Campbell v. Correctional Medical Care, Inc. et al
Filing
14
-CLERK TO FOLLOW UP-DECISION AND ORDER granting 9 Defendants' Motion to Dismiss for Failure to State a Claim; denying 12 Plaintiff's Motion to Appoint Counsel; dismissing with prejudice Plaintiffs claims under the Equal Pay Act, and against the individual defendants; dismissing without prejudice Plaintiff's claims alleging a hostile work environment and unlawful termination of employment. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/11/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
WENDY A. CAMPBELL,
Plaintiff,
14-CV-6136T
DECISION
and ORDER
v.
CORRECTIONAL MEDICAL CARE, INC.,
CHRISTINE ROSS, LISA CAPOCCIA,
KIM WILSON, MICHELLE O'BRIEN, and
JEANNIE O'DELL
Defendants.
________________________________________
INTRODUCTION
Plaintiff Wendy A. Campbell (“Campbell”) proceeding pro se, a
former
employee
of
defendant
Correctional
Medical
Care,
Inc.
(“CMC”), a private company which provides health care services to
inmates of correctional facilities pursuant to contracts with
municipalities, brings this action pursuant to Title VII of the
Civil Rights Act of 1964 and the Equal Pay Act of 1963 claiming
that she was unlawfully discriminated against on the basis of her
race.
Specifically, plaintiff, who is black, alleges that she was
treated differently than similarly situated white employees; was
subjected to a hostile work environment, and was ultimately fired
from her job because of her race.
Defendants
deny
plaintiff’s
allegations,
and
individual
defendants Christine Ross, Lisa Capoccia, Kim Wilson, Michelle
O'Brien, and Jeannie O'dell move to dismiss plaintiff’s claims
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
on grounds that plaintiff’s claims against them fail to state a
cause of action.
Specifically, the individual defendants contend
that because Title VII does not allow for individual liability in
employment discrimination cases, plaintiff’s claims against them
must be dismissed.
Defendant CMC moves to dismiss plaintiffs
claims on grounds that plaintiff has failed to state a cause of
action under the Equal Pay Act, and has failed to allege a
plausible claim of racial discrimination pursuant to Title VII.
Plaintiff has not opposed defendants’ motion, and instead has moved
the court for appointment of counsel.
For the reasons set forth below, I grant defendants’ motion to
dismiss, and deny plaintiff’s motion for appointment of counsel.
BACKGROUND
The following facts are taken from the plaintiff’s complaint,
and documents filed in support of the defendants’ unopposed motion
to dismiss1 .
Plaintiff Wendy Campbell is a registered nurse who
began working for CMC on October 1, 2012. Plaintiff alleges that
she
was
a
disciplinary
satisfactory
actions
employee
taken
with
against
her,
no
verbal
and
good
or
written
attendance.
According to CMC, plaintiff engaged in disruptive and uncooperative
1
Because plaintiff’s Complaint lacks detail regarding her employment with the
defendant, and instead focuses almost exclusively on the specific incidents she
regards as discriminatory, the factual background set forth by the defendants is
used for purposes of placing plaintiff’s allegations in context. As it must, the
court considers only the plaintiff’s allegations in analyzing the defendants’
motion to dismiss.
Page -2-
behavior with her fellow employees and supervisors throughout her
employment.
Plaintiff’s employment was terminated on August 21, 2013, less
than one year after she was hired. Plaintiff was fired one day
after she was sent home early from work for allegedly refusing to
comply with a supervisor’s order regarding scheduling.
According
to the defendant, on August 20, 2013, defendant Erin Presley
(“Presley”),
a
supervising
nurse
employed
by
CMC,
instructed
defendant nurse Lisa Capoccia (“Capoccia”) to relieve plaintiff for
lunch at 11:30 a.m.
Plaintiff allegedly refused to be relieved,
claiming that she wanted to take her lunch at noon.
After Capoccia
made a second request to relieve Campbell, plaintiff allegedly
slammed a book down and asked Capoccia “what part of what I just
said do you not understand.”
Thereafter,
according
to
Campbell,
Presley
aggressively
confronted her regarding her request to take lunch at a later time.
Plaintiff
claims
that
Presley
raised
her
voice
to
her
and
gesticulated, which plaintiff considered to be humiliating and
harassing.
Presley relieved Campbell of her duties for the day,
and sent her home.
Defendant Ross reviewed plaintiff’s conduct,
and determined that plaintiff had violated CMC’s conduct policy,
and terminated her employment.
In September, 2013, plaintiff filed a discrimination charge
with the Equal Employment Opportunity Commission (“EEOC”).
Page -3-
After
investigating
plaintiff’s
allegations,
the
EEOC
dismissed her
complaint, and issued plaintiff a right-to-sue letter. Thereafter,
plaintiff filed the instant Complaint.
DISCUSSION
I.
Standard for Motion to Dismiss
In reviewing a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, the Court must “accept...all
factual allegations in the complaint and draw...all reasonable
inferences in the plaintiff’s favor.” See Ruotolo v. City of
New York, 514 F.3d 184, 188 (2d Cir.2008) (internal quotation marks
omitted). In order to withstand dismissal, the complaint must plead
“enough facts to state a claim to relief that is plausible on its
face.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 1974 (2007) (disavowing the oft-quoted statement from Conley
v. Gibson, 355 U.S. 41 (1957), that “a complaint should not be
dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief”).
“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 not do.” Id.
at 1965 (internal quotation marks omitted).
Page -4-
Moreover, conclusory
allegations are not entitled to any assumption of truth, and
therefore, will not support a finding that the plaintiff has stated
a valid claim.
Hayden v. Patterson, 594 F.3d 150, 161 (2nd Circ.,
2010). Thus, “at a bare minimum, the operative standard requires
the ‘plaintiff [to] provide the grounds upon which his claim rests
through factual allegations sufficient to raise a right to relief
above the speculative level.’” See Goldstein v. Pataki, 516 F.3d
50, 56-57 (2d Cir.2008) (quoting Twombly, 127 S.Ct. at 1974).
II.
Plaintiff has Failed to State a Claim under the
Equal Pay Act
Plaintiff alleges that she was paid less than similarlysituated white nurses who worked for defendant CMC.
To establish
a prima facie case of pay discrimination under the Equal Pay Act,
“a plaintiff must demonstrate that ‘i) the employer pays different
wages to employees of the opposite sex; ii) the employees perform
equal
work
on
jobs
requiring
equal
skill,
effort,
and
responsibility; and iii) the jobs are performed under similar
working conditions.’”
Ryduchowski v. Port Authority of New York
and New Jersey,203 F.3d 135, 142 (2nd Cir., 2000)(quoting Belfi v.
Prendergast, 191 F.3d 129, 135 (2d Cir.1999).
In the instant case, plaintiff has alleged that she was paid
less than other employees because of her race, not gender. Because
the Equal Pay Act only recognizes claims of wage inequality that
are
based
on
gender,
I
grant
defendants’
motion
to
dismiss
plaintiff’s Equal Pay Act Claim with prejudice. Mudholkar v. Univ.
Page -5-
of Rochester, 2006 WL 2792281, at *6-7 (W.D.N.Y. Sept. 27, 2006)
(Telesca, J.), aff’d, 261 F. App’x 320 (2d Cir. 2008)(no cause of
action under Equal Pay Act where claim of pay inequality is not
based on gender discrimination).
III. Plaintiff has Failed to State a Claim of Discrimination
under Title VII
A.
Individual Liability
Plaintiff
claims
that
she
was
subjected
to
racial
discrimination from defendants Christine Ross, Lisa Capoccia, Kim
Wilson, Michelle O'Brien, and Jeannie O'dell.
It is well-settled,
however, that individuals may not be held liable for damages under
Title VII.
See Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir.
1995)(holding that individuals are not subject to liability under
Title VII).
Accordingly, I grant the individual defendants’
motion, and dismiss plaintiff’s claims with prejudice against
defendants Christine Ross, Lisa Capoccia, Kim Wilson, Michelle
O'Brien, and Jeannie O'dell.
B.
Hostile Work Environment
Plaintiff alleges that she was subjected to a hostile work
environment by the defendants.
resulting
demonstrate
from
a
“(1)
discriminatory
hostile
that
work
his
intimidation
To state a claim of discrimination
environment,
workplace
that
was
was
plaintiff
must
permeated
with
sufficiently
severe
or
pervasive to alter the conditions of his work environment, and
(2) that a specific basis exists for imputing the conduct that
Page -6-
created the hostile environment to the employer.”
Van Zant v. KLM
Royal Dutch Airlines, 80 F.3d 708, 715 (2nd Cir. 1996).
The
conduct alleged must be severe and pervasive enough to create an
environment that “would reasonably be perceived, and is perceived,
as hostile or abusive.” Harris v. Forklift Systems, Inc., 510 U.S.
17, 22 (1993).
“Stray racial remarks or slurs are not actionable
under Title VII.”
Badrinauth v. Touro College, 1999 WL 1288956,
*4, (E.D.N.Y. Nov. 4, 1999).
Rather, "there must be a steady
barrage of opprobrious racial comments." Snell v. Suffolk County,
782 F.2d 1094, 1103 (2d Cir.1986).
offensive
and
not
severe
or
"Conduct that is merely
pervasive
enough
to
create
an
objectively hostile or abusive work environment" will not establish
a Title VII discrimination claim.
Torres v. Pisano, 116 F.3d 625,
631 (2d Cir.) (internal quotes omitted), cert. denied, 118 S.Ct.
563 (1997).
In the instant case, I find that plaintiff has failed to
sufficiently allege the existence of a hostile work environment.
Plaintiff claims that she was “harassed” and “humiliated” on
August 20, 2013 when she was ‘corner[ed] ... into a small office”
by her supervisor and another nurse, and scolded by her supervisor
in a “raised voice” while the supervisor used “hand gestures.” See
Plaintiff’s Complaint at p. 4.2
Assuming plaintiff’s allegations
2
The Complaint contains two pages identified as page “4." The above citation
refers to the first of the two pages labeled page 4.
Page -7-
to be true, the claims fail to allege that the conduct was based on
plaintiff’s
race,
pervasive.”
Although plaintiff alleges that she was depicted as
“the
Black
‘angry
or
that
woman’”
the
conduct
during
this
that
was
encounter,
“severe
or
plaintiff’s
subjective and conclusory opinion as to the basis for the conduct
cannot establish a prima facie case of discrimination in the
absence of any evidence suggesting that the conduct was motivated
by a racial animus.
Wright v. Milton Paper Co., 2002 WL 482536, *8
(E.D.N.Y. March 26, 2002)(speculative and conclusory allegations of
discrimination are not sufficient to make out a prima facie case of
discrimination)(citing Stern v. Trustees of Columbia Univ., 131
F.3d 305, 312 (2d Cir.1997).
Because plaintiff has failed to
establish a prima facie case of discrimination based on a hostile
work environment, I grant defendants’ motion to dismiss.
C.
Termination of plaintiff’s employment.
Plaintiff alleges that she was treated differently than white
employees in that she was fired for conduct that would have led
only to disciplinary action, or no action, for white employees.
Specifically, she alleges that she was treated differently than
“white nurses” who had several write-ups or breached security
standards.
She claims that while white nurses received corrective
counseling for their alleged transgressions, she was fired for
allegedly being insubordinate.
Page -8-
To establish a prima facie case of employment discrimination
based on unlawful termination, plaintiff must show (1) that she
belonged to a protected class; (2) that she was qualified for the
position; (3) that she was terminated; and (4) that the termination
occurred
under
discrimination.
circumstances
giving
rise
to
an
inference
of
See Shumway v. United Parcel Service, Inc., 118
F.3d 60, 63 (2nd Cir. 1997).
One method of alleging that an adverse
employment action took place under circumstances giving rise to an
inference of discrimination is to claim that an employee suffered
“disparate treatment.” Disparate treatment occurs when an employer
“simply treats some people less favorably than others because of
their race, color, religion, [or other protected characteristics].”
Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993)(quoting
Teamsters v. United States, 431 U.S. 324, 335-336 n.15 (1977)).
To state a claim for disparate treatment, a plaintiff “must
show she was similarly situated in all material respects to the
individuals with whom she seeks to compare herself.”
Vega v.
Hempstead Union Free Sch. Dist., 12-CV-6158SJF, 2014 WL 2157536 at
* 3 (E.D.N.Y. May 22, 2014). “To be similarly situated and qualify
as a comparator, even at the motion to dismiss stage, ‘other
employees
must
have
reported
to
the
same
supervisor
as
the
plaintiff, must have been subject to the same standards governing
performance evaluation and discipline, and must have engaged in
conduct similar to the plaintiff's, without such differentiating or
Page -9-
mitigating circumstances that would distinguish their conduct or
the appropriate discipline for it.’”
v.
RCA
Global
Communications,
Id. at * 5 (quoting
Inc.,
642
F.Supp.
Mazzella
1531,
1547
(S.D.N.Y.1986).
In the instant case, plaintiff has failed to show that the
employees she has compared herself to were similarly situated to
her in all material respects.
There is no evidence as to whether
the other employees plaintiff refers to reported to the same
supervisor, were registered nurses, or were subject to the same
disciplinary standards.
Because plaintiff has failed to allege
that the white nurses who allegedly received preferential treatment
were
similarly
situated
to
her
in
all
material
respects,
plaintiff’s claims of disparate treatment are dismissed without
prejudice.
IV.
Appointment of Counsel
Plaintiff seeks appointment of counsel on grounds that she is
unfamiliar with legal proceedings and fears that her case will be
dismissed because of her inexperience.
There is no constitutional
right to appointed counsel in civil cases, and assignment of
counsel is within the judge's discretion.
737 F.2d 1254 (2d Cir. 1984).
In re Martin-Trigona,
The factors to be considered in
deciding whether or not to assign counsel include the following:
1.
Whether the plaintiff’s claims seem likely to be of
substance;
2.
Whether the plaintiff is able to investigate the crucial
facts concerning his claim;
Page -10-
3.
Whether conflicting evidence implicating the need for
cross-examination will be the major proof presented to
the fact finder;
4.
Whether the legal issues involved are complex; and
5.
Whether there are any special reasons why appointment of
counsel would be more likely to lead to a just
determination.
Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); see also
Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986).
Counsel may
be appointed in cases where it appears that such counsel will
provide
substantial
assistance
in
developing
petitioner's
arguments, the appointment will otherwise serve the interests of
justice, and where the litigant has made "a threshold showing of
some likelihood of merit."
Cooper v. A. Sargenti Co., 877 F.2d
170, 174 (2d Cir. 1989).
The Court has reviewed the facts presented herein in light of
the factors required by law.
Based on this review, plaintiff's
motion for appointment of counsel is denied.
Plaintiff has not
made a threshold showing that her claims are meritorious. Nor does
it appear that the legal issues involved are complex.
CONCLUSION
For the reasons set forth above, I grant the defendants’
motion to dismiss, and deny plaintiff’s motion for appointment of
counsel.
Plaintiff’s claims under the Equal Pay Act, and against
the individual defendants are dismissed with prejudice. Plaintiffs
Page -11-
claims alleging a hostile work environment and unlawful termination
of employment are dismissed without prejudice.
ALL OF THE ABOVE IS SO ORDERED.
S/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
June 11, 2014
Page -12-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?