Wright v. Monroe Community Hospital

Filing 16

DECISION AND ORDER granting defendant's motion to dismiss and dismissing plaintiff's complaint. Signed by Hon. Michael A. Telesca on 7/28/11. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
JACQUELINE WRIGHT,
Plaintiff,

09-CV-6593
DECISION
and ORDER

v.
MONROE COMMUNITY HOSPITAL,
Defendant.
________________________________________
INTRODUCTION

Plaintiff, Jacqueline Wright (“Plaintiff”), brings this action
pursuant to the Civil Rights Act of 1991, 42 U.S.C. § 1981
(“Section 1981"); Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000(e); the Pregnancy Discrimination
Act (as amended to Title VII); and the New York State Human Rights
Law (“NYSHRL”), Executive Law § 290, against Defendant Monroe
Community

Hospital

(“Defendant”

or

“Hospital”),

discrimination based on sex, race, and retaliation.

alleging

(Dkt. No. 1

¶ 1). Specifically, Plaintiff alleges that Defendant subjected her
to an ongoing discriminatory and hostile work environment because
of her identity as an African-American woman, who was also pregnant
at the time of the alleged events.

See id. at ¶¶ 5, 32-6.

Defendant moves to dismiss Plaintiff’s claims on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure on
the grounds that Plaintiff has failed to state a claim for any of
her causes of action.

See generally, Dkt. No. 12-10.

1

Defendant

argues

that

Plaintiff

has

failed

to

state

a

plausible

race

discrimination claim because her claim is based on the alleged acts
of an elderly resident of the Hospital, and not on an act of the
Hospital

itself.

Id.

at

7.

Defendant

further

argues

that

Plaintiff has failed to establish a prima facie claim for sex
discrimination,

and

that,

as

a

result,

her

Pregnancy Discrimination Act must also fail.

claim

under

the

Id. at 9-12.

Additionally, Defendant argues that Plaintiff has failed to
state a claim of hostile work environment because she has failed to
establish that there was a pattern of severe or pervasive hostility
in the workplace.

Id. at 12-3.

Finally, Defendant argues that

Plaintiff’s retaliation claims fail because she never alleged that
she complained of unlawful discrimination to her employer or that
she engaged in some other protected activity that would serve as
the basis for her employer’s alleged retaliation.

Id. at 15.

Plaintiff opposes Defendant’s motion and asks that this Court
deny Defendant’s motion in its entirety.1

1

For the reasons set

Plaintiff argues in her reply memorandum that this Court
should strike Defendant’s motion to dismiss because Defendant
“violate[d] Local Rule 10(a)” by failing to double-space its
memorandum of law in support of the instant motion. (Dkt. No. 14
at 9). While Defendant did not double space its brief, I do not
find the mistake warrants the harsh sanction of striking its
memorandum. However, Defendant should double-space future
submissions in accordance with Local Rule 10(a). See Mills v.
Luplow, 2008 U.S. Dist. LEXIS 79028 (W.D.N.Y., June 30,
2008)(McCarthy, J)(finding that Defendant’s failure to paginate
its documents according to Local Rule 10(a) did not warrant the
sanction of striking the pleadings).
2

forth below, this Court finds that Plaintiff has not established a
prima

facie

case

discrimination

Defendant’s

Accordingly,

of

motion

to

based

on

dismiss

race

is

or

granted,

sex.
and

Plaintiff’s Complaint is hereby dismissed.
BACKGROUND
The following facts are taken from the plaintiff’s complaint,
and are not findings of fact by the Court, but rather assumed to be
true for the purposes of deciding this motion and are construed in
the light most favorable to the plaintiff, the non-moving party.
The Court notes that, in addition to a memorandum of law, Defendant
has submitted various documents which Plaintiff “quotes and/or
makes reference to” in her Complaint.

(Dkt. No. 12-10 at 4).

Although Plaintiff did not attach to her Complaint any of the
documents her Complaint referenced, Defendant argues that the Court
may consider “any ... statements or documents incorporated into the
complaint by reference ... and documents possessed or known to the
plaintiff and upon which it relied in bringing the suit.” (Id. at
5)(quoting ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d
87,

98

(2d

Cir.

2007)(internal

supplied by Defendant).

quotations

omitted)(emphasis

While the Court may include documents

incorporated by reference and information from public records, this
Court’s discussion will not give consideration to the documents
attached by the Defendant and will instead limit its consideration
“to

the

facts

as

presented

within

3

the

four

corners

of

the

complaint....”

Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 776

(2d Cir. 2002); see also Hayden v. County of Nassau, 180 F.3d 42,
54 (2d Cir. 1999).
Plaintiff is an African-American woman, who was at all times
relevant,

a

long-term

employee

Hospital.

(Dkt. No. 1 ¶ 5).

of

Defendant

Monroe

Community

Monroe Community Hospital is a non-

profit residential health care facility in Rochester, New York that
houses a number of skilled nursing units that provide long-term
care to people of all ages, including those with Alzheimer’s and
dementia.2

(Dkt. No. 12-10 at 2).

Plaintiff began working as a

Certified Nursing Assistant (“CNA”) for Monroe Community Hospital
in October of 1997.

(Dkt. No. 1 ¶ 7).

In January 2008, Plaintiff informed the Hospital that she
suspected

a

well-liked

patient

of

using

illegal

substances,

claiming the patient emitted “strong odors that smelled like
marijuana.”

Id. at ¶ 8.

Plaintiff reported this incident (based

upon instructions from one of the Hospital’s nurse managers, Brad
Hughes (“Nurse Manager Hughes”)) to notify the charge nurse of any
further issues.

Id. at

¶ 9.

Plaintiff subsequently reported her

suspicions concerning the patient’s drug use to the evening charge
nurse, Doug Mason, LPN (“Charge Nurse Mason”), who reportedly

2

Facts concerning Defendant’s identity are taken from both
Plaintiff’s complaint and Defendant’s memorandum of law.
4

followed up on Plaintiff’s report and removed “a bag” from the
patient’s possession.

Id. at ¶ 10-1.

Plaintiff states that on February 24, 2008, she again reported
her suspicions
Plaintiff

of the patient’s alleged drug use.

claims

that,

as

a

result

of

this

Id. at ¶ 12-3.

report,

she

was

confronted by the patient’s assigned nurse who “aggressively swore
at Plaintiff,” questioning Plaintiff’s motives for interfering with
the patient and telling Plaintiff she “should just leave [that]
patient ... alone.”

Id. at ¶ 13.

After the second report, Plaintiff was reassigned from the
patient she suspected of drug use to another patient, an elderly
woman with dementia.

Id. at ¶ 16.

Plaintiff alleges that

Defendant “purposely” reassigned her to this patient because it was
well-known that (this patient) “made intolerable racist comments
and

would

target

the

minorities

within

the

staff

and

make

complaints and accusations against them....” Id. at ¶ 17.
Plaintiff alleges that this patient “repeatedly denigrated”
her by describing Plaintiff with a derogatory racial slur.
¶ 21.

Id. at

Plaintiff complained about this patient’s behavior, but was

told that the patient “had dementia” and that “sometimes you just
have to deal with it.”

Id. at ¶ 23.

Around this time, Plaintiff received notices of discipline for
violating the Defendant’s time and attendance policy, and received

5

a

written

warning

concerning

an

Plaintiff and her reassigned patient.

“alleged

incident”

between

Id. at ¶ 18-9.

On April 1, 2008, Plaintiff attended an investigatory hearing
for the alleged incident with the patient.

Id. at ¶ 25.

Nurse

Manager Hughes, Nurse Administrator Jeff Schwertfeger, and several
staff members who wrote notices of concern were also in attendance.
Id.

After the hearing, on April 4, 2008, Plaintiff received

another notice of discipline for allegedly failing to provide safe
and compassionate care to the Hospital’s residents.

Id. at ¶ 26.

Then, on July 1, 2008, Plaintiff attended another investigatory
hearing, reportedly due to a different resident’s complaint.

Id.

at ¶ 29.
Plaintiff alleges that the next day, on July 2, 2008, coworker Patricia Hill (“Hill”) approached her and asked her to
assist with a room change.

Id. at ¶ 30.

Plaintiff informed Hill

that she could not assist with the room change because she had just
come back from a pulled abdominal muscle injury.

Id. at ¶ 31.

Hill allegedly became “belligerent” and screamed at Plaintiff,
saying “if you can’t do anything, why don’t you have your doctor
take you out” and “I’m just sick of your attitude, just because
your [sic] pregnant doesn’t mean your [sic] handicap [sic].”
at ¶ 32.

Id.

Defendant then held an emergency meeting with Plaintiff,

wherein a hospital representative told Plaintiff that “pregnancy is

6

a condition, not a disability,” and that if she had a limitation
she needed a doctor’s note.

Id. at ¶ 35.

On July 14, 2008, Plaintiff received a note from her physician
stating that, due to her pregnancy, she was advised not to move
furniture.

Id.

at

¶

36.

Plaintiff

alleges

that

Defendant

“continued to harass the Plaintiff, increase her workload and
scrutinize[d] her work to the point that she was taken out on
medical leave.”

Id. at 37.

Then again, on July 24, 2008,

Plaintiff received another notice of discipline, this time as a
result of the July 1, 2008 investigative hearing.

Id. at 38.

In September 2008, Plaintiff filed charges with the Equal
Employment Opportunity Commission (“EEOC”) against the Hospital,
alleging racial and gender discrimination.
On

January

12,

2009,

while

on

Id. at ¶¶ 4, 39.

medical

leave,

received a call from Nurse Administrator Schwertfeger
her

to

return

to

work.

Id.

at

¶

41.

Plaintiff

instructing

Plaintiff

informed

Schwertfeger that her doctor told her to remain on leave through
the end of the month.

Id. at ¶ 42.

Schwertfeger instructed

Plaintiff to contact Human Resources representative Robert Bilsky
(“Bilsky”), who informed Plaintiff that she had to report to work
and then “hung up on her.”

Id. at ¶ 43.

Bilsky then contacted

Plaintiff shortly afterwards and “simply told Plaintiff to forward
her medical information.”

Id. at ¶ 44.

7

Plaintiff filed this action on November 23, 2009.
generally Dkt. No. 1).

(See

The Defendant responded by filing the

instant motion to dismiss.

DISCUSSION
I.

Standard of Review under Rule 12(c)
Rule 12(c) of the Federal Rules of Civil Procedure states that

“After the pleadings are closed--but early enough not to delay
trial--a party may move for judgment on the pleadings.”
Civ. P. 12(c).

Fed. R.

In deciding a Rule 12(c) motion, courts apply the

same standard applicable to a motion under Rule 12(b)(6).

See

Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999).

To

withstand a motion to dismiss under Rule 12(b)(6), the complaint
must plead facts sufficient “to state a claim for relief that is
plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570, 127 S.Ct. 1955, 1974 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.”
(2009).

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

“The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.”
pleads

facts

that

are

Id.

merely

Thus, “[w]here a complaint

consistent

with

a

defendant’s

liability, it stops short of the line between possibility and

8

plausibility of entitlement to relief.”
omitted).

Id. (internal citation

“When there are well-pleaded factual allegations, a

court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id.

Determining

whether a complaint meets the plausibility standard is “contextspecific”

and

requires

that

the

court

“draw

on

its

judicial

experience and common sense.” Id. at 1950.
A.

Plaintiff has Failed to State a Claim of Hostile Work
Environment.

Plaintiff
Defendant.3

has

alleged

nine

causes

of

against

Plaintiff’s first and fourth causes of action allege

race-based claims of hostile work environment.
15).

action

(Dkt. No. 1 at 8,

Plaintiff’s first cause of action alleges that Defendant

subjected her to harassment from supervisors, which was condoned by
management, and motivated by Plaintiff’s race and national origin
under 42 U.S.C. § 1981.

Id. at ¶ 46.

3

Plaintiff’s fourth cause of

While Plaintiff’s supervisors and management are named
“Individually” within her Complaint (Dkt. No. 1 ¶ 46), these
named individuals do not appear in the Caption of her Complaint,
nor were they named in her EEOC charge. Plaintiff lists her 3rd,
4th, 5th, and 6th causes of action “As and Against Defendant Monroe
Community Hospital Only,” while not adding that limitation to her
1st, 2nd, 7th, 8th, and 9th causes of action. (See generally Dkt.
No. 1). Defendant argues Plaintiff’s claims against these named
employees should be dismissed; however, Plaintiff concedes in her
reply that “Neither Nurse Manager Hughes, Nurse Administrator
Schwartzfegger [sic], nor Human Resource Representative Bilksy,
Individually, are named defendants in Plaintiff’s lawsuit, nor
are they intended to be.” (Dkt. No. 14 at 10). As such, all of
Plaintiff’s causes of action will be considered “As and Against
Defendant Monroe Community Hospital only,” and will not address
any of the named managers or supervisors individually.
9

action alleges state law claims of a hostile work environment under
NYSHRL, Executive Law § 290.

Id. at ¶ 79.

Because claims under

NYSHRL are governed by the same federal standards as those under 42
U.S.C. § 1981, this Court’s analysis of Plaintiff’s hostile work
environment claims will apply concurrently to both her federal and
state law claims.
seq.

See 42 U.S.C. § 1981; Executive Law § 290, et

See McDowell v. N. Shore-Long Island Jewish Health Sys., 10-

cv-3534, 2011 U.S. Dist. LEXIS 58653 at *12 (E.D.N.Y, June 1,
2011)(stating that claims under Section 1981 and the NYSHRL are
analyzed under the same framework and, therefore, will have the
same outcome); see also Rosenblatt v. Bivona & Cohen, P.C., 946 F.
Supp. 298, 300 (S.D.N.Y. 1996)(Scheindlin, J.)("New York State
Human Rights Law is applied in a fashion consistent with the
federal civil rights laws.").
Claims under Section 1981 are governed by the same standards
as those brought under Title VII.

See Ifill v. UPS, No. 04 Civ.

5963, 2005 U.S. Dist. LEXIS 5230 at *14, n. 3 (S.D.N.Y., Mar. 29,
2005)(stating “Courts ‘commonly analyze the sufficiency of [claims
under Section 1981] in the same manner as Title VII claims,
reaching the same result.’”)(citing Pagan v. New York State Div. of
Parole, 98 Civ. 5840, 2002 U.S. Dist. LEXIS 4236 at *14 (S.D.N.Y.,
Mar. 13, 2002)).

Title VII prohibits discrimination on the basis

of race with respect to, inter alia, the “terms” and “conditions”
of employment.

42 U.S.C. § 2000e-2(a)(1).

10

One form of such

discrimination is the imposition of a discriminatorily hostile or
abusive work environment.

Harris v. Forklift Sys., Inc., 510 U.S.

17, 21-3, 114 S. Ct. 367, 126 L.Ed.2d 295 (1993).

Hostile work

environment claims require scrutiny of the “workplace environment
as a whole to discover whether it is ‘abusive.’” Raniola v.
Bratton, 243 F.3d 610, 617 (2d Cir. 2001)(quoting Harris, 510 U.S.
at 22 (1993)).

To prevail on a hostile work environment claim

under Title VII, a plaintiff must show: (1) that her workplace was
“permeated with discriminatory intimidation, ridicule, and insult
that [was] sufficiently severe or pervasive to alter the conditions
of

the

victim’s

environment;”

employment

and

create

an

abusive

working

and (2) that “a specific basis exists for imputing

the objectionable conduct to the employer.”

Alfano v. Costello,

294 F.3d 365, 373-4 (2d Cir. 2002)(internal citation omitted); see
also Harris, 510 U.S. at 21 (1993).
This test has both objective and subjective elements.

The

plaintiff must show the employer’s conduct was “severe or pervasive
enough

to

create

an

objectively

hostile

or

abusive

work

environment,” and the plaintiff must also “subjectively perceive
that environment to be abusive.”

Alfano, 294 F.3d at 374 (2002).

A plaintiff can show this by establishing either the extraordinary
severity of a single incident, or the existence of a series of
incidents that were “sufficiently continuous and concerted” to be
considered pervasive.

Id.; see also Perry v. Ethan Allen, Inc.,

11

115 F.3d 143, 149 (2d Cir. 1997).

The incidents of which a

plaintiff complains “must be more than episodic; they must be
sufficiently

continuous

and

concerted

in

order

to

be

deemed

pervasive.” Carrero v. New York City Housing Auth., 890 F.2d 569,
578 (2d Cir. 1989).

The Court must look at the totality of the

circumstances,

including

discriminatory

conduct,

the

frequency

whether

and

such

severity

conduct

is

of

the

physically

threatening or humiliating, and whether such conduct unreasonably
interferes with the plaintiff’s work performance. See Harris 510
U.S. at 23.
Plaintiff alleges that Defendant subjected her to a hostile
work environment on the basis of her race.

I find that Plaintiff

has failed to sufficiently allege such a claim.

At no point in her

Complaint does Plaintiff allege that Defendant harassed her in
race-specific or derogatory terms, nor does she show that any of
Defendant’s decisions were specifically motivated by a racial
animus.
(N.D.N.Y.,

See

Banks

v.

City

2007)(requiring

of

Albany,

plaintiff

to

953

F.

prove

Supp.
that

28,

33

defendant

employer had a discriminatory intent or discriminatory motive).
Instead,
derogatory

Plaintiff

remarks

alleges

from

an

that

elderly

she

was

resident

subjected
with

to

dementia.

Plaintiff attempts to relate her assignment to this resident with
the Defendant’s alleged discriminatory motive, however, Plaintiff’s
own

recitation

of

the

events

does

12

not

support

this

finding.

Plaintiff clearly relates her patient re-assignment to the reports
she made concerning a well-liked patient’s suspected drug use.
Dkt. No. 1 at ¶ 16.

Plaintiff states that, after her second report

of the patient’s alleged drug use, she was confronted by the
patient’s assigned nurse who “aggressively swore at Plaintiff,” and
told Plaintiff she “should just leave [that] patient ... alone.”
Id. at ¶ 13.

Plaintiff claims she was then re-assigned to the

elderly female patient with dementia.

Such allegations do not

support a finding of racially motivated animus in Defendant’s
decision-making, nor are they indicative of a workplace “permeated
with

discriminatory

intimidation,

ridicule,

and

insult....”

Patterson v. County of Oneida, 375 F.3d 206, 227 (2d Cir. 2004).
Additionally, the relevant portions of Plaintiff’s Complaint
merely recite elements of the claim without pleading specific
factual allegations against Defendant.

While a complaint attacked

by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, “a plaintiff’s obligation to provide the grounds of
his

entitlement

to

relief

requires

more

than

labels

and

conclusions, and a formulaic recitation of the elements of a cause
of

action

will

(2007)(internal

not

do.”

quotation

See

marks

Twombly,
omitted).

550

U.S.

at

Accordingly,

555
since

Plaintiff has failed to sufficiently plead a race-based hostile
work environment claim,

her first and fourth causes of action are

hereby dismissed.

13

B.

Plaintiff has Failed to Sufficiently State a Claim for
Retaliation.

Plaintiff alleges retaliation claims in five of her causes of
action.

Plaintiff’s second cause of action alleges retaliation

under 42 U.S.C. § 1981; Plaintiff’s fifth cause of action alleges
retaliation under Title VII “As and Against Defendant Monroe
Community Hospital, only;” Plaintiff’s sixth cause of action claims
retaliation under the NYSHRL “As and Against Defendant Monroe
Community Hospital, only;” Plaintiff’s eighth Cause of action
alleges

retaliation

under

Title

VII

(sans

the

“As

and

Against...Hospital...only” limitation); and Plaintiff’s ninth cause
of action alleges retaliation under the NYSHRL, this claim also
without the “As and Against” limitation.
As

noted

above,

although

Plaintiff

named

some

of

the

Hospital’s employees “Individually” within her Complaint, Plaintiff
has denied filing suit against those individual employees of Monroe
Community Hospital and states that all of her causes of action are
against Monroe Community Hospital “only.”

As such, Plaintiff’s

designations of her fifth and sixth causes of action as “...Against
Monroe Community Hospital only” are unnecessary, and her eighth and
ninth causes of action are redundant and merely re-allege the same
claims as her fifth and sixth.
To establish a prima facie case of retaliation, Plaintiff must
show: (1) participation in a protected activity known to the
Defendant; (2) an adverse employment action; and (3) a causal
14

connection between the protected activity and adverse action.

See

Dixon v. Int’l Fed’n of Accountants, No. 10-1924-cv, U.S. Dist.
LEXIS 6116 at *4-5 (2d Cir., Mar. 25, 2011)(citing Gorzynski v.
JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir., 2010)).
that

Plaintiff

retaliation

has

under

not
Title

established

prima

facie

Section

VII,

a

1981,

or

I find

case

the

for

NYSHRL.

Accordingly, Defendant’s motion to dismiss is granted.
1.

Plaintiff did not engage in a “protected activity.”

Title VII prohibits retaliation against an employee who has
engaged in a protected activity as that term is defined under the
statute. 42 U.S.C. § 2000e-3(a).

A protected activity includes

opposing or participating in, inter alia, an investigation or
proceeding to oppose an employment practice made unlawful under
Title VII. Id.
includes

An unlawful employment practice under Title VII

“discharg[ing]

discriminat[ing]
compensation,
because

of

against

terms,

such

any
any

individual,
individual

conditions,

individual's

or

race,

or

with

privileges
color,

otherwise
respect

to

...
his

of

employment,

religion,

sex,

or

national origin.” 42 U.S.C. § 2000e-2(a)(1).
There is no allegation that Plaintiff complained of unlawful
discrimination to her supervisors or other co-workers. Plaintiff’s
Complaint shows that, while she may have complained about certain
issues she was having at work (e.g., her concerns regarding a
patient’s alleged drug use), there is no allegation that she

15

complained that she was suffering discrimination because of her
race, sex, or pregnancy.

Nor did she engage in any other activity

warranting protection under Title VII.
Further, even if Plaintiff had alleged participation in a
protected activity, she would still fail to establish a prima facie
case of discrimination under the retaliation framework, because she
does not allege that she suffered an adverse employment action.
The action would have to be “materially adverse,” meaning the
employer’s action would be capable of dissuading a reasonable
worker from making or supporting a charge of discrimination could
constitute retaliation. Burlington Northern & Santa Fe Railway Co.
v. White, 548 U.S. 53, 57 (2006).
While Plaintiff originally attempted to show that she met this
standard

by

alleging

that

Defendant’s

actions

“resulted

in

Plaintiff’s retaliatory discharge on March 29th, 2007" (Dkt. No. 1
at ¶ 87), Plaintiff now admits that she was never discharged from
the Hospital (Dkt. No. 14 at 15, n. 2).4
received

multiple

“notices

of

Plaintiff claims that she

discipline”

from

Defendant

in

response to her complaints about “what she perceived to be a
hostile environment” (Dkt. No. 14 at 17), however, Plaintiff’s
Complaint simply does not support her argument.

4

Plaintiff argues

Defendant states that Plaintiff continued to work full-time
at Monroe Community Hospital through July 16, 2010, before she
voluntarily resigned and took up employment at another hospital.
(Dkt. No. 12-10 at 16).
16

that the complaints she made concerning the Hospital’s patients
(specifically the alleged derogatory remarks of an elderly woman
with

dementia)

satisfy

the

protected

activity

requirement.

However, complaints about an elderly patient’s independent comments
are different from complaints about a discriminatory “hostile work
environment” concerning co-workers and supervisors.
Suffolk

City

Police

Dep’t,

176

F.3d

125,

See Wimmer v.

134-5

(2d

Cir.

1999)(finding that “A claim is not cognizable under Title VII
unless the plaintiff’s opposition was “directed at an unlawful
employment practice of his employer.”)(emphasis in original).
Additionally, even if Plaintiff’s complaints concerned the
actions of her co-workers or supervisors, her complaints did not
cite any discriminatory motive.

“Absent a claim of unlawful

discrimination, general complaints about employment concerns do not
constitute protected activity under Title VII.”

Brummell v.

Webster Cent. Sch. Dist., 2009 U.S. Dist. LEXIS 7644 at *13
(W.D.N.Y. Jan. 20, 2009)(citing Broderick v. Donaldson, 369 U.S.
App. D.C. 374, 437 F.3d 1226, 1232 (D.C. Cir. 2006); see also
Duckett v. Wal-Mart Stores, Inc., 2009 U.S. Dist. LEXIS 31624 at
*24 (W.D.N.Y. April 14, 2009)(citing Broderick, 437 F.3d 1226, 1232
(D.C.

Cir.

embarrassing,

2006)(employee
humiliating

complaint
and

that

insulting

she

suffered

treatment

from

failed

to

establish that she engaged in protected activity where there was no

17

allegation that the treatment was motivated by a discriminatory
animus).
Further,

the

fact

that

Plaintiff

received

notices

of

discipline or other forms of scrutiny from Defendant does not show
that

Defendant

retaliated

against

Plaintiff.

Employee

investigations, unwanted scrutiny from supervisors, and negative
performance

evaluations

without

attendant

negative

results

or

deprivation of position/opportunity, do not sufficiently constitute
adverse employment actions under Title VII.

Lee v. New York State

Dept. of Health, 2001 U.S. Dist. LEXIS 11287 at *45-6 (S.D.N.Y.
Mar.

26,

2001).

As

such,

I

find

that

Plaintiff

fails

to

sufficiently plead a claim for retaliation under the Civil Rights
Act of 1991, Title VII, or the NYSHRL.

Accordingly, Plaintiff’s

retaliation claims are hereby dismissed.
C.

Plaintiff has Failed to Sufficiently Plead a Claim of
Racial Discrimination under Title VII.

Plaintiff’s third cause of action alleges that Defendant
unlawfully subjected Plaintiff to racial discrimination under Title
VII. As noted above, Plaintiff’s Complaint is absent of any claims
that Monroe Community Hospital or its employees ever directed
racially charged comments at Plaintiff or acted against her with a
racially motivated animus.

While Plaintiff complains of racial

hostility from an elderly patient of Monroe Community Hospital,
such a complaint does not satisfy Title VII standards.
is not a general bad acts statute.
18

Title VII

As noted above, a claim is not

cognizable under Title VII unless the plaintiff’s opposition was
directed at an unlawful employment practice of his employer.
Wimmer, 176 F.3d at 134-5 (2d Cir. 1999).

For this reason, and the

reasons noted above, I find that Plaintiff fails to sufficiently
plead a claim of racial discrimination under Title VII.

As such,

her third cause of action is dismissed.
D.

Plaintiff
has
Failed
to
Sufficiently
Allege
Discrimination under the Pregnancy Discrimination Act.

The Pregnancy Discrimination Act (“The Act”)amends Title VII
of the Civil Rights Act to provide that discrimination “on the
basis of sex” includes discrimination “on the basis of pregnancy,
childbirth, or related medical conditions.”

42 U.S.C. § 2000e(k).

The Act requires employers to treat women “affected by pregnancy,
childbirth, or related medical conditions” the same as other
persons not so affected but similar in their ability or inability
to work.
under

Id.

the

Like other Title VII claims, discrimination claims

Pregnancy

Discrimination

Act

are

governed

by

the

McDonnell Douglas framework. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973).

Plaintiff must prove 1) membership in a

protected group; 2) qualification for a position; 3) an adverse
employment action; and 4) that the adverse employment action
occurred

under

circumstances

giving

rise

to

an

inference

of

discrimination.
To establish that the adverse employment action occurred under
circumstances giving rise to an inference of discrimination, a
19

plaintiff may demonstrate that “similarly situated” employees who
do not share the plaintiff’s protected characteristics were treated
preferentially.

See Shumway v. United Parcel Service, Inc., 118

F.3d 60, 63 (2d Cir. 1997).

Plaintiff’s Complaint does not allege

any facts suggesting that she was discriminated against on the
basis of sex or pregnancy.
had

with

a

co-worker

Her claims concerning an argument she

also

do

not

rise

to

the

level

of

discrimination under the Pregnancy Discrimination Act.

Plaintiff

alleged

co-worker

that,

on

or

about

July

2,

2008,

a

female

approached Plaintiff to ask if she could assist with a room change.
After Plaintiff refused because she had just returned

from an

abdominal injury, the co-worker allegedly “became belligerent” and
screamed “if you can’t do anything, why don’t you have your doctor
take you out” and “I’m just sick of your attitude, just because
your [sic] pregnant doesn’t mean your [sic] handicap [sic].” While
the co-worker’s alleged outburst was no doubt unpleasant, it does
not give rise to a discrimination claim under Title VII or the
Pregnancy Discrimination Act.

Plaintiff does not allege that this

behavior was encouraged or perpetuated by her employer.

See

Gregory v. Daly, 243 F.3d 687, 692 at n. 3 (2d Cir. 2001)(finding
that for liability to attach in a Title VII discrimination case,
the employer must also be responsible for the conduct at issue).
Further, Plaintiff’s Complaint clearly states that, after the
incident with her co-worker, an “emergency meeting” was held where

20

Defendant asked Plaintiff to obtain a note from her doctor listing
her limitations, which Plaintiff obtained.

In fact, Defendant’s

actions are consistent with the requirements under the Pregnancy
Discrimination Act (requiring employers to treat women affected by
pregnancy the same as other persons not so affected but similar in
their ability or inability to work), and Plaintiff does not allege
that Defendant treated her unfairly because of her pregnancy.5

As

such, I find that Plaintiff has failed to sufficiently plead a
discrimination

claim

under

the

Pregnancy

Discrimination

Act.

Accordingly, her seventh cause of action is dismissed.
CONCLUSION
For the reasons set forth above, Defendant’s motion to dismiss
is granted. Plaintiff’s complaint is hereby dismissed.
ALL OF THE ABOVE IS SO ORDERED.

s/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
July 28, 2011

5

While Plaintiff alleges that a supervisor and a Human
Resources representative “demanded” that she return to work while
on medical leave, she closes that series of allegations by noting
that she was then simply asked to forward her medical forms to
the Human Resources office, without noting any further demands or
repercussions. (Dkt. No. 1 ¶¶ 41-4).
21