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CHAN v. NYU DOWNTOWN HOSPITAL

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

I. INTRODUCTION

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. Page 2

  For the reasons discussed below, the plaintiff's request is granted.

  II. BACKGROUND

  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. Page 3

  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 Page 4 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.

  III. DISCUSSION

  "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 receive relief.

  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 [1957]). 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 Page 5 discriminate against any person because he or she has ...


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