Carr v. North Shore Long Island Jewish Health Systems, Inc.

Filing 25

MEMORANDUM & ORDER granting 19 Motion to Dismiss for Failure to State a Claim; For the foregoing reasons, Defendant's motion to dismiss (Docket Entry 19) is GRANTED, and Plaintiff's claims are DISMISSED WITHOUT PREJUDICE to the filing of a Second Amended Complaint. Any Second Amended Complaint must be received within thirty (30) days of the date of the entry of this Memorandum and Order. If the Court does not receive a Second Amended Complaint within thirty (30) days of the date of the entry of this Memorandum and Order, Plaintiff's claims will be dismissed with prejudice. So Ordered by Judge Joanna Seybert on 7/30/2015. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
TINA M. CARR,
Plaintiff,

MEMORANDUM & ORDER
14-CV-3257(JS)(SIL)

-againstNORTH SHORE – LONG ISLAND JEWISH
HEALTH SYSTEMS,
Defendant.
-------------------------------------X
APPEARANCES
For Plaintiff:
Lance D. Simon, Esq.
Simon Law Group, PLLC
120 Court Street
Riverhead, NY 11901
For Defendant:

Peter D. Stergios, Esq.
Christina M. Schmid, Esq.
McCarter & English, LLP
245 Park Avenue, 27th Floor
New York, NY 10167

SEYBERT, District Judge:
Plaintiff Tina M. Carr (“Plaintiff”) commenced this
action against defendant North Shore – Long Island Jewish Health
System, Inc. (“Defendant”), alleging unlawful discrimination and
failure to hire on the basis of sex and religion in violation of
Title

VII

of

the

Civil

Rights

Act

of

1964

(“Title

VII”),

42 U.S.C. § 2000e et seq.; and the New York State Human Rights
Law (“NYSHRL”), N.Y. EXEC. LAW § 290 et seq.

Currently pending

before the Court is Defendant’s motion to dismiss the Complaint
for failure to state a claim pursuant to Federal Rule of Civil
Procedure

12(b)(6).

(Docket

Entry
1

19.)

For

the

following

reasons, Defendant’s motion is GRANTED, and Plaintiff’s claims
are DISMISSED WITHOUT PREJUDICE.
BACKGROUND
I.

Factual Background1
Plaintiff is a transsexual female and a member of the

Unitarian

Universalist

18, ¶ 7.)

Church.

Plaintiff

was

a

(Am.
student

Compl.,
of

the

Docket

Entry

Sanford

Brown

Institute in Melville, NY (“Sanford Brown”), and was working
toward her Associates degree in Applied Sciences.
¶ 7.)

(Am. Compl.

In the summer of 2012, Plaintiff was among a group of

students proposed by Sanford Brown to Defendant for a medical
assistant extern position.
2012

and

without

an

(Am. Compl. ¶¶ 9-10.)

in-person

Plaintiff for an externship.

interview,

On August 13,

Defendant

selected

(Am. Compl. ¶¶ 12-13.)

Before her externship began, Plaintiff interviewed for
a

full-time,

employee

of

position
Defendant.

with

Christine

(Am.

Torre

Compl. ¶ 14.)

(“Torre”),
There,

an

Torre

explained that successful completion of the externship program
would culminate in an offer of employment with Defendant.
Compl. ¶ 15.)

(Am.

In subsequent correspondence, Plaintiff continued

The following facts are taken from the Amended Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
1

2

to

express

her

interest

in

Defendant

as

an

employer.

(Am.

on

August

2012

Compl. ¶ 16.)
Plaintiff
under

the

supervision

Compl. ¶ 17.)
typically

began

her

of

externship

Christine

Demers

27,

(“Demers”).

(Am.

Plaintiff alleges that even though Demers was

cordial

with

Plaintiff

one-on-one,

she

harbored

a

discriminatory animus against Plaintiff based upon her gender
and religion. (Am. Compl. ¶¶ 18, 24-25.)

Plaintiff alleges that

despite

interactions,

their

friendly

one-on-one

Demers

consistently demeaned Plaintiff in the presence of others.

(Am.

Compl. ¶ 18.)
Although

Plaintiff

alleges

that

Demers

routinely

disparaged her in the presence of others, she recounts only one
incident with any specificity.

On September 25, 2012, while

Plaintiff was working under Demers, Plaintiff alleges that she
entered into a patient’s room in which Demers and the patient’s
mother were speaking.

(Am. Compl. ¶¶ 24-25.)

Demers, unaware

that Plaintiff entered the room, allegedly told the patient’s
mother “that Unitarian Universalist is not a religion that is
recognized by Jesus, and the he-shes . . . and the gays will
needs to answer to Jesus someday.”
In

addition

Plaintiff

alleges

sometimes

received

that

to

her

she

“stares”

(Am. Compl. ¶ 25.)
overhearing

sometimes
from
3

other

heard

Demers’

remark,

“chatter,”

employees

when

or
she

attempted to use the female employee restroom.
¶ 20.)

Plaintiff

does

not

describe

the

(Am. Compl.

contents

of

this

chatter, its speakers, or which employees inappropriately stared
at her.
On

September

25,

2012,

Plaintiff

received

an

email

from Torre asking her not to return to her externship.

(Am.

Compl. ¶ 27; Schmid Aff., Docket Entry 21, Ex. 4.)
responded

to

Torre’s

email

the

following

Plaintiff

morning,

discussing

Demers alleged mistreatment. (Am. Compl. ¶¶ 28, 30.)

Plaintiff

did not receive a response from Torre until Plaintiff received a
copy of Demers’ evaluation of her, dated on October 3, 2012.
(Am. Compl. ¶ 31.)
From

these

facts,

Plaintiff

alleges

that

Demers

executed a systematic attack against Plaintiff by shaming her
and then privately being nice to her, with the objective of
Plaintiff being terminated before the externship concluded in
order to preempt her employment with Defendant.
¶ 29.)

Plaintiff

alleges

that

all,

or

(Am. Compl.

nearly

all,

of

Plaintiff’s peers at Sanford Brown that completed an externship
with

Defendant

with Defendant.

were

offered

and

accepted

(Am. Compl. ¶ 33.)

permanent

positions

Plaintiff further claims

that it is Defendant’s custom and practice to offer permanent
positions

to

externs

externship program.

upon

successful

(Am. Compl. ¶ 34.)
4

completion

of

the

II.

Procedural Background
On August 5, 2013, Plaintiff filed an administrative

complaint with the New York State Division of Human Rights (the
“Division”)

and

the

Equal

Employment

Opportunity

Commission

(“EEOC”) alleging discrimination on account of sex and religion.
(Schmid Aff., Ex. 2.)

On or about February 27, 2014, Plaintiff

received a Notice of Right to Sue from the EEOC.
¶ 5.)

On

October

6,

2014,

Plaintiff

filed

(Am. Compl.
this

action,

asserting claims for failure to hire based on sex and religion
under Title VII and the NYSHRL.

(Am. Compl. ¶¶ 35-36.)

DISCUSSION
The Court will first set forth the applicable legal
standard before turning to the Health System’s motion to dismiss
more specifically.
I.

Legal Standard
In deciding a Rule 12(b)(6) motion to dismiss, the

Court

applies

a

“plausibility

“[t]wo working principles.”

standard,”

which

is

guided

by

Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d
929 (2007); accord Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir.
2009).

First, although the Court must accept all allegations as

true, this “tenet” is “inapplicable to legal conclusions;” thus,
“[t]hreadbare recitals of the elements of a cause of action,
5

supported

by

mere

conclusory

statements,

do

not

suffice.”

Iqbal, 556 U.S. at 678; accord Harris, 572 F.3d at 72.

Second,

only complaints that state a “plausible claim for relief” can
survive a Rule 12(b)(6) motion to dismiss.
679.

Iqbal, 556 U.S. at

Determining whether a complaint does so is “a context-

specific task that requires the reviewing court to draw on its
judicial experience and common sense.”

Id.; accord Harris, 572

F.3d at 72.
II.

Failure to Hire
Title VII makes it unlawful for an employer “to fail

or refuse to hire or to discharge any individual, or otherwise
to

discriminate

against

any

individual

with

respect

to

his

compensation, terms, conditions, or privileges of employment,
because

of

national

such

individual’s

origin.”

42

race,

U.S.C.

contains a similar provision.

§

color,

religion,

2000e-2(a)(1).

sex,

The

or

NYSHRL

N. Y. EXEC. LAW § 296 (McKinney).2

Thus, in order to state a claim for failure to hire under either
Title

VII

applied

or

for

the
a

NYSHRL,

position,

a

plaintiff

that

she

must

was

allege

qualified

that
for

she
that

position, and that she was rejected under circumstances giving
rise to an inference of unlawful discrimination. Tex. Dep’t of
Because the standards for establishing a claim of
discrimination under the NYSHRL are the same as those under
Title VII, the Court conducts a singular analysis. Mittl v. New
York State Div. of Human Rights, 100 N.Y.2d 326, 330, 794 N.E.2d
660, 662 (2003).
2

6

Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089,
1093,

67

L.

Ed.

2d

207

(1981).3

Defendant

contends

that

Plaintiff has (1) failed to adequately plead that she applied
for a position with defendant, and (2) if she did apply, failed
to plead that she was rejected under circumstances giving rise
to an inference of discrimination.
A.

Failure to Apply
Defendant first argues that Plaintiff did not apply

for employment with the Health Systems.

(Def.’s Br., Docket

Entry 20, at 8.)
An essential element of a failure to hire claim is
that a plaintiff allege that she applied for a specific position
and was rejected.

Brown v. Coach Stores, Inc., 163 F.3d 706,

710 (2d Cir. 1998).
is

insufficient,

Although a general request for employment

id.,

a

formal

application

is

not

always

To the extent the Amended Complaint can be interpreted as
attempting to state a cause of action under either Title VII or
the NYSHRL other than failure to hire, those claims are
DISMISSED, as it is well settled that unpaid interns are not
subject to the protections of either statute. Wang v. Phoenix
Satellite Television US, Inc., 976 F. Supp. 2d 527, 532-33
(S.D.N.Y. 2013) (holding that an unpaid intern is not considered
an employee because compensation is the threshold issue in
determining the existence of an employment relationship under
both Title VII and NYSHRL); O’Connor v. Davis, 126 F.3d 112,
115-16 (2d Cir. 1997) (stating that there is an “essential
condition of remuneration” that has been recognized in the
Second Circuit and that an unpaid intern is not an “employee”
under Title VII) (internal quotation marks omitted); Tadros v.
Coleman, 898 F.2d 10, 11 (2d Cir. 1990) (holding that as a
visiting lecturer, plaintiff received no salary, and was not an
employee under Title VII).
3

7

required, Wang v. Phoenix Satellite Television US, Inc., 976 F.
Supp. 2d 527, 537 (S.D.N.Y. 2013).

Instead, a plaintiff may

satisfy this element by alleging that “(1) the vacancy at issue
was not posted, and (2) the employee either had (a) no knowledge
of the vacancy before it was filled or (b) attempted to apply
for it through informal procedures endorsed by the employer.”
Petrosino v. Bell Atlantic, 385 F.3d 210, 227 (2d Cir. 2004).
Moreover, when an applicant is unaware of open positions because
an employer does not post vacancies, it is sufficient for a
plaintiff

to

positions.

express

interest

in

a

particular

class

of

Williams v. R.H. Donnelley Corp., 368 F.3d 123, 129

(2d Cir. 2004).
By participating in the externship that both Defendant
and

her

understood

would

lead

to

an

offer

of

permanent

employment, Plaintiff expressed her interest in a certain class
of positions.

See Wang, 976 F. Supp. 2d at 538.

Additionally,

Plaintiff alleges that she at least attempted to comply with the
informal

application

program.

procedures--completion

of

the

externship

application

That the internship program was Defendants informal
process

is

apparent;

“Ms.

Torre

explained

that

completion of the externship would culminate in employment with
Defendant.”

(Am. Compl. ¶ 15.)

Additionally, all or nearly all

of her Sanford Brown peers who were selected by Defendant to
extern continued onto permanent positions after graduation from
8

the externship, and it is Defendant’s custom and practice to
employ externs in permanent positions after graduation.
Compl. ¶ 33.)

(Am.

Accordingly, Plaintiff has sufficiently alleged

that she applied for employment with Defendant.
B.

Circumstances Supporting Inference of Discrimination
Next, Defendant argues that the rejection of Plaintiff

for

a

full

supporting

time
an

discrimination.

position
inference

did

not

occur

of

either

under

gender

circumstances
or

religious

The Court agrees.

Although Plaintiff alleges that Defendant orchestrated
a “systematic attack” in order to preempt her from earning fulltime employment, she recounts only one incident of any arguable
gender or religion-based bias: that she overheard Demers state
that “he-shes . . . and the gays will need to answer to Jesus
some

day.”

however,

(Am.

that

a

Compl. ¶¶ 25,
single

stray

29.)

It

remark,

is

well-settled,

without

insufficient to state a claim for discrimination.

more,

is

See, e.g.,

Danzer v. Norden Sys., 151 F.3d 50, 56 (2d Cir. 1998); Jowers v.
Family Dollar Stores, Inc., No. 09-CV-2620, 2010 WL 3528978, at
*1, 3 (S.D.N.Y. Aug. 16, 2010) (noting that the single statement
that “black people are lazy and incompetent” just eight days
prior

to

the

plaintiff's

termination

was

a

stray

remark

insufficient to establish an inference of discrimination on its
own), aff’d, 455 F. App’x 100 (2d Cir. 2012); De La Pena v.
9

Metro. Life Ins. Co., 953 F. Supp. 2d 393, 413 (E.D.N.Y. 2013)
(applying Jowers to motion to dismiss standard), aff’d, 552 F.
App’x 98 (2d Cir. 2014).

Indeed, the remark at issue here is

even less probative of discriminatory animus against Plaintiff
because the remark was not directed at her.
Publ’ns,

Inc.,

331

F.

Supp.

2d

180,

See Green v. Harris
192

(S.D.N.Y.

2004)

(granting summary judgment to defendant when plaintiff overheard
racially

discriminatory

comments

not

directed

to

plaintiff);

Velez v. SES Operating Corp., 07-CV-10946, 2009 WL 3817461 at
*11 (S.D.N.Y. Nov. 12, 2009) (holding that a comment made by the
defendant

overheard

by

plaintiff

was

not

probative

of

a

discriminatory motive).
Plaintiff attempts to supplement her allegations of
Demers’

remark

by

explaining

Plaintiff on other occasions.

that

Demers

was

hostile

to

However, given the complete lack

of specificity regarding these other occasions, the Court gives
these threadbare allegations no weight.

Iqbal, 556 U.S. at 678.

Plaintiff’s remaining allegations that she overheard “chatter,”
or received “stares,” are similarly vague at best, and provide
no further indicia of discrimination.
Because

Plaintiff

did

not

adequately

plead

that

Defendant’s rejection of her candidacy for full-time employment
arose

under

circumstances

giving

rise

discrimination, Plaintiff’s claims fail.
10

to

an

inference

of

III. Leave to Replead
Although Plaintiff has not requested leave to replead,
the Second Circuit has stated that “[w]hen a motion to dismiss
is granted, the usual practice is to grant leave to amend the
complaint.”

Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d Cir.

1999); see also FED. R. CIV. P. 15(a)(2) (“The court should freely
give leave [to amend] when justice so requires.”).

“However, a

district court has the discretion to deny leave to amend where
there is no indication from a liberal reading of the complaint
that a valid claim might be stated.”

Perri v. Bloomberg, No.

11–CV–2646, 2012 WL 3307013, at *4 (E.D.N.Y. Aug. 13, 2012)
(citing Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)).
Although Plaintiff’s claims fail at least in part due to the
lack of specificity in the Complaint, the Court finds that there
is

at

least

stated.”

some

“indication

that

a

valid

claim

might

be

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

Accordingly Plaintiff is GRANTED leave to replead.
CONCLUSION
For

the

foregoing

reasons,

Defendant’s

motion

to

dismiss (Docket Entry 19) is GRANTED, and Plaintiff’s claims are
DISMISSED WITHOUT PREJUDICE to the filing of a Second Amended
Complaint.

Any Second Amended Complaint must be received within

thirty (30) days of the date of the entry of this Memorandum and
Order.

If the Court does not receive a Second Amended Complaint
11

within

thirty

(30)

days

of

the

date

of

the

entry

of

this

Memorandum and Order, Plaintiff’s claims will be dismissed with
prejudice.

SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

July
30 , 2015
Central Islip, NY

12