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August 7, 2003


The opinion of the court was delivered by: Constance Motley, Senior District Judge


Marvin Blake, Ph.D. ("Blake" or "plaintiff"), brings this action against Bronx Lebanon Hospital Center (the "Hospital," "Bronx Lebanon," or "defendant"), where he worked from July 1993 until his employment was terminated on January 18, 2002. Plaintiff claims, inter alia, that defendant maintains a regime of disparate salary payment which is predicated upon the racial or ethnic identities of its employees. In the complaint, which was filed on May 17, 2002, plaintiff specifically alleges disparate pay and retaliation in violation of 42 U.S.C. § 1981 ("Section 1981"), the New York Executive Law §§ 290 et seq.. (the "New York State Human Rights Law" or "NYSHRL"), and the Administrative Code of the City of New York § 8-101 et seq. (the "New York City Human Rights Law" or "NYCHRL"). On August 5, 2002, defendant moved pursuant [ Page 2]

to Fed.R.Civ.P. 12(b)(6) to dismiss a number of plaintiff's claims as time-barred. On April 16, 2003, the case was reassigned from the chambers of the late U.S. District Judge Allen G. Schwartz to Judge Deborah A. Batts. On May 22, 2003, the case was transferred to the undersigned. For the reasons stated below, defendant's partial motion to dismiss is hereby GRANTED.


The facts recited herein are drawn from plaintiff's complaint and are undisputed for the purposes of this motion to dismiss under Rule 12(b)(6).

In July 1993, Bronx Lebanon hired plaintiff, an African American male, as an "Administrator" in its Pathology Department. Plaintiff claims that during his tenure at Bronx Lebanon, he observed that the Hospital maintained a regime of disparate salary payment based on the racial or ethnic identities of its employees. In particular, plaintiff alleges that the Hospital paid white managerial employees higher salaries than black employees with similar backgrounds, qualifications and work responsibilities. Plaintiff alleges that defendant assigned white employees job titles which reflect higher status and greater prominence at the Hospital than those assigned to black employees. Plaintiff makes the uncontroversial assertion that job titles at the Hospital reflect a hierarchy among the workforce. He claims that defendant's allegedly discriminatory job title assignment practices generate a regime in which black managerial employees achieve lower levels of prominence than their white colleagues at the firm. Whereas a given job title in the Hospital's workforce hierarchy correlates with a given level of pay, plaintiff claims that a principal concomitant of the allegedly discriminatory status assignment regime is that black managerial employees receive lower salaries than their white colleagues, notwithstanding the fact that they have similar qualifications, backgrounds and job responsibilities. While decrying the systemic nature of the alleged discriminatory conduct, plaintiff brings this case on behalf of himself alone — this is not a "pattern and practice" class action suit.

Plaintiff alleges that when defendant first hired him, the responsibilities which inhered in his position were identical to those of his immediate predecessor, a white male. Whereas plaintiff was assigned the job title of "Laboratory Administrator," however, his predecessor held the position of "Director of Clinical Laboratories." In addition, plaintiff claims that his salary at the time of his hiring ($75,000.00) was approximately half of that of his white predecessor, "despite the fact that Plaintiff's position and responsibilities had been expanded and his qualifications were similar to those of his predecessor." Pl.'s Complt. at 16. Plaintiff claims that after he learned of this difference between his salary and that of his predecessor, he contacted senior management personnel at the Hospital — in particular, a person identified in the complaint as Dr. Choi, the Director of Pathology — and requested an "equitable salary adjustment." Id. at 17. In addition, plaintiff requested that his job title and position "be changed to incorporate and represent his qualifications and expanded responsibilities and duties." Id. at 18. In particular, [ Page 3]

plaintiff requested that his job title be changed to one which reflected a status comparable to that of his white male predecessor, the "Director of Clinical Laboratories." Plaintiff's requests were denied. Plaintiff alleges that senior management at the Hospital, specifically Mr. Sheldon Ortsman, Vice President of Administration and Human Resources, repeatedly refused to promote him, change his job title or make what plaintiff considered to be equitable salary adjustments. These personnel decisions, plaintiff claims, were the product of a plan, practice and custom through which defendant discriminated against black employees.

According to plaintiff, in 1997 he was appointed "to oversee and direct the Pathology and Radiology Departments" at the Hospital. Id. at 24. In this capacity, plaintiff was assigned the job title of "Administrative Director of Pathology and Radiology." Plaintiff alleges that with his additional responsibilities, he ought to have been named "Assistant Vice President" and granted a corresponding substantial salary increase. He suggests that but for the fact that he is an African American, he would have been assigned this more impressive title and received the correlating pay increase.

Plaintiff alleges that in June 2001, he was assigned additional duties and responsibilities which were "independent of and not related to his position" as Administrative Director of Pathology and Radiology. Id. at 26. Much to plaintiff's consternation, defendant did not assign him a new job title or grant him a salary increase. Plaintiff claims that when he requested that he be promoted, receive a new job title, and receive a salary increase reflective of his new activities — presumably around the time that he was assigned these new duties in June 2001 — Mr. Ortsman denied his requests. Indeed, plaintiff claims that defendant denied his requests notwithstanding the recommendations of "independent consultants hired by defendant, concurring with Blake's promotional requests." Id. 28.

Plaintiff claims that thereafter he again complained to defendant's senior management about what he perceived as defendant's preferential treatment of white managers. Plaintiff claims that after he made this complaint — in retaliation for making this and other complaints regarding race-based discrimination with reference to promotions, assignment of job titles, and salary levels — Mr. Ortsman terminated his employment at the Hospital. Plaintiff claims that Mr. Ortsman told him that his termination was not based upon his job performance, which he characterized as "outstanding." Id. at 31. Rather, Mr. Ortsman informed him that the position of "Administrative Director of Pathology and Radiology," which plaintiff held, was being eliminated. Plaintiff requested that, in light of his seniority and qualifications, he be granted the opportunity to assume the administrative position of Pathology "Manager." Plaintiff asserts that this request is "consistent with defendant's Human Resources Policy and past practices of nonunion staff reduction." Id. at 32. Plaintiff claims that his request was denied. He asserts that the person in the position of "Manager," a white male with less seniority than plaintiff, was not as qualified as plaintiff for the position.

Plaintiff believes that his termination was rooted in defendant's regime of race-based discrimination in hiring, promoting, and paying managerial employees. Plaintiff believes that his [ Page 4]

employment was terminated in retaliation for his complaints about race-based status and pay disparities and in retaliation for his repeated requests to be given the same job title and salary as his white colleagues, with whom he believes ...

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