Dasrath v. Stony Brook University Medical Center
ORDER ADOPTING REPORT AND RECOMMENDATIONS: SO ORDERED that the Court is satisfied that this recommendation is not facially erroneous, and it is adopted by the Court. Upon de novo review of the remaining recommendations of the Report, the Court hereby denies plaintiff leave to amend to assert retaliation claims pursuant to Section 1981 and NYSHRL against Strianse and Giacopelli. The only claims that remain pending in this action are: (i) discrimination in violation of Title VII against the Medical Center, on grounds other than hostile work environment; and (ii) discrimination in violation of NYSHRL § 296(1) against Strianse. Ordered by Judge Sandra J. Feuerstein on 4/29/2014. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-againstSTONY BROOK UNIVERSITY MEDICAL
CENTER, PETER GIACOPELLI, KARL VON
BRAUN, JEANNENE STRIANSE,
IN CLERK'S OFFICE
U S DISTRICT COURT E D N Y
1\Pfl 2 9 Z014
LONG ISLAND OFFICE
On March 27,2012, plaintiff Anand Dasrath ("plaintiff') commenced this action against
his former employer, Stony Brook University Medical Center (the "Medical Center"), alleging
discrimination upon the basis of national origin and race in violation of Title VII of the Civil
Rights Act of 1964,42 U.S.C. §§ 2000e, et seq. ("Title VII"). [Docket Entry No.1]. On July
24,2012, plaintiff filed an amended complaint against the Medical Center, and his former
supervisors, Peter Giacopelli, Karl Von Braun, and Jeannene Strianse (the "individual
defendants"), asserting discrimination and retaliation claims pursuant to Title VII and the New
York State Human Rights Law ("NYSHRL"). 1 [Docket Entry No.3].
On October 19,2012, defendants moved to dismiss the amended complaint. [Docket
Entry No. 16]. By order dated August 9, 2013 ("Dismissal Order"), this Court granted in part
Specifically, plaintiff asserted the following claims against the Medical Center: (i) discrimination
in violation of Title VII; (ii) retaliation in violation ofTitle VII; (iii) discrimination in violation of
NYSHRL § 296(1); and (iv) retaliation in violation ofNYSHRL § 296(7). Plaintiff also asserted the
following claims against Giacopelli, Von Braun, and Strianse: (i) discrimination in violation ofNYSHRL
§ 296(1); (ii) retaliation in violation ofNYSHRL § 296(7); and (iii) aiding and abetting discrimination in
violation ofNYSHRL § 296(6).
and denied in part defendants' motion to dismiss. [Docket Entry No. 21]. The Court dismissed
all but the following two (2) claims: (i) Title VII discrimination claim against the Medical
Center, not based upon hostile work environment; and (ii) the NYSHRL § 296(1) discrimination
claim against Strianse. All dismissals were ordered with prejudice, except for the NYSHRL §
296(6) aiding and abetting claims against Strianse and Giacopelli, upon which the Court granted
plaintiff leave to amend no later than August 30, 2013. The Court referred plaintiff and the
remaining two (2) defendants, the Medical Center and Strianse ("defendants"), to Magistrate
Judge William D. Wall to conduct and complete discovery by December 19, 2013 on the two (2)
On December 19,2013, plaintiff served defendants with his motion for leave to file a
second amended complaint ("Motion to Amend"), which seeks to reassert NYSHRL retaliation
claims against the individual defendants, and for the first time, assert a claim for retaliation under
42 U.S.C. § 1981 ("Section 1981 ") against the Medical Center, Strianse, and Giacopelli, based
upon plaintiffs complaint of discrimination during his call to Strianse on April 9, 2010 (the
"April9, 2010 Phone Call"). Memorandum of Law in Support of Plaintiff's Motion for Leave to
File a Second Amended Complaint [Docket Entry No. 31] ("Pl. Mot."), at I. In support of his
Motion to Amend, plaintiff relies upon "new facts which were found out during discovery" that
purportedly "remov[e] the basis for dismissal of these [retaliation] claims." (Id.). 2 These
Plaintiff argues that these "new facts" reveal that plaintiff was going to be given opportunities to
Plaintiff gathers these "new facts" from the following documents, which are attached as exhibits
to the Motion to Amend: (i) letters from Giacopelli to Strianse [Exs. B, C, G]; (ii) a supervisory plan
setting forth standards for plaintiff to follow for "the remainder of employment at [the] Medical Center"
("Supervisory Plan") [Ex. D]; (iii) memorandum created by Strianse ("Strianse Memorandum") [Ex. E];
(iv) deposition testimony ofStrianse, Giacopelli, and Von Braun [Exs. F, K, L]; (iv) letter, dated April22,
2010, informing plaintiff that his "appointment will not be renewed at the end of[his] term on April30,
2011" ("Non-Renewal Letter") [Ex. H]; and (v) defendants' objections and responses to plaintiff's first
set of interrogatories [Ex. J].
keep his job, but defendants decided not to renew plaintiff's appointment within two (2) weeks
of his complaint of discrimination to Strianse during the April 9, 20 I 0 Phone Call.
On February 27,2014, Magistrate Judge Wall issued a report (the "Report"),
recommending that plaintiff's Motion to Amend be granted in part and denied in part. [Docket
Entry No. 39]. The Report recommends that plaintiff be denied leave to amend to assert
retaliation claims against the Medical Center, but that plaintiff's motion be granted to the extent
that it seeks to assert retaliation claims pursuant to Section 1981 and NYSHRL against Strianse
and Giacopelli based on the April9, 2010 Phone Call. Report, at I, 8. The Report further
recommends that the discovery deadline be extended and the parties be permitted to engage in
additional discovery on these claims. Report at I.
On March 13,2014, defendants filed objections to the Report only insofar as it
recommends that plaintiff be granted leave to amend to assert retaliation claims against Strianse
and Giacopelli in their individual capacities pursuant to Section 1981 and NYSHRL. [Docket
Entry No. 41]. The Court adopts that recommendation upon concluding it is not facially
erroneous. For the reasons that follow, upon de novo review of the portions of the Report to
which defendants object, plaintiff's motion for leave to amend to assert retaliation claims against
Strianse and Giacopelli is denied.
Standard of Review
Rule 72 of the Federal Rules of Civil Procedure permits a magistrate judge to conduct
proceedings of dispositive pretrial matters without the consent ofthe parties. Fed. R. Civ. P.
72(b ). Any portion of a report and recommendation on dispositive matters to which a timely
objection has been made is reviewed de novo. 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b).
However, "when a party makes only conclusory or general objections, or simply reiterates the
original arguments, the Court will review the report strictly for clear error." Frankel v. City of
N.Y, Nos. 06 Civ. 5450,07 Civ. 3436,2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009). The
Court is not required to review the factual findings or legal conclusions of the magistrate judge
as to which no proper objections are made. See Thomas v. Arn, 474 U.S. 140, 150 (1985). To
accept the report and recommendation of a magistrate judge on a dispositive matter to which no
timely objection has been made, the district judge need only be satisfied that there is no clear
error on the face of the record. See Fed. R. Civ. P. 72(b); Johnson v. Goord, 487 F. Supp. 2d
377, 379 (S.D.N.Y. 2007), aff'd, 305 F. App'x 815 (2d Cir. Jan. 9, 2009); Baptichon v. Nev.
State Bank, 304 F. Supp. 2d 451,453 (E.D.N.Y. 2004), aff'd, 125 F. App'x 374 (2d Cir. Apr. 13,
2005). Whether or not proper objections have been filed, the district judge may, after review,
accept, reject, or modify any of the magistrate judge's findings or recommendations. 28 U.S.C.
§ 636(b)(l); Fed. R. Civ. P. 72(b).
Leave to Amend
Federal Rule of Civil Procedure 15(a)(2) provides that a party shall be given leave to
amend "when justice so requires." Fed. R. Civ. P. 15(a)(2). "[T]he grant or denial of an
opportunity to amend is within the discretion of the District Court." Foman v. Davis, 371 U.S.
178, 182, 83 S.Ct. 229,9 L.Ed.2d 222 (1962). "Where it appears that granting leave to amend is
unlikely to be productive, however, it is not an abuse of discretion to deny leave to amend."
Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243,258 (2d Cir. 2002) (quoting Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993)). "A district court has discretion to deny
leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the
opposing party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007); see
also Ruotolo v. City ofN. Y, 514 F.3d 184, 191 (2d Cir. 2008). "The court also has discretion to
deny leave to amend ... where the belated motion would unduly delay the course of proceedings
by, for example, introducing new issues for discovery." Grace v. Rosenstock, 228 F.3d 40, 53
(2d Cir. 2000) (citation omitted).
The Court denies plaintiff leave to amend to assert retaliation claims against Strianse and
Giacopelli because: (I) amendment would be unduly prejudicial to defendants; (2) plaintiff seeks
to amend after an undue delay; (3) plaintiffs misrepresentations indicate bad faith; and (4)
amendment would be futile.
"Amendment may be prejudicial when, among other things, it would 'require an
opponent to expend significant additional resources to conduct discovery and prepare for trial' or
'significantly delay the resolution of the dispute."' AEP Energy Servs. Gas Holding Co. v. Bank
ofAm., NA., 626 F.3d 699, 725-26 (2d Cir. 2010). Because the Dismissal Order dismissed all of
plaintiff's retaliation claims were dismissed with prejudice, defendants did not conduct discovery
with respect to any retaliation claim, and Giacopelli has not engaged in any discovery because all
claims against him were dismissed. Furthermore, discovery on the two (2) remaining claims the Title VII discrimination claim against the Medical Center (on grounds other than hostile
work environment), and the NYSHRL discrimination claim against Strianse- closed on
December 19, 2013. Plaintiff did not serve defendants with the instant Motion to Amend until
December 19,2013, the date that discovery closed on the remaining claims and nearly two (2)
years since the filing of the original complaint.
Permitting plaintiff to amend his complaint for the second time to assert retaliation claims
would unduly delay this litigation and prejudice defendants. See McCarthy, 484 F.3d at 202
(upholding denial of leave to amend where, inter alia, plaintiff did not seek to amend until
"discovery had closed" and "nearly two years had passed since the filing of the original
complaint"); Ansam Assocs. v. Cola Petroleum, Ltd., 760 F .2d 442, 446-47 (2d Cir. 1985)
(affirming denial of leave to amend where, inter alia, "proposed amendment would be especially
prejudicial given the fact that discovery had already been completed" and proposed claims "were
derived from a different statute"); Rivers v. NYC Housing Authoirty, 2014 WL 1311557, at *5
(E.D.N.Y. Mar. 31, 2014) ("[S]ince discovery has closed and a briefing schedule has been set ...
permitting supplementation would unduly delay this litigation and prejudice defendants.").
B. Undue Delay
Plaintiff bases his Motion to Amend on "new facts which were found out during
discovery," which plaintiff claims establish that he was retaliated against following the April 9,
2010 Phone Call. Pl. Mot., at I. Plaintiff primarily relies on facts revealed by the Non-Renewal
Letter, the Supervisory Plan, and the deposition testimony of Strianse. However, at the time
plaintiff filed the initial complaint in March 2012, he was aware of the existence of both the
Non-Renewal Letter, the April 9, 2010 Phone Call, and the Supervisory Plan.
Plaintiff does not dispute that he was sent the Non-Renewal Letter. See PI. Mot., at 3
("On April 22, 2010, Defendants sent a letter indicating that Plaintiff Dasrath would not be
reappointed"). Instead, plaintiff claims to have not received the Non-Renewal Letter, 3 and that at
the time he filed his amended complaint, he was unaware that the purported adverse employment
action- the decision not to renew his appointment- had occurred in April 2010. See
Memorandum of Law in Reply to Defendants' Opposition and Further Support of Plaintiffs
The Non-Renewal Letter was sent to plaintiff at the same address provided by plaintiff in his
written complaint to the Equal Employment Opportunity Commission ("EEOC"). See Mot. to Dismiss,
Ex. A ("EEOC Complaint") [Docket Entry No. 16-3]. The law is clear that a "properly addressed piece
of mail [that] was placed in the case of the Postal Service ... is presumed to have been delivered." Dunn
v. Albany Medical College, 445 F. App'x 431, 432 (2d Cir. Nov. 15, 2011). Plaintiffs unsupported claim
that he did not receive the Non-Renewal Letter does not rebut the presumption of receipt. See Akey v.
Clinton Cnty., 375 F.3d 231, 235 (2d Cir. 2004) ("Denial of receipt, without more, is insufficient to rebut
Motion for Leave to File a Second Amended Complaint ("Reply") [Docket Entry No. 33], at 4
("If Plaintiff had known that the decision to not renew his contract was made less than two
weeks after the complaint of discrimination on April 9, 20 I 0 then he would have alleged this in
his Amended Complaint."). Assuming arguendo that plaintiff did not receive the Non-Renewal
Letter in April2010, there is no doubt that plaintiff was aware of its existence before he
commenced this action on March 7, 2012. In a letter written by plaintiff in August 20 II to the
EEOC, plaintiff admitted that he was presented with the Non-Renewal Letter at a grievance
meeting on June I, 2011 with the director of human resources of Stony Brook. See EEOC
Complaint, at 5, '1[9.
Similarly, there is no question that plaintiff saw the Supervisory Plan as early as
September 24,2010. In a signed interrogation statement, dated September 24, 2010, plaintiff
stated that, "I was shown a document titled 'Supervisory Plan' by Santo. 4 It is the first time I
have seen his [sic] document." Mot. to Dismiss, Ex. N [Docket Entry No. 32-1]. Plaintiffs
contention that he had not seen the Supervisory Plan prior to his deposition is contradicted by his
earlier signed statement. See Defendants' Opposition to Plaintiff's Motion to Amend ("Opp. "),
Ex. A ("Dasrath Depo.") [Docket Entry 32-1], at 233:5-9 ("No, I never see [the Supervisory
Plan] before. First time in my life."). Plaintiff's self-serving misrepresentations about when he
learned of these "new facts" do not excuse his undue delay in waiting until this late stage of the
case to assert a claim for retaliation based on the April 9, 2010 Phone Call. Accordingly,
plaintiffs motion for leave to amend to assert retaliation claims against Strianse and Giacopelli
is denied. See Parker v. Columbia Pictures Inds., 204 F.3d 326, 341 (2d Cir. 2000) (affirming
denial of leave to amend where plaintiff "had all the information necessary to support [the
Santo Barravecchio, the labor relations manager at the time, was present while plaintiff made his
statement on September 24,2010.
proposed amended] claim" "[w]hen he commenced [the] action," "and nothing he learned in
discovery or otherwise altered that fact").
C. Bad Faith
Plaintiffs clear attempt to mislead the Court to avoid a finding of undue delay by
misrepresenting when he learned about the Non-Renewal Letter and the Supervisory Plan
undeniably reflects bad faith. See Kant v. Columbia Univ., No. 08 Civ. 7476, 2010 WL 807442,
at *7 (S.D.N.Y. Mar. 9, 2010) (noting court may deny motion to amend on bad faith grounds
where "proposed amendments concern facts clearly within the plaintiff's knowledge when
previous complaints were filed"). Plaintiffs motion papers also contain numerous additional
misrepresentations that further evidence his bad faith.
Plaintiff argues that until he made the April 9, 20 I 0 Phone Call to Strianse, he "had
multiple additional opportunities to continue in employment provided that he met certain
standards" set forth in the Supervisory Plan. Pl. Mot., at 2. This statement is a blatant
misrepresentation of the Supervisory Plan, which merely provided standards for plaintiff to
follow "[f]or the remainder of employment at Stony Brook University Medical Center," and
advised that "[s]hould (plaintiff] feel that the above mentioned [standards] cannot be attained, his
Non-Renewal will become effective IMMEDIATELY." Supervisory Plan. No possible reading
of the Supervisory Plan leads to plaintiff's conclusion that it provided him with "multiple
additional opportunities to continue in employment."
Plaintiff heavily relies on Strianse's deposition testimony to establish a causal connection
between the April 9, 20 I 0 Phone Call and the determination not to renew plaintiffs appointment.
Plaintiff contends that Strianse testified that "following this complaint, there was no possibility
that Plaintiff Dasrath would be permitted to continue to work for Defendant Stony Brook., and
that she would not recommend that the Plaintiff keep his job." Pl. Mot., at 2 (emphasis added).
However, Strianse was asked whether "there was any chance at all that [plaintiff] was going to
keep his job" "[a]fter you had that conversation with [plaintiff]." Mot. to Amend, Ex. F
("Strianse Depo.") [Docket Entry No. 31-8], at 147:25-148:3 (emphasis added). Plaintiffs
summary of Strianse' s testimony is a disingenuous attempt to avoid the fact that her answer was
based primarily on plaintiffs actions throughout the entire April 9, 2010 Phone Call. As
Strianse explained, "[she] didn't feel that he had a complaint about discrimination" and "thought
he was ranting on the phone," and she "didn't know if he was stable." Strianse Depo., at 137:18138:4. Despite plaintiffs contention to the contrary, Strianse's testimony in no way constitutes
"an admi[ssion] that Plaintiffs April 9, 2009 complaint was the cause of his termination."
Reply, at I.
Plaintiff's various misrepresentations and selective use of"new facts," intended to
manufacture a causal connection between the April9, 2010 Phone Call and the Non-Renewal
Letter, are evidence of plaintiff's bad faith. Accordingly, plaintiffs motion to amend is also
denied on bad faith grounds. See e.g., Gurvery v. Cowan, Liebowitz & Latman, P.C., No. 06
Civ. 1202,2013 WL 3718071, at *II (S.D.N.Y. July 15, 2013) (denying motion to amend
where, among other reasons, plaintiffs numerous misrepresentations "are clearly intended to
mislead the Court" and are "evidence of her bad faith"); Whimisica/ity, Inc. v. Battat, 27 F. Supp.
2d 456,465 (S.D.N.Y. 1998) (denying motion to amend where, among other reasons, plaintiff
acted in bad faith by intentionally misleading the court).
Defendants claim that any amendment by plaintiff to assert retaliation claims based on
the April 9, 20 I 0 Phone Call would be futile. "An amendment to a pleading will be futile if a
proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)( 6)." Dougherty
v. Town ofN Hempstead Bd ofZoning, 282 F.3d 83, 88 (2d Cir. 2002) (citation omitted).
Dismissal under Rule 12(b)(6) may be granted where "it appears beyond doubt, even when the
complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle
him to relief." Sees. Inv. Protection Corp. v. BDO Seidman, LLP, 222 F.3d 63, 68 (2d Cir. 2000)
(internal quotation marks and citation omitted).
Plaintiff seeks leave to amend to reassert NYSHRL retaliation claims and to assert for the
first time a Section I 981 retaliation claim, both of which are evaluated using the same
framework. See Summa v. Hofstra Univ., 708 FJd 115, 125 (2d Cir. 2013) ("The burdenshifting framework laid out in McDonnell Douglas ... governs retaliation claims under both
Title VII and the NYSHRL."); Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712,720
(2d Cir. 2010) ("Retaliation claims made under 42 U.S.C. § 1981, like those made under Title
VII, are evaluated using a three-step burden-shifting analysis."). To state a claim for retaliation,
a plaintiff must plead facts that demonstrate: "(!) participation in a protected activity; (2) that
the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal
connection between the protected activity and the adverse employment action." Rojas v. Roman
Catholic Diocese of Rochester, 660 F.3d 98, 107 (2d Cir. 2011) (citation omitted).
1. Causal Connection
Plaintiff has failed to adequately plead the "causal connection" element of retaliation,
which requires "that a retaliatory motive played a part in the adverse employment action."
Kesslerv. Westchester Cnty. Dep 't of Social Servs., 461 F.3d 199, 206 (2d Cir. 2006). Plaintiff
selectively uses "new facts" to manufacture a causal connection between the purported protected
activity (his complaint of discrimination during the April 9, 2010 Phone Call) and the purported
retaliation ("the failure to reappoint Plaintiff to his position resulting in his termination"). Pl.
Mot., at 1. In reliance on plaintiff's misleading presentation of these "new facts," the Report
concluded that plaintiff's proposed amended complaint states a plausible claim of retaliation
because "before (plaintiff] engaged in protected activity the defendants intended to give him an
opportunity to improve, as set out in the Supervisory Agreement," "[b]ut, as Strianse testified at
her deposition, his termination was a certainty after the protected activity, later on the same day."
Report, at 8. While plaintiffs allegations may establish temporal proximity, the documents from
which plaintiff gathers these "new facts" include additional information that defeat any inference
of a causal connection between the protected activity and alleged retaliation. 5 See Gubitosi v.
Kapica, 154 F.3d 30,33 (2d Cir. 1998) (inference of retaliation that was established by "short
time between the date submitted her [complaints] ... and the date she was terminated" was
defeated by "the significant intervening events between these two dates").
Plaintiff relies on the Supervisory Plan to demonstrate that he "had multiple additional
opportunities to continue in employment provided that he met certain standards." Pl. Mot., at 2
(citing Supervisory Plan). Plaintiff also cites to the Strianse Memorandum to show that he
contacted Strianse on April 9, 2010, "telling her that he was 'very upset with the evaluation' and
that he felt that Mr. Giacopelli 'hates him because (plaintiff] is not white."' !d. (citing Strianse
Memorandum). Furthermore, plaintiff relies on Strianse's deposition testimony to establish that
"following this complaint, there was no possibility that (plaintifi] would be permitted to continue
to work for Defendant." !d. (citing Strianse Depo. at 147-48).
This Court may properly consider the remaining portions of the documents upon which plaintiff
relies to support his Motion to Amend, in order to determine whether plaintiffs proposed amendment is
futile and would withstand a motion to dismiss under Rule 12(b)( 6). See Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir. 2002) (noting that on a motion to dismiss, the court may consider a document,
even if not attached or incorporated by reference, where the complaint "relies heavily upon its terms and
effect," thus rendering the document "integral" to the complaint (quoting Int'l Audiotex! Network, Inc. v.
Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995))).
Noticeably absent from plaintiff's reference to "new facts" are the descriptions, found in
the same documents, of plaintiffs conduct that directly contravenes the standards set forth in the
Supervisory Plan, which require plaintiff, inter alia, to "[s]how competency and dedication to the
order entry process [using the pharmacy computer system]," to be "[r]espectiful of departmental
authority, co-workers and other healthcare professionals," and warned plaintiff that
"[i]nsubordination, in any form or nature, will not be tolerated." Supervisory Plan. Specifically,
plaintiff does not mention the summary in the Strianse Memorandum of Giacopelli's description
of the "scene when [plaintiff] was given his evaluation," during which "[plaintiff] raised his
voice, called [Giacopelli] names, and blatantly told him that he had no intention of learning the
pharmacy computer system." Strianse Memorandum. Plaintiff also ignores Strianse's
deposition testimony regarding plaintiff's expression of disrespect for Giacopelli during her
conversation with plaintiff following the April9, 2010 Phone Call. See Strianse Depo. at
134:18-135:4 ("All he was telling me was that he didn't respect [Giacopelli], that he thought
[Giacopelli] was a moron, that he didn't think [Giacopelli] should be telling him, that he just had
no respect for [Giacopelli] ... and how much he thought that [Giacopelli] shouldn't be a
The documents upon which plaintiff now moves for leave to amend, when examined in
their entirety, reveal that plaintiffs actions unequivocally violated the standards set forth in the
Supervisory Plan and provided a non-retaliatory basis for the non-renewal of plaintiff's
appointment. See Hahn v. Bank ofAm., Inc., No. 12 Civ. 4151,2014 WL 1285421, at *19 ("Any
of these events would have been sufficient to justifY Plaintiffs termination and hence to break
any chain of causation [established by temporal proximity] from Plaintiff's protected activity.").
Plaintiffs misleading use of "new facts" is insufficient to create a plausible inference of a causal
connection between plaintiffs complaint of discrimination during the April 9, 2010 Phone Call
and the Non-Renewal Letter. Accordingly, amending the complaint to assert claims of
retaliation based on the April 9, 20 I 0 Phone Call would be futile because such claims could not
withstand a motion to dismiss. Therefore, plaintiff's request for leave to amend is denied. 6 See
Murdaugh v. City ofN Y., No. 10 Civ. 7218,2011 WL 1991450, at *2 (S.D.N.Y. May 19, 2011)
("Plaintiffs 'new evidence' that it intends to present in an emended [c]omplaint is insufficient to
establish [the proposed] claim ... and is therefore denied as futile.").
2. Personal Liability Under Section 1981
Permitting plaintiff to amend to assert a Section 1981 claim would also be futile because
plaintiff has not alleged personal involvement. "In order to make out a claim for individual
liability under § 1981, a plaintiff must demonstrate some affirmative link to causally connect the
actor with the discriminatory action." Patterson v. v Cnty. Of Oneida, NY., 375 F.3d 206,229
(2d Cir. 2004) (internal quotation marks and citations omitted). Furthermore, "[p]ersonal
liability under section !981 must be predicated on the actor's personal involvement." !d. The
Report concluded that plaintiff's proposed amended complaint alleges personal involvement by
Strianse and Giacopelli in their individual capacities. Defendants object to this finding. 7
Plaintiff requests that the Court alternatively deem this Motion to Amend as a motion for
reconsideration under Federal Rule of Civil Procedure 60(b). Upon reconsideration, the Court adheres to
its original determinations in the Dismissal Order. See Rijos v. N.Y. Community Bancorp, Inc., 2011 WL
1496800, at *I (denying motion for reconsideration where "(t]he court has reviewed the parties'
submissions, and concludes that it should neither revisit the dismissal of Plaintiff's [claim], nor allow
Plaintiff to amend her complaint to reassert that claim" because "[p]laintiff' s proffered new evidence does
nothing to change the court's previously stated conclusion").
Defendants do not object to the Report's conclusion that the Eleventh Amendment bars plaintiff
from asserting Section 1981 retaliation claims against the Medical Center, and Strianse and Giacopelli, in
their official capacities.
The proposed amended complaint alleges that Strianse and Giacopelli "determined
immediately after [the April 9, 201 OJ complaint [of discrimination] that Plaintiff DASRATH
would not be reappointed," yet it contains no allegations that Strianse and Giacopelli made the
ultimate determination not to renew plaintiff's appointment. Reply, Ex. I ("Proposed Second
Am. Campi.") [Docket Entry No. 33-2], '1['1[43-44. Its sole reliance on the Non-Renewal Letter,
dated April 22, 2010 and signed by human resources assistant director Faith Merrick, in
insufficient to allege the personal involvement of Strianse and Giacopelli in the purported
adverse employment action. 8
Furthermore, even assuming the proposed amended complaint alleges sufficient facts to
show that Strianse was the "ultimate decision maker," it does not allege that Strianse had a
retaliatory motive. Plaintiff's allegation that he complained to Strianse about Giacopelli' s
discriminatory behavior is insufficient to establish that Strianse had a discriminatory motive. See
Dorsey v. Fisher, 468 F. App'x 25, 27 (2d Cir. Mar. 13, 2012) (summary order) ("[T]he fact that
[plaintifl] filed a grievance against [one defendant] does not support the inference that [another
defendant] retaliated against [plaintiff]."). Accordingly, the proposed amended complaint would
be futile because it fails to state a claim for Section 1981 retaliation.
The Report concludes that "although the proposed complaint does not expressly assert that the
individuals were ultimate decision makers, such an allegation can be inferred from the other allegations"
and that "[a]rguments that they were not decision makers should await dispositive motion practice."
Report, at 12. The Court disagrees. Plaintiff seeks leave to amend his complaint at this late stage based
upon "new facts" learned during discovery, including Giacopelli's deposition testimony, which he argues
in his reply brief makes "clear that [defendants] are the ultimate decision makers." Reply, at 5.
However, plaintiff may not rely on the portions ofGiacopelli's deposition testimony that he finds useful
to justif'y his delayed request to amend his complaint to reassert claims of retaliation, and simultaneously
ignore Giacopelli's explanation that he only "can make a recommendation" to the "upper enchalant" to
renew or not to renew, and that he is "not the one that makes the final decision." Reply, Ex. K
("Giacopelli Depo.") [Docket Entry No. 33-4], at 75:22-76: I 5.
No objections have been made to the portion of the Report that recommends that plaintiff
be denied leave to amend to assert retaliation claims against the Medical Center. Upon review,
the Court is satisfied that this recommendation is not facially erroneous, and it is adopted by the
Upon de novo review of the remaining recommendations of the Report, the Court hereby
denies plaintiff leave to amend to assert retaliation claims pursuant to Section 1981 and
NYSHRL against Strianse and Giacopelli. The only claims that remain pending in this action
are: (i) discrimination in violation of Title VII against the Medical Center, on grounds other than
hostile work environment; and (ii) discrimination in violation ofNYSHRL § 296(1) against
s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: April29, 2014
Central Islip, New York
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