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United States District Court, Eastern District of New York

March 24, 2003


The opinion of the court was delivered by: David G. Trager, United States District Judge


Plaintiff Linda O'Neal ("O'Neal") brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"),*fn1 against her employer, State University of New York Health Science Center Brooklyn (the "Health Center"). The complaint alleges four causes of action: 1) a Title VII race and gender discrimination claim; 2) a Title VII hostile work environment claim; 3) a Title VII retaliation claim; and 4) a pendent state law claim for injuries sustained during an altercation between O'Neal and her supervisor.

The Health Center moves to dismiss plaintiff's complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Defendant argues that: 1) plaintiff's first claim fails to allege facts sufficient to state a cause of action, and, to the extent that it purports to state a claim for race discrimination, is barred by plaintiff's failure to exhaust administrative remedies; 2) the second claim fails to allege facts sufficient to state a claim; 3) the third claim fails to allege facts sufficient to state a claim and is barred by plaintiff's failure to exhaust administrative remedies; and 4) the state law claim is barred by the Eleventh Amendment to the United States Constitution.


For the purposes of this motion to dismiss, plaintiff's factual allegations are assumed to be true. O'Neal, a black female, has been employed by the Health Center for approximately 30 years as a drug counselor. See Compl. ¶¶ 9-10. After the Health Center merged with Loft "satellite" clinic, in 1995, a Mr. Myzwinski ("Myzwinski") became one of O'Neal's supervisors. See id. ¶ 10.

O'Neal's allegations of discriminatory treatment are predicated entirely on Myzwinski's conduct. Plaintiff alleges that Myzwinski bypassed her immediate supervisor, Mr. Halloran, and harassed her as well as three other female employees. See id. ¶ 11. O'Neal claims that Myzwinski openly embarrassed her in front of clients and fellow employees by chastising her in the hallway under the guise of constructive criticism. See id. ¶ 19. Plaintiff references one particular incident that occurred during a staff meeting, on October 14, 1999: after hearing a "noise" during his presentation, Myzwinski turned toward the plaintiff and characterized the noise as a "grunt." This, according to the complaint, made a spectacle of O'Neal, implying that she was an animal. See id. ¶ 13. Plaintiff further alleges that Myzwinski "would leave his office five . . . door[s] away from me, bypassing other open doors, and close my office door." Id. ¶ 12. O'Neal asserts in an entirely conclusory fashion: "I feel this is because I was female."

Id. ¶¶ 11-12. At the same time, O'Neal also indicates that she perceived the closing of her door as a "personal attack" because Myzwinski would close only her door, while other employees were permitted to work with their doors open. Id. ¶ 22. O'Neal alleges that "Myzwinski never treated the male employees at the clinic in a like manner." Id. 14

Plaintiff avers that, as a result of Myzwinski's behavior, "I became very nervous reporting to work since I felt I could be verbally attacked the minute I stepped out of my office[,] and my job required that I leave my office many times a day." Id. ¶ 21. She further asserts that "Myzwinski's harassment resulted in elevating [her] blood pressure . . . resulting in increased absences from the job" in comparison to her performance prior to Myzwinski's arrival in 1995. Id. ¶ 16.

On one occasion, in June 2000, O'Neal attempted to prevent Myzwinski from closing her door. Myzwinski "tugged on the door and then released it quickly," causing the door to strike O'Neal in the knee.*fn2 Id. ¶ 28. This resulted in injuries that allegedly require O'Neal to take daily pain medication and to attend physical therapy several times a week. See id. ¶ 29. Though the complaint does not specify, it was explained at oral argument that O'Neal has not returned to work since sustaining the knee injury and that she is currently on "permanent disability, getting 60 percent of her salary." Tr. of Oral Arg. at 9, 15.

On August 15, 2000, O'Neal filed an administrative complaint with the New York State Division of Human Rights (the "NYSDHR"), claiming discrimination on the basis of sex. See NYSDHR Compl., Ex. B, attached to Decl. of Benjamin Lee [hereinafter "Lee Decl."]. On September 18, 2000, she filed an amended administrative complaint, accusing her employer of retaliating against her. See Am. NYSDHR Compl., Ex. C, attached to Lee Decl. Specifically, the amended complaint alleges that, although O'Neal had been granted leave without pay from July 3, 2000 through September 27, 2000, because of her disability, she received a written notice on September 13, 2000 that threatened: "should you not return to duty, your absence will be considered unauthorized and may subject you to discipline." Id. ¶ 10.

In her complaint before this court, O'Neal asserts that the defendant "continued to request [that] the plaintiff report for work and/or meetings in contradiction to medical evidence that the plaintiff was not fit for work." Compl. ¶ 25. The complaint alleges that, in a further act of retaliation, the defendant "shared information with the attorneys of the Workers['] Compensation Board depriving the plaintiff of a fair review of her disability claim." Id. ¶ 25. This allegation was not raised in the administrative proceedings.

On June 19, 2001, the NYSDHR rendered a determination and order after investigating O'Neal's charges, finding that there was no probable cause to believe that the Health Center had engaged in unlawfully discriminatory practices. See NYSDHR Determination and Order, Ex. A, attached to Lee Decl. The Equal Employment Opportunity Commission (the "EEOC") adopted the NYSDHR findings and issued a right-to-sue letter on August 24, 2001. See Compl. ¶ 8. Thereafter, this action was timely filed.



Race Discrimination

The Health Center asserts that plaintiff's Title VII race discrimination claim is barred because plaintiff failed to raise such a claim in the administrative proceedings before the NYSDHR. According to the defendant, this court lacks subject matter jurisdiction over claims for which administrative remedies have not been exhausted, and, therefore, the race discrimination claim should be dismissed under Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Mem. of Law in Supp. of Def.'s Rule 12(b)(1) and 12(b)(6) Mot. to Dis. the Compl. [hereinafter "Def.'s Mem. of Law"] at 1, 4-5.

It is well established that a plaintiff cannot raise a Title VII discrimination claim without first exhausting administrative remedies. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 82-3 (2d Cir. 2001) (citing Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000)). The exhaustion of administrative remedies is "an essential element of Title VII's statutory scheme," Butts v. City of New York Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), and is designed "to give the administrative agency the opportunity to investigate, mediate, and take remedial action." Stewart v. United States Immigration & Naturalization Serv., 762 F.2d 193, 198 (2d Cir. 1985). Pursuant to the exhaustion requirement, "a plaintiff typically may raise in a district court complaint only those claims that either were included in or are `reasonably related to' the allegations contained in her [administrative] charge." Holtz, 258 F.3d at 83 (quoting Butts, 990 F.2d at 1401). A claim is reasonably related "where the conduct complained of would fall within the scope of the [administrative] investigation which can reasonably be expected to grow out of the charge of discrimination." Butz, 990 F.2d at 1402 (internal quotation marks and citation omitted).

In this case, O'Neal's administrative complaint alleges discrimination only on the basis of gender. Nowhere does the complaint submitted to the NYSDHR charge racial discrimination. In fact, plaintiff does not even allege her race in the administrative filings. Moreover, any claim that defendant discriminated against O'Neal based on race could not be expected to "fall within the scope" of an administrative investigation concerning allegations of sex discrimination. Thus, plaintiff's race discrimination claim does not qualify for the exception to the exhaustion requirement that permits claims "reasonably related" to those contained in an administrative charge to be raised for the first time at the district court level. See Coleman v. Board of Educ., CV-96-4293, 2002 WL 63555, at *3 (S.D.N.Y. Jan. 16, 2002) ("[A] claim of gender discrimination is not reasonably related to a claim of . . . race . . . discrimination."), aff'd, 45 Fed. Appx. 79 (2d Cir. 2002); Grillo v. New York City Transit Auth., 122 F. Supp.2d 385, 391 (E.D.N.Y. 2000) (same), aff'd per curiam, 291 F.3d 231 (2d Cir. 2002). Having failed to avail herself of administrative remedies with respect to a potential race discrimination claim, O'Neal is precluded from raising a race discrimination claim in this forum.*fn3 See Holtz, 258 F.3d at 84 (affirming district court's dismissal of a religious discrimination claim about which plaintiff's administrative charge was "entirely silent"); Murray v. Brooklyn Public Library, CV-96-2786, 1997 WL 1048899, at *3 (E.D.N.Y. June 13, 1997) (dismissing a gender discrimination charge where administrative complaint had only alleged discrimination on the basis of race and age).

O'Neal's counterarguments are entirely without merit. First, plaintiff asserts that because she filed the NYSDHR complaint, she has exhausted all the administrative remedies available to her. See Mem. of Law in Opp'n of Def.'s Rule 12(b)(1) and 12(b)(6) Mot. to Dis. the Compl. [hereinafter "Pl.'s Mem. of Law"] at 3. Of course, the mere filing of an administrative complaint is not in itself sufficient to satisfy the exhaustion requirement. Rather, the plaintiff must have raised in the administrative proceedings the claims she alleges in the district court complaint. Plaintiff plainly has not done so here; neither do her present allegations of discrimination based on race "reasonably relate" to the gender discrimination claims in her administrative complaint. Plaintiff further asserts that in Francis v. City of New York, 235 F.3d 763 (2d Cir. 2000), the Second Circuit held that "the exhaustion of administrative proceedings is not a prerequisite to filing a Title VII action." Pl.'s Mem. of Law at 3. In fact, that decision stands for exactly the opposition proposition. See Francis, 235 F.3d at 768 (holding that the exhaustion of administrative remedies "is a precondition to bringing a Title VII claim in federal court," and that defendants are "entitled to insist that plaintiffs comply" with this exhaustion requirement) (emphasis added). Lastly, O'Neal contends that a Mr. Michael Brennan, identified as "the adjudicator of the internal administrative process," violated "the integrity of the administrative system" in some unspecified fashion. Pl.'s Mem of Law at 3. It is not at all clear what administrative process O'Neal is referring to, what exactly Mr. Brennan is alleged to have done, or, for that matter, who he is.*fn4 But in any event, any action that may have been undertaken by Mr. Brennan could not explain or excuse plaintiff's failure to include a charge of race discrimination in her administrative complaint. As defendant rightly argues, "plaintiff is the author of her [administrative] charge and the fact that she chose not to allege racial discrimination cannot be attributed to Mr. Brennan." Mem. of Law in Further Supp. of Def.'s 12(b)(1) and 12(b)(6) Mot. to Dis. the Compl. [hereinafter "Def.'s Reply Mem."] at 5.

Strictly speaking, however, defendant is incorrect in asserting that O'Neal's failure to exhaust administrative remedies with respect to her claim of race discrimination deprives this court of subject matter jurisdiction over this claim. Though some Second Circuit cases have suggested that exhaustion is a jurisdictional requirement, see, e.g., Butts, 990 F.2d at 1401, this position was expressly rejected in Francis, where the Second Circuit held that the exhaustion of administrative remedies "is a precondition to bringing a Title VII claim in federal court, rather than a jurisdictional requirement."*fn5 235 F.3d at 768 (quoting Gibson v. West, 201 F.3d 990, 994 (7th Cir. 2000)). The significance of this distinction is that insofar as the district court's subject matter jurisdiction does not depend on the exhaustion of administrative remedies, the requirement is theoretically "subject to waiver, estoppel, and equitable tolling." Id. at 767 (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132 (1982)). Here, the non-jurisdictional status of the exhaustion requirement has no bearing on the viability of plaintiff's race discrimination claim: because the Health Center raised the issue of plaintiff's failure to exhaust in its motion to dismiss, there is no basis for asserting that defendant waived the defense or is otherwise estopped from raising it.

Nevertheless, in light of Francis, defendant has incorrectly framed its exhaustion argument as a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Plaintiff's failure to allege a race discrimination claim in her administrative complaint does bar her from raising such a claim in this court. However, defendant's motion is properly characterized as a motion to dismiss pursuant to Rule 12(b)(6). See Angotti v. Kenyon & Kenyon, 929 F. Supp. 651, 653 (S.D.N.Y. 1996) (noting that defendant's 12(b)(1) motion to dismiss a retaliation claim that was not included in plaintiff's EEOC charge "is properly characterized as a motion to dismiss under Rule 12(b)(6)"). Thus construed, the motion is granted. Plaintiff's allegations of race discrimination — raised for the first time in this court — are dismissed.


Gender Discrimination

Defendant argues that O'Neal's complaint fails to allege facts sufficient to state a claim for gender discrimination and should, therefore, be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A 12(b)(6) motion is granted only when it "appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Phelps v. Kapnolas, 308 F.3d 180, 184 (2d Cir. 2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957)). In making this determination, the court "must accept all factual allegations in the complaint as true, draw inferences from those allegations in the light most favorable to plaintiff, and construe the complaint liberally." Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000). The issue is not whether the plaintiff will ultimately prevail but whether she is entitled to offer evidence to support her claims. See Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995). Thus, "[t]he court's function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Festa v. Local 3, Int'l Bhd. of Elec. Workers, 905 F.2d 35, 37 (2d Cir. 1990) (per curiam).

Prior to the Supreme Court's recent decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992 (2002), courts in the Second Circuit required a plaintiff asserting a Title VII gender discrimination claim to plead evidence of a prima facie case under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 782, 802, 93 S.Ct. 1817, 1824 (1973), in order to survive a 12(b)(6) motion to dismiss. To meet this burden, a plaintiff was required to show that: 1) she is a member of a protected class; 2) she was qualified for her position; 3) an adverse employment action occurred; and 4) the adverse action occurred in circumstances giving rise to an inference of discrimination on the basis of her membership in that class. See, e.g., Austin v. Ford Models, Inc., 149 F.3d 148, 153 (2d Cir. 1998).

Defendant contends that plaintiff's complaint fails to allege evidence establishing an adverse employment action. To demonstrate the occurrence of an adverse employment action, plaintiff must show that she suffered "a `materially adverse' change in the terms and conditions of employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (citing Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir. 1999)). There is no bright-line rule as to what constitutes an adverse employment action. However, the Second Circuit has held that, in order to qualify as "`materially adverse' a change in working conditions must be `more disruptive than a mere inconvenience or an alteration of job responsibilities.'" Galabya, 202 F.3d at 640 (quoting Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). Examples include "a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Id. (internal quotation marks omitted).

In Swierkiewicz, however, the Supreme Court overturned the Second Circuit's heightened pleading standard for Title VII cases, noting that "[t]he prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement." Swierkiewicz, 534 U.S. at 510, 122 S.Ct. at 997. The Court held that, pursuant to the notice pleading system contemplated by Federal Rule of Civil Procedure 8(a)(2), a Title VII complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Id. (quoting Fed.R.Civ.P. 8(a)(2)); see also Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 1163 (1993). Accordingly, a complaint alleging employment discrimination is sufficient to withstand a motion to dismiss if it gives "`fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz, 534 U.S. at 512, 122 S.Ct. at 998 (quoting Conley, 355 U.S. at 47, 78 S.Ct. at 103). Therefore, defendant's argument that plaintiff has failed to plead a prima facie case because she has not alleged evidence sufficient to establish the occurrence of an adverse employment action is inappropriate. See Johnson v. Eastchester Union Free Sch. Dist., CV-01-2835, 2002 WL 449584, at *2 (S.D.N.Y. Mar. 22, 2002) (holding that defendant's motion to dismiss a Title VII complaint on the ground that plaintiff "failed to allege that he suffered an adverse employment action . . . is inapposite to current law").

This is not to say that no 12(b)(6) motion can be granted in a Title VII case after Swierkiewicz. The complaint still must "state claims upon which relief can be granted." Swierkiewicz, 534 U.S. at 514, 122 S.Ct. at 999. The flaw in O'Neal's gender discrimination claim, at least as it is presently framed, is not, as defendant's argument suggests, the absence of evidence demonstrating that an employment action taken against her effected a sufficiently adverse change in the terms and conditions of her employment. Rather, the complaint fails to allege the occurrence of any tangible employment action at all. If it can be shown to be sufficiently severe and pervasive, as well as gender-motivated, the type of harassing conduct that O'Neal allegedly suffered from Myzwinski can form the basis for a hostile work environment claim. See Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001) (stating that a hostile work environment claim can be actionable even though the employer takes no tangible employment action). However, to the extent that plaintiff intends to assert a gender discrimination cause of action that is distinct from her hostile work environment claim, there is, on the face of the present complaint, no tangible employment action to lay a predicate for such a claim.

At oral argument, plaintiff's counsel suggested that O'Neal's physical injury — which is alleged to have directly resulted from Myzwinski's harassing behavior — might constitute the requisite employment action, insofar as the injury has prevented O'Neal from returning to work and collecting her full salary. See Tr. of Oral Arg. at 9. Although the Health Center never actually fired O'Neal, the Second Circuit recognizes a cause of action for constructive termination under Title VII. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 73-74 (2d Cir. 1998); Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360 (2d Cir. 1993); Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983); see also Coffey v. Cushman & Wakefield, Inc., CV-01-9447, 2002 WL 1610913, at *5 (S.D.N.Y. July 22, 2002) ("A constructive termination is itself an adverse employment action."). "A constructive discharge occurs where the employer . . . deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation." Pena, 702 F.2d at 325 (internal quotation marks and citation omitted). As it is presently drafted, O'Neal's complaint clearly does not state a claim for constructive discharge. For one thing, the section of the complaint alleging gender discrimination outlines Myzwinski's harassing conduct, but makes no reference to O'Neal's knee injury or to her inability to work thereafter. In fact, with the exception of an oblique reference to the Workers' Compensation proceedings, see Compl. ¶ 25, the complaint at no point indicates that plaintiff has been prevented from returning to work as a result of the injury to her knee or for any other reason.

The burden of establishing a claim of constructive termination is, in any event, "not an easy one to carry," Cooper v. John D. Brush & Co., CV-01-6354, 2003 WL 245099, at *10 (W.D.N.Y. Jan. 15, 2003), and there is good reason to question whether O'Neal will ultimately be able to prevail on such a theory — if only because plaintiff will have to establish that Myzwinski acted deliberately. Cf. Compl. ¶ 27 (referring to plaintiff's "severe" emotional and physical "trauma" as resulting from defendant's "negligence"). However, at this stage, the court is satisfied that a constructive termination claim is at least plausible. Accordingly, as it is presently framed, O'Neal's Title VII gender discrimination claim is dismissed. However, plaintiff is granted leave to file an amended complaint, within thirty (30) days of the date of this order, to the extent she wishes to pursue a constructive discharge claim.


Hostile Work Environment

Defendant argues that plaintiff's gender-based hostile work environment claim should be dismissed because the incidents alleged are not sufficiently severe and pervasive and because plaintiff fails to show that the acts were motivated by gender.*fn6 A hostile work environment cause of action is permitted under Title VII when the workplace is "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370 (1993) (internal quotation marks and citations omitted). "A work environment will be considered hostile if a reasonable person would have found it to be so and if the plaintiff subjectively so perceived it." Brennan v. Metropolitan Opera Ass'n, Inc., 192 F.3d 310, 318 (2d Cir. 1999) (citing Gallagher v. Delaney, 139 F.3d 338, 347 (2d Cir. 1998)). However, Title VII is not a "general civility code"; therefore, an actionable hostile work environment claim requires more than "simple teasing, offhand comments, and isolated incidents." Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 2283-84 (1998) (internal quotation marks and citations omitted); see also Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir. 1992) (noting that isolated acts or occasional episodes of harassment do not warrant Title VII relief). While a single act of harassment, if severe enough, can establish a hostile work environment, see Richardson, 180 F.3d at 437, lesser incidents "must be sufficiently continuous and concerted in order to be deemed pervasive." Carrero v. New York City Housing Authority, 890 F.2d 569, 577 (2d Cir. 1989).

Further, "Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at `discrimin[ation] . . . because of . . . sex.'" Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 1002 (1998) (quoting Title VII). Thus, to establish a hostile work environment claim based on gender, a plaintiff must be able to show that the conduct in question was motivated by her gender. See Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) ("It is axiomatic that mistreatment at work . . . through subjection to a hostile work environment . . . is actionable under Title VII only when it occurs because of an employee's sex, or other protected characteristic."); accord Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998).

Contrary to defendant's contention that the complaint fails to allege incidents of continuous and concerted harassment, O'Neal has alleged conduct that, taken together, could be construed as creating an objectively hostile work environment, viz. that a supervisor 1) closed her door, while leaving other employees' doors open, 2) repeatedly "chastised" and "verbally attacked" her in the hallway in front of clients, 3) bypassed her immediate supervisor for the purpose of harassing her, 4) embarrassed her at a staff meeting*fn7 and, ultimately, 5) physically injured her. The Supreme Court has "directed courts to determine whether an environment is sufficiently hostile or abusive by `looking at all the circumstances,' including the `frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Faragher, 524 U.S. at 787-88, 118 S.Ct. at 2283 (quoting Harris, 510 U.S. at 23, 114 S.Ct. at 371). Courts have noted that the pervasiveness of harassing conduct "is the sort of issue that is often not susceptible of summary resolution." DiLaurenzio v. Atlantic Paratrans, Inc., 926 F. Supp. 310, 314 (E.D.N.Y. 1996). Indeed, at the pleading stage — prior to any discovery — it would be premature for this court to determine that Myzwinski's conduct was not, as a matter of law, sufficiently severe or pervasive to give rise to a viable hostile work environment claim.

Plaintiff must also ultimately establish that Myzwinski's hostile conduct was motivated by her gender. Defendant argues that the alleged acts of harassment are facially "gender neutral" and, therefore, cannot lay a predicate for an actionable hostile work environment claim. See Def.'s Mem. of Law at 12. As alleged in the complaint, none of Myzwinski's harassing conduct is explicitly sex- or gender-specific. However, "neither `sex-specific and derogatory terms' nor any evidence that `sexual desire' motivated the harassment is needed to prove an actionable hostile work environment." Gregory, 243 F.3d at 695 (quoting Oncale, 523 U.S. at 80-81, 118 S.Ct. at 1002). Rather, "`[t]he critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.'" Oncale, 523 U.S. at 80, 118 S.Ct. at 1002 (quoting Harris, 510 U.S. at 25, 114 S.Ct. at 372 (Ginsburg, J., concurring)). To this end, O'Neal alleges that "Mr. Myzwinski has never treated male employees at the clinic in a like manner." Compl. ¶ 14. She further alleges that Myzwinski's harassing conduct was directed at her and "three other female employees." Compl. ¶ 11. Such allegations of disparate treatment between men and woman potentially give rise to a reasonable inference that the underlying harassment was motivated by gender. See, e.g., International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854 n. 15 (1977) ("Proof of discriminatory motive . . . can in some situations be inferred from the mere fact of differences in treatment."). In fact, for the purposes of this motion to dismiss, especially in light of Swierkiewicz, O'Neal's conclusory statement "I feel this was because I am a female," Compl. ¶ 12, would probably be adequate.

For these reasons, defendant's motion to dismiss O'Neal's hostile work environment claim is denied.



Title VII provides a separate cause of action for an employee who is retaliated against by an employer for having filed a discrimination charge. See 42 U.S.C. § 2000e-3(a). O'Neal alleges that the Health Center committed two acts of retaliation against her for filing a discrimination claim with the NYSDHR. First, plaintiff asserts that "[t]he defendant continued to request [that] the plaintiff report for work and/or meetings in contradiction to medical evidence that the plaintiff was not fit for work." Compl. ¶ 24. Second, O'Neal asserts that "defendant, upon my information and belief, shared information with the attorneys of the Workers['] Compensation Board depriving plaintiff of a fair review of her disability claim." Id. ¶ 25. The first of these alleged retaliatory actions was the subject of an amendment to O'Neal's administrative charge. See Am. NYSDHR Compl. ¶ 10. The second allegation is raised for the first time in her district court complaint.

The Health Center first argues that because O'Neal's allegations concerning defendant's interference with her Workers' Compensation claim were not raised in the administrative filings, they may not be raised in this court.*fn8 The Second Circuit, however, has long recognized an exception to the exhaustion requirement for claims alleging retaliation by an employer against an employee for filing an administrative charge. See Butts, 990 F.2d at 1402. Thus, O'Neal was not required to raise any allegations of retaliation in the administrative proceedings in order to raise such claims in this court. The fact that she chose to amend her administrative complaint alleging one act of retaliation should not operate to her detriment by precluding her from raising other potentially meritorious retaliation claims at the district court level. See McNight v. Dormitory Auth. of the State of New York, 995 F. Supp. 70, 79 (N.D.N.Y. 1998) ("When, as here, a plaintiff files an administrative complaint alleging retaliation, she should not have her federal retaliation claims dismissed merely because she filed a charge that did not include each instance of retaliatory conduct.").

The Health Center next argues that O'Neal fails to state a claim for retaliation because neither of the alleged acts of retaliation amounts to an adverse employment action and thus cannot support a prima facie case.*fn9 As detailed above, an adverse employment action is a "materially adverse change in the terms and conditions of employment . . . [that] must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Galabya, 202 F.3d at 640 (internal quotations marks and citations omitted). Admittedly, owing to the relative paucity of factual details in the complaint, it remains questionable whether plaintiff will ultimately be able to establish that the alleged retaliatory acts rise to such a level. For instance, with respect to O'Neal's claim that defendant demanded that she return to her job despite her disability, the complaint does not indicate that O'Neal was ultimately required to report for work or that any adverse consequences actually followed from her failure to do so. As for plaintiff's claim that the Health Center interfered with her Workers' Compensation claim, it is noteworthy that plaintiff affirms in an affidavit submitted in opposition to plaintiff's motion to dismiss that she is currently receiving Workers' Compensation. See Pl.'s Aff. in Opp. to Mot. to Dis. ¶ 8.

However, in order to withstand this motion to dismiss, plaintiff "need not plead a prima facie case" of retaliation. Swierkiewicz, 534 U.S. at 515, 122 S.Ct. at 997. Indeed, as the Supreme Court's decision in Swierkiewicz underscores, at this stage, the proper inquiry is not whether plaintiff has adduced sufficient evidence to prevail ultimately at trial, but rather whether she is entitled to offer evidence to support her claims. See id. at 511 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686 (1974)); see also id. at 515 ("[I]t may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.") (internal quotation marks and citation omitted). Plaintiff's allegations of retaliation suffice to give the Health Center fair notice of plaintiff's claims and the grounds on which they rest, and they state a claim upon which relief could be granted under Title VII. The question of whether the Health Center's alleged acts of retaliation amount to adverse employment actions "will depend upon other facts developed during the course of discovery and, therefore, is more appropriately reviewed on a motion for summary judgment." Briggs v. New York State Dep't of Transp., 233 F. Supp.2d 367, 378 (N.D.N.Y. 2002). Accordingly, defendant's motion to dismiss plaintiff's retaliation claim is denied.


State Law Claim

Lastly, the complaint raises what appears to be a state law tort claim for "pain and suffering." Referring to the incident when Mr. Myzwinski released O'Neal's office door such that it struck O'Neal in the knee, plaintiff alleges, somewhat clumsily, that: "[a]s a result of defendant[']s negligence, through its employee[,] has inflicted severe trauma, physical and emotional, to the Plaintiff." Compl. ¶ 27. The Health Center correctly argues that this claim is barred by the Eleventh Amendment.

The Eleventh Amendment bars suits in federal court for any kind of relief against a state, its agencies, and its entities, in the absence of the state's unequivocal waiver of its immunity or a valid abrogation of the state's immunity by Congress. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 2309-10 (1989); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 97-100, 104 S.Ct. 900, 906-08 (1984); Alliance of Am. Insurers v. Cuomo, 854 F.2d 591, 604-05 (2d Cir. 1988). It is beyond dispute that the Eleventh Amendment bars enforcement of state law claims against a state in federal court. See Pennhurst, 465 U.S. at 97-100, 104 S.Ct. at 906-08; Ruffin v. Deperio, 97 F. Supp.2d 346, 356 (W.D.N.Y. 2000) ("[T]he Eleventh Amendment bars suits against states by their own citizens in federal court for . . . violations of state or federal laws in the absence of waiver by the state or abrogation by Congress."); Phipps v. New York State Dep't of Labor, 53 F. Supp.2d 551, 558 (N.D.N.Y 1999) (holding that common-law claims asserted against the New York State Department of Labor are barred by the Eleventh Amendment). Further, the Second Circuit has determined that the Health Center is a state entity entitled to Eleventh Amendment immunity. See Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (citing Dube v. State Univ. of New York, 900 F.2d 587, 594 (2d Cir. 1990)). Accordingly, O'Neal's state law claim against the Health Center is barred by the Eleventh Amendment and is, therefore, dismissed.


For the reasons stated above, the Health Center's motion to dismiss plaintiff's hostile work environment and retaliation claims is denied. O'Neal's race discrimination claim is dismissed for failure to exhaust administrative remedies, her state law claim is dismissed as barred by the Eleventh Amendment, and her gender discrimination claim is dismissed for failure to state a claim. However, plaintiff is granted leave to amend her complaint, within thirty (30) days of the date of this order, to the extent she wishes to pursue a constructive termination cause of action.

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