United States District Court, S.D. New York
January 30, 2004.
RI SAU KUEN CHAN, Plaintiff -against- NYU DOWNTOWN HOSPITAL, ET AL., Defendants
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
MEMORANDUM AND ORDER
Plaintiff Ri Sau Kuen Chan ("Chan") requests leave to file a second
amended complaint in this employment discrimination action, in order to
include claims that defendants NYU Downtown Hospital, Rusk Institute of
Rehabilitation Medicine, and NYU Medical Center have discriminated
against her on the basis of sex and have retaliated against her for
opposing their unlawful conduct, in violation of the New York State Human
Rights Law ("NYSHRL"), Executive Law § 290 et seq., and the
New York City Human Rights Law ("NYCHRL"), New York City Administrative
Code § 8-101 et seq. Chan's first Amended Complaint ("AC")
alleged that the defendants engaged in employment discrimination on the
basis of race, national origin and ethnicity, in violation of NYSHRL,
NYCHRL, and Title VII of the Civil Rights Act of 1964 ("Title VII"),
42 U.S.C. § 2000e et seq. The defendants oppose the
plaintiff's request on the ground of futility.
For the reasons discussed below, the plaintiff's request is granted.
Chan was hired on February 1, 2000, to serve as Program Manager of the
Rusk Institute of Rehabilitation at NYU Downtown Hospital ("Hospital").
Chan contends that from shortly after she was hired, until she severed
her ties with the Hospital on September 4, 2002, she was subjected to a
hostile work environment. The plaintiff alleges that the mistreatment to
which she was subjected was motivated, in part, by her race, national
origin and ethnicity. Chan also claims that the defendants discriminated
against her with respect to her salary because of her race, national
origin and ethnicity. Additionally, Chan contends that, beginning in or
around November 2001, the hostile work environment she experienced was
the product of retaliatory animus that developed in reaction to a
complaint of salary discrimination she lodged with managerial personnel
at that time ("salary complaint retaliation").
The AC alleges that Chan was: 1) denied resources and budget
information important to the performance of her duties; 2) required to
run the Rehabilitation Department from May 2000 until March 2001 without
the assistance of a medical director and without psychiatry oversight; 3)
required to oversee the emergency crash cart for the Rehabilitation
Department, an assignment that required her to remain at work for many
additional hours because she was not adequately trained for that
assignment; 4) offered the opportunity to work from home two days per
week, with additional compensation for time spent commuting, but the
offer was withdrawn; 5) denied credit as an author of a report; and 6)
ostracized by managerial personnel. Chan contends that, as a result of
these and other actions, she was constructively terminated.
In the proposed Second Amended Complaint ("SAC"), Chan alleges further
that the hostile work environment she experienced at the Hospital was the
product of retaliatory animus that developed in reaction to a complaint
of sexual harassment she lodged with managerial personnel in March
2000.*fn1 The SAC alleges that, shortly after Chan was hired in February
2000, she was subjected to repeated instances of sexual harassment by Dr.
Bryan O'Young, the Hospital's Director of Physical Medicine and
Rehabilitation. For example, she recalls that he would: 1) make various
comments of a sexual nature; 2) stare at her; 3) question her about her
marital status; and 4) make late night telephone calls to her home. This
conduct caused the plaintiff and another female employee to fear being
alone with Dr. O'Young. Chan contends that on or around March 16, 2000,
she complained about Dr. O'Young's behavior to managerial personnel of
the Hospital. Thereafter, the plaintiff began to experience the workplace
difficulties alleged in the AC.
The defendants contend that the plaintiff should not be permitted to
amend her complaint for a second time to include allegations of
retaliation related to her sexual harassment complaint for three reasons:
1) the retaliatory actions allegedly taken against Chan do not constitute
adverse employment actions under NYSHRL or NYCHRL; 2) even if the
complained of actions constituted adverse employment actions, their
temporal proximity to the sexual harassment complaint is too remote; and
3) retaliatory actions allegedly taken by the defendants after Chan's
November 2001 salary discrimination complaint cannot also have been taken
in retaliation for
her earlier complaint of sexual harassment. The defendants contend,
further, that the plaintiff should not be permitted to include factual
allegations regarding sexual harassment by Dr. O'Young in her SAC because
any claims arising from those allegations are time-barred.
"Leave to file an amended complaint `shall be freely given when justice
so requires,' and should not be denied unless there is evidence of undue
delay, bad faith, undue prejudice to the non-movant, or futility."
Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001)
(quoting Fed.R.Civ.P. 15[a]). The defendants oppose the plaintiff's
request to file a second amended complaint on the basis of futility, in
part, because they contend that Chan's claim of retaliation for her
complaint of sexual harassment is not a claim on which she is entitled to
A court should not deny leave to amend a complaint for failure to state
a claim upon which relief can be granted "unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of [her] claim
which would entitle [her] to relief." See Ricciuti v. N.Y.C. Transit
Authority, 941 F.2d 119, 123 (2d Cir. 1991) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102 ). Moreover,
"[t]his principle should be applied with particular strictness when the
plaintiff seeks to file an amended complaint charging a violation of
[her] civil rights." Id.
The NYSHRL states, in part, that:
It shall be an unlawful discriminatory practice
for any person engaged in any activity to which
this section applies to retaliate or
discriminate against any person because he or
she has opposed any practices forbidden under this
article. . . .
N.Y. Exec. L. § 296, ¶ 7.
The NYCHRL contains a provision that is substantially the same.
See N.Y.C. Admin. Code § 8-107, ¶ 7. Both statutes
forbid sexual harassment, see N.Y. Exec. L. § 296 ¶
1(a), N.Y.C. Admin. Code § 8-107, ¶ 1(a), and analyses of claims
of discrimination under the NYSHRL and the NYCHRL are the same as that
for claims of discrimination under Title VII. See Farias v.
Instructional Systems, Inc., 259 F.3d 91, 98 (2d Cir. 2001);
Walsh v. Covenant House, 244 A.D.2d 214, 215, 664 N.Y.S.2d 282,
283 (App. Div. 1st Dept. 1997) ("The State and City Human Rights Laws
apply the same Federal standards for determining . . . sexual
The defendants contend that Chan's claim of retaliation for her
complaint of sexual harassment is legally insufficient because: (i) the
SAC does not allege that any actions were taken by the defendants against
Chan that constitute "adverse employment actions"; and (ii) the SAC does
not allege circumstances that establish a temporal proximity between the
alleged acts of retaliation and any protected activity from which a
causal connection could be inferred. However, at the pleading stage, this
is not required. All that the plaintiff is required to do is provide "`a
short and plain statement of the claim' that will give the defendant[s]
fair notice of what the plaintiffs claim is and the grounds upon which it
rests." Conley v. Gibson, 355 U.S. at 47, 78 S.Ct. at 103
(quoting Fed.R.Civ.P. 8[a]); Swierkiewicz v. Sorema,
534 U.S. 506, 510-511, 1228. Ct. 992, 997 (2002).
Through the SAC, Chan alleges that retaliatory actions were taken
against her after she complained of conduct that she believed was
discriminatory. During the pretrial discovery phase of the litigation,
the parties may explore the allegations in an attempt to determine
whether facts exist that support a claim that adverse employment actions
were taken against Chan in retaliation for the complaint of sexual
harassment she made against Dr. O'Young.
In addition, facts developed during discovery may also support an
inference of causation, since it appears that some of the alleged actions
taken by the defendants, about which Chan complains, were taken
relatively soon after her complaint of sexual harassment was made to
Hospital officials. For example, just two months after Chan made her
complaint of sexual harassment, she maintains that she began to
experience a lack of supervisory support.
Furthermore, even if the alleged retaliatory acts occurred a
significant period of time after the complaint of sexual harassment was
made, this would not support a finding of futility. Temporal proximity is
just one method of demonstrating causation, and therefore the absence of
temporal proximity does not demonstrate conclusively a lack of causation.
Even though an alleged act of retaliation may be separated by a
significant gap in time from the date on which a complaint of
discrimination was made, evidence of an intervening pattern of antagonism
between the complainant and her employer could support an inference that
an alleged retaliatory act that was taken against the complainant was
causally related to her complaint of discrimination. See, e.g.,
Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 177 (3rd Cir.
1997) (holding that in the absence of temporal proximity, causation may
be inferred from a "pattern of antagonism" following protected conduct).
The plaintiff has adequately pleaded, in the SAC, a causal relationship
between her complaint of sexual harassment and the retaliatory acts
allegedly taken against her after that complaint was made. Moreover,
nothing in the record before the Court demonstrates beyond doubt that the
plaintiff will be unable to prove facts to support her retaliation claim.
The defendants also contend that retaliatory actions allegedly taken by
them after Chan's November 2001 salary discrimination complaint was made
cannot also have been taken in retaliation for her March 2000 complaint
of sexual harassment. An adverse employment action may be taken for more
than one reason, and "Title VII is violated when `a retaliatory motive
plays a part in adverse employment actions toward an employee, whether or
not it was the sole cause.'" Terry v. Ashcroft, 336 F.3d 128,
140-41 (2d Cir. 2003) (quoting Cosgrove v. Sears, Roebuck &
Co., 9 F.3d 1033, 1039 [2d Cir. 1993]). Thus, it is not futile for
the plaintiff to amend her complaint a second time to include a claim
that actions taken by the defendants, after November 2001, were taken in
retaliation for her complaint of sexual harassment and her salary
All parties agree that any claims arising from the actions allegedly
taken by Dr. O'Young are time-barred. This is not, as the defendants
maintain, a reason to deny Chan's request to include factual allegations
about Dr. O'Young's conduct in the SAC. A plaintiff is permitted to plead
facts that support her legal claims. See Fed.R.Civ.P. 8(a).
Chan has claimed that the defendants retaliated against her because she
complained about sexual harassment by Dr. O'Young. In order to prevail on
such a claim, Chan will be required to "demonstrate a good faith,
reasonable belief that the underlying challenged actions" violated the
law. Manoharan v. Columbia University College of Physicians &
Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)
(quotations omitted). The plaintiff's factual allegations regarding
Dr. O'Young are relevant to the reasonableness of her belief that his
conduct was illegal. Accordingly, the plaintiff is entitled to plead
facts regarding that conduct.
In the proposed SAC, the plaintiff has pleaded causes of action under
NYSHRL and NYCHRL adequately. Furthermore, with respect to the claims
that she seeks to include in the SAC, it does not "appear  beyond doubt
that the plaintiff can prove no set of facts in support of [her] claim[s]
which would entitle [her] to relief." Ricciuti, 941 F.2d at
123. Therefore, the Court finds that Chan's request for leave to amend
her complaint for a second time is reasonable and appropriate.
For the reasons set forth above, the plaintiff's request for leave to
file the proposed SAC is granted. The plaintiffs second amended pleading
shall be served and filed on or before February 13, 2004.