Anderson v. New York City Health and Hospitals Corporation et al

Filing 58

MEMORANDUM DECISION AND ORDER adopting 48 Report and Recommendations re: 40 Motion to Dismiss: Plaintiff Alexander Anderson, an employee of Lincoln Hospital, filed this action against Defendants the City of New York, the New York City Health a nd Hospital Corporation ("HHC"), Miriam Carasa, Abdul Mondul, David Nadal, Athena Motal, Milly Toro, Nicole Robinson, and Maria Kazaki-Maher, claiming that Defendants discriminated against him, subjected him to a hostile work environment, a nd retaliated against him, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"); 42 U.S.C. § 1981; 42 U.S.C. § 1983 ("Section 1983"); the New York City Human Rights Law, New York City Admin. Code §§ 8-101 et seq. ("NYCHRL"); and Article I, §§ 6, 8, and 11 of the New York Constitution. (First Am. Compl. ("FAC"), ECF No. 35.) Defendants moved to dismiss the FAC pursuant to Rules 4(m) and 12(b)(4), (5), and (6) of the Federal Rules of Civil Procedure. (Defs.' Mot. Dismiss ("Mot."), ECF Nos. 40--42.) This matter was refe rred to Magistrate Judge Katharine H. Parker on March 2, 2016. (ECF No. 3.) Having reviewed Magistrate Judge Parker's Report and Recommendation, this Court overrules Plaintiff's objections and adopts the Report in full. Defendants' Mot ion to Dismiss is GRANTED in part, dismissing: (i) all counts as to New York City; (ii) Counts 5, 6, 7, 8, 10, 11, 12, and 13 as to all Defendants; (iii) Count 9 as to all Defendants except Individual Defendants Carasa, Mondul, Mota!, and Robinson; (iv) Count 18 as to all Defendants except HHC; and (v) Plaintiff's claims for punitive damages as to HHC. The Clerk of the Court is directed to close the motion at ECF No. 40. (Signed by Judge George B. Daniels on 7/31/2017) (jwh)

UNITED ST ATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------ x

ALEXANDER ANDERSON,
Plaintiff,
-against-

MEMORANDUM DECISION
AND ORDER

CITY OF NEW YORK; HEAL TH AND
HOSPITAL CORPORATION; MIRIAM CARA SA, :
individually and as Chief Operation Officer for
Lincoln Hospital; ABDUL MONDUL, individually
and as Chief Patient Safety Officer for Lincoln
Hospital; DAVID NADAL, individually and as
Director of Labor Relations; ATHENA MOT AL,
individually and as Executive Director of Social
Services; MILLY TORO, individually and as
Associate Director of Social Services; NICOLE
ROBINSON, individually and as Director of
Behavioral Health Department; and MARIA
KAZAKI-MAHER, individually and as PASA
Program Supervisor,

16 Civ. 1051 (GBD) (KHP)

Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

GEORGE B. DANIELS, United States District Judge:
Plaintiff Alexander Anderson, an employee of Lincoln Hospital, filed this action against
Defendants the City of New York, the New York City Health and Hospital Corporation
("HHC"), Miriam Carasa, Abdul Mondul, David Nadal, Athena Motal, Milly Toro, Nicole
Robinson, and Maria Kazaki-Maher, claiming that Defendants discriminated against him,
subjected him to a hostile work environment, and retaliated against him, in violation of the Age
Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq.; Title VII of the Civil
Rights Act of 1964, 42 U .S.C. §§ 2000e et seq. ("Title VII"); 42 U.S.C. § 1981; 42 U.S.C. §
1983 ("Section 1983"); the New York City Human Rights Law, New York City Admin. Code§§

8-101 et seq. ("NYCHRL"); and Article I, §§ 6, 8, and 11 of the New York Constitution.' (First
Am. Compl. ("FAC"), ECF No. 35.) Defendants moved to dismiss the FAC pursuant to Rules
4(m) and 12(b)(4), (5), and (6) of the Federal Rules of Civil Procedure. (Defs.' Mot. Dismiss
("Mot."), ECF Nos. 40--42.)
This matter was referred to Magistrate Judge Katharine H. Parker on March 2, 2016.
(ECF No. 3.)

Before this Court is Magistrate Judge Parker's Report and Recommendation

("Report," ECF No. 48) 2 recommending that Defendants' Motion to Dismiss be granted with
respect to: (i) all counts as to New York City3; (ii) Counts 5, 6, 7, 8, 10, 11, 12, and 13 as to all
Defendants; (iii) Count 9 as to HHC, and Individual Defendants Nadal, Kazaki-Maher, and
Toro 4 ; (iv) Count 18 as to all Defendants except HHC; and (v) Plaintiff's claims for punitive

1

Plaintiff states in the FAC that he is entitled to "recover ... damages" pursuant to the New York State
Human Rights Law, Executive Law §§ 290 et seq. ("NYSHRL"). See FAC ~ 5. However, none of
Plaintiffs nineteen causes of action is brought pursuant to that statute. Therefore, the Court assumes,
notwithstanding his passing reference to the NYSHRL, that Plaintiff elected not to pursue claims under
the NYSHRL.
2

The relevant procedural and factual background is set forth in greater detail in the Report and is
incorporated herein.

3

Although Magistrate Judge Parker evaluated the claims brought against New York City on the merits,
the Report properly recommends that "Plaintiffs request for additional time to serve New York City be
denied with prejudice." (Report at 53.) Given that "any extension of time to serve New York City would
be futile[,]" as Plaintiff does not "plead any facts that implicate the City specifically in any wrongdoing
(Report at 53), all counts against New York City are dismissed.
4

The Report recommends granting Defendants' Motion to Dismiss "as to Count 9 with respect to
Individual Defendants Nadal, Maher, or Toro .... " (Report at 24) (emphasis added). It is clear, however,
from the rest of the Report that Magistrate Judge Parker recommends dismissing Count 9 with respect to
Individual Defendants Nadal, Maher, and Toro. (See Report at 34 ("[t]here is a dearth of facts in the FAC
regarding whether Defendants Nadal, Maher, or Toro made or significantly influenced promotion
decisions. Therefore, they should be dismissed as Defendants with respect to Count 9 of the FAC .... ")
(emphasis added).

2

damages as to HHC. (Report at 53-54.) The Report further recommends that Plaintiff's request
for additional time to serve Defendant Kazaki-Maher be granted. (Id. ) 5
Though Magistrate Judge Parker advised this Court that certain portions of Plaintiff's
remaining claims ought to fail due to various deficiencies 6 , the Report does not recommend
dismissing those remaining claims in their entirety. Although those remaining claims will not be
completely dismissed per se, because this Court adopts the Report's recommendations in full, the
deficient portions of those remaining claims are not to be further litigated.
Magistrate Judge Parker advised the parties that failure to file timely objections to the
Report would constitute a waiver of those objections on appeal. (Id. at 54); see also 28 U.S.C. §
636(b )(1 ); Fed. R. Civ. P. 72(b ). Plaintiff filed objections to that part of the Report which found
that some of Plaintiff's claims were time-barred. (Pl.'s Objs. to Report ("Pl.'s Objs."), ECF No.
49.) Defendants filed a response. (Defs.' Resp. to Pl.'s Obj. ("Defs.' Resp."), ECF No. 52.)
Plaintiff also filed a letter in reply to Defendants' Response. ("Pl. 's Reply Letter"), ECF No.
54.) This Court overrules Plaintiff's Objections and adopts the Report's recommendations in
full.
I.

LEGALSTANDARD

This court may accept, reject, or modify, in whole or m part, the findings and
recommendations set forth within the Report. See 28 U.S.C. § 636(b )(1 )(C). The district judge
may also receive further evidence or recommit the matter to the magistrate judge with
instructions. See Id.; Fed. R. Civ. P. 72(b). When no objections to a Report are made, the Court
may adopt the Report if "there is no clear error on the face of the record." Adee Motor Cars,
5

Plaintiff is granted an extension of thirty days from the filing of this Order in which to serve Defendant
Kazaki-Maher.

6

See Report at 53, (iii), (iv), (vi); 54 as to Counts 1, 2, 3, 14, 15, 16, and 17.

3

LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005) (internal citation omitted). There is no

clear error on the face of the record as to those portions of the Report to which no objections
were made.
When there are objections to the Report, this Court must make a de nova determination as
to the objected-to portions of the Report. 28 U.S.C. § 636(b)(l)(C); see also Rivera v. Barnhart,
423 F. Supp. 2d 271, 273 (S.D.N.Y. 2006). The Court need not conduct a de nova hearing on the
matter. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980). Rather, it is sufficient that
the Court "arrive at its own, independent conclusion" regarding those portions of the Report to
which objections were made. Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985)
(internal citation omitted). If a party's objection reiterates a prior argument, or consists entirely
of conclusory or general arguments, the Court should review the Report for clear error. See
McDonaugh v. Astrue, 672 F. Supp. 2d 542, 547 (S.D.N.Y. 2009); DiPilato v. 7-Eleven, Inc.,

662 F. Supp. 2d 333, 339-40 (S.D.N.Y. 2009).
Plaintiffs only objections are to Magistrate Judge Parker's determination that the statute
of limitations bars any Title VII claims based on acts occurring before February 13, 2014. (Pl.'s
Objs. at 1.) Based on newly submitted evidence, Plaintiff argues that the statute of limitations
instead bars only claims based on acts that occurred before November 19, 2013. (Id) This
Court considered the issues raised in Plaintiffs Objections and reviewed de nova the objected-to
portions of the Report.
II.

TITLE VII STATUTE OF LIMITATIONS

Plaintiff alleges that, in violation of Title VII, he applied for and was denied positions
within Lincoln Hospital on four separate occasions: (1) on December 13, 2013, when Defendant
Kazaki-Maher was appointed as the PASA Program Supervisor, a position that was recently

4

vacated and in which Plaintiff expressed interest (F AC ~~ 103-09); (2) in March 2014, when
Defendants Motal and Robinson hired Jessica Erickson as the MCU Social Worker Supervisor
Level III, a position for which Plaintiff interviewed (FAC

~~

134-38); (3) in June 2014, when

Defendant Motal hired Ilana Holowitz for the MICA Addiction Counselor Supervisor Level III, a
position for which Plaintiff interviewed (FAC

~~

170-74); and (4) in March 2015, when

Defendant Robinson hired Enid Jones-Burton as the MICA Addiction Counselor Supervisor, a
position in which Plaintiff expressed interest (F AC

~~

225-27).

Title VII's statute of limitations bars claims based on events occurring more than 300
days before filing a charge of discrimination with the Equal Employment Opportunity
Commission ("EEOC"). Riddle v. Citigroup, 499 F. App'x 66, 69 (2d Cir. 2011) (citing 42
U.S.C. §§ 2000e-5(e)(l), (f)(l) (Title VII)). "[A] private plaintiff must first file a timely charge
with the EEOC ... [a]s a predicate to filing suit under [Title VII]." Id. The filing of an EEOC
Intake Questionnaire ("Questionnaire") may constitute a charge for the purposes of bringing a
Title VII claim, but only if it is "reasonably construed as a request for the agency to take
remedial action to protect the employee's rights or otherwise settle a dispute between the
employer and the employee." Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008).
Plaintiff filed a Questionnaire with the EEOC on September 15, 2014. (See Pl.'s Objs.,
Ex. A.) Plaintiff thereafter filed a formal charge of discrimination with the EEOC on December
10, 2014 (see Deel. Garrett Kamen Supp. Defs.' Mot. Dismiss ("Kamen Deel."), Ex. B, ECF No.
42-2) and then an amended charge on February 26, 2015 (see Kamen Deel., Ex. C, ECF No. 423), asserting race and sex discrimination and retaliation.

Plaintiff argues that the date from

which the statute of limitations should be calculated is September 15, 2014-when he filed the
Questionnaire-allowing him to bring claims based on acts occurring on or after November 19,

5

2013. (Pl.'s Opp'n Defs.' Mot. Dismiss ("Pl.'s Opp'n"), ECF No. 46, at 6.) Were this the case,
none of the four occasions on which Plaintiff was allegedly denied a promotion would be timebarred.

While Plaintiff referred to the Questionnaire as being attached to his Complaint as

Exhibit K (id.), Defendants correctly noted that no such document was attached to the Complaint
or any other of Plaintiffs filings. (Defs.' Reply Pl.' s Opp'n Mot. Dismiss ("Defs.' Reply"), ECF
No. 47, at 2.) Having not seen the Questionnaire, Magistrate Judge Parker recommended that
"the statute of limitations period for Plaintiffs Title VII claims should be calculated from the
date of the EEOC charge filed on December 10, 2014[,]" barring all Title VII claims based on
acts occurring before February 13, 2014. (Id. at 46-47.) Plaintiffs Title VII claim based on
Defendants' alleged failure to promote him on December 13, 2013 would therefore be timebarred.
In his Objections to the Report, Plaintiff finally provided this Court with the
Questionnaire.

(Pl.'s Objs., Ex. A, ECF No. 49-1.)

While this Court may consider further

evidence raised in objections to a Report (see Fed. R. Civ. P. 72(b ); 28 U.S.C. § 636(b )(1 )(C)),
Defendants correctly argue that "courts generally do not consider new evidence raised in
objections to a magistrate judge's report and recommendation absent a compelling justification
for failure to present such evidence to the magistrate judge." (Defs.' Resp. at 3 (citing Azkour v.
Little Rest Twelve, Inc., No. 10 Civ. 4132, 2012 U.S. Dist. LEXIS 42210, at *10 (S.D.N.Y. Mar.

27, 2012)) (internal quotations and citations omitted).) Plaintiff explained his failure to provide
Magistrate Judge Parker with the Questionnaire only as a "mistake." (Pl. 's Objs. at 2.) This does
not constitute a "compelling justification." See, e.g., Berbick v. Precinct 42, 977 F. Supp. 2d
268, 274 (S.D.N.Y. 2013) (holding that "Defendants' (or their attorneys') neglect ... is not 'a
compelling justification for failure to present such evidence to the magistrate judge[]'") (quoting

6

Azkour v. Little Rest Twelve, Inc., No. 10 Civ. 4132, 2012 WL 1026730, at *2 (S.D.N. Y. Mar.
27, 2012)).
In his Opposition to Defendants' motion to dismiss, Plaintiff cited to the Questionnaire as
attached to the Complaint as Exhibit K. (Pl. 's Opp'n at 6.) Yet, a review of the Complaint
reveals that Plaintiff did not mention the Questionnaire as being attached as an exhibit, nor was it
attached. (See generally Compl., ECF No. 1.) Even after Defendants pointed out this error to
Plaintiff (Defs.' Reply at 2), he did nothing to provide it to the Magistrate Judge, although he had
more than two months in between the filing of Defendants' Reply and the issuing of Magistrate
Judge Parker's Report. This is just the sort of "neglect" that does not qualify as a compelling
justification for Plaintiff's failure to provide Magistrate Judge Parker with the Questionnaire.
Berbick, 977 F. Supp. 2d at 274 ("[i]f mere negligence could excuse a failure to present a full
record to the magistrate judge, parties would have no incentive to take referrals seriously, thus
stripping the referral process of much of its usefulness.") As such, this Court refuses to consider
the Questionnaire and overrules Plaintiff's objections as to when the Title VII statute of
limitations should date back.
This Court also denies Plaintiff's alternative request to "address [the Title VII statute of
limitations] issue without prejudice in the Second Amended Complaint." (See Pl.'s Objs. at 1.)
Plaintiff is not permitted to make an end run around this Court's refusal to consider the
Questionnaire by merely amending his Complaint and attaching the Questionnaire. 7 See Util.
Audit Grp. v. Capital One, NA., No. 14-CV-0097, 2015 WL 1439622, at *4 (E.D.N.Y. Mar. 26,
2015) (denying plaintiffs leave to file a second amended complaint after refusing to consider new
7

Even the Questionnaire now provided to this Court is missing a referenced "attached statement of facts."
(See Pl.'s Objs., Ex. A, at 4.) Moreover, the Questionnaire only identifies a March 28, 2014, demotion
and a July 28, 2014, denial of promotion as discriminatory adverse employment actions. (Id. at 2.) The
Questionnaire makes no reference to a December 2013 denial of promotion. (See generally Id.)

7

evidence provided by plaintiffs in objections to a report and recommendation because
''[p]laintiffs pursued no relief from the Magistrate Judge upon discovering the [new evidence.]")
Aside from barring the Title VII claim based on Plaintiffs alleged denial of promotion in
December 2013, Plaintiff argues that using February 13, 2014 as the accrual date would bar yet
another Title VII claim. (Pl.' s Obj s. at 2.) Although Plaintiff did not specify which additional
claim would be time-barred, it is presumably the next-in-time claim, relating to the failure to be
promoted to the Social Worker Supervisor III position, for which he interviewed on January 23,
2014 and to which Jessica Erickson was appointed in March, 2014. (See Comp!. at iii! 134--41.)
That claim is timely because "the [Title VII] limitations period begins to run when the plaintiff
receives notice of the adverse action." Cetina v. Longworth, 583 F. App'x 1, 3 (2d Cir. 2014)
(citing Miller v. Int'! Tel. & Tel. Corp., 755 F.2d 20, 23 (2d Cir.1985)); see also Harris v. City of
New York, 186 F.3d 243, 24 7 (2d Cir. 1999) (holding that a Title VII failure to promote claim
accrued when the plaintiff "knew or should have known that he had been passed over for
promotion"); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996) ("[t]he
timeliness of a discrimination claim is to be measured from the date the claimant had notice of
the allegedly discriminatory action.") Here, there is no indication that Plaintiff knew or should
have known that he had been passed over for that promotion before February 13, 2014. Indeed,
Plaintiffs own factual allegations, deemed as true for the purposes of a motion to dismiss (see
Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015)), indicate that he had no inkling
that he had been passed over until March 2014-afier the February 2014 bar date. (See FAC at

iii!

134--41.) As such, the only Title VII failure to promote claim that is time-barred is the claim

relating to the denial of promotion alleged to have occurred on December 13, 2013.

8

III.

CONCLUSION

Having reviewed Magistrate Judge Parker's Report and Recommendation, this Court
overrules Plaintiff's objections and adopts the Report in full.
Defendants' Motion to Dismiss is GRANTED in part, dismissing: (i) all counts as to New
York City; (ii) Counts 5, 6, 7, 8, 10, 11, 12, and 13 as to all Defendants; (iii) Count 9 as to all
Defendants except Individual Defendants Carasa, Mondul, Mota!, and Robinson; (iv) Count 18
as to all Defendants except HHC; and (v) Plaintiff's claims for punitive damages as to HHC.
The Clerk of the Court is directed to close the motion at ECF No. 40.
Dated: New York, New York
July 27, 2017
ORDERED.

JU l 3 "i 20Tl

9

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