United States District Court, S.D. New York
March 9, 2004.
MONIQUE C. GOURDINE, Plaintiff against CABRINI MEDICAL CENTER, SIMON YOUNG, DPM, and SAMER BONDOKJI, DPM, Defendants
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Pro se plaintiff Dr. Monique C. Gourdine ("Gourdine") brings this
action against her former employer, Cabrini Medical Center ("Cabrini")
alleging discrimination, harassment, and retaliation on the grounds of
race, gender, and military status in violation of Title VII of the Civil
Rights Act of 1964 ("Title VII"). The complaint further alleges breach of
contract, fraud, and forgery. Also named as defendants are two of
Cabrini's physicians, Drs. Simon Young ("Young") and Samer Bondokji
("Bondokji") (collectively, the "Individual Defendants," and together
with Cabrini, "Defendants"). Cabrini and the Individual Defendants deny
Gourdine's allegations and move this Court to dismiss her complaint on
various grounds. For the reasons discussed in greater detail below, the
Court grants the motion to dismiss the complaint in its entirety.
Gourdine's claims are dismissed with prejudice, with the exception of her
breach of contract claim, which is dismissed without prejudice.
The instant action arises from Gourdine's employment as a medical
resident at the Cabrini Medical Center in New York. Gourdine commenced a
one-year residency at Cabrini's Department of Podiatry on July 1, 1999.
Gourdine's employment was governed by a written agreement executed by
Gourdine, an African-American female, and Cabrini. The agreement required
Cabrini to provide an educational program that meets the standards of the
Accreditation Council for Graduate Medical Education (ACGME) and the
Council on Podiatric Medical Education (the "CPME"). (See Def.
Mem. at Ex. A, (the "Contract"), at 1.) The Contract provides that
Gourdine's employment was to run from July 1, 1999 to June 30, 2000 and
that "[t]here is no guarantee that a House Staff Officer will be offered
a position at the next level." (Contract at 2, 8.)
Gourdine commenced her employment in July 1999 pursuant to the
Contract. She was one of four residents working in Cabrini's podiatric
residency program at that time. One of the other residents was Bondokji,
who is a white male. The
other two residents included a white male and an African American
male. Young was the Director of Podiatry at the time of Gourdine's
employment. Gourdine claims that during her residency at Cabrini,
Bondokji harassed and ridiculed her by unfairly criticizing her work in
front of others. According to Gourdine, she complained to Dr. Kanuck
("Kanuck"), the Chief Resident, and to Young, but they did nothing to
correct the problem. At some point, Gourdine also spoke to personnel at
Cabrini's Human Resources Department, but Gourdine claims that this did
nothing to change the situation. Gourdine alleges that Young himself made
inappropriate comments to her and in retaliation for her complaints, that
she was treated less favorably than the other residents, that she
received less training, and was not given her surgical certificate.
Specifically, Gourdine points to a meeting where Young allegedly alluded
to Gourdine's "big mouth." Gourdine recounts another incident at a social
event where Young allegedly stated that Gourdine would have been better
off marrying a Jewish man rather than an African-American man.
To further establish her discrimination claim, Gourdine also asserts
that she was given less desirable shifts and less training; was generally
treated more harshly than the other residents; and was made to apologize
to hospital personnel for matters that were not her fault. According to
Gourdine, Cabrini, and in particular, Young, did not properly
accommodate her commitment as a reservist with the United States Navy.
Gourdine claims that she and the other African-American resident were
intentionally not invited to mandatory weekly meetings so that
information could be withheld from them. According to Gourdine, Cabrini
failed to follow its internal procedures for dealing with claims of
harassment and discrimination.
At the conclusion of the one-year residency in June of 2000, Cabrini
had only one available position for a second-year podiatric resident,
which was offered to Bondokji.*fn2 It is Gourdine's contention that
Cabrini discriminated against her by not offering her a second-year
position and instead, offering the only position to Bondokji, a white
male. Gourdine claims that when her residency ended, she was wrongfully
terminated without receiving her medical certificate, in breach of her
the Contract and in retaliation for her complaining of how she was being
treated at Cabrini. Gourdine asserts that she was led to believe that her
one-year program was for a podiatric surgical residency, and not for a
podiatric medical residency, as Cabrini asserts.
Gourdine also alleges that the signatures on a
verification document that Cabrini relies upon to demonstrate that
she was made aware that a second-year position was not guaranteed may
have been forged (the "Verification Document").*fn3 She also alleges a
claim of "possible fraud" in connection with the alleged forgery.
In February 2001, Gourdine filed a complaint with the United States
Equal Employment Opportunity Commission (EEOC), where she asserted the
same claims of discrimination as in the instant action. After conducting
an investigation, the EEOC notified Gourdine that it was unable to
conclude that the information it obtained established any violation of
Title VII. Accordingly, the EEOC ceased further investigation and issued
Gourdine a "Right to Sue" letter, which is required to initiate an action
in federal district court.
Defendants contest that their treatment of Gourdine was any different
from how they treated the other residents, either with regard to training
or in any other fashion.*fn4 Cabrini disputes Gourdine's claim that she
received less training than her colleagues. Defendants admit that
Gourdine and Bondokji had some "personality conflicts," but they
contend that they attempted to address this issue in an equitable
fashion. Defendants deny that Gourdine was ever treated unfairly in the
process and that they discriminated against her in any way. According to
Cabrini, Bondokji was the only resident selected for the second-year
program because only one such position was available and it was
determined that he was the best qualified to assume the position.
Defendants further argue that there was no breach of the Contract
because Gourdine completed her one-year residency under its terms and
thus, she was not discharged. Defendants point to the clause in the
Contract that specifically states that employment beyond the first year
was not guaranteed and, relying on the Verification Document, claim that
Gourdine was orally informed of this provision by Young and others on
more than one occasion. According to Defendants, Gourdine inquired as to
the possibility of a second-year residency, but was told by Young that no
decision could be made until final approval for positions was granted by
the CPME. Furthermore, Cabrini explains that Gourdine did not receive her
surgical certificate because she did not complete the proper training,
and that even if she had, Cabrini lacks the authority to issue the
In the Complaint, Gourdine seeks unspecified damages, attorney's fees,
her surgical certificate, and the salary that
she would have received had she been given her certificate.
Gourdine alleges violation of Title VII, 42 U.S.C. § 2000e
et seq., breach of contract, forgery, and fraud.*fn5
Pending before the Court is Defendants' motion to dismiss the Complaint
on the grounds that the Complaint fails to meet the pleading requirements
under Federal Rule of Civil Procedure 8. Defendants also seek dismissal
under Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction and under Rule 12(b)(6) for the failure to state a
claim upon which relief can be granted. Gourdine opposes the motion.
A. DEFENDANTS' MOTION UNDER RULE 8
Defendants move this Court to dismiss the Complaint in its entirety on
the grounds that it fails to satisfy the strictures of Rule 8 of the
Federal Rules of Civil Procedure. Specifically, Defendants argue that the
Complaint neither sets forth "a short and plain statement of the claim
showing that the pleader is entitled to relief" nor is " [e] ach averment
. . . simple, concise and direct." Fed.R.Civ.P. 8(a)(2) & (e)(1).
The Court does not agree.
Although the Complaint may be cumbersome to read and
somewhat voluminous, especially when all the exhibits are taken
into account, the Court finds that the pleadings are sufficiently
organized and understandable for counsel to sift through and distill the
salient allegations and claims, as this Court has endeavored to do.
Perhaps such a submission may be unacceptable from a party represented by
counsel. Gourdine, however, appears pro se. Thus, the Court grants her
much greater leeway in this regard. Furthermore, despite their
protestations that it would be unfair to require them to answer the
Complaint, Defendants have indeed filed an answer setting forth their
admissions, denials, and affirmative defenses. (See Def. Mem.
at Ex. F.) Thus, the Court finds that there is no basis to dismiss the
Complaint on these grounds. Defendants' motion to dismiss under Rule 8 is
B. STANDARD OF REVIEW
In the alternative, Defendants move for dismissal under Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). As the United States Supreme
Court has explained, "[a] court may dismiss a complaint only if it is
clear that no relief could be granted under any set of facts that could
be proved consistent with the allegations." Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 514 (2002) (citation omitted). When, as in this
case, the plaintiff is not represented by counsel, the
Second Circuit has instructed courts to "construe [the complaint]
broadly, and interpret [it] to raise the strongest arguments that [it]
suggest [s]." Weixel v. Board of Educ. of N.Y., 287 F.3d 138,
146 (2d Cir. 2002) (citations omitted); see also
Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000).
For purposes of a motion to dismiss, a court must accept as true all
well-pleaded factual allegations in the complaint and draw all reasonable
inferences in favor of the plaintiff. See Levy v.
Southbrook Int'l Invs. Ltd., 263 F.3d 10, 14 (2d Cir. 2001). In so
doing, a court must not assess the strength of the plaintiff's
allegations, but instead simply "assess the legal feasibility of the
complaint." Sims, 230 F.3d at 20 (citations omitted). On the
other hand, "conclusory allegations need not be credited . . . when they
are belied by more specific allegations of the complaint." Hirsch v.
Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995). Thus,
in ruling on Defendants' motion to dismiss under Rule 12(b), the Court is
mindful that Gourdine appears pro se, and will grant her broad latitude
in interpreting the factual allegations in the Complaint. For purposes of
a motion to dismiss, "a district court must limit itself to the facts
stated in the complaint, documents attached to the complaint as exhibits
and documents incorporated by reference in the complaint." Hayden v.
County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999).
C. TITLE VII CLAIM
At the outset, the Court notes that a plaintiff who wishes to initiate
a Title VII action in federal district court is required to file the
action within ninety days from receipt of the EEOC's Right to Sue
letter.*fn6 See 42 U.S.C. § 2000e-5 (f)(1). Gourdine's
Right to Sue letter is dated June 18, 2002.*fn7 Because the instant
action was commenced on November 19, 2002, it was untimely filed by
approximately two months. The Court finds nothing in the record to
explain the reason for this late filing. Thus, Gourdine's failure to
satisfy the ninety-day requirement would be sufficient grounds to dismiss
her complaint in its entirety. See, e.g., Smith
v. Henderson, 137 F. Supp.2d 313, 317 (S.D.N.Y. 2001) ("Failure to
comply with the [ninety-day] time limitation  warrants dismissal of the
complaint.") (citation omitted). However, because the ninety-day
requirement is not a jurisdictional one, but rather, a condition
precedent to filing suit, it is subject to waiver. See
Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146
(2d Cir. 1984); Smith, 137 F. Supp.2d at 317-19. Accordingly,
because Defendants failed to raise Gourdine's untimely filing as an
affirmative defense in their
answer, the Court will deem the defense waived. The Court proceeds
to decide Gourdine's Title VII claim on the merits.
Title VII provides in relevant part that "[i]t shall be an unlawful
employment practice for an employer . . . to discharge any
individual, . . . because of such individual's race, color, religion,
sex, or national origin; . . ." 42 U.S.C. § 2000e-2(a)(1). In the
instant case, Gourdine alleges that Cabrini and the Individual Defendants
discriminated against her on the basis of her race as an African-American
and on the basis of her gender and military status.
Gourdine's Title VII claim against the Individual Defendants can be
dealt with summarily. Defendants seek dismissal of Gourdine's Title VII
claim pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction against the Individual Defendants on the
grounds that Gourdine's EEOC complaint did not name them as respondents,
and thus, she failed to exhaust her administrative remedies with respect
to the Individual Defendants. (See Def. Mem. at 5.) In the
alternative, the Individual Defendants urge dismissal under Rules 12(b)
(1) and 12(b)(6) on the grounds that, under the controlling law in this
Circuit, there is no individual liability under Title VII. (See
id. at 6-7.)
In response, Gourdine submits an excerpt of a law review
article that discusses a split in the First Circuit on the question
of whether individuals, such as supervisors, can be held personally
liable under Title VII. Although some courts may be split on this issue,
the Second Circuit has held repeatedly, and recently reaffirmed, that
individuals are not personally liable under Title VII. See
Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (citing
Tomka v. Seiler Corp.. 66 F.3d 1295, 1313 (2d Cir. 1995)).
Accordingly, the Individual Defendants' motion to dismiss Gourdine's
Title VII claim against Bondokji and Young is granted. The Court will
consider Gourdine's Title VII claim only against Cabrini.
Because Defendants' motion seeks to dismiss the Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), it is not necessary for
Gourdine to plead a prima facie case of unlawful discrimination under
Title VII to defeat the motion. Rather, the Court will assess only the
sufficiency of her allegations to determine whether "relief could be
granted under any set of facts that could be proved consistent with the
allegations." Swierkiewicz 534 U.S. at 514 (citation omitted).
Applying these principles, the Court is not persuaded that the facts
set forth in Gourdine's pleadings, even if accepted as true for the
purposes of this motion, are sufficient to entitle her to relief under
Title VII. To the
extent the Title VII claim is grounded in Gourdine's alleged
discharge, the Court finds that Gourdine has not suffered an adverse
employment action an essential element of her claim. The
unambiguous terms of the Contract make it clear that Gourdine's
employment was fixed at one year with no guarantee that she would be
offered any further employment. (See Contract at 2, 8.) It is
uncontested that Gourdine was employed at Cabrini as a podiatric resident
for the 12-month period set forth in the Contract. Her employment thus
terminated when the Contract term expired. Accordingly, the Court agrees
with Defendants that Gourdine was not discharged, but rather, was
employed under the limited terms of the Contract and was simply not
offered a second year as a resident.
Moreover, the mere fact that Cabrini decided to offer the second-year
residency to a white male and not to Gourdine, by itself, is insufficient
to establish that she is entitled to relief under Title VII. Even after a
careful and lenient reading of the allegations in the Complaint, the
Court finds that Gourdine has failed to allege facts that, considered
together, would lead to a reasonable inference that Cabrini discriminated
against her on the basis of her race and/or gender in not offering her a
second-year as a resident. The parties disagree over whether Cabrini's
selection process was
adequately structured in some respects. That dispute, however,
absent clear allegations of discriminatory practices, does not form a
basis to infer that discrimination played a role in Cabrini's decisions
regarding residency positions.
Because, in light of the explicit provision in the Contract disclaiming
any offer of employment to Gourdine after her first year of training, the
facts as alleged are not sufficient to give rise to a reasonable
inference that discrimination in violation of Title VII was a reason or a
factor in Gourdine not being selected for a second year residency. The
Court concludes that Gourdine's pleadings show no relief that could be
granted "under any set of facts that could be proved consistent with the
allegations." Swierkiewicz, 534 U.S. at 514 (citation omitted).
Specifically, by reason of the Contract, Gourdine cannot establish that
Cabrini was obligated to offer her a second-year residency position and
that its failure to do so constituted an adverse employment action.
With regard to Gourdine's claims of harassment while she was employed
at Cabrini, the Court likewise finds that Gourdine's conclusory
allegations are insufficient to establish that she would be entitled to
relief under Title VII.
Assuming the truth of the alleged criticism of Gourdine's
work, her assignment to undesirable schedules, and the alleged
discrepancy in her training versus the training of the other residents,
the Court finds that when considered together, these allegations fail to
rise to the level of creating an inference of unlawful discriminatory
animus based on either gender, race, or military status. There are simply
no factual pleadings in the Complaint, aside from Gourdine's conclusory
assertions, that these alleged acts were motivated by unlawful
The Court finds that the alleged inappropriate comments that Gourdine
has a "big mouth" and comments regarding her choice of husband; and the
other alleged incidents of perceived harassment,*fn8 if true, do not
rise to the level of a violation under Title VII. Claims of sexual
harassment typically fall into one of two general categories: quid pro
quo cases, where the allegations involve actual or threatened adverse
employment actions arising from a refusal to succumb to a supervisor's or
co-worker's sexual demands; and hosfile work environment cases, where no
such demands are made, but there is persistent and severe harassment
based on sex. See Burlington Indus, v. Ellerth, 524 U.S. 742,
751-54 (1998); Jin
v. Metropolitan Life Ins. Co., 310 F.3d 84, 91 (2d Cir.
2002). Because Gourdine has not alleged that Defendants have made any
demands upon her of a sexual nature as a condition of avoiding an adverse
employment action, the Court will interpret Gourdine's harassment
allegations as a hosfile work environment claim.
The appropriate standard in this context is whether the alleged conduct
is so pervasive or severe as to create a hosfile work environment that
alters the conditions of employment. See Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citing Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)); Terry v.
Ashcroft, 336 F.3d 128, 147-48 (2d Cir. 2003) (citations omitted).
This determination is made with consideration of all the surrounding
circumstances. See Harris, 510 U.S. at 23. Among the
factors to be considered are the frequency of the conduct; the severity
of the alleged acts; whether it was physically threatening or humiliating
or just an offensive and inappropriate utterance; and whether it
reasonably interferes with the performance of the plaintiff's job
requirements. See Terry, 336 F.3d at 148 (citing
Harris, 510 U.S. at 23).
Accepting all of Gourdine's allegations as true and viewing them in
their totality in light of these factors, the Court finds that they do
not establish an inference of a
hosfile work environment that is so pervasive and severe as to
materially alter Gourdine's employment. The Court finds that the acts of
harassment that Gourdine alleges are not related to race and/or gender.
Although Young's alleged comment that Gourdine would be better off
marrying a Jewish man rather than an African-American man does carry a
racial undertone, this one comment, even when considered with the other
allegations, fails to satisfy the threshold requirements to establish a
claim for a hosfile work environment. In this regard, the United States
Supreme Court has held that occasional off-color or inappropriate remarks
with racial or sexual undertones, do not alone create a hosfile work
environment under Title VII. See Clark County Sch. Dist.
v. Breeden, 532 U.S. 268, 271-72 (2001); see
also Howley v. Town of Stratford, 217 F.3d 141, 153
(2d Cir. 2000) (stating that remarks must be "continuous and concerted")
(quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.
2000)); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d
Cir. 1998) (holding that there was no pervasive hosfile work environment
when a supervisor told the plaintiff that she had been voted the
"sleakest ass" and touched her breasts with a piece of paper); Perry
v. Ethan Alien, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (stating that
the alleged incidents must be more than "episodic") (citations
omitted).*fn9 Thus, although a comment such as the one Gourdine
alleges may be inappropriate, by itself it does not rise to the level of
pervasive and severe harassment, even when considered in conjunction with
Gourdine's other allegations of harassment.
The Court further notes that Gourdine's allegations that she was openly
criticized is not actionable under Title VII because criticism of an
employee's work that is not gender-or race-related does not amount to an
adverse employment action giving rise to a Title VII cause of action.
See Weeks v. New York State Div. of Parole,
273 F.3d 76, 86 (2d Cir. 2001).
The Court is mindful that a plaintiff need not allege a minimum number
of alleged incidents to establish that she is entitled to relief.
See Ferris v. Delta Air Lines, Inc., 277 F.3d 128,
136 (2d Cir. 2001) (stating that a single egregious incident can suffice
to establish a hosfile work environment). However, the Court finds that
the alleged incidents Gourdine relies upon to assert her claim of
harassment do not establish an essential element of her Title VII claim,
namely, that Gourdine was exposed to pervasive and severe harassment that
rendered her employment a hosfile work environment. In short, these
alleged incidents, if true, are not sufficient to
satisfy the Title VII standard discussed above.
In so holding, it is not the Court's intent to trivialize the
subjective effect that these alleged comments may have had on Gourdine,
nor does the Court sanction such alleged conduct. The determination as to
whether a hosfile work environment exists, however, has both a subjective
and objective component. See Alfano v. Costello,
294 F.3d 365, 374 (2d Cir. 2002) (citing Harris, 510 U.S. at 21).
The Court finds that when considered objectively, the alleged incidents
collectively do not create an inference of pervasive and severe
harassment that amounts to a hosfile work environment.
Furthermore, Gourdine is correct that these incidents, if true, may
violate Cabrini's internal policies governing the conduct of its
employees. The role of the Court, however, is not to determine whether
Cabrini's policies have been breached. Rather, the Court is to assess
only the sufficiency of Gourdine's allegations to determine whether they
can state a claim of discrimination under Title VII under any set of
facts upon which relief can be granted. For the reasons stated above, the
Court finds that they do not.
For similar reasons, the Court is not persuaded that Gourdine's
pleadings as now formulated are sufficient to entitle her to relief on a
claim of retaliation under Title VII. Such a claim requires a showing
that: (1) the plaintiff
was engaged in an activity protected by Title VII; (2) the employer
was aware of the plaintiff's participation in the protected activity; (3)
the employer took an adverse action against the plaintiff; and (4) there
is a causal connection between the protected activity and the adverse
action. See Mack v. Otis Elevator Co., 326 F.3d 116, 129 (2d
Cir. 2003) (citation omitted).
Gourdine alleges that Defendants retaliated against her for lodging
internal complaints regarding her treatment and training; and the alleged
harassment by Bondokji and Young. Specifically, Gourdine alleges that she
suffered retaliation because she complained to Kanuck that she was not
receiving the proper training. She also complained that Bondokji had
openly criticized her and that Young stated that she had a big mouth,
among other incidents, as discussed above. According to Gourdine, the
acts of retaliation included receiving less training than her colleagues,
being made to work less desirable shifts, and the denial of her surgical
The Court finds that the nature of Gourdine's internal complaints, as
alleged, would not be a "protected activity" within the ambit of Title
VII. Under the relevant provision, an employer may not retaliate against
an employee because that employee has "opposed any practice made an
unlawful employment practice by [Title VII]. . . ."
42 U.S.C. § 2000e-3 (a). Thus,
in order for an employee's complaints to be a "protected activity,"
they must relate to alleged violation of Title VII, i.e., the complaints
must relate to race or gender. Otherwise, any employee who is disgruntled
or dissatisfied with any aspect of his or her employment would ultimately
find relief in Title VII even when race or gender was not at issue.
The Court concludes that Gourdine's internal complaints that Bondokji
was harassing her by criticizing her, that Cabrini had not permitted her
to train under the most experienced physician, and Young's occasional
offensive remarks, only one of which contained a racial undertone, are
not sufficiently related to a violation of Title VII to be deemed a
"protected activity" for which Gourdine could have been subjected to
The Court likewise finds conclusory Gourdine's allegations that
Defendants' alleged acts, to the extent that these acts even constitute
adverse employment actions, were motivated by Defendants' desire to
retaliate against her. See, e.g., Weeks,
273 F.3d at 86 (stating that criticism of an employee is not an adverse
employment action). Furthermore, with the exception of the alleged denial
of Gourdine's surgical certificate, the Court concludes that the alleged
retaliatory acts Gourdine complains of do not amount to an
adverse employment action to establish her claim.*fn10 In sum,
other than Gourdine's conclusory statements, these alleged acts, even if
true, do not raise a reasonable inference that Cabrini was motivated by
discriminatory retaliation for Gourdine's internal complaints regarding
the alleged harassment.
In dismissing Gourdine's Title VII claim against Cabrini, the Court
also considers the fact that the EEOC investigated substantially the same
allegation asserted in this action and determined that it was unlikely
that it would find a violation of the laws it enforces, which includes
Title VII. The Court recognizes that the EEOC's findings are not entitled
to any deference, and thus, the Court reviews the case de
novo. However, the Court may give the EEOC's findings some
consideration in arriving at its own determinations. See
Christian v. Henderson, No. 98 Civ. 3467, 2000 WL 534518, at *7
(S.D.N.Y. May 3, 2000) (granting the EEOC's opinion some weight).*fn11
Finally, the Court finds no merit to Gourdine's claim
that she was discriminated on the basis of her military status.
Title VII does not include military status as a basis for unlawful
discrimination. See 42 U.S.C. § 2000e-2 (a)(1) (stating
that employers may not discriminate on the basis of race, color,
religion, sex, or national origin). In any event, because Gourdine's
claims of discrimination on the basis of her military status are grounded
in the same allegations as her claims of discrimination on the basis of
race and/or gender, the Court finds no merit to such a claim for the same
reasons discussed above.
Although Gourdine's burden at this stage is merely to allege sufficient
facts to demonstrate that she would be entitled to relief under Title
VII, the Court finds that she has failed to meet even this minimal
Accordingly, Gourdine's Title VII claim against the Individual
Defendants is dismissed with prejudice on the grounds that individuals
may not be held liable under Title VII. Gourdine's Title VII claim
against Cabrini is also dismissed because Gourdine fails to assert
sufficient facts that could be proved consistent with her allegations to
make out a claim of unlawful discrimination, racial or sexual harassment,
or retaliation, even after viewing the Complaint in a light most
favorable to Gourdine and granting her the benefit of all reasonable
D. STATE LAW CLAIMS
With the dismissal of Gourdine's federal Title VII claim, her remaining
claims arise only under state law. Defendants urge the Court to decline
to exercise its supplemental jurisdiction over Gourdine's related state
claims. (See Def. Mem. at 8-9.) In these instances, the Court
has discretion to dismiss Gourdine's related state law causes of action.
See 28 U.S.C. § 1367(c).*fn12 Indeed, absent unique
circumstances, a federal court should decline to exercise supplement
jurisdiction over state law claims when no federal claim survives. As the
Second Circuit has explained, "in the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be
considered under the pendent jurisdiction doctrine judicial
economy, convenience, fairness, and comity will point toward
declining to exercise jurisdiction over the remaining state-law claims."
Valencia ex rel. Franco. v. Lee, 316 F.3d 299, 305 (2d Cir.
2003) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 n.7 (1988)); see also Baylis v. Marriott
Corp., 843 F.2d 658, 664 (2d Cir. 1988) ("The basis for retaining
jurisdiction is weak, when as is the case here, the federal claims are
dismissed before trial."). For the reasons discussed below, the
Court will exercise supplemental jurisdiction over Gourdine's forgery and
fraud claims and consider these claims on the merits, but will exercise
its discretion under § 1367(c) and dismiss her breach of contract
claim without prejudice.
Gourdine alleges that the signatures on the Verification Document may
not be authentic. The Court finds it unnecessary to delve into the merits
of this claim. Although the authenticity of the signatures on this
document would be relevant to its admissibility in the event this issue
were ever tried, an act of forgery is a crime and does not give rise to a
recognized civil cause of action. See Luckett v.
Bure, 290 F.3d 493, 497 (2d Cir. 2002) (affirming the district
court's dismissal of the plaintiff's civil forgery claim because there is
no cognizable civil cause of action for forgery). Accordingly, Gourdine's
forgery claim is dismissed with prejudice.
Gourdine also alleges "possible fraud" in connection with the alleged
forgery. (Pl. Mem. at 21.) Under New York law, the elements of a fraud
claim are that: (1) the defendant made a false representation of material
fact; (2) the plaintiff
justifiably relied on the misrepresentation; and (3) the plaintiff
was damaged from such reliance. See Dallas Aerospace, Inc.
v. CIS Air Corp., 352 F.3d 775, 784 (2d Cir. 2003).
The Court finds that Gourdine's fraud claim fails because her
allegation that the signatures on the Verification Document are forged
cannot establish the essential elements of the claim. There is no
suggestion from Gourdine's allegations that she justifiably relied on the
authenticity of the signatures on the Verification Document in any way,
nor that she was damaged as a result thereof. Gourdine challenges the
signatures only to rebut Defendants' claim that she was made aware that a
second-year residency position was not guaranteed. As such, the
allegations are insufficient as a matter of law to establish a claim for
fraud. The Court supposes, based on Gourdine's pro se appearance in this
action, that she incorrectly understands "fraud" and "forgery" to be
synonymous, as evidenced by her asserting the claims together as
"possible fraud and forgery" in connection with her allegation that the
signatures on the Verification Document are not authentic.
The Court further finds that Gourdine's fraud claim is deficient under
the applicable federal rule. Under Federal Rule of Civil Procedure 9(b),
a plaintiff stating a claim of
fraud or mistake must allege "the circumstances constituting [the]
fraud or mistake . . . with particularity. " Fed.R.Civ.P. 9(b). To
satisfy the particularity requirement,
a plaintiff should specify the time, place,
speaker, and content of the alleged
misrepresentations. . . .In addition, the
complaint should explain how the
misrepresentations were fraudulent and plead those
events which give rise to a strong inference that
the defendant had an intent to defraud,
knowledge of the falsity, or a reckless disregard
for the truth.
Caputo v. Pfizer. Inc., 267 F.3d 181, 191 (2d Cir. 2001)
(internal quotations and citations omitted). The Court finds that
Gourdine has failed to meet this standard even under a liberal reading of
the allegations in the Complaint. The Complaint is devoid of any facts
from which it can be reasonably inferred that Defendants intended to
defraud Gourdine, knew that a false representation had been made to
Gourdine, or had a reckless disregard for the truth. The Court is
persuaded that the fraud claim in the Complaint is conclusory and thus,
fails to meet even the minimal pleading requirements.
The Court is mindful that plaintiffs, particularly those appearing pro
se, generally should be permitted to replead a fraud claim when dismissal
is based on the failure to meet the particularity requirement of
Rule 9(b). See Luce v. Edelstein, 802 F.2d 49, 56 (2d Cir.
1986). However, for the reasons discussed above, the Court finds that
Gourdine to replead a fraud claim based on her allegations of
forgery would be fufile, as this claim suffers from substantive and not
mere technical deficiencies.*fn13 See Caputo, 267
F.3d at 191 (stating that a court need not grant leave to replead a
dismissal under Rule 9(b) when repleading would be fufile) (citing
Luce, 802 F.2d at 56-57). Accordingly, the Court grants
Defendants' motion to dismiss the fraud claim with prejudice for failure
to state a cause of action upon which relief can be granted.
3. Breach of Contract
Gourdine alleges that Cabrini breached the Contract by failing to grant
her a surgical certificate in accordance with its terms. Gourdine further
alleges that the type of residency program that was agreed to under the
terms of the Contract is not the same program that Cabrini now asserts
she was offered. Upon a careful review of the Complaint and the
supporting exhibits,*fn14 the Court finds that Gourdine has made, at the
very least, a colorable claim for breach of contract. The Court, however,
agrees with Defendants that Gourdine has failed to delineate the elements
of a breach of contract claim because it is not clear that she satisfied
the requisite training requirements that potentially would trigger a
contractual obligation by Cabrini to issue a surgical certificate.
It is also not clear from Gourdine's pleadings to what extent, if any,
she is relying on the Contract to allege that Cabrini did not offer her
the appropriate residency program.
Because the Court finds that by repleading this claim, Gourdine may be
able to assert facts sufficient to state the elements of a breach of
contract claim sufficient to defeat a motion to dismiss, it will exercise
its discretion under § 1367(c) and dismiss this claim without
prejudice. Gourdine is not precluded from repleading her breach of
contract claim in state court, or in this Court if she can properly
invoke diversity jurisdiction under 28 U.S.C. § 1332. Accordingly,
Gourdine's breach of contract claim is dismissed without prejudice.
For the reasons set forth above, it is hereby
ORDERED that the motion of defendants Cabrini Medical Center,
Simon Young, and Samer Bondokji's ("Defendants") to dismiss the complaint
of plaintiff Monique C. Gourdine ("Gourdine") on the grounds that it
fails to satisfy Rule 8 of the Federal Rules of Civil Procedure is
DENIED; and it is further
ORDERED that the motion of Defendants' to dismiss Gourdine's complaint
under Rule 12(b) of the Federal Rules of Civil Procedure is
GRANTED. Gourdine's Title VII, fraud, and forgery
claims against Defendants are dismissed with prejudice. Gourdine's breach
of contract claim against Cabrini Medical Center is dismissed without