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LAZARO v. GOOD SAMARITAN HOSP.

May 6, 1999

VICTORINA H. LAZARO, PLAINTIFF,
v.
GOOD SAMARITAN HOSPITAL, DEFENDANT.



The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.

  MEMORANDUM DECISION AND ORDER

Plaintiff Victorina Lazaro sues the Defendant Good Samaritan Hospital (the "Hospital") alleging that the Hospital discriminated against her based upon her age and race, as well as breached her employment contract by terminating her. Lazaro's first and fourth claims assert race discrimination under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f). Lazaro's third claim asserts breach of an employment contract under New York State law. The Hospital moves pursuant to Fed.R.Civ.P. Rule 12(b)(6) to dismiss Lazaro's first, third, and fourth claims. For the following reasons the motion is denied in part and granted in part.

BACKGROUND

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the court is obligated to construe the pleadings in the plaintiff's favor and accept as true the well pled allegations in the complaint. Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998). The following facts are accordingly construed.

In 1976, Victorina Lazaro, a Filipino female, began working at the Hospital as a nurse in the emergency room. Although there was no written employment contract, Lazaro contends that the Hospital limited its right, through various documents (e.g. employee manuals), to terminate employees only for good cause. In 1995, Lazaro was disciplined for "professional misjudgment" when a child who came to the emergency room with a lacerated arm did not receive sufficiently prompt attention. In 1997, when Lazaro was 56 years old, she was terminated for a "gross dereliction of duty" when she allowed a pregnant woman who was not yet experiencing contractions to leave the Hospital's emergency room and go to another hospital where the woman's obstetrician had hospital privileges.

Lazaro believed that the Hospital's treatment of her was discriminatory and turned to the New York State Division for Human Rights ("DHR") where she filed a charge of age, but not race, discrimination. In response to the Hospital's contention that this omission now bars Lazaro's claim of race discrimination, she alleges in her amended complaint that she informed the DHR personnel that she believed her mistreatment was due to both age and race. Lazaro contends that — proceeding pro se — she relied on DHR personnel for the framing of the charge and believed that the charge included a claim of discrimination based upon her ethnicity, national origin and race. Lazaro received a "right to sue" letter from the EEOC for age discrimination on June 12, 1998, after which this suit was commenced.

DISCUSSION

I Title VII

Since Lazaro's right to sue letter only addresses age discrimination, the Hospital contends that Lazaro has not exhausted her administrative remedies because she did not file a race discrimination charge with the EEOC. Lazaro's amended complaint states, however,

  [p]laintiff informed DHR personnel that she
  believe[d] that defendant's discrimination against
  her was due to her age, and the fact that she is
  Filipino. Plaintiff relied upon DHR personnel for the
  proper filing of her charge of discrimination, and
  believed that such charge included a claim of
  discrimination based upon plaintiff's ethnicity,
  national origin and race. Plaintiff was not at this
  time represented by an attorney.

Amended Complaint, ¶ 71. Lazaro also states, "[u]pon information and belief, the DHR inadvertently failed to process plaintiff's allegations of ethic, national origin, and race discrimination which were presented to it." Amended Complaint, ¶ 89. Consequently, Lazaro contends that her Title VII claim may be "reasonably related" to her age discrimination claim or may present an appropriate situation for equitable tolling. See Cooper v. Ayerst Lederle, 34 F. Supp.2d 197, 202 (S.D.N.Y. 1999) (denying summary judgment when alleged procedural deficiencies occurred as a result of the EEOC's errors). On this motion, the text of Lazaro's charge and the circumstances surrounding its filing are not before this Court. Since, as previously noted, the Court must accept as true all factual allegations in the amended complaint and construe the pleadings in the plaintiff's favor and because of the lack of discovery, the Court cannot at this stage conclude that the plaintiff has failed to state a claim under Title VII for race discrimination. The defendant's motion under Rule 12(b)(6) to dismiss the Title VII claim is denied.

II Breach of Contract

The Hospital also moves to dismiss Lazaro's breach of contract claim. It is settled under New York law that absent an agreement establishing a fixed duration of employment, an employment relationship is presumed to be a hiring at-will, terminable at any time by either party. Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 333, 514 N.Y.S.2d 209, 506 N.E.2d 919 (1987). An employee may rebut the presumption of at-will employment, however, by establishing that (1) the employer made the employee aware of its express written policy limiting its right of discharge, and (2) the employee detrimentally relied on that policy in accepting employment. Harrison v. Indosuez, 6 F. Supp.2d 224, 230 (S.D.N.Y. 1998) (citing De Petris v. Union Settlement Ass'n, Inc., 86 N.Y.2d 406, 410, 633 N.Y.S.2d 274, 657 N.E.2d 269 (1995) ("An [at-will] employee may recover, however, by establishing that the employer made the employee aware of its express written policy limiting its right of discharge and that the employee detrimentally relied on that policy in accepting employment.")); Shafrir v. Ass'n of Reform Zionists of America, 998 F. Supp. 355, 363 (S.D.N.Y. 1998) (same). The ...


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