Alpaugh v. PhyAmerica Government Services, Inc. et al

Filing 21

MEMORANDUM-DECISION and ORDER - That PhyAmerica's motion to dismiss (Dkt. No. 12) is GRANTED. That White Stone's motion to dismiss (Dkt. No. 13) is GRANTED. That Alpaugh's complaint (Dkt. No. 1) is DISMISSED. That the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 6/24/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
CRAIG ALPAUGH,
Plaintiff,

1:14-cv-1514
(GLS/DJS)

v.
PHYAMERICA GOVERNMENT
SERVICES, INC. et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of James D. Hartt
70 Linden Oaks
3rd Floor
Rochester, NY 14625
FOR THE DEFENDANTS:
PhyAmerica Government Services,
Inc.
Offit Kurman, P.A.
300 East Lombard Street, Suite 2010
Baltimore, MD 21202
White Stone Consulting, LLC
Ruta Soulios & Stratis LLP
1500 Broadway, 21st Floor
New York, NY 10036
Gary L. Sharpe
Senior District Judge

JAMES D. HARTT, ESQ.

APRIL M. RANCIER, ESQ.

JOSEPH A. RUTA, ESQ.

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Craig Alpaugh commenced this action against defendants
PhyAmerica Government Services, Inc. and White Stone Consulting, LLC,
alleging claims pursuant to Title VII of the Civil Rights Act of 1964.1
Pending are defendants’ pre-answer motions to dismiss for failure to state
a claim. (Dkt. Nos. 12, 13.) For the reasons explained below, the motions
are granted.
II. Background2
While employed by PhyAmerica as a physician’s assistant at Fort
Drum Military Base, Alpaugh worked with nurse practitioner Lucille
McDermott, an employee of White Stone. (Compl. ¶¶ 9, 14, 17, 18, Dkt.
No. 1.) McDermott “repeatedly [made] inappropriate comments regarding
Islam/Muslims, Hispanics, African-Americans, and a female co-worker.”
(Id. ¶ 17.) Alpaugh, who is “not a member of the protected classes” that
were targeted by McDermott, found the comments “to be highly insulting

1

See 42 U.S.C. §§ 2000e-2000e-17.

2

Consistent with the applicable standard of review, the facts are drawn from the
complaint and presented in the light most favorable to Alpaugh.

2

and offensive” and “unwelcome, insensitive and outrageous.” (Id. ¶¶ 18,
21, 28.)
Alpaugh first complained about these comments to White Stone’s
chief executive officer in March 2012. (Id. ¶ 30.) White Stone, however,
“failed to adequately investigate, or to intervene after discovering through
its bad faith investigation, corroboration of [Alpaugh]’s allegations as to
hostile work environment.” (Id. ¶ 31.) Additional complaints made by
Alpaugh to White Stone were unavailing. (Id. ¶ 32.) Alpaugh also
complained to his own supervisor with PhyAmerica, but no satisfactory
action was taken. (Id. ¶ 33.) In December 2012, Alpaugh complained of a
hostile work environment, in writing, to both PhyAmerica and White Stone.
(Id. ¶ 39.) Alpaugh was fired shortly thereafter despite having “received a
raise for satisfactory performance” just one month prior. (Id. ¶¶ 44, 45.)
After his termination, Alpaugh filed a complaint with the New York
State Division of Human Rights (DHR), where he complained of unlawful
discrimination; in his DHR complaint, Alpaugh admitted that he was not a
member of any protected class targeted by McDermott’s remarks. (Id. ¶ 4;

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Dkt. No. 1, Attach. 2; Dkt. No. 12, Attach. 2 at 3.)3
The parties are in agreement that, as a result of the foregoing,
Alpaugh alleges claims of discrimination, hostile work environment, and
retaliation pursuant to Title VII. (Compl. ¶¶ 11-49.)
III. Standard of Review
The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its prior decision in Ellis v. Cohen & Slamowitz,
LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010), abrogated on other
grounds by Altman v. J.C. Christensen & Assocs., Inc., 786 F.3d 191 (2d
Cir. 2015).
IV. Discussion
Defendants argue that none of Alpaugh’s claims are viable. In
particular, defendants assert that, because Alpaugh is not a member of
any protected class, his claims of discrimination and hostile work
environment cannot stand. (Dkt. No. 12, Attach. 1 at 2-7; Dkt. No. 13,
3

The DHR complaint, which was submitted by PhyAmerica along with its motion
papers, (Dkt. No. 12, Attach. 2), has been taken into consideration by the court. Indeed,
because the complaint references Alpaugh’s charge of discrimination, the document was
incorporated by reference. Additionally, complaints filed with the DHR are public records of
which the court may, and does here, take judicial notice. See Muhammad v. N.Y.C. Transit
Auth., 450 F. Supp. 2d 198, 204-05 (E.D.N.Y. 2006).

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Attach. 1 at 2.) As for the retaliation claim, defendants contend that
Alpaugh failed to exhaust his administrative remedies on that issue and
that the claim is not “reasonably related” to the claims that he did raise with
DHR such that an exception to the exhaustion rule applies. (Dkt. No. 12,
Attach. 1 at 8-11; Dkt. No. 13, Attach. 1 at 3-4.) White Stone separately
argues that the claims asserted against it must be dismissed for a more
fundamental reason: it is not Alpaugh’s employer and therefore is not
subject to liability under Title VII. (Dkt. No. 13, Attach. 1 at 3-4.)4 Because
Alpaugh has failed to state a claim, as explained below, his complaint must
be dismissed.
In order to state a claim for relief under Title VII for discrimination or
hostile work environment, the plaintiff must establish that he or she is a
member of a protected class. See Gladwin v. Pozzi, 403 F. App’x 603, 605
(2d Cir. 2010) (reciting the elements of a Title VII discrimination claim,
which includes that the plaintiff “falls within a protected class”); Alfano v.
Costello, 294 F.3d 365, 374 (2d Cir. 2002) (explaining that “it is ‘axiomatic’

4

As urged by White Stone, (Dkt. No. 13, Attach. 1 at 3-4) — and unopposed by
Alpaugh — the claims asserted against it must be dismissed because White Stone, who was
not Alpaugh’s employer, is not subject to liability under Title VII. See 42 U.S.C. § 2000e2(a)(1) (declaring as unlawful an employer’s discrimination based on race, color, religion, sex,
or national origin). For this elementary reason, White Stone’s motion is granted.

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that . . . a plaintiff must demonstrate that the conduct [giving rise to a
hostile work environment] occurred because of” his or her protected class
characteristic (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.
2001)).
Here, Alpaugh’s discrimination and hostile work environment claims
fail because he cannot establish a prima facie case. With respect to both
of those claims, he is admittedly not a member of any protected class.
Indeed, Alpaugh concedes in his complaint and his DHR complaint that he
“was and is not a member of the protected class attributable to the vile and
insensitive comments made by McDermott.” (Compl. ¶ 28; Dkt. No. 12,
Attach. 2 at 3.)5 Because protected class membership is an element of
those claims, Alpaugh cannot possibly recover under Title VII.
Turning now to Alpaugh’s retaliation claim, as a prerequisite to filing
Title VII claims in federal court, the plaintiff “must first present ‘the claims
5

The cases cited by Alpaugh in opposition to this argument, (Dkt. No. 16 at 5-8), miss
this basic point. For example, there is no doubt that a plaintiff complaining of a hostile work
environment need not be the target of the offensive conduct. See, e.g., Cruz, 202 F.3d at 570.
What Alpaugh conveniently overlooks, however, is that conduct prohibited by Title VII, even if
not directed at the plaintiff, must be targeted at some protected class and the plaintiff must
also be a member of that protected class or another. Id. (“Remarks targeting members of
other minorities, for example, may contribute to the overall hostility of the working environment
for a minority employee.” (emphasis added and citation omitted)). The logic of Cruz is
obvious: a work environment dominated by hostility against one particular racial group (or
other protected class) tends to show an employer’s more generic racial (or other)
discrimination.

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forming the basis of such a suit . . . in a complaint to the EEOC or the
equivalent state agency.’” Littlejohn v. City of New York, 795 F.3d 297,
322 (2d Cir. 2015) (quoting Williams v. N.Y.C. Hous. Auth., 458 F.3d 67,
69 (2d Cir.2006) (per curiam) (citing 42 U.S.C. § 2000e-5)). Claims that
are not presented to the EEOC or, as relevant here, DHR, may be raised
all the same provided that they are “reasonably related to the claim[s] filed
with the agency.” Id. (internal quotation marks and citation omitted). “A
claim is considered reasonably related to conduct complained of in the
EEOC [or DHR] charge if, for instance, it ‘would fall within the reasonably
expected scope of an EEOC [or DHR] investigation of the charges of
discrimination.’” Amin v. Akzo Nobel Chems., Inc., 282 F. App’x 958, 961
(2d Cir. 2008) (quoting Alfano v. Costello, 294 F.3d 365, 381 (2d Cir.
2002)). Distilled to its essence, “the reasonably related standard means
that loose pleading is permitted before the EEOC” or DHR. Id. (internal
quotations marks and citation omitted)
Here, Alpaugh failed to explicitly raise a claim of retaliation in the
DHR complaint by checking the “Retaliation” box or making specific factual

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allegations. (Dkt. No. 12, Attach. 2 at 3.)6 He did, however, mention the
“loss of [his] employment” in the factual narrative he provided, (id. at 5),
and the DHR Determination After Investigation7 reveals that the DHR
investigation touched upon Alpaugh’s firing, (Dkt. No. 1, Attach. 2 at 4
(“PhyAmerica . . . maintains that [Alpaugh]’s employment was terminated
on the instruction of the U.S. Army.”); Id. at 6 (“[I]f PhyAmerica was aware
of [Alpaugh]’s allegations prior to his termination, and no action was taken,
this could indicate a failure by [PhyAmerica] to provide [Alpaugh] with a
work environment free from unlawful discrimination.”) Alpaugh’s
unexhuasted retaliation claim is not reasonably related to his exhausted
claims. Indeed, the allegations and ensuing DHR investigation cannot be

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Alpaugh’s contention to the contrary, which fails to point to any prevailing case law,
(Dkt. No. 16 at 11), is rejected. As explained below, even if Alpaugh complained to
PhyAmerica about McDermott’s comments prior to his termination as Alpaugh alleged in his
DHR complaint, he failed to take the critical additional step of claiming that his termination had
anything to do with his complaints of discrimination. In fact, his “loss of employment,” (Dkt.
No. 12, Attach. 2 at 5), does not appear at all relevant to his complaint of discrimination. It,
instead, seems to be mentioned by Alpaugh only as a temporal anchor, which fixes the timing
and intensity of certain comments attributed to McDermott. (Id.) Alpaugh’s other assertion,
that, because the DHR complaint did not name PhyAmerica as a party to the discrimination, he
had no opportunity to allege a retaliation claim against Phy America, (Dkt. No. 16 at 11), does
not impact the exhaustion analysis. Although the DHR complaint is bizarre in that it was filed
against individuals not affiliated with Alpaugh’s employer, (Dkt. No. 12, Attach. 2 at 2), it does
not change the fact that a claim of retaliation was not alleged, nor were facts alleged that fairly
encompassed retaliation.
7

This document was attached to the complaint, (Dkt. No. 1, Attach. 2), and is,
therefore, properly before the court. See Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co.,
62 F.3d 69, 72 (2d Cir.1995).

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fairly viewed as encompassing a claim of retaliation. See Jenkins v.
N.Y.C. Transit Auth., 646 F. Supp. 2d 464, 473 (S.D.N.Y. 2009). While the
court gives little weight to the cases relied upon by PhyAmerica, which
primarily emanate from out-of-Circuit authorities, (Dkt. No. 12, Attach. 1 at
9-11), it nonetheless is convinced that Alpaugh’s failure to exhaust should
not be excused.
Perhaps the best guidance on the issue from within the Second
Circuit body of law comes from Amin. There, the plaintiff, like Alpaugh,
apparently failed to check the appropriate box to indicate retaliation, and,
instead, only indicated that he was discriminated against on the basis of
age, religion, and national origin. See 282 F. App’x at 961. Critically, the
plaintiff in Amin submitted an affidavit along with his EEOC complaint in
which he alleged “that his employment . . . had been terminated for those
reasons.” Id. (emphasis added). Because the plaintiff alleged
discriminatory termination, the Circuit reasoned that the EEOC
investigation “would involve a review of [the employer]’s stated reasons for
[the] discharg[e],” and that “[r]elevant evidence would include [the
plaintiff]’s annual performance reviews,” which included documents that
referenced the plaintiff’s prior complaints of discrimination in violation of
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Title VII. Id. Therefore, the Court held that the investigation by the EEOC
“would reasonably be expected to assess whether [the plaintiff’s]
complaints to [the employer] of discrimination on that basis played a role in
[the employer]’s decision to discharge [the plaintiff].” Id. The instant case
is readily distinguishable from Amin. What is starkly absent here is any
allegation by Aplaugh that connects his “loss of employment,” (Dkt. No. 12,
Attach. 2 at 5), to his complaints about discrimination or hostile work
environment. Despite the loose pleading standard, Alpaugh’s retaliation
claim is not reasonably related to the exhausted claims because retaliation
would not fall within the reasonably expected scope of the DHR
investigation for discrimination and hostile work environment given the
allegations made in the DHR complaint. Accordingly, Alpaugh’s failure to
exhaust that claim requires dismissal.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that PhyAmerica’s motion to dismiss (Dkt. No. 12) is
GRANTED; and it is further
ORDERED that White Stone’s motion to dismiss (Dkt. No. 13) is
GRANTED; and it is further
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ORDERED that Alpaugh’s complaint (Dkt. No. 1) is DISMISSED; and
it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
June 24, 2016
Albany, New York

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