in October 2016. (Amended Complaint (“Am. Compl.”), Dkt. 17, at 1.)3

Plaintiff

1

Defendants Kings County Hospital, Carol McCowan, Tricia Lynch, Frecmi Rosario,
Hyancinth Dasilva, and Vincent Mulvihill have been terminated from the case. (See ECF Entry
5/18/2018.)
2

Because this is a motion to dismiss, the Court accepts as true the facts alleged in Plaintiff’s
original complaint, as well as in her amended complaint. Rothstein v. UBS AG, 708 F.3d 82, 94
(2d Cir. 2013).
Record citations refer to the pagination generated by the Court’s CM/ECF docketing
system and not the document’s internal pagination.
3

asserts that her supervisor, Assistant Coordinating Manager Carol McCowan, inquired about
Plaintiff’s nationality on Plaintiff’s first day of employment. (Id. at 2.) Plaintiff states that she is
African-American, but her co-workers, including McCowan, are of West Indian descent. (Id. at
1-2.) Plaintiff alleges that McCowan told her that KCHC was a “West Indian Hospital” and that
Plaintiff felt “attack[ed]” by McCowan. (Id. at 2.) Plaintiff states that she witnessed the “friendly
support” that McCowan gave to Plaintiff’s West Indian co-workers4, which made Plaintiff feel
“harass[ed]” and “uncomfortable” by comparison. (Plaintiff’s Opposition (“Pl. Opp’n”), Dkt. 14,
at 2.) Plaintiff alleges that McCowan failed to “abide by KCHC’s policy for employees to request
time off”, even though McCowan approved of Plaintiff’s absences “verbally, via phone, and via
text.” (Am. Compl. at 2.) Plaintiff states that McCowan allowed Plaintiff’s West Indian
colleagues to “call out”5 from their assigned shifts, but that McCowan never gave Plaintiff the
same opportunity. (Id.) Plaintiff alleges that McCowan forced her to stay later and work more
hours than her West Indian colleagues and showed Plaintiff “unfavorable treatment by holding up
[her] paychecks, which [McCowan] did not do for any West Indian Coworkers.” (Id. at 4.)
Plaintiff claims that McCowan’s statements led her to feel that her status as an AfricanAmerican was “not accepted” and that to be West Indian “was its own race.” (Complaint

At oral argument on Defendant’s motion, held on July 17, 2018, Plaintiff identified three
West Indian co-workers whom she believed McCowan treated more favorably with respect to
unscheduled sick leave: “Natasha”, “Maria St. Nicholas”, and “Trisha.” Plaintiff claimed that she
was aware of the number of her co-workers’ “call-out” days because of the attendance log into
which they all made entries.
4

At the July 17 oral argument, Plaintiff and defense counsel clarified that “calling out”
referred to unscheduled sick leave, which was subject to approval or rejection post hoc for purposes
of the employee being compensated or not for the time the employee was out sick. Defense counsel
stated that the granting of unscheduled sick leave was a payroll issue, distinct from the disciplinary
issue of how many unscheduled sick leave days an employee took within a certain period.
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2

(“Compl.”), Dkt. 1, at 5.)6 Plaintiff stated that she complained to the Human Resources office
(“Human Resources”) at KCHC in November 2016 that her “tour/shift was in jeopardy due to [her]
race/nationality.” (Pl. Opp’n, at 3.) Plaintiff also alleges that she tried to complain again in March
of 2017 by contacting Vincent Mulvihill,7 Deputy Executive Director of the Department of
Medicine, but he said that “he was covering to[o] many areas and it would take some weeks to
speak to [her].” (Id. at 4.)
Plaintiff was terminated from KCHC on May 19, 2017 (Am. Compl., at 4), five months
before her probationary period expired in October 2017. (Id., at 1.) Plaintiff filed her charge with
the Equal Employment Opportunity Commission (“EEOC”) after her termination in May of 2017.
(Id. at 5.) The EEOC issued a notice of right to sue letter in July 2017. (Id.) Plaintiff alleges that
she filed a complaint with “Human Rights”8 in September 2017, and eventually received a
response from KCHC, which she alleges “defamed” her character. (Id.)
PROCEDURAL HISTORY
Plaintiff filed her complaint in this action on October 10, 2017, alleging discrimination and
retaliation, pursuant to Title VII and NYCHRL, as well as defamation of character. Plaintiff seeks
to recover: (1) her “position as Clerical Assistant Level III”; and (2) “any wages lost rep[aid].”
(Compl., at 6.)

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Plaintiff omits certain facts related to her Title VII claim in her amended complaint that
were included in her original complaint. (See Dkts. 1, 17.) Although it is clearly established law
that a plaintiff’s amended complaint completely replaces the original complaint, Arce v. Walker,
139 F.3d 329, 332 n. 4 (2d Cir. 1998), in light of Plaintiff’s pro se status, the Court will consider
the amended complaint as supplementing, as opposed to replacing, Plaintiff’s original factual
allegations.
7

Plaintiff notes that Vincent Mulvihill is “Caucasian.” (Am. Compl., at 1.)

8

Plaintiff appears to be referring to the New York State Division of Human Rights
(“NYSDHR”).
3

On January 29, 2018, Defendant moved to dismiss the complaint in its entirety. (Dkt. 11.)
Plaintiff filed her opposition on March 19, 2018 (Dkt. 14), and Defendant replied on April 5, 2018
(Dkt. 15). In her opposition, Plaintiff asked to file an amended complaint, which the Court granted.
The Court gave Defendant until June 15, 2018 thereafter to supplement its motion to dismiss.
Plaintiff filed an amended complaint on May 18, 2018 (Dkt. 17), and Defendant supplemented its
motion to dismiss on June 15, 2018 (Dkt. 18). The Court held oral argument on Defendant’s
motion to dismiss on July 17, 2018. As stated supra, the Court construes Plaintiff’s opposition as
amending her complaint and addresses her new claims.
STANDARD OF REVIEW
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
“a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). 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.” Id. (quoting Twombly, 550 U.S. at 556). The “plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (citation omitted). Determining whether a complaint states
a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Id. at 679 (citation omitted).
“In addressing the sufficiency of a complaint, [the Court] accept[s] as true all factual
allegations and draw[s] from them all reasonable inferences; but [the Court is] not required to
credit conclusory allegations or legal conclusions couched as factual allegations.” Rothstein, 708
F.3d 82 at 94. “A document filed pro se is to be liberally construed, and a pro se complaint,

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however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations
omitted). At the same time, pursuant to the in forma pauperis statute, a district court must dismiss
a case if the court determines that the complaint “is frivolous or malicious; fails to state a claim on
which relief may be granted; or seeks monetary relief against a defendant who is immune from
such relief.” 28 U.S.C. § 1915(e)(2)(B).
DISCUSSION
I.

Plaintiff Fails to State a Claim under Title VII
A.

Plaintiff Fails to State a Claim for Discrimination

Plaintiff asserts a claim under Title VII for employment discrimination based upon race
and national origin. To state a cause of action under Title VII, a plaintiff must set forth facts
demonstrating that (1) she is a member of a protected class; (2) she satisfactorily performed her
job; (3) she was subjected to adverse employment action; and (4) such action occurred under
circumstances giving rise to an inference of discrimination based on her membership in the
protected class. Belfi v. Prendergast, 191 F.3d 129, 140 (2d Cir. 1999). With regard to the fourth
prong, a plaintiff must allege that an adverse employment action was taken against her because of
discriminatory animus on the part of her employer. Id. at 139.
Here, Plaintiff’s alleged facts are insufficient to show that she was subjected to an adverse
employment action because of her membership in a protected class. Although Plaintiff claims that
she was treated differently than her West Indian co-workers, her allegations are conclusory. For
example, Plaintiff alleges that McCowan’s statements made her feel that “being African American
was not accepted” and that she was “harassed.” (Compl., at 5.) Yet Plaintiff does not provide any
details about how African-Americans like herself were excluded or the nature of the harassment
that she experienced. Plaintiff also claims that McCowan failed to “abide by KCHC’s policy for
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employees to request time off” by allowing Plaintiff’s West Indian co-workers to “call out” from
their assigned shifts, but denying Plaintiff the same opportunity. (Am. Compl. at 2.) Yet Plaintiff
offers no facts that these adverse employment actions were related to her status as an AfricanAmerican. Similarly, Plaintiff’s allegation that “McCowan singled [her] out from [her] West
Indian co-workers” by re-assigning her to work in the “E building for the entire day” is conclusory
(Id. at 3); she offers no context or support that her re-assignment was the result of discrimination.
The same is true of her allegation that McCowan forced Plaintiff to work later than her West Indian
colleagues or withheld her paychecks; there is simply no evidence that these actions were
motivated by discriminatory animus. As a result, Plaintiff provides no causal evidence linking her
protected status as an African-American to the adverse employment actions that she claims. See
Edwards v. New York State Unified Court Sys., No. 12-CV-46 (WHP), 2012 WL 6101984, at *4
(S.D.N.Y. Nov. 20, 2012) (explaining that a plaintiff “must show that the adverse employment
actions occurred ‘because of a protected characteristic’” and that “[t]he plaintiff’s claim must offer
more than conclusory statements”) (quoting Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007)).9
At most, Plaintiff asserts that McCowan’s ethnic and racial bias is demonstrated by her
alleged reference to KCHC as a “West Indian Hospital” and her inquiry into Plaintiff’s country of
origin soon after Plaintiff began working at KCHC. However, these scant, isolated references are

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Furthermore, as Defendant argued in its motion and elaborated on at oral argument,
Plaintiff cannot rely on her West Indian co-workers as comparators because Plaintiff was on
probationary status and the co-workers were not. While Plaintiff alleges that she was informed by
KCHC’s office of labor relations that the policies on unscheduled sick leave were the same for
probationary and regular employees, defense counsel maintained at oral argument that KCHC’s
actual policies—which defense counsel urged the Court to take judicial notice of, given Plaintiff’s
incorporation and reliance on them in her complaint—treated probationary and regular employees
differently and that probationary employees could be terminated for taking three or more
unscheduled sick leave days within the one-year probationary period, whereas regular employees
would instead be subject to progressive discipline for the same conduct.
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not enough to allege discrimination under the fourth element of Title VII. See Gonzalez v. Allied
Barton Sec. Servs., No. 08-CV-9291 (RJS) (RLE), 2010 WL 3766964, at *5 (S.D.N.Y. Sept. 7,
2010) (explaining that “isolated derogatory remarks . . . alone do not raise an inference of
discrimination.”) report and recommendation adopted, 2010 WL 3766954 (S.D.N.Y. Sept. 27,
2010). Furthermore, Plaintiff offers no allegations in the complaint connecting McCowan’s
statement to any adverse employment action taken against Plaintiff. See Tomassi v. Insignia
Financial Group, Inc., 478 F.3d 111, 115 (2d Cir. 2007) (finding that “the more remote and oblique
the remarks are in relation to the employer’s adverse action, the less they prove that the action was
motivated by discrimination.”) abrogated in part on other grounds by Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167 (2009)). In short, Plaintiff’s complaint, even as supplemented by her statements
at oral argument, fails to assert “nonconclusory factual matter[s] sufficient to nudge [her] claims
across the line from conceivable to plausible to proceed.” EEOC v. Port Auth. of N.Y. & N.J., 768
F.3d 247, 254 (2d Cir. 2014) (quotation marks and citation omitted).
To the extent that Plaintiff alleges a hostile work environment, this claim also fails. To
establish a hostile work environment under Title VII, “a plaintiff must show that ‘the 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.’” Littlejohn v. City of NY, 795 F.3d 297, 320-21 (2d Cir. 2015) (citing Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Here, Plaintiff merely alleges that McCowan
questioned her about other co-workers in a “hostile” manner, in addition to the adverse actions
addressed above. (Am. Compl., at 2.) This is not enough to show that Plaintiff was subjected to
a hostile work environment on the basis of race or national origin. Dechberry v. NYC. Fire Dep’t,
124 F. Supp. 3d 131, 158 (E.D.N.Y. 2015) (finding plaintiff’s conclusory allegations that she

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suffered “disrespectful treatment, retaliation and harassment” insufficient to plead hostile work
environment claim). Because Plaintiff has not alleged sufficient facts from which to plausibly
infer that her workplace was “permeated with discriminatory intimidation, ridicule, and insult,”
the Court finds that Plaintiff’s conclusory allegations fail to state a hostile work environment claim
under Title VII.
B.

Plaintiff Fails to State a Claim of Retaliation

Plaintiff also attempts to state a cause of action under Title VII for retaliation. To establish
a prima facie retaliation claim under Title VII, a plaintiff must allege (1) participation in a protected
activity, (2) the defendant’s knowledge of the protected activity, (3) an adverse employment
action, and (4) a causal connection between the protected activity and the adverse employment
action. See Littlejohn, 795 F.3d at 316.
Plaintiff does not establish a prima facie retaliation claim because she fails to satisfy, at a
minimum, the fourth prong of the test. Plaintiff alleges that she was terminated in retaliation for
her complaints to KCHC management.10 However, Plaintiff has not alleged facts sufficient to

Although Plaintiff’s complaint suggested that she was alleging that KCHC’s written
response to her NYSDHR complaint, in itself, was a retaliatory adverse employment action (Am.
Compl., at 5 (“The response sent [to] Human Rights from Kings County Hospital Center I feel is
a retaliation letter due to my seeking further assistance regarding this matter.”)), Plaintiff clarified
at oral argument that KCHC’s response was what revealed to her that her termination was ordered
in retaliation for her complaints to Human Resources and her supervisors. It should be noted that
KCHC’s written response to the NYSDHR complaint would not constitute an adverse employment
action. See Hicks v. Baines, 593 F.3d 159, 162 (2d Cir. 2010) (quotations and citation omitted)
(adverse actions, for purposes of a retaliation claim, are those that are “harmful to the point that
they could well dissuade a reasonable worker from making or supporting a charge of
discrimination.”); Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015)
(examples of adverse employment actions “include termination of employment, a demotion
evidenced by a decrease in wage or salary . . . [or] significantly diminished material responsibilities
. . .”) (citation omitted).
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show a causal connection between any protected activity and her termination. To the extent
Plaintiff alleges that her complaints to Human Resources and Vincent Mulvihill prompted her
termination, the Court finds that Plaintiff has failed to show any causal nexus to retaliation. On
November 15, 2016, Plaintiff emailed Lakisha Kimble at the Human Resources office about a
“misunderstanding” related to her work assignment. (Dkt. 17, at 9.) Lakisha Kimble responded
that Plaintiff should give her a call. (Id.) Similarly, on March 15, 2017, Plaintiff wrote an email
to Mulvilhill stating that she wanted to discuss “a letter of counseling” and that “other co-workers
receive different treatment.” (Dkt. 17, at 11.) According to Plaintiff, Mulvihill responded that he
would ask his secretary to find some time, but that it may “take a few weeks to meet.” (Id.) These
email exchanges provide no facts connecting a protected activity to an adverse employment action.
Given the responses that Plaintiff herself says she received, she does not explain how her
exchanges with Kimble or Mulvihill would dissuade a reasonable employee from contacting these
individuals to make a “charge of discrimination.”
Moreover, Plaintiff’s complaint to Human Resources in November 2016 was too remote
in time from her May 2017 termination to constitute retaliation. Although “mere temporal
proximity between an employer’s knowledge of protected activity and an adverse employment
action” can be evidence of causal connection, a plaintiff’s prima facie burden is met only if the
“temporal proximity [is] ‘very close.’” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74
(2001). Here, at least six months elapsed between the complaint and Plaintiff’s termination, which,
by itself cannot serve as evidence of retaliation. See Mazurkiewicz v. N.Y.C. Health & Hosps.
Corp., 09-CV-5962 (WHP), 2010 WL 3958852, at *5 (S.D.N.Y. Sept. 16, 2010) (explaining that
“[t]he Second Circuit often utilizes a two month window to determine whether the temporal

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connection between the protected activity and alleged retaliation is sufficiently close or too
attenuated”) (citation omitted).
II.

The Court Declines to Exercise Supplemental Jurisdiction Over Plaintiff’s NYCHRL
and Common Law Claims
In light of the dismissal of Plaintiff’s Title VII claims, the Court declines to exercise

supplemental jurisdiction over her NYCHRL and defamation claims. See Carlsbad Tech., Inc. v.
HIF Bio, Inc., 556 U.S. 635, 639 (2009) (a district court’s decision “whether to exercise []
jurisdiction after dismissing every claim over which it had original jurisdiction is purely
discretionary.”); Klein & Co. Futures, Inc. v. Bd. of Trade of City of N.Y., 464 F.3d 255, 263 (2d
Cir. 2006) (the decision whether to exercise supplemental jurisdiction is entirely within the court’s
discretion and is not a “litigant’s right”); Itar–Tass Russian News Agency v. Russian Kurier, Inc.,
140 F.3d 442, 445 (2d Cir. 1998) (finding that courts must determine whether to continue to
exercise supplemental jurisdiction “at every stage of the litigation.”).11
CONCLUSION
For the reasons stated herein, the Court grants Defendant’s motion to dismiss the complaint
in this action, as well as the claims raised in Plaintiff’s amended complaint and at oral argument.
In any event, Plaintiff’s claim for defamation of character would fail under Rule 12(b)(6).
“Under New York law, the elements of a defamation claim are ‘a false statement, published
without privilege or authorization to a third party, constituting fault . . . and it must either cause
special harm or constitute defamation per se.’” Peters v. Baldwin Union Free Sch. Dist., 320 F.3d
164, 169 (2d Cir. 2003) (quoting Dillon v. City of New York, 704 N.Y.S.2d 1, 5 (1st Dep’t 1999)).
A statement has a defamatory meaning if it “‘tends to expose the plaintiff to public contempt,
ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking
persons, and to deprive him of their friendly intercourse in society.’” Foster v. Churchill, 87
N.Y.2d 744, 751 (1996) (quoting Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 379
(1977)). Even if the Court exercised supplemental jurisdiction over Plaintiff’s defamation claim,
the Court would have to dismiss this claim because there is no allegation establishing that
Defendant’s response to Plaintiff’s NYSDHR complaint was not privileged or authorized, and
because Plaintiff fails to allege facts demonstrating that she was exposed to “public contempt,
ridicule, aversion or disgrace” as a result of Defendant’s statements. Id.
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While the Court appreciates that Plaintiff genuinely feels aggrieved by the conduct of her supervisors
at KCHC and that Plaintiff’s termination from KCHC has had significant consequences for Plaintiff
and her family, she has not adequately alleged facts from which to infer that this conduct was
motivated, in any way, by racial or ethnic animus. The Court certifies pursuant to 28 U.S.C.
1915(a)(3) that any appeal 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, 444–45 (1962).
The Clerk of Court is respectfully requested to enter judgment and terminate this case.

SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: July 20, 2018
Brooklyn, New York

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