Penn v. New York Methodist Hospital et al
Filing
31
OPINION AND ORDER re: 22 MOTION to Dismiss Plaintiff's Second Amended Complaint filed by Peter Poulos, New York Methodist Hospital. For the reasons stated above, Defendants' motion to dismiss the Complaint is partially GRANTED only to the extent of dismissing Plaintiffs claim pursuant to 42 U.S.C. § 1981 for discrimination on the basis of his race and religion as against both Defendants, dismissing Plaintiff's Title VII claim against NYMH with respect to discriminato ry actions which occurred prior to November 12, 2009, and dismissing Plaintiff's claim under Title VII for discriminatory termination of employment on the basis of race or religion. The motion is otherwise DENIED. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 9/30/2013) The Clerks Office Has Mailed Copies. (mml)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
MARLON PENN
:
:
Plaintiff,
:
-against:
:
THE NEW YORK METHODIST HOSPITAL and :
PETER POULOS,
:
:
Defendants.
:
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11-cv-9137 (NSR)
OPINION AND ORDER
NELSON S. ROMÁN, United States District Judge
Plaintiff, Marlon Penn (“Plaintiff”) commenced the instant action against his former
employer New York Methodist Hospital (“NYMH”) and his former supervisor Peter Poulos
(“Poulos”) (collectively “Defendants”), seeking monetary damages for wrongful termination. In
his second amended complaint, Plaintiff asserts two causes of action against Defendants, one for
discrimination and the other based on retaliation. In particular, Plaintiff alleges Defendants
(1) discriminated against him on the basis of his race and religion, in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (NYMH only), and the Civil Rights
Act of 1866, 42 U.S.C. § 1981 (both Defendants), and (2) retaliated against him after he filed
charges with the Equal Employment Opportunity Commission and the New York City
Commission of Human Rights, in violation of Title VII, § 1981, the New York State Human
Rights Law, N.Y. Exec. L. §§ 290–301, and the New York City Human Rights Law,
Administrative Code of the City of N.Y. §§ 8-101 to -703.
Defendants now move, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss
plaintiff’s second amended complaint for failure to state a claim upon which relief may be
granted. Defendants assert that (a) the “ministerial exception” to discrimination cases bars the
claims asserted by this ministerial employee against his religious institution employer, (b) the
Religious Freedom and Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb to 2000bb-4,
alternatively bars these claims, (c) certain claims are barred by the applicable statutes of
limitations, res judicata and collateral estoppel, (d) Defendants are entitled to the “same actor
inference” under discrimination jurisprudence, and (e) Plaintiff has not otherwise plausibly
alleged discrimination or retaliation under Title VII and § 1981. In light of the precedent
governing res judicata and collateral estoppel, Plaintiff, in opposition to Defendants’ motion,
withdraws as against both Defendants the portion of his first cause of action alleging
discrimination in the terms and conditions of employment on the basis of his race and religion in
violation of § 1981. (Pl.’s Opp’n Br. 16.) For the following reasons, Defendants’ motion to
dismiss the complaint is granted in part and denied in part.
I. PLAINTIFF’S COMPLAINT
In his second amended complaint (“Complaint”), Plaintiff asserts that he is an AfricanAmerican, an ordained Methodist minister, and a Board Certified Chaplain. He is qualified in
the area of pastoral care, having earned Doctor of Ministry and Master of Divinity degrees in
Pastoral Care. Defendant NYMH, a New York not-for-profit corporation located in Brooklyn,
New York, is a member of the New York-Presbyterian Healthcare System and a non-sectarian,
voluntary institution. NYMH has a Pastoral Care Department which is supervised by Defendant
Poulos. The Pastoral Care Department runs a two-year Clinical Pastoral Education program for
resident chaplains, in which Plaintiff participated from 2002 until 2004. Allegedly, Plaintiff
subsequently worked as a part time Staff Chaplain in the Pastoral Care Department from July
2004 until December 6, 2011. During his tenure as a part-time Staff Chaplin, Plaintiff worked an
2
eight-hour shift each Wednesday and three consecutive eight-hour shifts from 9:00 a.m. Sunday
through 9:00 a.m. Monday. Throughout the term of his employment, Plaintiff was “primarily
responsible for ministry” to certain NYMH patients and their families.
Beginning in 2004 and throughout his employment, Plaintiff requested that Poulos assign
him more work hours and/or applied for a full-time Staff Chaplain position, but Poulos denied
each request claiming there were not enough hours available. Plaintiff alleges, however, that in
September 2006 NYMH hired a Jewish rabbi as a full-time chaplain without advertising the
position or interviewing Plaintiff. In 2010, when another full-time chaplain—a Catholic nun—
retired, Plaintiff applied for her position. Despite his tenure there, Plaintiff’s application was
purportedly denied because, according to Poulos, NYMH needed to fill the vacancy with a
Catholic chaplain. Notwithstanding this representation, in or about August 2010, Poulos hired a
non-Catholic, Asian woman to fill the retiring nun’s position. Soon thereafter, Plaintiff’s work
hours were purportedly reduced.
Believing Defendants were discriminating against him, on or about September 8, 2010,
Plaintiff filed a complaint alleging employment discrimination on the basis of race and religious
creed against NYMH and Poulos with the New York City Commission on Human Rights
(“HRC”) and with the Equal Employment Opportunity Commission (“EEOC”). The HRC
dismissed Plaintiff’s complaint on July 27, 2011, and the EEOC sent Plaintiff a notice of right to
sue, dated September 22, 2011, adopting the findings of the HRC. Thereafter, Plaintiff
commenced the instant action within 90 days of the notice of right to sue.
During the first six years of his tenure at MYMH, Plaintiff purportedly was never written
up or disciplined. Plaintiff asserts his “work performance was consistently outstanding” as
3
evidenced, inter alia, by glowing “Appraiser’s Comments” made by Poulos. 1 By contrast,
Plaintiff alleges that after he filed complaints with the HRC and the EEOC, Poulos subjected
Plaintiff to verbal abuse, became hostile, and yelled at Plaintiff while visibly angry.
In addition to the verbal abuse, Plaintiff alleges that: on or about October 14, 2010,
Poulos issued Plaintiff a memo or write-up concerning an alleged failure to make documentation
in a duty log; on or about October 30, 2010, Poulos made negative comments on an evaluation
concerning Plaintiff’s need “to develop greater ability to discern what needs to be communicated
and what does not”; in December 2010, Poulos gave holiday greeting cards containing money to
all pastoral care staff except Plaintiff; on or about January 10, 2011, Poulos informed Plaintiff
that Human Resources denied Plaintiff’s request for time off to attend a Martin Luther King Day
celebration despite the fact that, previously, permission was routinely granted for such requests;
on or about March 25, 2011, the NYMH Employee Relations Manager called to direct Plaintiff
to report to Human Resources on March 28, 2011, without giving a reason, and “told [Plaintiff]
that if he refused to comply with a direct order from Human Resources his employment could be
terminated”; on or about April 11, 2011, Human Resources issued Plaintiff an official warning as
a result of disciplinary charges for alleged insensitivity toward an interracial couple and failure to
follow protocol regarding a fetal demise—issues previously handled within the Pastoral Care
Department—but Human Resources “refused to provide [Plaintiff] with a copy of the alleged
patient complaint”; on or about June 10, 2011, “Poulos wrote plaintiff a memo or write-up
concerning alleged improper documentation and communication of pertinent information”; on or
1
In a September 2005 evaluation, Poulos allegedly described Plaintiff as “conscientious and reliable.” In a
September 2008 evaluation, Plaintiff asserts that Poulos commended Plaintiff for conducting a “very effective &
much appreciated” memorial service. In a September 2009 evaluation, Poulus described Plaintiff as “a valuable
member of the Pastoral Care team” who “maintains an active, on-going Pastoral care to staff.”
4
about June 14, 2011, Poulos did not inform Plaintiff of or invite him to a “perinatal bereavement
service,” whereas Poulos previously always invited Plaintiff to such services; on or about August
12, 2011, Defendants issued Plaintiff a memo or write-up concerning Shabbos candles; on or
about November 21, 2011, Defendants summoned Plaintiff to their Human Resources
Department, falsely accused him of sexual harassment and suspended him; and on or about
December 6, 2011, Defendants terminated Plaintiff’s employment.
II. MOTION TO DISMISS STANDARD
On a motion to dismiss for “failure to state a claim upon which relief can be granted,”
Fed. R. Civ. P. 12(b)(6), dismissal is proper unless the complaint “contain[s] sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007));
accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). “Although for the purposes of a
motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is]
‘not bound to accept as true a legal conclusion couched as a factual allegation.’” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 555). “While legal conclusions can provide the framework
of a complaint, they must be supported by factual allegations.” Id. at 679.
When there are well-pleaded factual allegations in the complaint, “a court should assume
their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.
A claim is facially plausible when the factual content pleaded allows a court “to draw a
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.
Ultimately, determining whether a complaint states a facially plausible claim upon which relief
may be granted must be “a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 679.
5
III. MINISTERIAL EXCEPTION TO EMPLOYMENT DISCRIMINATION
Defendants assert that the “ministerial exception” doctrine—grounded in the Religion
Clauses of the First Amendment—applies to this case, such that the Title VII and § 1981
discrimination and retaliation claims must be dismissed.
The First Amendment states in pertinent part: “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof . . . .” Thus, in Hosanna-Tabor
Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 697, 702 (2012), the U.S. Supreme
Court recognized that the First Amendment prohibits the government from interfering with a
religious organization’s right to hire and fire ministers. In addressing the “ministerial
exception,” the Court stated:
Since the passage of Title VII of the Civil Rights Act of 1964 . . . and other
employment discrimination laws, the Courts of Appeals have uniformly
recognized the existence of a ‘ministerial exception,’ grounded in the First
Amendment, that precludes application of such legislation to claims concerning
the employment relationship between a religious institution and its ministers.
We agree that there is such a ministerial exception.
Id. at 705–06 (emphasis added). The Court further noted:
The purpose of the exception is not to safeguard a church’s decision to fire a
minister only when it is made for a religious reason. The exception instead
ensures that the authority to select and control who will minister to the faithful—a
matter ‘strictly ecclesiastical’—is the church’s alone.
Id. at 709 (internal citation omitted). 2 Accordingly, where a court directs a religious group to
reinstate an unwanted ministerial employee, the state is deemed to have infringed the Free
2
Plaintiff argues that even if there were a ministerial employee and a religious institution, the “ministerial
exception” would not apply where nothing in the Complaint “involves any dispute about religious doctrine or
dogma.” (Pl.’s Opp’n Br. 7.) For this proposition, he relies on language in Rweyemamu v. Cote stating that
“employment decisions [of a religious organization] may be subject to Title VII scrutiny, where the decision does
not involve the church’s spiritual functions.” 520 F.3d 198, 208 (2d Cir. 2008) (internal quotations marks and
citation omitted). Plaintiff’s brief, however, ignores Hosanna-Tabor altogether.
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Exercise Clause, which guarantees a religious group’s right to direct its own practices “through
its appointments.” Id. at 706. Furthermore, court-directed reinstatement “violates the
Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.”
Id. Similarly, any award for monetary relief in lieu of reinstatement
would operate as a penalty on the [religious group] for terminating an unwanted
minister, and would be no less prohibited by the First Amendment . . . . Such
relief would depend on a determination that [the religious group] was wrong to
have relieved [the ministerial employee] of [his or] her position, and it is precisely
such a ruling that is barred by the ministerial exception.
Id. at 709.
Regarding employment discrimination cases against religious organizations, the Second
Circuit Court of Appeals has noted that
(1) Title VII and the ADEA are not inapplicable to religious organizations as a
general matter; (2) [courts] will permit lay employees—but perhaps not religious
employees—to bring discrimination suits against their religious employers; and
(3) even when [courts] permit suits by lay employees, [they] will not subject to
examination the genuineness of a proffered religious reason for an employment
action.
Rweyemamu v. Cote, 520 F.3d 198, 207 (2d Cir. 2008).
“[B]ecause the issue presented by the exception is ‘whether the allegations the plaintiff
makes entitle him to relief,’ not whether the court has ‘power to hear [the] case,’” HosannaTabor, 132 S. Ct. at 709 n.4 (quoting Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869, 2877
(2010)), Defendants properly assert this defense in a motion to dismiss for failure to state a claim
under Rule 12(b)(6) instead of a motion to dismiss for lack of subject matter jurisdiction under
Rule 12(b)(1), id. (citing Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006); Bryce v.
Episcopal Church in the Diocese of Colo., 289 F.3d 648, 654 (10th Cir. 2002); Bollard v. Cal.
Province of the Soc’y of Jesus, 196 F.3d 940, 951 (9th Cir. 1999); Natal v. Christian &
7
Missionary Alliance, 878 F.2d 1575 (1st Cir. 1989).
A. Ministerial Employees
For the ministerial exception to apply, Plaintiff must have been employed in a ministerial
capacity. Hosanna-Tabor, 132 S. Ct. at 705–06. The Supreme Court declined to “adopt a rigid
formula for deciding when an employee qualifies as a minister.” Id. at 707. The Court explained
that “[t]he amount of time an employee spends on particular activities is relevant in assessing
that employee’s status, but that factor cannot be considered in isolation, without regard to the
nature of the religious functions performed and . . . other considerations.” Id. at 709; see also
Rweyemamu, 520 F.3d at 208 (“[C]ourts should consider the ‘function’ of an employee, rather
than his title or the fact of his ordination.”). In determining whether an employee is ministerial,
the Second Circuit also encourages courts to consider the nature of the dispute. Rweyemamu,
520 F.3d at 208.
In Hosanna-Tabor, a “called” teacher who was terminated from her position at a churchowned and operated school sued for damages and reinstatement under the Americans with
Disabilities Act, alleging retaliation. 132 S. Ct. at 699–700. The teacher began her employment
at the school as a “lay” teacher, but after completing classes in theology, obtaining the
endorsement of the local church district, and passing an oral examination—a six-year process—
she was “called” by the Hosanna-Tabor congregation to teach at the school as a “Minister of
Religion, Commissioned.” Id. After being diagnosed with narcolepsy, the teacher took
disability leave during the first part of a school year. Id. at 700. When she informed the school
she was medically cleared to return to work, the principal expressed concern over her readiness
and informed her that a “lay” teacher had been hired to complete the school year. Id. The
church congregation offered to pay a portion of her health insurance premiums in exchange for
8
her resignation as a “called” teacher, but she refused. Id. When the principal informed her that
she would likely be fired, she replied that she would assert her legal rights. Id. The
congregation subsequently voted to rescind her call on the basis of her insubordination,
disruptive behavior, and the purported damage she had done to her working relationship by
“threatening to take legal action.” Id. (citation omitted). Subsequently, the teacher filed a
complaint with the EEOC, which brought suit against the church and school on the teacher’s
behalf based on the ADA’s prohibition of retaliation against individuals who “opposed any act or
practice made unlawful by [the ADA].” Id. at 701 (citing 42 U.S.C. § 12203(a)). In finding that
the teacher was a ministerial employee, the Supreme Court highlighted, inter alia, the fact that
the church held her out as a minister, that the congregation undertook to review her “‘skills of
ministry’ and ‘ministerial responsibilities,’” that she undertook a lengthy process of education
and training to become a “called” teacher, that she claimed a housing allowance on her tax return
based on her religious employment, and that her job duties required providing religious
instruction four days a week—all this despite the limited amount of time she spent performing
religious duties compared to secular duties. Id. at 707–09.
The Second Circuit has also previously addressed the issue of who is a ministerial
employee. In Rweyemamu v. Cote, an African-American Catholic priest complained that the
bishop misapplied canon law in selecting a white priest for promotion instead of the plaintiff, and
retaliated against him for filing a complaint with the EEOC and Connecticut’s equivalent agency
by terminating his employment, in violation of Title VII. 520 F.3d 198, 199–201 (2d Cir. 2008).
The fired priest also sought review of the bishop’s decisions from the Congregatio Pro Clericis in
Rome, which determined there was just cause for his termination based on “complaints regarding
his homilies, complaints regarding his interaction with parish staff, . . . and the necessity of
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giving a unified and positive witness to the people of the parish.” Id. at 200 (citation omitted).
The Second Circuit found that the priest’s claims fell squarely within the ministerial exception
because he was ordained by the Roman Catholic Church and his duties were determined by
Catholic doctrine. Id. at 209. Because under Title VII jurisprudence the priest would have to
prove that the church’s nondiscriminatory reasons for his termination were pretextual, such
judicial inquiry would have required “impermissible entanglement with religious doctrine.” Id.
Similarly, in Hankins v. Lyght, a Methodist minister who reached the age of 70 was
forced into retirement by the terms of the Methodist Book of Discipline. 441 F.3d 96, 99 (2d
Cir. 2006), on remand sub nom. Hankins v. N.Y. Annual Conference of the United Methodist
Church, 516 F. Supp. 2d 225 (E.D.N.Y. 2008), aff’d, 351 F. App’x 489 (2d Cir. 2009). Without
discussion, the Second Circuit noted that the plaintiff was “a minister with primarily religious
duties.” Id. at 117. The district court, ruling orally, initially dismissed the minister’s age
discrimination suit for failure to state a claim upon which relief may be granted because the
ministerial exception barred the suit, id. at 100, and the Second Circuit ultimately upheld the
dismissal on these grounds, Hankins v. N.Y. Annual Conference, 351 F. App’x at 491.
In the instant action, Plaintiff “does not concede that he was a ‘ministerial employee’”
but chooses “not to address the question.” (Pl.’s Opp’n Br. 6 n.2.) The Court nonetheless
considers the question and finds that the well-pleaded allegations in the Complaint, accepted as
true, show that Plaintiff was a ministerial employee. Plaintiff alleges that he was “primarily
responsible for ministry” to patients and their families, (Compl. ¶ 28 (emphasis added)), that is,
his duties were “fundamentally” or “principally” ministerial in nature, see Webster’s Third New
International Dictionary of the English Language Unabridged 1800 (2002); cf. Hosanna-Tabor,
132 S. Ct. at 707–09 (finding “called” teacher to be ministerial employee despite the fact that
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most of her time was spent on non-religious activities). References in the Complaint to some of
Plaintiff’s duties support Defendants’ contention that Plaintiff’s employment functions were
primarily religious in nature, such as his performance reviews wherein it is noted that he
“coordinated distribution of Bibles to all patient units,” he “conducted an in-Hospital memorial
service for an employee who died,” and he “maintain[ed] an active, on-going Pastoral care to
staff,” (Compl. ¶ 29(b)–(c)); and references to providing communion to nurses and being in
charge of Easter services, (id. ¶ 24).
Finally, to the extent it is proper to consider the nature of this dispute, 3 as in Rweyemamu,
Plaintiff alleges he was subject to adverse employment actions due to discriminatory animus.
However, the patient complaint over insensitivity and a co-worker’s complaint of sexual
harassment, as evidenced by the allegations in the Complaint, necessarily implicate his fitness as
a Chaplain, his ability to fulfill the essential functions of his job, and the mission of the Pastoral
Care Department generally. The dispute over these events involve the Department’s spiritual
functions, Rweyemamu, 520 F.3d at 208, just as the complaints regarding homilies and relations
with parish staff impacted the cohesiveness of the church’s witness in Rweyemamu, 520 F.3d at
200.
B. Religious Institutions
For the ministerial exception to apply, Plaintiff must have been employed by a religious
or religiously-affiliated group or institution. Hosanna-Tabor Evangelical Lutheran Church &
School v. EEOC, 132 S. Ct. 694, 705–06 (2012). “[I]n order to invoke the exception, an
employer need not be a traditional religious organization such as a church, diocese, or
synagogue, or an entity operated by a traditional religious organization.” Hollins v. Methodist
3
See supra note 2 and accompanying text.
11
Healthcare, Inc., 474 F.3d 223, 225 (6th Cir. 2007), cited in Hosanna-Tabor, 132 S. Ct. at 705
n.2. “[A] religiously affiliated entity is considered ‘a “religious institution” for purposes of the
ministerial exception whenever that entity’s mission is marked by clear or obvious religious
characteristics.’” Hosanna-Tabor, 132 S. Ct. at 706 (quoting Shaliehsabou v. Hebrew Home of
Greater Washington, Inc., 363 F.3d 299, 310 (4th Cir. 2004)).
In Hosanna-Tabor, the Supreme Court did not question whether the church-owned school
was a religious group for purposes of the ministerial exception. Nor, for that matter, has the
Second Circuit questioned whether the Roman Catholic Church, Rweyemanu v. Cote, 520 F.2d
198 (2d Cir. 2008), the United Methodist Church, Hankins v. N.Y. Annual Conference of the
United Methodist Church, 351 F. App’x 489 (2d Cir. 2009), or the Union of Reform Judaism,
Friedlander v. Port Jewish Ctr., 347 F. App’x 654 (2d Cir. 2009), were religious groups. Yet the
Second Circuit has not had the opportunity to determine whether hospitals and health care
facilities can be deemed to be religious groups. Other Circuits, however, have grappled with this
very issue, and the determinations have been context-specific.
In Scharon v. St. Luke’s Episcopal Presbyterian Hospitals, in which a terminated hospital
chaplain brought Title VII and ADEA claims against her former employer, the hospital board
consisted of four church representatives and their unanimously agreed-upon nominees, while the
hospital’s articles of association could not be amended without the approval of regional
Episcopal and Presbyterian churches. 929 F.2d 360, 361–62 (8th Cir. 1991). According to the
Eighth Circuit, “[i]mportantly . . . , [the hospital] was acting as a religious institution as [the
chaplain’s] employer,” since the “job description of the Chaplain position at St. Luke’s state[d]
that a Chaplain ‘provides a religious ministry of pastoral care, pastoral counseling . . . and
liturgical services for persons in the hospital.’” Id. at 362 (citation omitted). Based on these
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facts, the Eighth Circuit affirmed a determination that the hospital was church-affiliated with
“substantial religious character.” Id. Similarly, in Shaliehsabou v. Hebrew Home of Greater
Washington, Inc., the Fourth Circuit affirmed a finding that a retirement home was a religious
institution for purposes of the ministerial exception under the FLSA, to which it applied the same
standard as Title VII. 363 F.3d 299 (4th Cir. 2004). In Shaliehsabou the retirement home was a
“non-profit religious and charitable corporation whose mission, according to its By-Laws, is to
serve ‘aged of the Jewish faith in accordance with the precepts of Jewish law and customs,
including the observance of dietary laws.’” Id. at 301. Additionally, all members of the home’s
board were Jewish; the home held twice-daily services at the on-site synagogue; each residence
had a mezuzah on its door post; and the home abided by Jewish law, including its commitment to
serving kosher meals in conformity with Jewish law. Id.
Defendants cite Hollins v. Methodist Healthcare, Inc., wherein the Sixth Circuit upheld
the dismissal of ADA claims brought by a resident chaplain who was dismissed from a hospital’s
clinical pastoral education program after a psychiatric evaluation caused the hospital to perceive
her as a threat of harm to the workplace. 474 F.3d 223, 224 (6th Cir. 2007). The hospital was
operated “in accordance with the Social Principles of The United Methodist Church[,] . . . [was]
associated with the Conferences of the United Methodist Church,” and the pastoral education
program “was accredited by the Association of Clinical Pastoral Education.” Id. However, the
Hollins court merely assumed that the hospital was a religious institution and did not analyze the
issue because the chaplain had not contested the two requirements of the “ministerial exception”
in the district court. Id. at 226.
Plaintiff insists that the pleadings and NYMH’s Certificate of Incorporation give no
support to Defendants’ contention that NYMH is a religious institution. The Complaint alleges
13
that NYMH “is a member of the New York-Presbyterian Healthcare System and a non-sectarian,
voluntary institution” which is “not a ‘religious institution’ nor a ‘religiously affiliated entity.’”
(Compl. ¶ 16.) This particular allegation combines factual matter, NYMH’s non-sectarian
character, with a “legal conclusion couched as a factual allegation” parroting language of the
ministerial exception, which the Court declines to accept as true. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore,
despite Plaintiff’s argument that “non-sectarian” means non-religious, the term means “not
having a sectarian character,” i.e., “not affiliated with or restricted to a particular religious
group,” Webster’s Third New International Dictionary of the English Language Unabridged
1538 (2002) (emphasis added), whereas “sectarian” means “of, relating to, or having the
characteristic of one or more sects esp[ecially] of a religious character,” id. at 2052.
Other pertinent portions of the Complaint allege that NYMH has a Department of
Pastoral Care, that NYMH has a Clinical Pastoral Education program for resident chaplains, and
that a Jewish rabbi, a Catholic nun, and a non-Catholic (presumably Protestant) Asian minister
were full-time chaplains. Drawing reasonable inferences from these allegations in favor of
Plaintiff, Iqbal, 556 U.S. at 678, “draw[ing] on [this Court’s] judicial experience and common
sense,” id. at 679, and given that the Complaint does not paint a clear picture as to the religious
or nonreligious nature of NYMH, it is certainly plausible that NYMH is not a religious
institution, considering that many secular hospitals have chaplains and accredited clinical
pastoral education programs.
Regarding the Certificate of Incorportaion, Plaintiff asserts that NYMH’s relationship
with the United Methodist Church was completely severed by a Restated Certificate of
Incorporation filed with the New York Department of State on January 22, 1975. That document
14
states:
The certificate of incorporation, as heretofore amended, is hereby further
amended (a) to delete provisions relating to the corporation’s relationship with
The United Methodist Church and (b) to change the number of trustees from forty
to thirty-eight by deleting the requirement that the Bishop of the New York area
of The United Methodist Church and the President of the Guild of Methodist
Hospital be trustees, ex-officio.
(Eke-Nweke Decl. Ex. 2 (NYMH Restated Certificate).) Accordingly, Plaintiff distinguishes
NYMH from the hospital in Scharon v. St. Luke’s Episcopal Presbyterian Hospitals, 929 F.2d
360 (8th Cir. 1991), where the board was made up of church representatives and their handpicked nominees, and there was a clear subordination to both Episcopal and Presbyterian
churches. Plaintiff asks the Court to take judicial notice of the 1975 Restated Certificate and the
fact that its “purpose” is devoid of any reference to religion. See Pani v. Empire Blue Cross Blue
Shield, 152 F.3d 67, 75 (2d Cir. 1998) (“It is well established that a district court may rely on
matters of public record in deciding a motion to dismiss under Rule 12(b)(6).”), quoted in
Burfeindt v. Postupack, 509 F. App’x 65, 67 (2d Cir. 2013). Plaintiff, however, fails to provide
the Court with the most recent Restated Certificate of Incorporation filed with the State on
August 20, 1986. (See Eke-Newke Decl. Ex. 3 (Certificate of Amendment filed February 25,
2013, listing each previous amendment and restatement).) Thus, the Court declines to take
judicial notice of a now-inoperable Certificate to determine whether NYMH is of a religious
character. Nevertheless, the Court accepts that in 1975 NYMH affirmatively removed provisions
relating to its relationship with the United Methodist Church, and notes that such removal calls
into question Defendants’ position that NYMH is a religious institution.
In sum, based solely on the allegations in the Complaint and the 1975 Restated
Certificate, the Court finds that Defendants have not demonstrated that NYMH is a religious
15
institution or religiously-affiliated. Accordingly, Defendants have failed to meet their burden.
Defendants’ motion to dismiss the action under the “ministerial exception” must be denied.
IV. RELIGIOUS FREEDOM AND RESTORATION ACT
Defendants assert that the RFRA bars this action. The RFRA was passed to restore
application of the “compelling interest” test to government burdens on the free exercise of
religion caused by “valid and neutral law[s] of general applicability.” Rweyemamu v. Cote, 520
F.3d 198, 201–02 (2d Cir. 2008) (quoting Emp’t Div. v. Smith, 494 U.S. 872, 879 (1990))
(internal quotation marks omitted). Under its terms,
(b) Government may substantially burden a person’s exercise of religion only if it
demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
(c) A person whose religious exercise has been burdened in violation of this
section may assert that violation as a claim or defense in a judicial proceeding and
obtain appropriate relief against a government.
42 U.S.C. § 2000bb-1(b) to (c). However, the RFRA does not “affect, interpret, or in any way
address that portion of the First Amendment prohibiting laws respecting the establishment of
religion.” Id. § 2000bb-4.
The RFRA “is unusual in that it amends the entire United States Code.” Rweyemamu,
520 F.3d at 202 (citing 42 U.S.C. § 2000bb-3(a) (“This chapter applies to all Federal law, and the
implementation of that law, whether statutory or otherwise, and whether adopted before or after
November 16, 1993.”)). Thus, in Hankins v. Lyght, 441 F.3d 96, 105–09 (2d Cir. 2006), the
Second Circuit held that the RFRA amended the ADEA. Moreover, it is implicit from
Rweyemamu that the Second Circuit would have held that the RFRA amended Title VII had the
16
defendant not expressly waived the statutory defense. 520 F.3d at 201 (“The statutory argument
is not available in this case because defendants knowingly and expressly waived a RFRA
defense.”).
The Second Circuit has held that the RFRA applies to suits between private parties where
the federal government could have brought an action, as the EEOC could have chosen to assert a
plaintiff’s federal discrimination claims on his behalf. Hankins v. Lyght, 441 F.3d at 103.
Whereas the defendant church in Hankins v. Lyght expressly relied on “the ministerial exception,
the Free Exercise clause, and the Establishment Clause, claiming that applying the ADEA to the
church-minister relationship would substantially burden religion,” 441 F.3d at 100, the Hankins
court initially stated that “the RFRA must be deemed the full expression of Congress’s intent
with regard to the religion-related issues before us and [must] displace earlier judge-made
doctrines [i.e., the ‘ministerial exception’] that might have been used to ameliorate the ADEA’s
impact on religious organizations and activities,” id. at 102 (emphasis added)—notwithstanding
the statutory language limiting the RFRA to burdens on Free Exercise, 24 U.S.C. § 2000bb-4. In
a subsequent appeal of the same proceeding decided after Rweyemamu, however, the Second
Circuit acknowledged that the “RFRA, of course, cannot displace a constitutionally-mandated
rule” and held that the “ministerial exception” applied to bar the plaintiff minister’s suit.
Hankins v. N.Y. Annual Conference of the United Methodist Church, 351 F. App’x 489, 491 (2d
Cir. 2009), aff’g on other grounds 516 F. Supp. 2d 225 (E.D.N.Y. 2007) and modifying Hankins
v. Lyght, 441 F.3d at 102.
Here, Defendants argue that the RFRA applies because Hankins v. Lyght has not been
“overruled by the [Second Circuit] en banc or by the Supreme Court.” Baraket v. Holder, 632
F.3d 56, 59 (2d Cir. 2011). Accordingly, despite Plaintiff’s argument that the RFRA should not
17
apply, neither Rweyemamu’s dicta questioning the application of the RFRA between private
parties because the RFRA “requires the government to demonstrate that application of a burden
to a person is justified by a compelling governmental interest,” 520 F.3d at 203 n.2, nor Hankins
v. New York Annual Conference’s holding that in the end the “ministerial exception” actually
applied, 351 F. App’x at 491, overrule Hankins v. Lyght’s holding that the RFRA applies to suits
between private actors where the government could have enforced its own employment
discrimination provisions, 441 F.3d at 103.
With respect to the RFRA, then, the issue to be decided is whether NYMH is a religious
institution to which the application of Title VII and § 1981 would unlawfully burden the free
exercise of religion. For the same reasons stated in the “ministerial exception” discussion, the
Court finds that under the RFRA Defendants have not proffered sufficient evidence to
demonstrate that NYMH is a religious institution, and the RFRA does not serve as a bar
commencement of this action.
V. TITLE VII STATUTE OF LIMITATIONS
Defendants assert that the applicable statute of limitations bars certain allegations of
discrimination in Plaintiff’s first cause of action, wherein Plaintiff alleges discrimination on the
basis of race and religion by NYMH in violation of Title VII.
Under Title VII, for an aggrieved person to bring a private action for discrimination
where he or she has “initially instituted proceedings with a State or local agency with authority to
grant or seek relief from such practice,” he or she must have filed charges with the EEOC
“within three hundred days after the alleged unlawful employment practice occurred.” 42 U.S.C.
§ 2000e-5(e)(1); accord Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002). The
aggrieved person must also have received notification (known as a “right to sue” letter) that the
18
EEOC has dismissed the charges and must have brought suit “within ninety days after the giving
of such notice.” 42 U.S.C. § 2000e-5(f)(1); see also McPherson v. N.Y.C. Dep’t of Educ., 457
F.3d 211, 213–14 (2d Cir. 2006). “The timeliness requirement of Title VII ‘is analogous to a
statute of limitations.’” McPherson, 457 F.3d at 214 (quoting Van Zant v. KLM Royal Dutch
Airlines, 80 F.3d 708, 712 (2d Cir. 1996)). Nonetheless, although “discrete discriminatory acts
are not actionable if time barred, even when they are related to acts alleged in timely filed
charges, . . . [Title VII does not] bar an employee from using the prior acts as background
evidence in support of a timely claim.” Nat’l R.R. Passenger Corp., 536 U.S. at 113.
Here, the Complaint alleges that on or about September 8, 2010, Plaintiff filed charges of
employment discrimination on the basis of race and religion against NYMH and Poulos with the
HRC and the EEOC. The EEOC sent Plaintiff a “right to sue” letter dated September 22, 2011,
adopting the findings of the HRC, and the instant action was brought on December 12, 2011,
within the requisite 90-day period. Accordingly, allegations concerning NYMH’s failure to hire
Plaintiff to the retiring nun’s full-time position, due to discriminatory animus, were timely
brought. However, the alleged discriminatory actions which took place before November 12,
2009, are time barred, namely, NYMH’s failure to hire Plaintiff full-time in 2006 when the rabbi
was hired and its failure to give Plaintiff additional work hours between 2004 and 2009.
VI. ALLEGATIONS OF ADVERSE EMPLOYMENT ACTIONS
Under Title VII, it is 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 such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Furthermore, it is “an
unlawful employment practice for an employer to discriminate against any of his employees . . .
19
because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). Plaintiff asserts
two separate claims under Title VII: for discrimination based on his race and religion, and for
retaliation after filing charges with the EEOC and the HRC. Plaintiff also alleges that
Defendants’ retaliatory behavior violated § 1981, which gives him “the same right to make and
enforce contracts . . . as is enjoyed by white citizens,” 42 U.S.C. § 1981(a), including “the
making, performance, modification, and termination of contracts and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship,” id. § 1981(b).
A. Discrimination Based on Race and Religion
Defendants argue that the allegations concerning the failure to hire or promote Plaintiff in
2010 to the position of full-time chaplain because of his race or religion, and those alleging
termination for the same reasons, do not “state a claim to relief that is plausible on its face”
under Title VII. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff, on the other hand, asserts
that the Complaint sets forth a prima facie case of discrimination based on race and religion—
even though “[e]mployment discrimination claims need not contain specific facts establishing a
prima facie case of discrimination.” Fowler v. Scores Holding Co., 677 F. Supp. 2d 673, 679
(S.D.N.Y. 2009). Although Plaintiff was already an employee of NYMH when he was passed
over for the 2010 full-time position, in order to draw reasonable inferences in Plaintiff’s favor,
the Court analyzes the incident as both a failure to hire and a failure to promote.
1. Discriminatory Failure to Hire
To establish a prima facie case for failure to hire, Plaintiff must demonstrate “(i) that he
belongs to a [protected class]; (ii) that he applied and was qualified for a job for which the
employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and
20
(iv) that, after his rejection, the position remained open and the employer continued to seek
applicants from persons of complainant’s qualifications.” McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1980).
Here, Plaintiff alleges that he is African-American, a protected racial class, and
Methodist, a protected religious class. Plaintiff allegedly applied for the retiring nun’s position
and was qualified, having advanced degrees in pastoral care. Plaintiff alleges he was rejected
despite his qualifications because Defendants wanted to replace the nun with another Catholic
chaplain, and it can be inferred that some time passed after his application was denied during
which Defendants continued to search for a candidate with his qualifications before finally hiring
someone else. Thus, Plaintiff’s allegations, taken as true, establish a prima facie case of
discriminatory failure to hire. Defendants’ motion to dismiss the discrimination claim for failure
to hire must be denied.
2. Discriminatory Failure to Promote
“In order to establish a prima facie case for discriminatory failure to promote, the
plaintiff must show ‘that []he applied for an available position for which []he was qualified, but
was rejected under circumstances which give rise to an inference of discrimination.’” Gomez v.
Pellicone, 986 F. Supp. 220, 228 (S.D.N.Y. 1997) (quoting Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254 (1981)). “An inference of discrimination may arise if the position
remains open and the employer continues to seek applicants of the plaintiff’s qualifications,” id.
(citing McDonnell Douglas, 411 U.S. at 802), “or if the position was filled by someone not a
member of plaintiff’s protected class,” id. (citing De la Cruz v. N.Y.C. Human Res. Admin. Dep’t
of Soc. Servs., 82 F.3d 16, 20 (2d Cir. 1996)).
Plaintiff alleges he was qualified for the full-time chaplain position for which he applied,
21
he was rejected, and it can be inferred that the position remained open for a while. Plaintiff also
alleges NYMH eventually hired a person who was not African-American but Asian, such that the
racial discrimination claim can be maintained. An inference of religious discrimination is not as
well-pleaded, since alleging that the Asian chaplain is “non-Catholic” does not differentiate her
from Plaintiff who, as a Methodist, is also “non-Catholic.” Nevertheless, the claim for failure to
promote because of religion is facially plausible, based on the inference that the position
remained open for a period of time after Plaintiff was rejected. Thus, the motion seeking to
dismiss the discrimination claim for failure to promote must be denied.
3. Discriminatory Termination of Employment
“In order to establish a prima facie case of discriminatory termination of employment,
the plaintiff must show that []he belongs to a protected class, that []he was performing h[is]
duties satisfactorily, and that []he was discharged under circumstances giving rise to an inference
of discrimination on the basis of h[is] membership in the protected class.” Gomez v. Pellicone,
986 F. Supp. 220, 227 (S.D.N.Y. 1997) (citing McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d
Cir. 1997)). With respect to job performance, Plaintiff “need not demonstrate that his
performance was flawless or superior. Rather, he need only demonstrate that he ‘possesses the
basic skills necessary for performance of [the] job.’” De la Cruz, 82 F.3d at 20.
Here, Plaintiff alleges his “work performance was consistently outstanding” as evidenced
by the “several awards, accolades and/or commendations [he received] for his excellent work,”
including “several thank you notes, [a] Perfect Attendance Pin and [a] Gift Check in appreciation
of [his] dedication and loyalty[,] . . . appreciation for continuing to be ‘pastor’ for many staff,”
(Compl. ¶ 28), and “glowing ‘Appraiser’s Comments’ made by [Defendant] Poulos” which
Plaintiff quotes, (id. ¶ 29). However, the factual allegations concerning Plaintiff’s termination
22
center exclusively around retaliatory treatment after filing charges with the EEOC and the HRC.
Thus, a claim under Title VII for termination on the basis of race or religion is not plausibly pled,
because showing retaliation for participation in protected activity does not equate to showing
termination due to discriminatory animus. Defendants’ motion to dismiss the claim for
discriminatory termination of Plaintiff’s employment is, therefore, granted.
B. Same Actor Inference
Defendants additionally assert that the “same actor inference . . . militates against the
plausibility” of the discrimination claim because Defendant Poulos was involved in both hiring
and firing Plaintiff. As the Second Circuit has recognized,
some factors strongly suggest that invidious discrimination was unlikely. For
example, when the person who made the decision to fire was the same person
who made the decision to hire, it is difficult to impute to her an invidious
motivation that would be inconsistent with the decision to hire. This is especially
so when the firing has occurred only a short time after hiring.
Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997) (age discrimination case);
accord Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir. 2000). “The inference is applicable so
long as one management-level employee played a substantial role in both the hiring and firing of
the plaintiff.” Dorcely v. Wyandanch Union Free Sch. Dist., 665 F. Supp. 2d 178, 198 (E.D.N.Y.
2009). Despite Plaintiff’s argument to the contrary, the “same actor inference” may apply in the
Title VII context. See Filozof v. Monroe Cmty. Coll., 411 F. App’x 423, 427 (2d Cir. 2011)
(Title VII racial discrimination claim); Mastrolillo v. Connecticut, 352 F. App’x 472, 474 (2d
Cir. 2009) (Title VII sex discrimination claim); De la Cruz v. City of New York, 783 F. Supp. 2d
622, 642 (S.D.N.Y. 2011) (Title VII national origin discrimination claim). However, “the
inference is less compelling when a significant period of time elapses between the hiring and
firing.” Carlton v. Mystic Transp., Inc., 202 F.3d 129, 138 (2d Cir. 2000) (seven years between
23
hiring and firing weakens inference); cf. Campbell v. Alliance Nat’l, Inc., 107 F. Supp. 2d 234,
248 (S.D.N.Y. 2000) (“[W]here the interim period is under two years, the same actor inference
remains significant.”).
Here, it is unclear from the Complaint whether Poulos in fact had a hand in hiring
Plaintiff. Furthermore, the passage of time between Plaintiff being hired as a part-time chaplain
in 2004 and Defendants’ failure to hire or promote him to full-time in 2010 (and Plaintiff’s
termination in 2011) weakens the “same actor inference” to the point where it makes no
substantial difference in the Court’s determination that the allegations asserting discriminatory
failure to hire or promote based on race and religion are plausibly pled. Thus, dismissal of those
claims is denied.
C. Retaliation for Engaging in Protected Activity
Defendants aver that the Complaint fails to plausibly allege retaliation for filing charges
with the EEOC and the HRC, under both Title VII and § 1981, because too much time passed
between the filing and Plaintiff’s termination such that a causal connection cannot be established.
Defendants also assert that other actions of which Plaintiff complains are not adverse
employment actions. Plaintiff, on the other hand, argues that the Complaint alleges facts
showing a prima facie case of retaliation sufficient to deny Defendants’ motion to dismiss.
Courts in the Second Circuit “analyzing § 1981 claims . . . apply the same standards as in
Title VII cases.” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000)
(citation omitted). 4 Thus, as to both legal theories a plaintiff establishes “a prima facie case by
4
The same standards also apply to the New York State and New York City Human Rights Laws. See Brennen v.
City of White Plains, 67 F. Supp. 2d 362, 372 (S.D.N.Y. 1999) (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1305
n.4 (2d Cir. 1995); Ortega v. N.Y.C. Off-Track Betting Corp., No. 97 Civ. 7582(KMW), 1999 WL 342353, at *3 n.2
(S.D.N.Y. May 27, 1999)) (discussing State law); Rudow v. N.Y.C. Comm’n on Human Rights, 123 Misc. 2d 709,
715 (Sup. Ct. N.Y. Cnty. 1984) (discussing City law), aff’d, 109 A.D.2d 1111 (1st Dep’t 1985).
24
showing: (1) participation in a protected activity; (2) that the defendant knew of the protected
activity; (3) an adverse employment action; and (4) a causal connection between the protected
activity and the adverse employment action. Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)
(internal quotation marks omitted); accord De Cintio v. Westchester Cnty. Med. Ctr., 821 F.2d
111, 116 (2d Cir. 1987).
With respect to the fourth element,
Proof of causal connection can be established indirectly by showing that the
protected activity was followed closely by discriminatory treatment . . . or through
other evidence such as disparate treatment of fellow employees who engaged in
similar conduct, or directly through evidence of retaliatory animus directed
against a plaintiff by the defendant.
De Cintio, 821 F.2d at 116 (internal citations omitted). With respect to establishing causation
indirectly, the Second Circuit “has not drawn a bright line to define the outer limits beyond
which a temporal relationship is too attenuated to establish a causal relationship between the
exercise of a federal constitutional right and an allegedly retaliatory action.” Gorman-Bakos v.
Cornell Coop. Extension, 252 F.3d 545, 554 (2d Cir. 2001). Significantly, “district courts within
the Second Circuit have consistently held that the passage of two to three months between the
protected activity and the adverse employment action does not allow for an inference of
causation.” Murray v. Visiting Nurse Servs. of N.Y., 528 F. Supp. 2d 257, 275 (S.D.N.Y. 2007)
(collecting cases); see also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (“The
cases that accept mere temporal proximity between an employer’s knowledge of protected
activity and an adverse employment action as sufficient evidence of causality to establish a prima
facie case uniformly hold that the temporal proximity must be very close.”) (internal quotation
marks omitted) (citing Richmond v. Oneok, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (3-month
period insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174–75 (7th Cir. 1992) (4-month
25
period insufficient)); cf. Gorman-Bakos, 252 F.3d at 555 (inferring causal connection where
retaliatory conduct spanning 5-month period followed three instances of protected activity by a
few days, two months, and three months, respectively). However, the Second Circuit has
allowed for longer periods of delay where, for instance, retaliators reasonably could have waited
for an opportune time to retaliate. See, e.g., Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009)
(finding 6-month period sufficient because prison officers could have waited for an opportune
time to beat prisoner “to have a ready explanation for any injuries [he] suffered”); Grant v.
Bethlehem Steel Corp., 622 F.2d 43, 45–46 (2d Cir. 1980) (affirming finding that eight-month
gap between EEOC complaint and retaliatory action suggested causal relationship because it was
the first opportunity for retaliation).
Concerning adverse employment actions, “Title VII’s anti-retaliation provision applies
broadly to ‘employer actions that would have been materially adverse to a reasonable employee
or job applicant.’ Actions are ‘materially adverse’ if they are ‘harmful to the point that they
could well dissuade a reasonable worker from making or supporting a charge of discrimination.’”
Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (quoting Burlington Northern & Santa Fe Ry.
v. White, 548 U.S. 53, 57 (2006)). “‘[P]etty slights or minor annoyances that often take place at
work and that all employees experience’ do not constitute actionable retaliation.” Id. (quoting
White, 548 U.S. at 68). To determine what actions are materially adverse, courts must consider
the particular circumstances of the case because “[t]he real social impact of workplace behavior
often depends on a constellation of surrounding circumstances, expectations, and relationships
which are not fully captured by a simple recitation of the words used or the physical acts
performed.” Id. (quoting White, 548 U.S. at 69) (internal quotation marks omitted).
Furthermore, “the alleged acts of retaliation need to be considered both separately and in the
26
aggregate, as even minor acts of retaliation can be sufficiently ‘substantial in gross’ as to be
actionable.” Id. (citation omitted). 5
Here, Defendants insist that despite the litany of allegations contained in the Complaint,
only Plaintiff’s eventual termination qualifies as a potential retaliatory action, and thus the fifteen
months between the EEOC and HRC charges and his termination is too much time to allow an
inference of retaliation. Certainly, the instance of not being given a holiday greeting card with
money in it and the time Poulos did not invite Plaintiff to a bereavement service seem to be petty
slights. Hicks, 593 F.3d at 165. However, most of the other alleged instances of retaliation, in
the aggregate, allow for the inference that Defendants subjected Plaintiff to closer scrutiny
because he engaged in protected activity. These actions reasonably represent the times
Defendants were able to find opportunities to nitpick Plaintiff’s performance, Espinal v. Goord,
558 F.3d 119, 129 (2d Cir. 2009); Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45–46 (2d Cir.
1980), in such a way that “could well dissuade a reasonable worker from making or supporting a
charge of discrimination,” White, 548 U.S. at 57. Additionally, the allegations allow the
inference that Defendant Poulos—who allegedly “subjected [Plaintiff] to . . . verbal abuse . . .
became hostile . . . [and] yelled” at Plaintiff, (Compl. ¶ 40)—altered the way he treated
Plaintiff’s request for a day off and handled patients’ complaints about Plaintiff specifically
because Plaintiff filed charges with the EEOC and the HRC. Thus, Plaintiff states a claim for
5
Because the Supreme Court explicitly rejected “‘materially adverse change in the terms and conditions’ of
employment” as the definition of “adverse employment action,” White, 548 U.S. at 60, 67 (citation omitted); contra
Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000); Knight v. City of New York, 303 F. Supp. 2d 485,
496 (S.D.N.Y. 2004), and because Knight was following the now-rejected definition when it stated that
“[d]isciplinary memoranda and evaluations are adverse employment actions only if they affect ultimate employment
decisions such as promotions, wages or termination,” 303 F. Supp. 2d at 497 (emphasis added), the Court declines to
limit the import of disciplinary actions in this manner, although the Court looks favorably on any such instances that
satisfy Knight’s requirements.
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