Yin v. North Shore LIJ Health System

Filing 24

ORDER finding as moot 16 Motion to Dismiss for Failure to State a Claim; denying 18 Motion to Amend/Correct/Supplement. For the reasons set forth in the attached Memorandum and Order, defendant's motion to dismiss is moot. In addition, p laintiff's filing her proposed first amended complaint would be futile, and her motion to amend is denied. The clerk of the Court is directed to close this case. Ordered by Judge Denis R. Hurley on 5/19/2014. (Kaley, Regina) (Main Document 24 replaced on 5/19/2014) (Lundy, Lisa).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------HONG YIN,
Plaintiff,

MEMORANDUM AND ORDER
12-CV-1499 (DRH)(AKT)

-againstNORTH SHORE LIJ HEALTH SYSTEM,
Defendant.
--------------------------------------------------------X
APPEARANCES:
For the Plaintiff:
LAW OFFICE OF JONATHAN BELL
30 Jericho Executive Plaza #100e
Jericho, NY 11753
By:
Jonathan Bell, Esq.
For the Defendant:
NIXON PEABODY LLP
50 Jericho Quadrangle
Suite 300
Jericho, NY 11753
By:
Christopher G. Gegwich, Esq.
Alexander Elliott Gallin, Esq.

HURLEY, Senior District Judge:
Plaintiff Hong Yin (“plaintiff”) commenced this action against defendant North Shore
Long Island Jewish Health System (“defendant”) asserting claims of “discrimination and
retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e) et
seq. (“Title VII”) and The Americans with Disabilities Act Amendment Act (“ADAAA”).”
(Complaint at I.) Initially, defendant moved to dismiss these claims, however, plaintiff “agree[d]
to withdraw” the claims in her original Complaint, conceding that “upon reviewing Defendant’s
motion to dismiss, [she] realized that she might benefit from addressing alleged deficiencies

pointed out in Defendant’s motion and that the initial Complaint could benefit from significant
revision.” (Pl.’s Mem. in Opp’n to Def.’s Mot. to Dismiss and in Supp. of Mot. to Amend (“Pl.’s
Mem. in Opp’n”) at 1, 8.) Plaintiff, although she does not oppose the dismissal of her original
complaint, seeks leave to file an amended complaint. Towards that end, she submits a proposed
First Amended Complaint (“FAC”), claiming that it “cures any alleged deficiencies discussed in
Defendant’s motion to dismiss.” (Id. at 2.) Plaintiff’s FAC does not assert any claims pursuant
to Title VII, and it contains “additional material facts” and additional claims under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12102 et seq., and the New York State
Human Rights Law (“NYSHRL”), New York Executive Law § 290 et seq. (Id.) Specifically,
plaintiff claims that: (1) she was discriminated against because she was disabled and because
defendant perceived her to be disabled; (2) defendant failed to reasonably accommodate her
disability; (3) defendant retaliated against her; and (4) defendant subjected her to a hostile work
environment.
Given plaintiff’s withdrawal of her original complaint, defendant’s motion to dismiss her
original complaint claims is moot. The remaining question before the Court is whether plaintiff
should be given leave to file her FAC. For the reasons set forth below, plaintiff’s motion to file
an amended complaint is denied.
BACKGROUND
Plaintiff began employment as a physician in defendant’s obstetrics and gynecology
residency program at Long Island Jewish Medical Center 1 (“LIJMC”) on July 1, 2010. (FAC ¶
9.) During plaintiff’s employment, Adiel Fleischer, M.D. (“Dr. Fleischer”) was the Chairman of

1

LIJMC “is a full-service academic medical center and a member institution of North
Shore Long Island Jewish Health System (“North Shore-LIJ”). (Def.’s Mem. in Supp. of Mot. to
Dismiss (“Def.’s Mem. in Supp.”) at 1.)
2

the OB/GYN Department at LIJMC and Leah A. Kaufman, M.D. (“Dr. Kaufman”) was the
Director of the OB/GYN Residency Program. (Id.).
At the age of fifteen, plaintiff was diagnosed with major depressive disorder and anxiety
disorder, which she managed through behavioral therapy and pharmacotherapy. (Id. ¶ 12.)
Additionally, during her time in defendant’s residency program, plaintiff’s psychiatrist diagnosed
her with Post Traumatic Stress Disorder (“PTSD”). (Id. ¶13.) Throughout her residency,
plaintiff regularly saw her psychiatrist. (Id. ¶ 14.)
From July 1, 2010 to August 28, 2010, plaintiff worked nights in Obstetric Service. (Id. ¶
16.) During this time, plaintiff received praise from various doctors for her performance. (Id.)
According to plaintiff, “[t]here were a few incidents during this period when [she] briefly cried,”
and “[a]fter one of [those] instances a nurse practitioner insisted that Plaintiff go home.” 2 (Id.)
From August 30, 2010 to September 24, 2010, plaintiff worked in Emergency Department
Service. (Id. ¶17.) During this time, the attending physicians were satisfied with plaintiff’s
performance and praised her. (Id.) From September 26, 2010 through October 23, 2010,
plaintiff worked in Gynecology Service. (Id. ¶ 18.) There, plaintiff’s performance continued to
be satisfactory, although she received some criticism for her “tone.” (Id.) From October 24,
2010 to December 25, 2010, plaintiff worked days in Obstetric Service. (Id. ¶ 19.) Plaintiff’s
performance during this period remained satisfactory, and she received additional positive
feedback. (Id.) During this rotation, however, Dr. Kaufman “acknowledged that Plaintiff was
unhappy and asked if Plaintiff was receiving appropriate emotional support,” to which plaintiff
responded that she was. (Id.) From December 26, 2010 to January 21, 2011, plaintiff served in
Medical ICU, and her performance continued to be satisfactory. (Id. ¶ 20.)

2

Plaintiff does not elaborate on the circumstances surrounding these crying episodes.
3

In January of 2011, plaintiff’s psychiatrist prescribed her Klonopin to treat her anxiety.
(Id. ¶ 22.) Around this time, plaintiff met with Dr. Kaufman for her semi-annual review, during
which Kaufman inquired about her emotional status and stated that she felt plaintiff’s ratings
were influenced by people’s perceptions of plaintiff as being depressed. (Id. ¶ 23). Between
January 24, 2011 and March 21, 2011, Kaufman inquired about plaintiff’s emotional status on
multiple occasions. (Id. ¶ 24.) On January 31, 2011, plaintiff disclosed to Kaufman that she
“suffered from mental illness and was under the care of a psychiatrist for appropriate
management.” (Id.) Plaintiff asserts that after she disclosed her depression to Kaufman, she was
scrutinized at a higher level than her classmates and received more negative feedback than she
had prior to disclosing her disability. (Id. ¶¶ 25, 27.) Plaintiff also asserts that other residents
were treated with more leniency, specifically a resident who was only given a “light warning” for
her repeated tardiness while plaintiff was “often berated for her perceived or alleged
deficiencies.” (Id. ¶ 28.)
From January 24, 2010 to February 18, 2011, plaintiff worked in the Antenatal Testing
Unit in the mornings, in the Medicine Clinic in the afternoons, and in the Obstetric Service on
the weekends. (Id. ¶ 29.) During this time, plaintiff maintains that her work was satisfactory,
but she mentions “two incidents [that] occurred in February for which [she] received negative
feedback.” (Id.) Although plaintiff does not provide any circumstances surrounding these
instances, she claims that the “two incidents were discriminatorily held against [her] and given
undue weight, despite the fact that [she] had improved her performance.” (Id.)
From February 21, 2011 to March 21, 2011, plaintiff worked in Gynecology Service.
During this time, plaintiff asserts that she was “subjected to incessant and unjustifiable criticism
by Dr. Kaufman.” (Id. ¶ 30.) Examples of this treatment included Dr. Kaufman characterizing

4

an educational question plaintiff asked Dr. Katz, another of plaintiff’s supervisors, as
inappropriate despite Dr. Katz’s opinion to the contrary, Dr. Kaufman’s criticism of plaintiff’s
performance on a surgical case, Dr. Kaufman calling plaintiff into her office to “chastise and
harass her” and tell plaintiff her “performance ha[d] deteriorated to a level that [was]
unacceptable,” and Dr. Kaufman’s “demand[] that Plaintiff see her psychiatrist more regularly.”
(Id.) During this time, Dr. Kaufman assigned plaintiff a new mentor, Dr. Leong, whom plaintiff
first met with on February 25, 2011. (Id.) Dr. Leong told plaintiff that “her contract would not
be renewed” and that “this [was her] last chance.” (Id.) Dr. Leong also told plaintiff that “she
[could] not expect ‘coddling’ like [she] had received in the Midwest” and that “she had to face
the culture here in New York.” Dr. Leong also told plaintiff that she was “too emotional,” that
“some people are just not strong enough for this profession,” that she “needed to have a ‘type A
personality’ like her or Dr. Kaufman in order to survive,” and told plaintiff “to get it through her
head that this was not a luxurious setting and that even eating was a luxury.” (Id.)
On March 3, 2011, plaintiff contacted Dr. Kaufman to inquire about her progress, and Dr.
Kaufman responded that plaintiff’s performance was “absolutely inappropriate,” however
“refused to provide any current examples” of her poor performance. (Id.) Around this time,
plaintiff requested written feedback from other attending physicians, but Dr. Kaufman
disapproved of this behavior and told another employee to tell plaintiff to stop requesting these
evaluations. (Id.) Additionally, Dr. Kaufman “expressed concern about Plaintiff attending her
psychiatric appointments,” and plaintiff responded by having her psychiatrist email Dr. Kaufman
to confirm that plaintiff “should be able to function at work and that [she] was meeting with her
psychiatrist regularly.” (Id.)

5

On March 16, 2011, after all other residents had been offered employment contract
renewals, plaintiff approached Dr. Kaufman to inquire about her contract status. (Id.) Dr.
Kaufman refused to speak to plaintiff at length and stated that plaintiff “would most likely get
the contract for renewal the following week.” (Id.) Following this meeting, Dr. Leong
encouraged plaintiff to meet with her. (Id.) During their meeting, Dr. Leong stated that plaintiff
“was too emotional,” could not expect any “coddling,” and had acquired a reputation as “the
resident that cries.” Dr. Leong mentioned that people had a tendency to blame plaintiff when
something went wrong, “even when it was not her fault,” comparing plaintiff to a criminal who
gets out of jail and has to persuade others “that he turned his life around.”
On March 21, 2011, Dr. Kaufman gave plaintiff a letter stating that her performance was
unacceptable and indicating that she would be placed in a remediation program. (Id. ¶ 32.) Dr.
Kaufman was “unreceptive” to plaintiff’s attempt to discuss the letter. (Id.) During her meeting
with Dr. Kaufman plaintiff “felt frozen, felt intense fear, and tried not to fall apart” and became
“extremely sad” and “cried uncontrollably” after the meeting. (Id.) Dr. Katz drove the plaintiff
home, and plaintiff “commenced medical leave that same day.” 3 (Id. ¶¶ 32-33.)
During the week of March 27, 2011, when Dr. Kaufman was on vacation, plaintiff
requested evaluations from multiple attending physicians, and these evaluations “ranged from
satisfactory to excellent.” (Id. ¶ 34.) Additionally, plaintiff met with Dr. Katz at the end of
March, and Dr. Katz “opined that the claims in Kaufman’s March 21, 2011 letter were
misrepresentative.” (Id. ¶ 35.) When Dr. Kaufman returned from vacation approximately two
weeks later, doctors were hesitant to provide plaintiff with evaluations.” (Id. ¶ 37.)

3

It is unclear from the FAC when plaintiff’s medical leave ended.
6

On or around April 1, 2011, plaintiff met with Dr. Fleischer to request an investigation to
“clarify her academic status and performance evaluation,” and she asked that “senior residents be
interviewed about her performance, as they spent the most time with Plaintiff.” (Id. ¶ 36.) At
this meeting, plaintiff complained of the “inappropriate way that she was being treated, including
the way she was being treated by Dr. Kaufman, and the discrepancy between Kaufman’s March
21, 2011 letter and the evaluations that Plaintiff had obtained.” (Id.)
On April 8, 2011, plaintiff spoke with Dr. Fleischer to inquire about the status of the
investigation that she had requested. (Id. ¶ 39.) Although Dr. Fleischer “acknowledged the
discrepancy” between plaintiff’s evaluations and Dr. Kaufman’s letter, Dr. Fleischer suggested
that plaintiff remain in remediation and informed her that no investigation had been conducted.
(Id.) At this meeting, plaintiff “stated that she could not trust the facility or remain in the
program and felt that she had no choice but to resign.” (Id. ¶ 40.) Following plaintiff’s meeting
with Dr. Fleischer, Dr. Kaufman asked plaintiff to sign a formal resignation letter, “verbally
attacked [her], suggesting that Plaintiff was inconsiderate.” (Id. ¶ 41.) Following this
conversation, plaintiff was contacted by an employee that “told Plaintiff that Kaufman had
instructed her to contact Plaintiff about signing a resignation letter.” (Id. ¶ 42.)
On May 2, 2011, plaintiff states that she “explicitly complained about and/or opposed the
discriminatory practices of Defendant,” yet does not elaborate regarding the method of her stated
opposition or give any details about what she stated in her complaint. (Id. ¶ 45.) After leaving
the defendant’s residency program, 4 in July 2012, plaintiff began a new residency program and
has been doing “extremely well.” (Id. ¶ 49.) As such, plaintiff is not seeking reinstatement into
the defendant’s residency program. (Id. ¶ 1.)
4

It is unclear from the FAC whether plaintiff’s employment relationship with LIJMC
ended due to her resignation or defendant’s refusal to renew her contract.
7

DISCUSSION
I. Motion to Amend Standard
Federal Rule of Civil Procedure (“Rule”) 15(a)(2) states that “[t]he court should freely
give leave [to amend] when justice so requires.” Fed. R. Civ. P 15(a)(2). An “[o]utright refusal
to grant the leave without any justifying reason for the denial is an abuse of discretion.” Jin v.
Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002); See McCarthy v. Dun & Bradstreet Corp.,
482 F.3d 184, 200 (2d Cir. 2007). A motion to amend a complaint may be denied, however, if
the amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962) (outlining
factors to consider when determining a motion seeking leave to amend a complaint, including
undue delay, bad faith, dilatory motive, repeated failure to remedy deficiencies in the complaint,
undue prejudice to the defendant, or futility). “A proposed amendment to a pleading is deemed
to be futile if the amended pleading fails to state a claim or would be subject to a successful
motion to dismiss on some other basis.” Kirk v. Heppt, 423 F. Supp. 2d 147, 149 (2d Cir. 2006)
(citing Oneida Indian Nation of New York v. City of Sherrill, 337 F.3d 139, 168 (2d Cir. 2003).
II.

Whether Plaintiff’s Amendment Would be Futile
A.

Primary Jurisdiction

According to defendant, plaintiff’s amendment would be futile because her “claims are
precluded by New York Public Health Law § 2801-b.” (Def.’s Mem. in Supp. of Mot. to
Dismiss (“Def.’s Mem. in Supp.”) at 7.) New York Public Health Law § 2801-b provides:
1. It shall be an improper practice for the governing body of a
hospital to refuse to act upon an application for staff membership
or professional privileges or to deny or withhold from a physician .
. . staff membership or professional privileges in a hospital, or to
exclude or expel a physician . . . from staff membership in a
hospital or curtail, terminate or diminish in any way a physician’s .
. . professional privileges in a hospital, without stating the reasons
therefore, or if the reasons stated are unrelated to standards of

8

patient care, patient welfare, the objectives of the institution or the
character or competency of the applicant.
2. Any person claiming to be aggrieved by an improper practice as
defined in this section may, by himself or his attorney, make, sign
and file with the public health council [(“PHC”)] a verified
complaint in writing which shall state the name and address of the
hospital whose governing body is alleged to have committed the
improper practice complained of and which shall set forth the
particulars thereof and contain such other information as may be
required by the council.
According to defendant, pursuant to this statute “a physician seeking to challenge the termination
of her hospital privileges or separation from a residency program . . . must file a complaint with
the PHC and await its review of the complaint,” and “[o]nly after the PHC has had the
opportunity to review the factual issues of the complaint may a court consider the physician’s
claims.” (Def.’s Mem. in Supp. at 8.)
Under the doctrine of primary jurisdiction, “[g]enerally, a physician in New York
challenging the termination of hospital privileges must first file a complaint with the PHC and
may pursue the matter in the courts only after the PHC has had the opportunity to review the
factual issues.” Deshpande v. Medisys Health Network, Inc., 2008 WL 2004160, at *2
(E.D.N.Y. May 7, 2008). Courts in this circuit, however, have recognized two narrow
exceptions to this doctrine. “The first applies where the physician alleges that his or her
privileges have been terminated for reasons unrelated to medical care and therefore do not
require the particular expertise of the PHC.” Id. “The second applies where the physician seeks
damages, but not reinstatement, and where the presence or absence of a proper medical reason
for terminating the plaintiff’s privileges is not dispositive of the plaintiff’s claims.” Id.; Johnson
v. Nyack Hosp., 964 F.2d 116, 121 (1992) (holding that physician was required to file complaint

9

with PHC where physician “[could] not prevail on his antitrust claim if defendants had legitimate
medical reasons to terminate his surgical privileges”).
Although either exception may prevent a plaintiff from having to file a complaint with
the PHC, the circumstances of this case clearly fall within the second exception, thus obviating
the need to discuss the first exception. Here, plaintiff is not seeking reinstatement. (Pl.’s Mem.
in Opp’n at 6.) Furthermore, the presence or absence of a proper medical reason for deciding not
to renew plaintiff’s contract is not dispositive of plaintiff’s claims because even if the defendant
had legitimate medical reasons for not renewing the contract, the plaintiff could still succeed on
his or her ADA and NYSHRL claims by proving that the proffered legitimate reasons were a
pretext for discrimination. 5 See Chandra v. Beth Israel Med. Ctr., 2010 WL 5600373, at *5
(Dec. 2, 2010), adopted by 2011 WL 180801 (S.D.N.Y. Jan. 19, 2011) (finding that whether
defendants had proper medical reasons for firing plaintiff was not dispositive of plaintiff’s
discrimination claim because plaintiff “could potentially prevail on his claim even if the hospital
had legitimate medical reasons for its actions” by showing that discrimination was a motivating
factor in termination); Hamad v. Nassau Cnty. Med. Ctr., 191 F. Supp. 2d 286, 298 (E.D.N.Y.
2000) (finding that doctrine of primary jurisdiction did not apply because “even if PHC finds that
defendants had legitimate reason for termination of [plaintiff’s] surgical privileges, [plaintiff]
may still prevail in this action if he can prove that the proffered reasons were merely pretext for

5

As discussed infra, plaintiff’s ADA and NYSHRL claims are analyzed according to the
burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–805
(1973), which requires that a plaintiff must first establish a prima facie case of discrimination,
and if it does so then the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its actions; if the employer does so, the burden shifts back to the
plaintiff to prove that the legitimate reasons offered by the defendant were a pretext for
discrimination.
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discrimination”). As a result, the doctrine of primary jurisdiction does not preclude plaintiff’s
claims and do not render plaintiff’s FAC futile.
B.

Administrative Exhaustion

Although the doctrine of primary jurisdiction does not bar plaintiff’s claims, the Court
also must analyze whether plaintiff’s claims under the ADA are precluded because plaintiff
failed to exhaust her administrative remedies regarding these claims by filing a complaint with
the EEOC. In particular, according to defendant, plaintiff’s EEOC charge “did not include any
factual allegations or raise any claims concerning perceived or ‘regarded as’ discrimination, an
alleged failure to accommodate or a claim for constructive discharge.” (Def.’s Mem. in Opp’n to
Pl.’s Mot. to Amend (“Def.’s Mem. in Opp’n”) at 4.)
“Title I of the ADA require[s] a plaintiff to exhaust all available administrative remedies
prior to commencing an employment discrimination action in federal court.” Manello v.
Nationwide Mutual Ins. Co., 2012 WL 3861236, at *8 (E.D.N.Y. Sept. 4, 2012). “Claims that
were not asserted in an EEOC charge may be pursued in a federal action only if they are
‘reasonably related’ to those that were filed with the agency.” Id. at 9. The Second Circuit has
stated that “[a] claim is considered reasonably related if the conduct complained of would fall
within the scope of the EEOC investigation which can reasonably be expected to grow out of the
charge that was made.” Williams v. New York City Housing Auth., 458 F.3d 67, 70 (2d Cir.
2006).
With respect to plaintiff’s claim that defendants discriminated against her because they
perceived her to be disabled, plaintiff makes no allegations in the EEOC charge related to this
claim. In the EEOC charge, plaintiff states that she is disabled due to her “medical history of
depression,” (Ex. C to Gegwich Aff. (“EEOC charge”) ¶ 13), but fails to allege any facts that

11

defendant regarded her as having a disability or any facts suggesting that she was making such a
claim. These facts would have been “particularly relevant because a regarded as claim turns on
the employer’s perception of the employee, not whether the employee actually has a disability.”
See Cadely v. New York City Department of Trans., 2008 WL 465199, at *10 (S.D.N.Y. Feb. 16,
2008) (internal citations and quotation marks omitted). As a result, whether defendant perceived
plaintiff as disabled would not have fallen within the scope of the investigation resulting from
plaintiff’s EEOC charge. The EEOC charge is therefore not reasonably related to the claim in
plaintiff’s complaint alleging discrimination based on a perceived disability. Furthermore,
plaintiff’s perceived disability claim is precluded and allowing plaintiff to amend her complaint
to add this claim would be futile.

6

C. Plaintiff’s Remaining Claims Fail to State Claims Upon Which Relief Can
Be Granted
Defendant argues that allowing plaintiff to file the remaining claims would be futile
because each of them fails to state a claim under Rule 12(b)(6). In recent years, the Supreme
Court has clarified the pleading standard applicable in evaluating a motion to dismiss under Rule
12(b)(6).
First, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court disavowed the wellknown statement in Conley v. Gibson, 355 U.S. 41, 45–46 (1957) that “a complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief.” Twombly, 550 U.S. at
561. Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege “only

6

Although defendant also argues that plaintiff’s constructive discharge claim and failure
to accommodate claim are precluded because plaintiff did not exhaust her administrative
remedies, the Court need not address these arguments here because the Court will address the
sufficiency of those claims below.
12

enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).
Id. at 555 (citations and internal quotation marks omitted).
More recently, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court provided
further guidance, setting a two-pronged approach for courts considering a motion to dismiss.
First, a court should “begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at 679. “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.” Id.
Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. at 555).
Second, “[w]hen there are well-pleaded factual allegations a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at
679. “Determining whether a complaint states a plausible claim for relief [is] . . . a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Id. The Court defined plausibility as follows:
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. 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. Where a complaint pleads facts that are “merely consistent
with” a defendant’s liability, it “stops short of the line between possibility and
plausibility of ‘entitlement to relief.’ ”
Id. at 678 (quoting and citing Twombly, 550 U.S. at 556–57) (internal citations omitted).

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In other words, “where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader
is entitled to relief.” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
Generally, in deciding a motion to dismiss pursuant to Rule 12(b)(6), the court may only
consider facts stated in the complaint or “[d]ocuments that are attached to the complaint or
incorporated in it by reference.” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007); see also
Gillingham v. Geico Direct, 2008 WL 189671, at *2 (E.D.N.Y. Jan.18, 2008). Although
defendant has attached materials outside of the FAC to its motion papers, the Court has not
considered these extraneous materials in its analysis.
1. Plaintiff’s Hostile Work Environment Claims Under the ADA and NYSHRL
In order to establish a hostile work environment claim under the ADA, a plaintiff must
show: 1) that she is a member of a protected class; 2) that she suffered unwelcome harassment;
3) that she was harassed because of her membership in a protected class; and 4) that the
harassment was sufficiently severe or pervasive to alter the abusive work environment. 7 See
Scott v. Memorial Sloan-Kettering Cancer Ctr., 190 F. Supp. 2d 590, 598 (S.D.N.Y. 2002).
“This test has objective and subjective elements: the misconduct shown must be ‘severe or
pervasive enough to create an objectively hostile or abusive work environment,’ and the victim
must also subjectively perceive that environment to be abusive.” Alfano v. Costello, 294 F.3d
365, 374 (2d Cir. 2002) (quoting Harris v. Forklift Sys., Inc., 501 U .S. 17, 21 (1993)); see also
Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006) (“Plaintiff must show not only that she

7

Though the Second Circuit has not explicitly recognized a hostile work environment
claim pursuant to the ADA, many district courts in this circuit have recognized such a claim. See
e.g., Wesley-Dickson v. Warwick Valley Cent. School Dist., 2013 WL 5338516, at *15 (S.D.N.Y.
Sept. 24, 2013); Forgione v. City of New York, 2012 WL 4049832, at *7, n.6 (E.D.N.Y. Sept. 13,
2012).
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subjectively perceived the environment to be abusive, but also that the environment was
objectively hostile and abusive.”).
“Isolated incidents typically do not rise to the level of a hostile work environment unless
they are ‘of sufficient severity’ to ‘alter the terms and conditions of employment as to create such
an environment.’ ” Demoret, 451 F.3d at 149 (quoting Patterson v. Cnty. of Oneida, 375 F.3d
206, 227 (2d Cir. 2004)). However, “[t]here is no fixed number of incidents that a plaintiff must
endure in order to establish a hostile work environment,” and instead, courts are to “view the
circumstances in their totality, examining the nature, severity, and frequency of the conduct.”
Alfano, 294 F.3d at 379. It is necessary for the plaintiff to establish a link between the actions by
defendants and plaintiff's membership in a protected class. Id. at 374; Brown v. Henderson, 257
F.3d 246, 252 (2d Cir. 2001).
Defendant argues that plaintiff’s FAC fails to state a plausible hostile work environment
claim because “plaintiff’s allegations are neither severe nor pervasive.” (Def.’s Mem. in Opp’n
at 6.) The Court agrees. First of all, many of plaintiff’s allegations, for example, that she was
generally “harass[ed] and berate[d]” (FAC ¶ 30e) and that “two incidents [in February] were
discriminatorily held against [her] unfairly and given undue weight,” (FAC ¶ 29b), without more
detail, are too vague and conclusory to support a claim. Argeropoulos v. Exide Techs., 2009 WL
2132443, at *6 (E.D.N.Y. Ju. 8, 2009) (“[The Court need not accept as true Plaintiff’s conclusory
and entirely non-specific allegation[s].”). Moreover, plaintiff alleges only three specific
occasions where her supervising doctors made arguably negative comments to her regarding her
disability. The first incident occurred on or around February 24, 2011 when Dr. Kaufman told
plaintiff that her performance was unacceptable and “demanded that Plaintiff see her psychiatrist
more regularly.” The other incidents occurred during plaintiff’s two meetings with Dr. Leong

15

where Dr. Leong told plaintiff that she was “too emotional,” could not expect “coddling,” and
that she was developing a reputation as “the resident who cries.” (FAC ¶ 30.) These incidents,
however, are too isolated and minor to warrant relief under a hostile environment theory. See
Forgione v. City of New York, 2012 WL 4049832, at *7 (E.D.N.Y. Sept. 13, 2012) (dismissing
hostile work environment claim where defendant “made several offensive quips to [plaintiff]
about his perceived disability and told [plaintiff] he needed to see a psychiatrist”).
Furthermore, plaintiff’s allegations that after she disclosed her disability she “was scrutinized
at a higher level than her classmates,” (FAC ¶ 25), that she was given negative feedback, and that
Dr. Kaufman was “overly critical” of her, (FAC ¶¶ 27, 30b), are not only vague, but insufficient
as a matter of law to support a hostile work environment claim. Salerno v. Town of Bedford, NY,
2008 WL 5101185, at *8 (S.D.N.Y. Dec. 3, 2008) (“Allegations of negative job evaluations or
excessive reprimands are insufficient to establish a hostile environment claim.”). Finally, any
contact Dr. Kaufman had with plaintiff about signing her resignation letter came after plaintiff
had expressed her desire to resign and cannot be considered hostile. (FAC ¶¶ 40-42.) In
conclusion, the allegations in plaintiff’s complaint, viewed in their totality, do not state a
plausible hostile work environment claim. Since NYSHRL hostile work environment claims are
governed by the same standard as federal claims, plaintiff’s state claim also fails. Schiano v.
Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006). As a result, allowing plaintiff to
amend her complaint to add federal and state hostile work environment claims would be futile.
2.

Plaintiff’s Discrimination Claims Under the ADA and NYSHRL
The ADA prohibits employment discrimination by a “covered entity ... against a qualified

individual on the basis of disability.” 42 U.S.C. § 12112(a). Employment discrimination claims
under the ADA are evaluated under the now familiar burden-shifting analysis set forth in

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McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802–805 (1973). Under McDonnell–
Douglas and its innumerable progeny, (1) a plaintiff must first establish a prima facie case of
discrimination; (2) the burden then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its actions; if the employer does so, the McDonnell–Douglas
framework and its presumptions and burdens disappear, leaving the sole remaining issue of
“discrimination vel non;” and thus, (3) the burden shifts back to the plaintiff “to prove by a
preponderance of the evidence that the legitimate reasons offered by the defendant were not its
true reasons, but were a pretext for discrimination.” See Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143 (2000) (internal quotation marks and citations omitted). “For a disability
discrimination claim under the ADA, a plaintiff must demonstrate that her disability was at least
‘a motivating factor’ for the adverse employment action.” 8 See Wesley-Dickson v. Warwick
Valley Cent. School Dist., 2013 WL 5338516 (S.D.N.Y. 2013) (citing Parker v. Columbia
Pictures Indus., 204 F.3d 326, 336–37 (2d Cir. 2000)). Although intermediate evidentiary
burdens shift back and forth under this framework, “[t]he ultimate burden of persuading the trier
of fact that the defendant intentionally discriminated against the plaintiff remains at all times
with the plaintiff.” Id.
In order to establish a prima facie case of discrimination under the ADA, a plaintiff must
show that: (1) his employer is subject to the ADA; (2) the plaintiff was disabled within the

8

In Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 176 (2009), the Supreme Court held that
in order to withstand summary judgment, a plaintiff claiming a violation under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq, must raise a triable issue
that age was the “but for” reason for the adverse employment action. Despite the similarities in
language between the ADEA and the ADA, the defendant does not argue that the heightened
standard applies here. The Court declines to sua sponte pursue that issue – as yet undecided by
the Second Circuit, see Najjar v. Mirecki, 2013 WL 3306777, at *7 (S.D.N.Y. July 2, 2013) –
because its application would not affect the viability of plaintiff’s proposed FAC.

17

meaning of the ADA; (3) the plaintiff was otherwise qualified to perform the essential functions
of his job, with or without reasonable accommodation; and (4) the plaintiff suffered [an] adverse
employment action because of his disability. See Jacques v. DiMarzio, Inc., 386 F.3d 192, 198
(2d Cir. 2004) (citing Cameron v. Cmty Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir.
2003)); Shannon v. New York City Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003).
“For the most part, the ADA and the NYSHRL are construed similarly, and the clear
legislative purpose in drafting the NYSHRL was ‘to enact a definition of disability coextensive
with comparable federal statutes.” ’ 9 Burton v. Metro. Transp. Auth., 244 F. Supp . 2d 252, 257
(S.D.N.Y. 2003) (quoting Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 155 (2d
Cir. 1998), superseded by statute on other grounds as stated in Hilton v. Wright, 673 F.3d 120
(2d Cir. 2012)). Moreover, claims brought under the NYSHRL are analyzed under the same
McDonnell Douglas burden-shifting framework as ADA claims. See Weinstock v. Columbia
Univ., 224 F. 3d 33, 42 n. 1 (2d Cir. 2000).
Here, defendant challenges the sufficiency of plaintiff’s allegations that she suffered
adverse action. According to plaintiff, “[t]he adverse actions committed by Defendant include
(1) unjustifiably placing her in a remediation program, thereby significantly diminishing her
material responsibilities and subjecting her to humiliation in front of her peers; (2) unnecessarily
assigning her a second mentor who discriminated against her and harassed her based on her
disability; (3) failing to investigate her discrimination claims even though Plaintiff complained
and requested an investigation, (4) attempting to prevent Plaintiff from obtaining objective
evaluations and causing discriminatory and inaccurate evaluations and comments to be made
9

Although “the definition of a disability under New York law is not coterminous with the
ADA definition,” that difference is not of importance to this decision. Giordano v. City of N.Y.,
274 F.3d 740, 754 (2d Cir. 2001) (citing, inter alia, State Div. of Human Rights v. Xerox Corp.,
65 N.Y.2d 213 (1985)).
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concerning Plaintiff, and (5) creating an environment so toxic, prejudicial and hostile to Plaintiff
that it amounted to her constructive discharge.” (Pl.’s Mem. in Opp’n. at 11-12 (internal
quotation marks and citations omitted).) Plaintiff also asserts that her “contract renewal was
unduly delayed.” (Pl.’s Reply at 7.) Defendant responds that “[n]one of the circumstances
identified by Plaintiff constitutes an adverse employment action and, as such, her claims should
be considered futile.” (Def.’s Mem. in Opp’n at 11.)
The Supreme Court has stated that in order to be actionable under federal discrimination
laws, an adverse employment action must be "tangible" or “material.” Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 761; 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998); see also Joseph v. Leavitt,
465 F.3d 87, 90 (2d Cir. 2006) ("A plaintiff sustains an adverse employment action if he or she
endures a materially adverse change in the terms and conditions of employment.") (citation and
internal quotation marks omitted). “A tangible employment action constitutes a significant
change in employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in benefits."
Ellerth, 524 U.S. at 761. Materially adverse employment actions also include "a demotion
evidenced by a decrease in wage or salary, a less distinguished title, . . . or other indices . . .
unique to a particular situation." Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004)
(citations and internal quotations omitted). However, a "bruised ego," a "demotion without
change in pay, benefits, duties, or prestige," or "reassignment to [a] more inconvenient job" are
all insufficient to constitute a tangible or material adverse employment action. Ellerth, 524 U.S.
at 761 (internal quotations and citations omitted).
First, regarding plaintiff’s remediation program, plaintiff alleges only that her placement in
the program was “an adverse action that was unwarranted and discriminatory.” (FAC ¶ 32.)

19

Plaintiff does not allege any facts from which one could infer that her placement in the program
created a materially adverse change in her working conditions. Similarly, plaintiff does not
allege any facts suggesting that assigning her to a new mentor, Dr. Leong materially altered the
terms of her employment. Moreover, plaintiff’s allegations that defendant prevented her from
obtaining evaluations and evaluated her inaccurately do not rise to the level of adverse action.
Weeks v. New York State (Div. of Parole), 273 F.3d 76, 86 (2d Cir. 2001) abrogated on other
grounds (“It hardly needs saying that a criticism of an employee (which is part of training and
necessary to allow employees to develop, improve and avoid discipline) is not an adverse
employment action.”); See Browne v. City Univ. of New York, 419 F. Supp. 2d 315, 332
(E.D.N.Y. 2005) aff’d by 202 Fed. App’x 523 (2d Cir. 2006) (“A negative evaluation alone,
absent some accompanying adverse result such as a demotion, diminution of wages, or other
tangible loss, does not constitute an adverse employment action.”); Hall v. New York City Dep’t
of Trans., 701 F. Supp. 2d 318, 335-36 (E.D.N.Y. 2010) (denying claim because plaintiff failed
to establish that she suffered any adverse employment action as a result of alleged increased
scrutiny) (collecting cases).
In addition, the FAC does not sufficiently allege that plaintiff suffered an adverse action
because defendant engaged in undue delay in renewing her contract. Although plaintiff alleges
that by March 16, 2011, she was the only resident who had not been offered a contract renewal,
she also alleges that on that date, Dr. Kaufman told plaintiff that she “would most likely get the
contract for renewal the following week.” (FAC ¶ 30j.) Following that encounter, defendant
placed plaintiff in a remediation program where she seems to have remained until she expressed
her desire to resign on April 8, 2011. (FAC ¶¶ 39-40.) It can be inferred from the complaint that
plaintiff herself decided to terminate her employment relationship with defendant and resigned.

20

(FAC ¶ 40 (“Plaintiff stated that she could not trust the facility or remain in the program and felt
that she had no choice but to resign”); ¶ 47 (Plaintiff’s conversation with another resident
“confirmed Plaintiff’s view that [she] could not return to the program.”).) These facts alone do
not support an inference that defendant’s conduct materially altered the terms of plaintiff’s
employment.
Furthermore, as defendant correctly states, an employer’s failure to investigate
discrimination claims is not an adverse employment action. Price v. Cushman & Wakefield, Inc.
808 F. Supp. 2d 670, 690 (S.D.N.Y. 2011); Hayes v. Kerik, 414 F. Supp. 2d 193, 203 (E.D.N.Y.
2006); cf. Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712, 721 (2d Cir. 2010)
(holding that in retaliation context “an employer’s failure to investigate a complaint of
discrimination cannot be considered an adverse employment action taken in retaliation for the
filing of the same discrimination complaint”).
Finally, as the Court has already found that plaintiff has not sufficiently alleged a hostile
work environment claim, her constructive discharge claim must fail. See Zick v. Waterfront
Comm. of New York Harbor, 2012 WL 4785703, at *7 (S.D.N.Y. Oct. 4, 2012) (“Constructive
discharge is a subset of ‘hostile work environment.’ Conditions that do not qualify as a hostile
work environment under Title VII are, by definition, not sufficiently intolerable to force an
employee to quit.”) As a result, plaintiff’s FAC fails to state disability discrimination claims
under both the ADA and NYSHRL10, and allowing plaintiff to amend her complaint to add these
claims would be futile.
3. Plaintiff’s Retaliation Claims Under the ADA and NYSHRL

10

This includes plaintiff’s claims under the NYSHRL that she was discriminated against
because she was disabled and because of defendant’s perception that she was disabled.
21

The ADA makes it unlawful for an employer to “discriminate against any individual
because such individual has opposed any act or practice made unlawful by [the ADA] or because
such individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under the [ADA].” 42 U.S.C. § 12203(a). Retaliation
claims under the ADA and the NYSHRL are analyzed under the same McDonnell Douglas
burden-shifting framework as discrimination claims. Tse v. New York Univ., 2013 WL 5288848,
at *16 (S.D.N.Y. Sept. 19, 2013). In order to state a claim for retaliation under the ADA, a
plaintiff must plead: (i) plaintiff was engaged in protected activity; (ii) the alleged retaliator
knew that plaintiff was involved in protected activity; (iii) an adverse decision or course of
action was taken against plaintiff; and (iv) a causal connection exists between the protected
activity and the adverse action. Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 14849 (2d Cir. 2002).
Protected Activity
A plaintiff may establish that she engaged in protected activity under the ADA by pleading
that she engaged in “informal protests of discriminatory employment practices, including making
complaints to management, writing critical letters to customers, protesting against discrimination
by industry, and expressing support of co-workers who have filed formal charges.” Correa v.
Mana Prods. Inc., 550 F. Supp. 2d 319, 327 (E.D.N.Y. 2008) (citing Sumner v. U.S. Postal Serv.,
899 F.2d 203, 209 (2d Cir. 1990). “However, such informal complaints must be sufficiently
specific to make it clear that the employee is complaining about conduct prohibited by [federal
anti-discrimination law]. Risco v. McHugh, 868 F. Supp. 2d 75, 110 (S.D.N.Y. 2012).
Here, plaintiff claims that she engaged in protected activity when “(1) After Plaintiff
commenced medical leave on March 21, 2011, she opposed the discrimination, harassment, and

22

creation of a hostile work environment by complaining of her unfair treatment to Dr. Fleischer,
who presumably knew of Plaintiff’s disability or perceived her to be disabled, (2) Shortly after
March 21, 2011, Plaintiff opposed the discrimination, harassment, and creation of a hostile work
environment by attempting to obtain objective evaluations from people she had worked with at
Defendant’s facilities; (3) Plaintiff also opposed the discrimination, harassment, and creation of a
hostile work environment by asking Dr. Fleischer for an investigation regarding her performance
and the inappropriate way that she was being treated; and (4) On May 2, 2011, Plaintiff explicitly
complained about and/or voiced opposition to the Defendant’s discriminatory practices to
Defendant, including Dr. Kaufman and Dr. Fleischer.” (Pl.’s Mem. in Opp’n at 13.)
According to defendant, “Plaintiff does not plausibly allege that she engaged in protected
activity prior to May 2, 2011.” (Def.’s Mem. in Opp’n at 21.) The Court agrees with defendant
that plaintiff’s allegations that she engaged in protected activity when she attempted to obtain
evaluations from co-workers are insufficient because plaintiff does not allege how these
incidents constituted any opposition to discriminatory practices. Moreover, it is not clear from
plaintiff’s allegation that when she met with Dr. Fleischer on April 1, 2011 “regarding the
inappropriate way that she was being treated,” (FAC ¶ 36), she complained about being
discriminated against because of her disability, and as such that allegation does not suffice.
Mayling Tu v. OppenheimerFunds, Inc., 2012 WL 516837, at * 10 (S.D.N.Y. Feb. 16, 2012)
(“While an informal complaint to management may be protected activity, the plaintiff offers no
evidence that she communicated a belief that [defendant] was discriminating against her. Absent
such evidence, plaintiff’s [complaints] do not support a retaliation claim.”) (internal citations
omitted).

23

Plaintiff alleges that on “May 2, 2011, [she] explicitly complained about and/or opposed
the discriminatory practices of Defendant discussed at length in this Complaint.” (FAC ¶ 45.)
Even assuming that this vague allegation is a sufficient pleading of protected activity, plaintiff
does not plead a causal connection between this complaint and any adverse actions because as
defendant states, any “alleged retaliation occurred prior to her protected activity.” (Def.’s Mem.
in Opp’n at 24.) Plaintiff does not allege any facts occurring after May 2, 2011 that could
plausibly amount to adverse action. In particular, plaintiff’s claim that defendant “attempted to
prevent Plaintiff from obtaining objective evaluations and caused discriminatory and inaccurate
evaluations and comments to be made concerning Plaintiff” concern incidents that plaintiff
alleges occurred in February and March (FAC ¶ 31i) and early April of 2011 (FAC ¶ 37). In
addition, as stated above, defendant’s failure to investigate a discrimination complaint does not
amount to retaliation based on that same complaint. Fincher, 604 F.3d at 721 (“an employer’s
failure to investigate a complaint of discrimination cannot be considered an adverse employment
action taken in retaliation for the filing of the same discrimination complaint”). Furthermore,
plaintiff’s allegation that defendant “intensely pressured her to resign and created an
environment so toxic, prejudicial and hostile to Plaintiff that it amounted to her constructive
discharge shortly after the May 2, 2011 complaint” (FAC ¶¶ 73, 105) is insufficient as plaintiff
alleges absolutely no facts after May 2, 2011 supporting her allegation that defendant created an
environment so hostile it forced her to resign. As a result, plaintiff’s state and federal retaliation
claims would be futile because they do not withstand a 12(b)(6) motion to dismiss.
4.

Plaintiff’s Failure to Accommodate Claims Under the ADA and NYSHRL

In order to plead a plausible claim of a disability discrimination based on a failure to
accommodate, a plaintiff must allege facts showing that (1) the employer is subject to the ADA,

24

(2) she is disabled within the meaning of the ADA, (3) she could perform the essential functions
of the job with or without reasonable accommodation, and (4) the employer had notice of the
disability and failed to provide such accommodation. Lyons v. Legal Aid Soc., 68 F.3d 1512,
1515 (2d Cir. 1995). “Aside from the broader scope of covered disabilities under New York
Executive Law § 296, [a plaintiff’s] state law reasonable accommodation claim is governed by
the same legal standards as federal ADA claims.” Timmel v. West Valley Nuclear Services Co.,
2011 WL 5597350, at *11 (W.D.N.Y. Nov. 17, 2011) (internal citations and quotation marks
omitted).
Under the fourth prong, it is the employee’s responsibility not only to notify the employer
about the alleged disability, but also to “demonstrate to an employer that she needs an
accommodation for reasons related to a medical condition disability.” MacEntee v. IBM, 783 F.
Supp. 2d 434, 443-44 (S.D.N.Y. 2011) (holding that plaintiff’s informing her manager that she
was depressed did not provide sufficient notice, or demonstrate a request for an accommodation
that IBM refused, under the ADA “because she in no way inferred that her depression required
any accommodations”). Here, plaintiff alleged that she “disclosed to Dr. Kaufman that she
suffered from mental illness and was under the care of a psychiatrist for appropriate
management,” but fails to allege that she requested any accommodation from defendant at any
point. (FAC ¶ 24b.) Although she claims that “Defendant should have offered [her] a
reasonable accommodation if it believed Plaintiff’s disability to be interfering with her
performance,” plaintiff has not alleged any facts stating that she disclosed the limitations of her
depression or requested any accommodations. (Id. ¶ 26.) As a result, she has not adequately
alleged a reasonable accommodation claim. See MacEntee, 783 F. Supp. 2d at 444 (“[U]nlike
disabilities that are visible to an employer, the presence, duration and ever-varying severity of

25

depression cannot be adequately perceived or accommodated unless an employee informs in
some manner her employer of her limitations as a result of such disability.”). As a result,
plaintiff’s FAC fails to state a claim for a reasonable accommodation.
CONCLUSION
As mentioned above, plaintiff has withdrawn her original complaint. As a result,
defendant’s motion to dismiss that complaint is denied as moot. In addition, for the foregoing
reasons, plaintiff’s filing the FAC would be futile and her motion to amend is denied. The clerk
of the Court is directed to close this case.
SO ORDERED.
Dated: Central Islip, New York
May 19, 2014

__________/s/_____________
Denis R. Hurley
United States District Judge

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