Fouche v. St. Charles Hospital
Filing
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DECISION AND ORDER- Based on the foregoing reasons, the Defendants 7 motion to dismiss the amended complaint is granted; the amended complaint is dismissed in its entirety; leave to replead is denied; and the Clerk of the Court is respectfully directed to close the case. So Ordered by Judge Arthur D. Spatt on 12/10/14. (Coleman, Laurie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GILBERTE FOUCHE,
Plaintiff,
DECISION AND ORDER
14-CV-02492 (ADS)(ARL)
-againstST. CHARLES HOSPITAL,
Defendant.
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APPEARANCES:
Alero O. Mayor, Esq.
Attorney for the Plaintiff
119 Beach 61st Street
Suite 1
Arverne, NY 11692
Sheppard Mullin Richter & Hampton, LLP
Attorneys for the Defendant
30 Rockefeller Plaza
New York, NY 10112
By:
Kevin James Smith, Esq., Of Counsel
SPATT, District Judge.
On April 18, 2014, the Plaintiff Gilberte Fouche (the “Plaintiff”) commenced this action
against her former employer, the Defendant St. Charles Hospital (the “Defendant”). The
Plaintiff asserted three claims for relief: (1) wrongful termination or constructive discharge in
violation of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq.,
namely § 510 of ERISA; (2) retaliation in violation of New York Labor Law § 740 and New
York Civil Service Law § 75-b; and (3) discrimination on the basis of race, color, gender, and
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national origin in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), § 2000e et
seq.
On July 16, 2014, the Defendant moved, pursuant to Federal Rule of Civil Procedure
(“Fed. R. Civ. P.”) 12(b)(6), to dismiss the complaint in its entirety.
On September 8, 2014, the Court granted the Defendant’s motion; dismissed the
complaint in its entirety; and gave the Plaintiff twenty days to file an amended complaint limited
to a claim under 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991.
On September 25, 2014, the Plaintiff filed an amended complaint, raising claims of
discrimination and retaliation in violation of 42 U.S.C. § 1981.
On October 14, 2014, the Defendant moved, pursuant to Fed. R. Civ. P. 12(b)(6), to
dismiss the amended complaint for failure to state a claim upon which relief can be granted.
For the reasons set forth below, the Defendant’s motion to dismiss the amended
complaint is granted.
I. BACKGROUND
Unless stated otherwise, the following facts are drawn from the amended complaint and
construed in a light most favorable to the non-moving party, the Plaintiff.
The Plaintiff, a black female of Haitian national origin, is a resident of New York. She is
a registered nurse (“RN”) and was an employee of the Defendant, a hospital in Suffolk County,
New York, from 2005 to 2011. The Plaintiff is a member of the New York State Nurses
Association, a labor union that had a collective bargaining agreement with the Defendant at all
the relevant times.
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The Plaintiff’s regular shift as an RN was in the Intensive Care Unit. On October 21,
2011, the Plaintiff covered the Telemetry Unit for the night shift. The Telemetry Unit provided
continuing electronic monitoring. A white nurse had been granted overtime and had been
scheduled to cover the Telemetry Unit that night. However, that nurse refused to work the shift
in the Telemetry Unit and was, instead, permitted to work in the Intensive Care Unit. According
to the Plaintiff, she was assigned to the Telemetry Unit as the sole RN, without sufficient
supporting staff and with more patients under her care than permitted by the Defendant’s internal
rules.
During this shift, one patient’s defibrillator machine indicated a reading of atrial
fibrillation (“A-Fib”). After checking the machine, the Plaintiff phoned the physician in charge
of the patient; the physician told the Plaintiff that the patient had a history of such conditions,
and prescribed certain medication.
After treating the patient, the Plaintiff discovered a problem with a remote defibrillator
monitor; in fact, the Plaintiff subsequently discovered that all the machines in the Telemetry Unit
were faulty. The Plaintiff “was then advised that the machines had been malfunctioning for a
while and that this was well known to the administration [of the Defendant].” (Amended Compl.
¶ 14.) In a written report, the Plaintiff later documented that the defibrillator machines in the
Telemetry Unit were defective.
At the end of the night shift, the physician who advised the Plaintiff on how to treat the
patient with “A-Fib” reassured the Plaintiff that the administering of medication to that patient
was proper. (Id. ¶ 17.) The Plaintiff claims that she “did not breach any hospital rules or rules of
professional conduct applicable to nurses.” (Id. ¶ 33.)
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One week after the Plaintiff’s night shift in the Telemetry Unit, she was called to meet
with certain administrators employed by the Defendant, after which she was placed on unpaid
leave indefinitely. (Amended Compl. ¶ 19.) According to the amended complaint and the charge
of discrimination with the United States Equal Employment Opportunity Commission
(“EEOC”), the Plaintiff was placed on unpaid leave because of her race, color, gender and
national origin and because she complained about the hospital’s defective machines. The
hospital administration told the Plaintiff that she was subjected to discipline for improperly
responding to the patient in “A-Fib” condition on the night shift of October 21, 2011. (Id. at ¶
21.)
The hospital administration then gave the Plaintiff the “ultimatum” of resigning her job
immediately, or remaining on unpaid leave and being subject to investigation by the Office of
Professional Discipline, which could impact her RN license. The Defendant did not inform the
Plaintiff that her resignation would also automatically “trigger a reporting incident” to the Office
of Professional Discipline; rather, the Defendant apparently told the Plaintiff that the matter
would not be reported if she resigned. On November 16, 2011, the Plaintiff resigned her
employment.
This action followed.
II. DISCUSSION
A. The Legal Standard on a Fed. R. Civ. P. 12(b)(6) Motion to Dismiss
Under the now well-established Twombly standard, a complaint should be dismissed 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
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(2007). The Second Circuit has explained that, after Twombly, the Court’s inquiry under Rule
12(b)(6) is guided by two principles. Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir. 2009)(citing
Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S. Ct. 1937, 1949–50, 173 L. Ed. 2d 868 (2009)).
“First, 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.’” Id. at
72 (quoting Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949). “‘Second, only a complaint that states a
plausible claim for relief survives a motion to dismiss’ and ‘[d]etermining 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.’” Id. (quoting Iqbal, 556 U.S. at 679,
129 S. Ct. at 1950). Thus, “[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, 129 S. Ct. at 1950.
In considering a motion to dismiss, this Court accepts as true the factual allegations set
forth in the complaint and draws all reasonable inferences in the Plaintiff’s favor. 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). 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)(citation omitted).
B. The Claim of Discrimination Under Section § 1981
Section 1981 “protects the equal right of ‘[a]ll persons within the jurisdiction of the
United States' to ‘make and enforce contracts’ without respect to race.” Domino’s Pizza, Inc. v.
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McDonald, 546 U.S. 470, 474, 126 S. Ct. 1246, 163 L. Ed. 2d 1069 (2006)(quoting 42 U.S.C. §
1981(a)). This section prohibits discrimination “with respect to the enjoyment of benefits,
privileges, terms, and conditions of a contractual relationship, such as employment.” Patterson v.
Cnty. of Oneida, 375 F.3d 206, 224 (2d Cir. 2004)(citing Whidbee v. Garzarelli Food
Specialties, Inc., 223 F.3d 62, 68–69 (2d Cir. 2000)).
“To state a claim under Section 1981, ‘a plaintiff must allege facts in support of the
following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to
discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or
more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be
sued, give evidence, etc.).’” Gaddy v. Waterfront Comm’n, No. 13 CIV. 3322 (AT)(HBP), 2014
WL 4739890, at *5 (S.D.N.Y. Sept. 19, 2014). “Essential to an action under Section 1981 are
allegations that the defendants’ acts were purposefully discriminatory and racially motivated.”
Haggood v. Rubin & Rothman, LLC, No. 14-CV-34L (SJF)(AKT), 2014 WL 6473527, at *7
(E.D.N.Y. Nov. 17, 2014)(quoting Albert v. Carovano, 851 F.2d 561, 571)(2d Cir. 1988).
Thus, “to survive a motion to dismiss, the plaintiff must specifically allege the events
claimed to constitute intentional discrimination as well as circumstances giving rise to a
plausible inference of racially discriminatory intent.” Williams v. New York City Hous. Auth.,
No. 05 CIV. 2750 (DC), 2007 WL 4215876, at *4 (S.D.N.Y. Nov. 30, 2007)(quoting Yusuf v.
Vassar Coll., 35 F.3d 709, 713)(2d Cir. 1994)(quotation marks omitted). Naked assertions of
race discrimination, without any supporting facts, are insufficient to state a Section 1981 claim.
Yusuf, 35 F.3d at 713; see also e.g., Albert, 851 F.2d at 572 (finding the “naked allegation that
[the defendants] ‘selectively enforced the College rules against plaintiffs because they are black
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or Latin’ “to be “too conclusory to survive a motion to dismiss”)(alterations omitted); Hines v.
F.J.C Sec. Co., 96 Civ. 263 (JFK), 1998 WL 60967, at *3 (S.D.N.Y. Feb. 13, 1998)(concluding
that “[t]he bare assertion that [the][d]efendants denied [the] [p]laintiff access to the government
building” because of the plaintiff's skin color, “without any specific allegation of a causal link
between the [d]efendants’ conduct and the [p]laintiff’s race, is too conclusory to withstand a
motion to dismiss”).
Here, the only allegation possibly raising an inference of discrimination –
namely, that had the Plaintiff been white, she would not have been required to work on the
Telemetry Unit – has little to do with the only potentially actionable adverse employment action,
namely the constructive discharge.
Indeed, the facts alleged in support of the discrimination claim are sparser than those
which formed the basis of the legally deficient § 1981 claim in De La Peña v. Metro. Life Ins.
Co., 953 F. Supp. 2d 393, 413 (E.D.N.Y. 2013)(Spatt, J.), aff’d sub nom. De La Pena v. Metro.
Life Ins. Co., 552 F. App’x 98 (2d Cir. 2014). In that case, this Court dismissed the complaint of
a plaintiff who was the only Filipino who worked in his unit even though one of his supervisors
made a derogatory comment to him about Filipinos.
Here, by contrast, the Plaintiff’s bald assertions of discrimination — unsupported by any
meaningful comments, actions, or examples of similarly-situated persons outside of the
Plaintiff’s protected class being treated differently — are insufficient to survive a motion to
dismiss. Accordingly, the Court dismisses the Plaintiff’s claim of discrimination under Section §
1981.
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C. The Claim of Retaliation Under § 1981
Section 1981 also provides a cause of action for individuals who are retaliated against for
complaining about discrimination. CBOCS W., Inc. v. Humphries, 553 U.S. 442, 457, 128 S. Ct.
1951 (2008). “A section 1981 retaliation claim includes the same substantive elements as a Title
VII retaliation claim, namely, ‘(1) participation in a protected activity; (2) [defendant’s
knowledge] of the protected activity; (3) an adverse employment action; and (4) a causal
connection between the protected activity and the adverse employment action.’” Gomez v. City
of New York, No. 12-CV-6409 (RJS), 2014 WL 4058700, at *5 (S.D.N.Y. Aug. 14,
2014)(quoting Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010))(citations and internal
quotation marks omitted).
As to the first required element, “[i]n the context of retaliation against a discrimination
complaint, the first prong of the prima facie standard requires plaintiff to have taken ‘action . . .
to protest or oppose statutorily prohibited discrimination.’” Hayes v. Cablevision Sys. New York
City Corp., No. 07-CV-2438 (RRM), 2012 WL 1106850, at *16 (E.D.N.Y. Mar. 31, 2012)(italics
added)(citation omitted). “This protected activity must put the employer on notice that the
employee feels that he has been the object of discrimination. ‘Complaints about conduct
prohibited by the statute need not mention discrimination or use particular language,’ but
‘ambiguous complaints that do not make the employer aware of alleged discriminatory
misconduct do not constitute protected activity.’” Id. (citations omitted).
Here, the amended complaint indicates that the Plaintiff did not put her employer on
notice of the alleged racial discrimination at the time of her complaint. Rather, the Plaintiff
lodged a complaint regarding the Defendant’s policies and practices concerning defibrillators
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that allegedly endangered patients. The Court notes that the Plaintiff’s complaint to her
supervisor was race-neutral.
For this reason, the Plaintiff fails to state a prima facie claim of retaliation on the basis of
race in violation of Section § 1981.
D. Leave to Replead
Under Fed. R. Civ. P. 15(a), leave to replead should be freely given. However, the Court
declines to do so in this case because the Plaintiff has “requested leave to amend without any
suggestion of what changes such amendment might effect” or how such changes might rescue
the complaint. In re SAIC Inc. Derivative Litig., 948 F. Supp. 2d 366, 392 (S.D.N.Y.2013), aff’d
sub nom. Welch v. Havenstein, 553 Fed. Appx. 54 (2d Cir. 2014); see also In re Goldman Sachs
Mortgage Servicing S’holder Derivative Litig., –––F. Supp. 2d ––––, ––––, No. 11 Civ. 4544
(WHP), 2012 WL 3293506, at *11 (S.D.N.Y. Aug. 14, 2012)(“Here, Plaintiffs failed to advise
this Court of how an amendment would cure defects in the Complaint”). In other words, a
review of the Plaintiff’s opposition papers reveals no additional facts or theories that would be
raised in an amended complaint.
“As a result, the Court has ‘no inkling of what [the] amendment might look like or what
additional facts may entitle [the Plaintiff] to relief.’” Ahluwalia v. St. George’s Univ., LLC, No.
14-CV-3312 (ADS)(GRB), 2014 WL 6674615, at *16 (E.D.N.Y. Nov. 25, 2014)(quoting 545
Halsey Lane Properties, LLC v. Town of Southampton, No. 14–CV–2368 (ADS)(GRB), 2014
WL 4629087, at *8 (E .D.N.Y. Sept. 16, 2014)(quoting St. Clair Shores Gen. Employees Ret.
Sys. v. Eibeler, 745 F. Supp. 2d 303, 316 (S.D.N.Y. 2010)). “Rule 15(a) is not a shield against
dismissal to be invoked as either a makeweight or a fallback position in response to a dispositive
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motion.” DeBlasio v. Merrill Lynch & Co., Inc., No. 07 Civ. 0318 (RJS), 2009 WL 2242605, at
*41 (S.D.N.Y. July 27, 2009).
For this reason, the Court exercises its discretion to deny the Plaintiff’s alternative
request for leave to replead.
III. CONCLUSION
Based on the foregoing reasons, the Defendant’s motion to dismiss the amended
complaint is granted; the amended complaint is dismissed in its entirety; leave to replead is
denied; and the Clerk of the Court is respectfully directed to close the case.
SO ORDERED.
Dated: Central Islip, New York
December 10, 2014
__ _Arthur D. Spatt___________________
ARTHUR D. SPATT
United States District Judge
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