Placide-Eugene v. Visiting Nurse Service of New York et al

Filing 19

MEMORANDUM OF DECISION AND ORDER - It is hereby: ORDERED that the Plaintiffs NYSHRL claims are dismissed; and it is further ORDERED that the Plaintiffs 42 U.S.C. §§ 1981 and 1983 claims against the Individual Defendants Eloise Goldberg, Ji ll Mendelson and Marian Haas are dismissed and, as such, the Individual Defendants are dismissed from this action entirely; and it is further ORDERED that the Defendants motion to dismiss the Plaintiffs Title VII claim alleging discrimination and ret aliation based on national origin is denied; and it is further ORDERED that the Plaintiff is directed, within ten days of the date of this Order, to file an amended complaint asserting that the white or Caucasian nurses she references in her Complai nt are also non-Haitians if the Plaintiff believes that is factually correct. The Plaintiff may make these assertions upon information and belief. Failure to do so will result in the dismissal of her Title VII claim alleging national origin-based dis crimination and retaliation; and it is further ORDERED that the Defendants motion to dismiss the Plaintiffs Title VII harassment or hostile work environment claim based on national origin is granted; and it is further ORDERED that the Court sua spont e dismisses the Plaintiffs Title VII harassment or hostile work environment claim based on race/color; and it is further ORDERED that the caption in this action is amended to read as follows: (see "Decision"). Ordered by Judge Arthur D. Spatt on 5/30/2013. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
MARIE PLACIDE-EUGENE,
Plaintiff,
-against-

FILED 
CLERK 

5/30/2013 3:37 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

MEMORANDUM OF
DECISION AND ORDER
12-CV-2785 (ADS) (ARL)

VISITING NURSE SERVICE OF NEW YORK,
and ELOISE GOLDBERG, JILL
MENDELSON, and MARIAN HAAS,
Defendants.
---------------------------------------------------------X
APPEARANCES:
White Ricotta & Marks, P.C.
Attorneys for the Plaintiff
86-12 37th Avenue
Jackson Heights, NY 11372
By: Thomas Ricotta, Esq., Of Counsel
Collazo Florentino & Keil LLP
Attorneys for the Defendants
747 Third Avenue
New York, NY 10017
By: Tonianne Florentino, Esq.
Adam Michael Harris, Esq., Of Counsel
SPATT, District Judge.
On June 4, 2012, the Plaintiff Marie Placide-Eugene (the “Plaintiff”) commenced this
action against the Defendants Visiting Nurse Service of New York (“VNSNY”), Eloise Goldberg
(“Goldberg”), Jill Mendelson (“Mendelson”) and Marian Haas (“Haas,” and collectively, the
“Defendants”) pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e, et seq.
(“Title VII”), 42 U.S.C. §§ 1981 and 1983 and the New York State Human Rights Law, New
York State Executive Law § 290, et seq. (the “NYSHRL”). The Plaintiff asserts that the

Defendants unlawfully discriminated, harassed and retaliated against her (1) based on her
race/color and national origin and (2) due to her complaints of discrimination.
On November 8, 2012, the Defendants moved to partially dismiss the Plaintiff’s
Complaint pursuant to Federal Rule of Civil Procedure (“Fed R. Civ. P.”) 12(b)(6). This motion
is presently pending before the Court. In this regard, the Defendants moved to dismiss the
portion of the Plaintiff’s Title VII claim premised on national origin-based discrimination and
retaliation, as well as harassment, which the Defendants presumed was a hostile work
environment claim. However, the Defendants did not move to dismiss the portion of the
Plaintiff’s Title VII claim premised on race/color-based discrimination, retaliation and
harassment. The Defendants further contended that the Plaintiff failed to state a claim against
the Individual Defendants under §§ 1981 and 1983 because the Individual Defendants were not
state actors and were not acting under color of state law, and also because the claim was barred
by the doctrines of res judicata and collateral estoppel. Lastly, the Defendants notified the Court
that the Plaintiff had agreed to withdraw all of her NYSHRL claims.
On December 7, 2012, the Plaintiff filed her opposition to the Defendants’ motion to
dismiss. In her opposition, the Plaintiff confirmed that she was withdrawing all of her NYSHRL
claims. She also indicated that her “harassment” claim was, in fact, a hostile work environment
claim. Moreover, the Plaintiff informed the Court that she was withdrawing her §§ 1981 and
1983 claim against the Individual Defendants. As such, the Individual Defendants Goldberg,
Mendelson and Haas are no longer parties to this action and VNSNY is the only remaining
Defendant. In addition, the only claim remaining in this action is the Plaintiff’s Title VII claim,
as it was brought against the Defendant VNSNY alone.

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The Court also notes that the Plaintiff uses a footnote in her opposition memorandum,
which is a violation of this Court's Individual Rule II.A. Notwithstanding this violation, the
Court will consider the Plaintiff’s memorandum while rendering its decision. However, the
Court advises the Plaintiff’s counsel that any future filings that contain footnotes will not be
considered by this Court.
As indicated above, VNSNY only challenges the portion of the Plaintiff’s Title VII claim
that alleges discrimination, retaliation and hostile work environment based on national origin.
Specifically, VNSNY’s primary issue with the Plaintiff’s national origin theory is that the
Plaintiff does not identify the nurses that she claims received preferential treatment as nonHaitians, but rather, only identifies them as “white” or “Caucasian.” Accordingly, the Court’s
discussion will primarily focus on whether the Plaintiff has stated a sufficient Title VII under a
national origin theory only.
For the reasons set forth below, VNSNY’s motion is denied in part and granted in part.
I.

BACKGROUND

Unless otherwise stated, the following facts are drawn from the Plaintiff’s Complaint and
construed in a light most favorable to the Plaintiff.
In this case, the Plaintiff is a black woman from Haiti, who speaks English with a heavy
Haitian accent. On March 5, 2001, the Plaintiff was hired as a registered nurse for VNSNY by
Denise Tranchina (“Tranchina”). The Complaint does not provide further details with respect to
Tranchina’s position at VNSNY. According to the Plaintiff, during her employment with
VNSNY, she received satisfactory annual performance evaluations, as well as letters of gratitude
from patients and family members for her service.

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In 2007, Goldberg became the director for VNSNY’s Nassau County branch, and in
2008, Mendelson became the manager of VNSNY’s Nassau County branch. In addition in 2009,
Mendelson became the Plaintiffs’ direct supervisor. The Plaintiff alleges that VNSNY, Goldberg
and Mendelson discriminated against the Plaintiff because of her race/color and national origin
in that “[p]olicies and standards were applied differently to [the Plaintiff] and other nurses of
color as compared to white nurses.” (Compl., ¶ 12.) The Plaintiff’s Complaint provides
numerous examples in this regard.
For instance, the Plaintiff asserts that VNSNY regularly denied or reduced the number of
days she requested for vacation, regardless of the timeliness of her submission and despite her
seniority. In this regard, in 2010, the Plaintiff submitted a timely request for a vacation from
August 2, 2010 until September 3, 2010. Goldberg denied the Plaintiff’s vacation request and
required that the Plaintiff work August 24, 2010 through August 26, 2010. A floating nurse,
Marie Astride-Eugene (“Astride-Eugene”), agreed to cover the Plaintiff’s shifts from August 24,
2010 through August 26, 2010, but Goldberg still refused to grant the Plaintiff’s vacation
request. Conversely, white nurses, such as Beth Grazulewicz (“Grazulewicz”), Debbie Starace
(“Starace”) and Kathy Zimberlin (“Zimberlin”) were often permitted to take nine through 16
consecutive days of vacation. The Court notes that it appears Astride-Eugene shares part of the
same last name with the Plaintiff. However the Complaint does not provide details as to their
familial relationship, if any.
Further, when the grandmother of the Plaintiff’s husband died, the Plaintiff’s request for
bereavement leave was denied. The Plaintiff even offered to use a personal day, but was not
permitted to take the day off. Apparently, the bereavement leave requests of similarly situated
white nurses, such as Eliz Childress (“Childress”), were not denied in the same manner.

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In addition, according to the VNSNY handbook, full-time nurses are entitled to eight
major holidays. These eight holidays are New Year’s Day, Martin Luther King Day, President’s
Day, Memorial Day, Independence Day, Labor Day, Thanksgiving and Christmas. Nevertheless,
the Plaintiff was required to work three major holidays in 2008, in addition to other regular
holidays; two major holidays in 2009, in addition to other regular holidays; and two major
holidays in 2010, in addition to other regular holidays. Moreover, in the first quarter of 2011, the
Plaintiff had worked one major holiday and was scheduled to work at least one other major
holiday. According to the Plaintiff, similarly situated white nurses, including Grazulewicz and
Starace, were not required to work multiple major holidays.
Furthermore, VNSNY routinely denied the Plaintiff’s requests for sick leave; asked her to
produce doctor’s notes; and accused her of faking illnesses. For example, on July 6, 2010, the
Plaintiff became ill two days before her approved vacation time, but Mendelson demanded that
the Plaintiff work. The Plaintiff’s condition worsened throughout the day and at some point, she
required immediate medical attention. The Plaintiff was diagnosed with bronchitis and strep
throat. While at the doctor’s office, the Plaintiff called VNSNY to report her diagnoses.
However, Goldberg accused the Plaintiff of lying. When the Plaintiff’s doctor faxed a note to
VNSNY, Goldberg remarked “These doctor’s notes keep popping up each time you need to take
time off. . . .” (Compl., ¶ 15.)
Similarly, on December 30, 2010, the Plaintiff asked Mendelson for the day off due to
illness, but Goldberg required that the Plaintiff work. Upon the Plaintiff’s arrival at a new
patient’s home, the patient’s wife refused to let the Plaintiff treat the patient and called VNSNY
to complain that an obviously ill and potentially infectious nurse came to her house. The
Plaintiff did not create medical notes regarding this incident, because medical notes are only

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created when a case is opened and the Plaintiff did not open a case that day. However, the
Plaintiff did document the incident in her Coordinator of Care (“COC”) notes. Nevertheless,
according to the Plaintiff, while she was out on leave, Mendelson and Goldberg accessed the
Plaintiff’s computer and altered her COC notes, which the Plaintiff was later forced by Goldberg
to sign, although the notes had been changed. The Plaintiff asserts that sick leave requests of
similarly situated white nurses, including Grazulewicz and Starace, were not similarly
scrutinized and refused. In addition, the COC notes of white nurses were also not falsely
modified by Mendelson and Goldberg.
The Plaintiff was also treated differently than white nurses with respect to discipline, as
well as recognition for accomplishments. In this regard, in July 2010, the Plaintiff was
threatened with disciplinary action after she was accused of bringing her child to work. Later, it
was confirmed that the Plaintiff had not brought her child to work. Instead, a Caucasian
coworker, Patrice Perricone (“Perricone”) had been the one who had brought her children to
work. Perricone was not disciplined.
In addition, on January 13, 2011, Starace confronted the Plaintiff concerning an email the
Plaintiff had written. According to the Plaintiff, Starace came within inches of the Plaintiff’s
face and was screaming erratically. The Plaintiff submitted an incident report to Mendelson.
Goldberg and Mendelson did not follow up with the Plaintiff regarding the incident. According
to the Plaintiff, Starace was not disciplined for her behavior.
Furthermore, in March 2011, the Plaintiff received the highest score, over 90%, on the
Santrax report. Santrax is a system by which VNSNY monitors field operations and tracks time,
attendance, costs and services provided. However, although the Plaintiff received the highest
score, Mendelson sent an email announcing that a Caucasian nurse, Kim Macaluso

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(“Macaluso”), had received the highest score and awarded her a gift card. Mendelson’s email
included an attachment with all the nurses’ scores, except for Macaluso’s score. A black nurse,
Marie Desil (“Desil”), and the Plaintiff actually received the highest scores. Desil confronted
Mendelson about these results and, then, Mendelson announced that Desil, Macaluso and the
Plaintiff would share the gift card.
On May 20, 2011, Mendelson asked the Plaintiff to cover an additional assignment at the
home of one of the Plaintiff’s regular patients. The Plaintiff had not visited the patient earlier in
the day because a Caucasian nurse, Justin Horigan (“Horigan”), had visited the patient instead.
Mendelson insisted that the Plaintiff carry out this assignment, although it would require the
Plaintiff to work until 6:30 p.m., which was two hours past the time that nurses were supposed to
finish for the day. While conducting the visit, the patient’s daughter informed the Plaintiff that
Horigan had refused to address the patient’s immediate concerns during his visit, stating that he
“came to do the wound care, not the Foley care.” (Compl., ¶ 21.) The Plaintiff reported to
Mendelson and Goldberg that Horigan had not provided the required care to the patient.
However, according to the Plaintiff, Horigan was never disciplined for failing to provide
appropriate care.
On May 23, 2011, a meeting was held with Desil, Goldberg, Mendelson, Massaro and the
Plaintiff. The Court notes that it appears that the Complaint does not further identify Massaro’s
first name or position at VNSNY. At the meeting, Goldberg accused the Plaintiff of committing
fraud with respect to her submitted time. The Plaintiff replied that as a Coordinator of Care
nurse, she did her field work from 8:30 a.m. until 4:30 p.m., but that she was also required to
spend additional time outside of those hours on patient notes and on coordinating with multidisciplinary professionals that were involved in her patients’ care. Mendelson was aware that the

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Plaintiff worked on her documentation notes outside of the regular hours. The Plaintiff told
Goldberg that she included the additional hours when she reported her time, as she had done for
the previous ten years. In addition, the Plaintiff reminded Goldberg that she was a salaried
employee who never voluntarily requested to work overtime. Consequently, according to the
Plaintiff, she had no incentive to falsify her submission time.
Four days later, on May 27, 2011, VNSNY suspended the Plaintiff without pay and
without providing a specific reason other than Goldberg’s accusations that the Plaintiff had
committed fraud when submitting her time. After making these accusations, VNSNY demanded
that the Plaintiff return her company computer and cell phone. VNSNY made these accusations
and the demand that the Plaintiff return her company computer and cell phone in front of the
Plaintiff’s colleagues, thereby humiliating the Plaintiff. According to the Plaintiff, similarly
situated white nurses were not falsely accused and embarrassed in the presence of their
colleagues. Thereafter, the Plaintiff received a discipline form which only contained
unsubstantiated and vague allegations of inadequate patient care time; falsified submission of
work time; and falsified reporting of visit time.
Apparently, as part of these allegations, VNSNY accused the Plaintiff of having allegedly
misrepresented her whereabouts on May 20, 2011. However, according to the Plaintiff, that day
she called VNSNY at 8:30 a.m., 8:34 a.m. and 8:38 a.m. to review her assignments. Moreover,
she had been in touch with her manager throughout the day using her VNSNY-provided cell
phone. Finally, in the afternoon, she called VNSNY and told Mendelson when she was leaving
the field to complete her paperwork.
On June 3, 2011, on the Plaintiff’s behalf, the law firm Leeds, Morelli and Brown, P.C.
sent VNSNY a letter complaining that the Plaintiff had been subjected to race-based

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discrimination. Exactly two months later, on August 3, 2011, the Plaintiff attended a meeting
with Goldberg. The Plaintiff was accompanied by Jackie Roberts (“Roberts”), who was the
Plaintiff’s union representative. At the meeting, Goldberg gave the Plaintiff a discipline form
with an additional charge from more than one year before the date of the August 3, 2011
meeting. The charge accused the Plaintiff of failing to appropriately identify a patient’s
deterioration. However, the charge did not include the patient’s name, the date(s) of the
Plaintiff’s visit with the patient, or nursing notes from the Plaintiff or any other nurse.
According to the Plaintiff, “[t]his charge was issued in furtherance of [VNSNY’s] discriminatory
motive and in retaliation for [the Plaintiff’s] complaints of discrimination.” (Compl., ¶ 25.)
In addition, at the August 3, 2011 meeting, Goldberg insisted that the Plaintiff return to
work immediately, but required that the Plaintiff be put on “Final Warning Status” and subjected
to a Performance Improvement Plan (“PIP”). However, the Plaintiff refused to sign a form
consenting to these requirements. In this regard, the Plaintiff asked that Goldberg remove the
“Final Warning Status” clause from the form, since this was the first time the Plaintiff received a
warning. Nevertheless, Goldberg refused to omit the clause. The Plaintiff asserts that similarly
situated white nurses, such as Lenore Bilger (“Bilger”), were not placed on “Final Warning
Status” or forced to adhere to a PIP as a result of false and unsubstantiated accusations.
On August 22, 2011, the Plaintiff returned to work. The Plaintiff’s Complaint is unclear
as to whether the Plaintiff agreed to sign the form consenting to be placed on Final Warning
Status. In any event, from August 22, 2011 through September 15, 2011, Mendelson
accompanied the Plaintiff during her fieldwork, alleging it was pursuant to the PIP. However,
despite accompanying her, Mendelson did not give the Plaintiff any recommendations for

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improvement under the PIP. Instead, Mendelson repeatedly accused the Plaintiff of performance
issues that were in fact attributable to other nurses.
Also, after the Plaintiff returned to work, Mendelson also began requiring that the
Plaintiff come to the office before she went into the field. In this regard, the Plaintiff was forced
to report to the office every morning and wait for Mendelson to hand her assignments, which
usually occurred between 9:30 a.m. and 10:00 a.m. As a consequence, the Plaintiff had no
choice but to start late and yet was still expected to complete the same workload of about six
assignments before her scheduled end time at 4:30 p.m. According to the Plaintiff, while herself
and another black nurse, Sharmaine Etienne (“Etienne”), were required to pick up their
assignments in the morning before going into the field, similarly situated white nurses were not
required to do so.
On August 25, 2011, the Plaintiff filed an administrative complaint of discrimination with
the New York State Division of Human Rights (“NYSDHR”).
On August 28, 2011, the Plaintiff arrived for a visit while accompanied by Mendelson.
In private, the patient informed Mendelson that he was going to dinner in about 20 minutes and
so, Mendelson decided to postpone the visit. However, Mendelson never provided an
explanation to the Plaintiff as to why the visit was postponed nor did she ever inform the
Plaintiff that the patient had refused the visit because of his dinner plans. Nevertheless,
Mendelson later accused the Plaintiff of not recording that the visit had been “refused” despite
the fact that the Plaintiff was never made aware of Mendelson’s conversation with the patient.
The next day, on August 29, 2011, the Plaintiff inherited patient D.D. from another nurse,
whose first name was Ramos but whose second name was not provided in the Plaintiff’s
Complaint. On the patient’s Plan of Care, the “oxygen” box was checked, but the liter amount

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was listed as “0” because the patient never used the oxygen tank. Mendelson accused the
Plaintiff of not putting the liter amount on the patient’s Plan of Care. However, white nurses
Grazulewicz and Perricone cared for D.D. before and after the Plaintiff, engaged in the same
conduct as the Plaintiff, but were not similarly accused.
On September 6, 2011, the Plaintiff reported to a patient’s house, again accompanied by
Mendelson. During the visit, the patient and the patient’s spouse complained that Grazulewicz
provided inadequate wound care and that Perricone did not provide adequate care or care time.
In contrast, in Mendelson’s presence, the patient praised the Plaintiff as one of two nurses who
acted professionally in caring for her. Mendelson defended Grazulewicz and Perricone and
apparently neither of these white nurses were disciplined. They were not reprimanded for
inadequate patient care, suspended, subjected to supervision or recommended for a PIP, as the
Plaintiff had been.
On that same day, September 6, 2011, the Plaintiff attended a meeting with Mendelson
and Roberts, the union representative. At the meeting, Mendelson accused the Plaintiff of
providing the wrong information to a patient’s daughter and of putting the patient’s life in
danger. According to the Plaintiff, when she tried to reach a patient’s private Home Health Aide,
she accidentally dialed another patient’s daughter. Nevertheless, the Plaintiff did not disclose
any medical information regarding either patient with the daughter. Despite this, Mendelson
wanted to bring a disciplinary action against the Plaintiff.
Also on September 6, 2011, the plaintiff sent a letter via the United States Postal service
to VNSNY’s Human Resources Vice President, Marian Haas (“Haas”), complaining about
discrimination, harassment and retaliatory conduct. On September 8, 2011, allegedly in
retaliation to the Plaintiff’s complaint, Mendelson accused the Plaintiff of not properly

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documenting a patient’s notes. However, it was actually a white nurse, Rosemary Heutz
(“Heutz”), who had failed to provide the proper documentation. According to the Plaintiff,
“Heutz was not similarly reprimanded or forced to attend a meeting regarding her failure to
properly document notes.” (Compl., ¶ 32.)
The Plaintiff began to request that she receive overtime pay each time she was forced to
stay past 4:30 p.m. The amount of the Plaintiff’s overtime ranged from 30 minutes to two hours.
For example, on September 14, 2011 and September 16, 2011, the Plaintiff was required to work
to 6:30 p.m. The Plaintiff requested overtime for these extra hours. However, Mendelson at first
informed the Plaintiff that Goldberg would not agree to that much overtime pay. Only after the
Plaintiff threatened to file a union grievance did Goldberg agree to this overtime pay.
On October 5, 2011, the Plaintiff met with an Employee Relations Specialist, Keri
McMullen (“McMullen”); a union representative, Raquel Webb Gedbes (“Gedbes”); and the
Manager of Human Resources, Silvia Viciedo (“Viciedo”). The meeting concerned the
Plaintiff’s September 6, 2011 letter to Haas. At the meeting, McMullen and Viciedo advised the
Plaintiff that VNSNY’s Human Resources Department was investigating the Plaintiff’s claims of
discrimination. The following day, on October 6, 2011, the Plaintiff met with Haas, Goldberg,
Massaro, Mendelson and Roberts concerning the grievance filed against the Plaintiff on August
3, 2011 and VNSNY’s actions in May 2011, which included the Plaintiff’s suspension.
On October 19, 2011, the Plaintiff and Mendelson agreed that the following morning,
prior to reporting to VNSNY, the Plaintiff would first visit a patient’s home at 9:00 a.m.
However, on October 20, 2011, at approximately 9:30 a.m., Mendelson called the Plaintiff while
the Plaintiff was conducting her visit with the abovementioned patient. Mendelson berated the
Plaintiff for not being at the office.

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On November 8, 2011, approximately one month after the Plaintiff’s October 5, 2011 and
October 6, 2011 meetings, Haas terminated the Plaintiff’s employment with VNSNY. The
reason given for the termination was that the Plaintiff had allegedly misrepresented her
whereabouts on May 20, 2011. However, as indicated above, this alleged incident had been used
against the Plaintiff in connection with her previous suspension on May 27, 2011. The Plaintiff
points out that VNSNY had investigated this allegation and permitted the Plaintiff to return to
work on a Final Warning Status and under a PIP, with which the Plaintiff complied. Despite
this, the Plaintiff’s employment was terminated due to this alleged incident, within just two
months after the Plaintiff began to complain of discrimination to VNSNY’s Human Resources
Department.
According to the Plaintiff, VNSNY did not provide any new incidents as grounds for the
termination of the Plaintiff’s employment, nor did it provide any reason with respect to the delay
in terminating her employment. In this regard, according to the Plaintiff, VNSNY’s policy is
typically to terminate an employee within ten days of a meeting regarding a grievance filed
against an employee. In this case, the grievance at issue was filed in May 2011, but VNSNY did
not hold a meeting regarding the grievance until October 2011. VNSNY then waited an
additional month before terminating the Plaintiff’s employment.
Thereafter, the Plaintiff, on an unspecified date, duly filed a charge of discrimination with
the United States Equal Employment Opportunity Commission (“EEOC”). On March 7, 2012,
the EEOC issued a right to sue letter, and as stated above, on June 4, 2012 the Plaintiff
commenced this action. The Plaintiff alleges that VNSNY’s actions violated Title VII in that
they constituted (1) unlawful discrimination on the basis of the Plaintiff’s race/color and national
origin; (2) unlawful retaliation against the Plaintiff due to her complaints of discrimination; and

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(3) an unlawful hostile work environment on the basis of the Plaintiff’s race/color and national
origin. As a result of VNSNY’s actions, the Plaintiff claims she suffered a loss of earnings and
benefits; future earnings and benefits; and emotional and physical damages.
II.

DISCUSSION

A. Legal Standard on a Fed. R. Civ. P. 12(b)(6) Motion to Dismiss
It is well-established that a complaint should be dismissed under Fed. R. Civ. P. 12(b)(6)
only if it does not contain enough allegations of fact to state a claim for relief that is “plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed.
2d 929 (2007). Indeed, the issue on a motion to dismiss is “not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.”
Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir. 2001) (quoting Scheuer v. Rhodes, 416 U.S.
232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)). “‘Determining whether a complaint states a
plausible claim for relief will . . . be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.’” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 1949–50, 173 L. Ed. 2d
868 (2009)).
In deciding a motion to dismiss, the Court is required to accept the material facts alleged
in the complaint as true and draw all reasonable inferences in the Plaintiff’s favor. Iqbal, 556
U.S. at 678; Zinermon v. Burch, 494 U.S. 113, 118, 110 S. Ct. 975, 979, 108 L. Ed. 2d 100
(1990); In re NYSE Specialists Secs. Litig., 503 F.3d 89, 91 (2d Cir. 2007). As such, “[w]hen
there are well-pleaded factual allegations, a court should assume their veracity and . . . determine
whether they plausibly give rise to an entitlement of relief.” Iqbal, 556 U.S. at 679. In its
analysis, the Court may refer “to documents attached to the complaint as an exhibit or

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incorporated in it by reference, to matters of which judicial notice may be taken, or to documents
either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in bringing
suit.” Brass v. Am. Film Tech., Inc., 987 F.2d 142, 150 (2d Cir. 1993); see also Karmilowicz v.
Hartford Fin. Servs. Group, No. 11-3284-cv, 2012 U.S. App. LEXIS 18394, at *5–6 (2d Cir.
Aug. 30, 2012).
However, “although ‘a court must accept as true all of the allegations contained in a
complaint,’ that ‘tenet’ ‘is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.’” Harris,
572 F.3d at 72 (quoting Iqbal, 556 U.S. at 678). Only if this Court is satisfied that “the
complaint cannot state any set of facts that would entitle the plaintiff to relief will it grant
dismissal pursuant to Rule 12(b)(6).” Hertz Corp. v. City of N.Y., 1 F.3d 121, 125 (2d Cir.
1993).
B. As to Whether the Plaintiff Stated A Valid Claim Under Title VII Based on a Theory of
National Origin Discrimination, Harassment and Retaliation
There is no doubt, and VNSNY does not contend otherwise, that the Plaintiff stated a
valid Title VII claim premised under a theory of race/color-based discrimination and retaliation.
The question before this Court, however, is whether the Plaintiff has asserted enough facts to
assert a Title VII claim premised under a theory of national origin-based discrimination and
retaliation. In addition, with respect to the Plaintiff’s allegations of “harassment,” it appears that
the Plaintiff intends to make out a hostile work environment claim, (see Pl. Opp., pg. 15–16),
which VNSNY challenges, (see Def. Mem., pg. 8–10). Thus, the Court will first examine the
Plaintiff’s national origin-based discrimination and retaliation claim before evaluating her hostile
work environment claim.

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1.

The Plaintiff’s Title VII Claim Premised on a Theory of National Origin-Based
Discrimination and Retaliation

Generally, courts look to the Supreme Court’s ruling in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), when analyzing Title VII claims.
In McDonnell Douglas, the Supreme Court set forth the elements that a plaintiff must prove in
order to establish a prima facie case at the summary judgment stage. However, “the survival of a
complaint in an employment discrimination case does not rest on whether it contains specific
facts establishing a prima facie case under McDonnell Douglas.” Lax v. 29 Woodmere Blvd.
Owners, Inc., 812 F. Supp. 2d 228, 236 (E.D.N.Y. 2011). This is because, at the pleading stage,
the Court does not apply the McDonnell Douglas burden shifting test used to analyze the
evidentiary support for discrimination claims. See Gonzalez v. Carestream Health, Inc., No. 12–
4202–cv, 2013 WL 1296492, at *1 (2d Cir. Apr. 2, 2013) (“To survive a motion to dismiss, a
complaint alleging workplace discrimination . . . need not allege specific facts establishing a
prima facie case under McDonnell Douglas. . . .”); Rosario v. City of New York, No. 11–CV–
09008 (PAC)(SN), 2013 WL 782408, at *6 (S.D.N.Y. Jan. 9, 2013), adopted by 2013 WL
78258, at *2 (S.D.N.Y. Mar. 1, 2013) (“An ‘employment discrimination plaintiff need not plead
a prima facie case of discrimination [under McDonnell Douglas Corp. v. Green].”) (quoting
Bermudez v. City of New York, 783 F. Supp. 2d 560, 575 (S.D.N.Y. 2011) (in turn, quoting
Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515, 122 S. Ct. 992, 999, 152 L. Ed. 2d 1 (2002))).
Rather, “[this Court] consider[s] only whether the complaint includes factual allegations
sufficient ‘to raise a right to relief above the speculative level.’” Gonzalez v. Carestream Health
Inc., 2013 WL at *1 (quoting Twombly, 550 U.S. at 555); see also Boykin v. KeyCorp, 521 F.3d
202, 212–13 (2d Cir.2008). In other words, “the Court asks only whether a plaintiff has pled a
prima facie case, not whether a plaintiff has established that case. Thus, the standard is simply

16

whether [the] [P]laintiff’s [C]omplaint, construed liberally, satisfies the federal pleading
requirements for a claim” of retaliation. Hitchins v. NYC Dept. of Educ., No. 11–CV–4180
(RRM)(RML), 2013 WL 1290981, at *3 (E.D.N.Y. Mar. 28, 2013) (emphasis added).
Nevertheless, while a plaintiff need not allege specific facts establishing all the elements
of a prima facie case under McDonnell Douglas, these elements can still “provide [a helpful]
outline of what is necessary to render [a plaintiff’s] claims for relief plausible.” Sommersett v.
City of New York, No. 09 Civ. 5916(LTS)(KNF), 2011 WL 2565301, at *5 (S.D.N.Y. June 28,
2011). In this regard, under McDonell Douglas, a plaintiff alleging national origin
discrimination “must show that (1) he is a member of a protected class; (2) he was qualified for
the position he held; (3) he suffered an adverse employment action; and (4) the adverse action
took place under circumstances giving rise to the inference of discrimination.’” Ruiz v. County
of Rockland, 609 F.3d 485, 491–92 (2d Cir. 2010) (citing Holcomb v. Iona College, 521 F.3d
130, 138 (2d Cir. 2008)).

To establish a prima facie case of retaliation, the plaintiff must show

“(1) that he engaged in protected . . . opposition, (2) that the employer was aware of this activity,
(3) that the employer took adverse action against the plaintiff, and (4) that a causal connection
exists between the protected activity and the adverse action, i.e., that a retaliatory motive played
a part in the adverse employment action.” Kessler v. Westchester County Dep’t of Soc. Servs.,
461 F.3d 199, 205–06 (2d Cir. 2006); see also Patane v. Clark, 508 F.3d 106, 115 (2d Cir. 2007).
In this case, VNSNY’s primary issue with the Plaintiff’s national origin-based Title VII
claim is that outside of identifying that the Plaintiff was a Haitian woman who spoke with a
heavy Haitian accent, the Plaintiff’s Complaint makes no other reference to national origin,
particularly with respect to the national origin of the other nurses whom she claims received
preferential treatment. Rather, the Plaintiff only asserts that similarly situated white or

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Caucasian nurses were given preferential treatment. According to VNSNY, this is insufficient
because the terms “white” and “Caucasian” are not synonymous with the term “non-Haitian” and
“[i]f [they] were, [the Plaintiff’s] race discrimination claim under Title VII . . . would be
indistinguishable from the national origin discrimination under Title VII, which cannot be so.”
(Def. Mem., pg. 4.) In other words, VNSNY contends that the Plaintiff was required to plead
that non-Haitian nurses were treated more favorably and/or that Haitian nurses were treated less
favorably.
At the outset, the Court recognizes that in general, “[r]ace and national origin are
ideologically distinct categories, and Title VII’s text and legislative history reflects this
distinction.” Brutus v. Silverseal Corp., 06 CIV. 15298 (LAP), 2009 WL 4277077, at *4
(S.D.N.Y. Nov. 24, 2009) aff’d, 439 F. App’x 28 (2d Cir. 2011); see, e.g., Benjamin v. New
York City Dep’t of Health, 144 F. App’x 140, 142 (2d Cir. 2005) (“[T]he District Court correctly
found that Benjamin’s administrative complaint, which focused exclusively on her ‘dark skin’ as
the source of the discrimination she suffered, did not reasonably (or in fact) give rise to any
administrative consideration of whether Benjamin suffered discrimination because of her
Jamaican origin as opposed to her race.”). Nevertheless, the Second Circuit has held that
“because racial categories may overlap significantly with nationality or ethnicity, the line
between discrimination on account of race and discrimination on account of national origin may
be so thin as to be indiscernible[.]” Deravin v. Kerik, 335 F.3d 195, 202 (2d Cir. 2003); see also
Morales v. NYS Dep’t of Labor, 865 F. Supp. 2d 220, 243 n. 6 (N.D.N.Y. 2012) (“National
origin discrimination claims are often identical to corresponding race discrimination claims.”).
Accordingly, “[w]here the line between national origin discrimination and racial discrimination
is difficult to trace, courts have warned that ‘[a]n attempt to make such a demarcation before

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both parties have had an opportunity to offer evidence at trial is inappropriate.’” Id. (quoting
Bullard v. OMI Georgia, Inc., 640 F.2d 632, 634–35 (5th Cir. Unit B 1981)); see also Morales,
865 F. Supp. 2d at 243 n. 6.
Several courts have permitted claims alleging both race-based discrimination and national
origin-based discrimination to proceed forward even where the Plaintiff initially only alleged one
type of discrimination and not the other. See, e.g., Rajaravivarma v. Bd. of Trustees for
Connecticut State Univ. Sys., 862 F. Supp. 2d 127, 146 (D. Conn. 2012) (holding that the
“[p]laintiff’s claim for discrimination based on race is reasonably related to his claim for
discrimination based on national origin and would have undeniably fallen within the scope of the
[EEOC’s] investigation”); Quinones v. Kohler Mix Specialties, LLC, CIV.A.309CV1979JCH,
2010 WL 1782030, at *3 (D. Conn. Apr. 30, 2010) (finding that “[t]he categories of Puerto
Rican and Hispanic could be said to ‘substantially overlap,’ and the line between the two might
be ‘sufficiently blurred’ that the EEOC would investigate both” where the plaintiff originally
made a claim of discrimination based on his national origin, but not on his race); Sharabura v.
Taylor, 03 CV 1866 (JG), 2003 WL 22170601, at *3 (E.D.N.Y. Sept. 16, 2003) (finding that an
EEOC complaint that included only a national origin claim but not a race claim, but alleged that
Russian nurses were fired and replaced by African-American nurses and that Russian nurses
were forbidden to speak Russian but that non-Russian nurses were permitted to speak in Creole,
“would no doubt alert the EEOC of the potential for race and color discrimination claims”). The
Court acknowledges that the courts in these cases were not analyzing the sufficiency of the
complaint filed in federal court, but rather, were determining the sufficiency of an EEOC or
administrative complaint in the context of an administrative exhaustion analysis. Nevertheless,
the Court finds that the reasoning of these cases is relevant and persuasive here.

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In addition, of importance, “[t]he Court can take judicial notice of government statistics”
Victoria Cruises, Inc. v. Changjian Cruise Overseas Traveal Co., 630 F. Supp. 2d 255, 263 n. 3
(E.D.N.Y. 2008) (citing, among other cases, City Bank Farmers’ Trust Co. v. United States, 5 F.
Supp. 871, 873 (S.D.N.Y. 1934) (in turn, citing Greeson v. Imperial Irr. Dist., 59 F.2d 529, 531
(9th Cir. 1932) (“[T]he court is bound to take notice of public facts and geographical positions,
and also of populations of cities and counties, public documents, reports of Commissions made
to Congress, and proceedings thereon, etc.”))). In this regard, the Court notes that according to
the CIA World Factbook, 95% of Haitians are black, while the remaining 5% of Haitians are
mulatto and white. See CIA, the World Factbook: Haiti, available at https://www.cia.gov/
library/publications/the-world-factbook/geos/ha.html (last visited May 28, 2013); see also Nofal
v. Jumeirah Essex House, 09 CIV 2994 PAC, 2010 WL 4942218 (S.D.N.Y. Dec. 3, 2010) (citing
to CIA, the World Factbook); Wright v. Goldman, Sachs & Co., 387 F. Supp. 2d 314, 320
(S.D.N.Y. 2005) (same).
As such, in this case, the Court finds that a plausible inference can be made that the white
or Caucasian nurses referenced in the Plaintiff’s Complaint were, in all likelihood, also nonHaitians. Relying on this plausible inference, the Court finds that the Plaintiff’s Complaint states
a valid Title VII claim of national origin-based discrimination in that the Plaintiff, as a Haitian,
was subjected to less favorable treatment than her non-Haitian counterparts. Accordingly, the
Court denies VNSNY’s motion to dismiss the Plaintiff’s Title VII claim premised on national
origin discrimination.
However, while the Court finds that such a plausible inference can be made, in an
abundance of caution, the Court directs the Plaintiff to file an amended complaint, within ten
days of the date of this Order, asserting that the white or Caucasian nurses referenced in her

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Complaint were also non-Haitian if the Plaintiff believes that is factually correct. The Plaintiff
may make these assertions upon information and belief. If the Plaintiff fails to do so, the Court
will dismiss the Plaintiff’s national origin-based discrimination claim with prejudice.
2.

The Plaintiff’s Title VII Hostile Work Environment Claim

VNSNY also argues that the Plaintiff “has failed to allege even the most basic elements
of a hostile work environment claim based on national origin,” because “she fails to plead a
single incident of discriminatory intimidation, ridicule, insult, or any other incident that
demonstrates a hostile work environment based on national origin.” (Def. Mem., pg. 9.) The
Court agrees.
In general, “[a] hostile work environment, in violation of Title VII, is established by a
plaintiff showing that his or her workplace was 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.” Zhao v. State Univ. of N.Y.,
472 F. Supp. 2d 289, 311 (E.D.N.Y. 2007) (citing Howley v. Town of Stratford, 217 F.3d 141,
153 (2d Cir. 2000) (in turn, citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367,
126 L. Ed. 2d 295 (1993))) (internal quotation marks omitted); see also Cruz v. Coach Stores,
Inc., 202 F.3d 560, 570 (2d Cir.2000). “To plead a hostile work environment claim, [a]
[p]laintiff must plead facts that would tend to show that ‘the complained of conduct: (1) is
objectively severe or pervasive – that is, . . . creates an environment that a reasonable person
would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives
as hostile or abusive; and (3) creates such an environment because of the plaintiff's [protected
characteristic].’” Argeropoulos v. Exide Technologies, 08-CV-3760 JS, 2009 WL 2132443, at
*5 (E.D.N.Y. July 8, 2009) (citing Patane, 508 F.3d at 113) (alterations in the original).

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Furthermore, “[a]n environment’s hostility is assessed based on the ‘totality of the
circumstances,’ which includes factors such as (1) the frequency of the discriminatory conduct;
(2) its severity; (3) whether it is threatening and humiliating, or a mere offensive utterance; and
(4) whether it unreasonably interferes with an employee’s work performance.” Id. (citing
Patane, 508 F.3d at 113).
Thus, “[i]n order to plead a legally sufficient claim for hostile work environment,
plaintiff must allege comments which are sufficiently severe and pervasive as unreasonably to
interfere with her job performance.” Frierson v. NASDAQ/AMEX Mkt. Grp., 96 CIV. 7102
(WK), 2001 WL 262598, at *2 (S.D.N.Y. Mar. 14, 2001) (citing Harris v. Forklift Sys. Inc., 510
U.S. 17, 21–23, 114 S. Ct. 367, 370–71, 126 L. Ed. 2d 295 (1993) and Lopez v. S.B. Thomas,
Inc. 831 F.2d 1184, 1189 (2d Cir.1987)). Moreover, “[a]s a general rule, incidents must be more
than episodic; they must be sufficiently continuous and concerted in order to be deemed
pervasive. Isolated acts, unless very serious, do not meet the threshold of severity or
pervasiveness.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (citations and internal
quotation marks omitted).
In this case, the Plaintiff has asserted no factual allegations that she was subjected to any
severe or pervasive anti-Haitian comments. Rather, the Plaintiff merely points to how she was
treated less favorably than presumably non-Haitian nurses. However, these “acts are [ ] not of
sufficient magnitude to meet the applicable standard of severe intimidation, ridicule and insult”
required in a hostile work environment claim. Ashok v. Barhart, 289 F. Supp. 2d 305, 313
(E.D.N.Y. 2003). Therefore, the Court grants VNSNY’s motion to dismiss the Plaintiff’s Title
VII hostile work environment claim based on national origin.

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In addition, while it appears that VNSNY has not challenged the Plaintiff’s Title VII
hostile work environment claim based on race/color, the Court finds that this claim is also
deficient for the same reasons as the Plaintiff’s national origin-based hostile work environment
claim. Indeed, the Plaintiff makes no allegations in her Complaint that she was subjected to any
racial slurs, epithets or remarks. See Hammod v. Zurich American Ins. Co., No. 09–CV–3219
(JS)(ARL), 2010 WL 3236777, at *6–7 (E.D.N.Y. Aug. 12, 2010) (dismissing a plaintiff’s
hostile work environment claims where she “fail[ed] to plead even a single fact that could give
rise to a hostile work environment because of her age, race or national origin”).
Accordingly, as the Court has the power to dismiss claims sua sponte for a failure to state
a claim, the Court sua sponte dismisses the Plaintiff’s hostile work environment claim based on
race/color. See Leonhardv. U.S., 633 F.2d 599, 609 n. 11 (2d Cir. 1980); Byars v. Malloy, No.
3:11cv17 (SRU), 2011 WL 4538073, at *5 (D. Conn. Sept. 29, 2011).
III.

CONCLUSION

For the foregoing reasons, it is hereby:
ORDERED that the Plaintiff’s NYSHRL claims are dismissed; and it is further
ORDERED that the Plaintiff’s 42 U.S.C. §§ 1981 and 1983 claims against the Individual
Defendants Eloise Goldberg, Jill Mendelson and Marian Haas are dismissed and, as such, the
Individual Defendants are dismissed from this action entirely; and it is further
ORDERED that the Defendants’ motion to dismiss the Plaintiff’s Title VII claim
alleging discrimination and retaliation based on national origin is denied; and it is further
ORDERED that the Plaintiff is directed, within ten days of the date of this Order, to file
an amended complaint asserting that the white or Caucasian nurses she references in her
Complaint are also non-Haitians if the Plaintiff believes that is factually correct. The Plaintiff

23

may make these assertions upon information and belief. Failure to do so will result in the
dismissal of her Title VII claim alleging national origin-based discrimination and retaliation; and
it is further
ORDERED that the Defendant’s motion to dismiss the Plaintiff’s Title VII harassment
or hostile work environment claim based on national origin is granted; and it is further
ORDERED that the Court sua sponte dismisses the Plaintiff’s Title VII harassment or
hostile work environment claim based on race/color; and it is further
ORDERED that the caption in this action is amended to read as follows:

---------------------------------------------------------X
MARIE PLACIDE-EUGENE,
Plaintiff,
-againstVISITING NURSE SERVICE OF NEW YORK,
Defendant.
---------------------------------------------------------X
SO ORDERED.
Dated: Central Islip, New York
May 30, 2013
____/s/ Arthur D. Spatt_____
ARTHUR D. SPATT
United States District Judge

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