United States District Court, E.D. New York
July 1, 2005.
EDITH PINERO, Plaintiff,
LONG ISLAND STATE VETERANS HOME, THE STATE UNIVERSITY OF NEW YORK AT STONY BROOK, DR. SHIRLEY STRUM KENNY, EDWARD MORETTI, JOSEPH LAPIETRA, BERNARD HIRSCH, JERRY KRAUSE, VIRGELENE BOWIE, JOAN TORP-GENCO, Defendants.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
This is a civil action by Edith Pinero ("Pinero" or the
"Plaintiff") for damages pursuant to Title VII, the Americans
with Disabilities Act, 42 U.S.C. §§ 1981, 1983 and 1985, and the
New York State Human Rights and Executive law. The Plaintiff
alleges that her former employer the Long Island State Veterans
Home ("LISVH"), along with the State University of New York at
Stony Brook ("Stony Brook"), Dr. Shirley Strum Kenny, Edward
Moretti, Joseph Lapietra, Bernard Hirsch, Jerry Krause, Virgelene
Bowie, and Joan Torp-Genco, subjected her to adverse treatment
and terminated her because of her age, national origin,
disability, and in retaliation for having complained of discrimination.
On January 21, 2005, the defendants LISVH, Stony Brook, Dr.
Shirley Strum Kenny, Edward Moretti, Joseph Lapietra, Jerry
Krause, and Virgelene Bowie (collectively the "Defendants") filed
a motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure for partial dismissal of the Plaintiff's claims under
Title VII, the Americans with Disabilities Act, Section 1983 and
1985, and New York state law. In response, the Plaintiff withdrew
all of her claims under the Americans with Disabilities Act and
her Section 1983 claims against LISVH, Stony Brook, and the other
individual Defendants in their official capacity. The Plaintiff
also withdrew her claims under New York State law that alleged
discrimination for age, disability, and national origin. The
remaining claims in the complaint include: (1) claims under Title VII against LISVH and Stony Brook; (2) claims under Section 1983
against the individual defendants; (3) claims under Section 1981
and 1985 against the individual Defendants; and (3) claims under
New York state law for retaliation against LISVH and Stony Brook.
On March 15, 2005, the Defendants filed a reply to the
Plaintiff's opposition in which they moved for the first time to
dismiss the Plaintiff's Section 1981 claim. "A court may choose
to not consider arguments first raised in reply papers in support
of a motion." Mascol v. E & L Transp., Inc., No. 03-3343, 2005
WL 1123936, at *12 (E.D.N.Y. May 9, 2005). Arguments that are
raised for the first time in a reply brief deprive the opposing
party of an opportunity to be heard on the issue, unless the
court permits the filing of a sur-reply. See Cantor Fitzgerald
Inc. v. Lutnick, 313 F.3d 704, 711 n. 3 (2d Cir. 2002). In this
case a sur-reply was neither filed nor permitted. Accordingly,
this Court declines to consider any arguments of the Defendants
raised for the first time in a reply brief.
The following factual allegations are taken from the complaint
and any documents attached to or incorporated by reference in the
complaint. The Plaintiff is a 67 year old Hispanic women of
Puerto Rican origin who has been employed as a nurse since 1974.
In January 1997, Pinero commenced employment as an Assistant
Director of Nursing at the defendant LISVH, a municipal
corporation existing under the laws of the state of New York. LISVH is a skilled nursing facility that
provides healthcare and other medical services to veterans of the
United States armed forces. The complaint alleges that LISVH is a
division of the State University of New York at Stony Brook.
Between February 1997 and February 1999, Pinero received
favorable employment evaluations. On or about May 26, 1999,
Pinero fractured her ankle while working at LISVH. The injury
caused her to be absent from work from June 10, 1999 to November
11, 1999. When Pinero returned to work she alleges that she was
subjected to harassment and disparate treatment by Virgelene
Bowie ("Bowie"), the Director of Nursing at LISVH and Pinero's
supervisor. The harassment consisted of negative and unflattering
verbal statements regarding Pinero's ability to continue working.
On March 1, 2000, Pinero received a written "unsatisfactory"
employment evaluation from Bowie.
On March 3, 2000, Edward Moretti, the Director of Human
Resources at Stony Brook, advised Pinero in writing that her
employment contract would not be renewed effective March 15,
2001. This determination was allegedly based upon the
unsatisfactory rating Pinero received two days earlier. Pinero
alleges that the decision not to renew her contract was made
collectively by Dr. Shirley Strum Kenny, the President of Stony
Brook University("Dr. Kenny"); Joseph Lapietra, the Deputy
Administrator of LISVH ("LaPietra"); Bernard Hirsch, the
Executive Director of LISHV ("Hirsch"); Jerry Krause, the
Administrator of LISVH ("Krause"); Bowie; and Joan Torp-Genco, the Deputy Director of Nursing at LISVH
("Torp-Genco"). Pinero's basis this allegation on a letter dated
March 1, 2001, from the Associate Counsel of Stony Brook
University to the New York State Division of Human Rights, which
states that the individuals involved in making the determination
to terminate the Plaintiff were Bowie, Torp-Genco, Krause,
LaPietra, Hirsch, and Dr. Kenny.
On or about March 3, 2000, Pinero filed an internal complaint
with Stony Brook's Office of Diversity and Affirmative Action. On
June 30, 2000, her complaint to Stony Brook's Office of Diversity
and Affirmative Action was dismissed as unsubstantiated.
On March 7, 2000, Pinero requested a review of her
unsatisfactory rating by Stony Brook's Health Sciences
Professional Review Committee (the "Committee"). On June 12,
2000, the Committee concluded that the unsatisfactory rating was
unwarranted due to the fact that Pinero had no previous letters
of counseling or any indication of unsatisfactory performance.
The Committee concluded its review by recommending that Pinero be
reevaluated in six months. On August 28, 2000, the Committee's
recommendation was accepted by Dr. Kenny and she directed Bowie
and LISVH to reevaluate Pinero in six months.
Pinero claims that between March 2000 and March 2001 she was
subject to additional harassment and disparate treatment by Bowie
and Torp-Genco. Specifically, she alleges that she was required
to complete incident reports in a different manner than other nursing supervisors; denied admission
to seminars; denied participation on the recruitment and dietary
committee; and received harsher scrutiny by her supervisor Bowie.
Further, Pinero claims that she was never reevaluated despite the
Committee's recommendation and the directive issued by Kenny
following her unsatisfactory rating. On March 15, 2001, Pinero
was terminated from employment with LISVH.
On May 16, 2000, Pinero filed an administrative complaint with
the State Division of Human Rights alleging unlawful employment
discrimination on the basis of age, disability and national
origin. This complaint was deemed to be jointly filed with the
Equal Employment Opportunity Commission (the "EEOC"). On November
29, 2002, the EEOC issued a "Dismissal and Notice of Rights."
This civil action was commenced on February 27, 2003.
A. Standard of Review
In ruling on a motion to dismiss, pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, the court must accept as
true all the factual allegations and construe the complaint
liberally. Velez v. Levy, 401 F.3d 75, 80 (2d Cir. 2005);
Scutti Enterprises v. Park Place Entertainment Corp.,
322 F.3d 211, 214 (2d Cir. 2003); Bolt Elec. v. City of New York,
53 F.3d 465, 469 (2d Cir. 1995). The court must also draw all
reasonable inferences in the plaintiff's favor, but need not
accept "mere conclusions of law or unwarranted deductions." First Nationwide Bank v. Gelt
Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994). "The issue is
not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims."
Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d
Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236,
40 L.Ed. 2d 90, 94 S. Ct. 1683 (1974)). Dismissal is only appropriate
when "it appears beyond doubt that the plaintiff can prove no set
of facts which would entitle him or her to relief." Sweet v.
Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). In deciding a Rule
12(b)(6) motion a court may consider "only the facts alleged in
the pleadings, documents attached as exhibits or incorporated by
reference in the pleadings and matters of which judicial notice
may be taken. . . ." Samuels v. Air Transport Local 504,
992 F.2d 12, 15 (2d Cir. 1993).
B. Title VII Claims
1. As to the Defendant Stony Brook
A statutory prerequisite to commencing an action in federal
court under Title VII is the filing of an administrative
complaint with the EEOC or an authorized state agency that names
the particular defendant. 42 U.S.C. § 2000e-5(e). This statutory
prerequisite applies regardless of whether the two defendants are
considered a "single employer." See Perez v. Int'l Bhd. of
Teamsters, No. 00-1983, 2002 U.S. Dist. LEXIS 16985, at *16
(S.D.N.Y. 2002); cf. Toriola v. N.Y. City Transit Auth., 95
Fair Empl. Prac. Cas. (BNA) 1096 (S.D.N.Y. 2005) (discussing the
single employer test). Here, the Defendant Stony Brook argues that the Title VII claim must be
dismissed against it because the Plaintiff's administrative
complaint only named the Defendant LISVH.
However, under the "identity of interests" doctrine a defendant
who is not named in an EEOC charge may nevertheless be a
defendant in a subsequent civil action. Johnson v. Palma,
931 F.2d 203 (2d Cir. 1991); Vital v. Interfaith Med. Ctr.,
168 F.3d 615, 619 (2d Cir. 1999). The "identity of interests"
doctrine provides that under certain circumstances, an employment
discrimination action may "proceed against an unnamed party where
there is a clear identity of interest between the unnamed
defendant and the party named in the administrative charge."
Id. at 209.
The purpose of the administrative complaint is "to notify the
charged party of the alleged violation and also brings the party
before the EEOC, making possible effectuation of the Act's
primary goal of securing voluntary compliance with its mandates."
Vital, 168 F.3d at 619 (quoting Eggleston v. Chicago
Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 905 (7th
Cir. 1981)). The "identity of interest" exception was developed
because charges of employment discrimination are generally "filed
by parties not versed in the vagaries of Title VII and its
jurisdictional and pleading requirements. . . ." Vital,
168 F.3d at 619. Thus, a plaintiff who files an administrative
complaint but fails to name a defendant may maintain an action in
federal court under certain circumstances. Factors that the Second Circuit has identified as useful in
determining whether there is an "identity of interests" include:
1) whether the role of the unnamed party could
through reasonable effort by the complainant be
ascertained at the time of the filing of the EEOC
complaint; 2) whether, under the circumstances, the
interests of a named party are so similar as the
unnamed party's that for the purpose of obtaining
voluntary conciliation and compliance it would be
unnecessary to include the unnamed party in the EEOC
proceedings; 3) whether its absence from the EEOC
proceedings resulted in actual prejudice to the
interests of the unnamed party; 4) whether the
unnamed party has in some way represented to the
complainant that its relationship with the
complainant is to be through the named party.
Johnson, 931 F.2d at 209-10 (quoting Glus v. G.C. Murphy Co.,
562 F.2d 880
, 888 (3d Cir. 1977)).
Applying these factors to the facts alleged in this case, it is
clear that the Plaintiff can sustain a civil action under Title
VII against the Defendant Stony Brook, even though it was not
expressly named in the administrative complaint filed by the
Plaintiff. The March 1, 2001 letter from the Associate Counsel of
Stony Brook to the New York State Division of Human Rights, which
is referenced in the complaint, was sent by Stony Brook in
response to the Plaintiff's administrative complaint. In that letter Stony Brook admits that Dr. Kenny, the President of Stony
Brook, took part in the decision not to renew the Plaintiff's
employment contract. Plainly, by responding to the administrative
complaint Stony Brook had notice of the Plaintiff's claim and
participated in the administrative complaint process. In
addition, Stony Brook's response in the letter indicates that
they were involved in the employment decision not to renew the
Plaintiff's contract. Under these circumstances, the Plaintiff's
failure to name Stony Brook in the administrative complaint is
excusable under the "identity of interests doctrine."
Accordingly, the motion to dismiss Stony Brook based on the
Plaintiff's failure to name it in the administrative complaint is
2. As to Claims Based on Retaliation
The Defendants argue that the Plaintiff's second cause of
action for retaliation under Title VII should be dismissed
because she was notified that her contract would not be renewed
before any internal or administrative complaint was filed. "In
order to `establish a prima facie case of retaliation, an
employee must show  participation in a protected activity
known to the defendant;  an employment action disadvantaging
the plaintiff; and  a causal connection between the protected
activity and the adverse employment action.'" Feingold v. New
York, 366 F.3d 138, 156 (2d Cir. 2004) (quoting Quinn v. Green
Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998) and Tomka
v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995)). Here, the
complaint plainly alleges the first element, namely, that the
Plaintiff participated in a protected activity by filing an administrative complaint. Thus, the Court
will look at whether the allegations in the complaint set forth
the second and third elements for retaliation.
The Second Circuit has established that the test for the second
element, "an adverse employment action," is whether there has
been a "materially adverse change in the terms, privileges,
duration and conditions of employment." Treglia v. Town of
Manlius, 313 F.3d 713, 720 (2d Cir. 2002). This may "include?
discharge, refusal to hire, refusal to promote, demotion,
reduction in pay, and reprimand." Morris v. Lindau,
196 F.3d 102, 110 (2nd Cir. 1999); Frasure v. Principi,
367 F. Supp. 2d 245 (D. Conn. 2005). The third element, "a causal connection
between the protected activity and the adverse employment action"
can be established either indirectly by showing that the
protected activity was followed by discriminatory treatment or
directly through evidence of retaliatory animus. Cosgrove v.
Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993).
The complaint alleges several instances of discriminatory
actions that occurred after the Plaintiff filed her
administrative complaint that could be construed as a causal link
between the complaint of discrimination and her ultimate
termination. However, the problem with the Plaintiff's
retaliation claim is that she was informed that her contract
would not be renewed prior to the filing of any administrative
complaint. There can be no inference of retaliatory animus where
the adverse employment action occurred prior to the protected
activity. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001). Thus, as a matter of law, the
Plaintiff cannot sustain an action for retaliation.
The Plaintiff's argument that the Defendant's failure to
reevaluate her was an adverse employment action has no merit. An
adverse employment action requires a "materially adverse change
in the terms, privileges, duration and conditions of employment."
Treglia, 313 F.3d at 720. The failure to reevaluate the
Plaintiff was not a "materially adverse change," rather it was an
action that kept the status quo in place. Further, the failure to
reevaluate and the other actions that the Plaintiff claims were
"materially adverse," such as having to complete incident reports
differently and being denied admission to committees, were a
consequence of the fact that she was being terminated at the end
of the year. There can be no inference of retaliation where the
protected activity occurred after the adverse employment action.
As such, based upon the facts alleged in the complaint the
Plaintiff's retaliation claims in her second, fifth, and sixth
causes of action must be dismissed.
In addition, as the New York state-law claims for retaliation
are evaluated under the same substantive law, see Cruz v.
Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000), the
Plaintiff's state law claims for retaliation are also dismissed.
Accordingly, since the Plaintiff has withdrawn all of her other
claims under New York state law, no state law causes of action
remain in the complaint.
C. As to the Section 1983 Claims The Defendant contends that the section 1983 claim brought
against Moretti, Krause, and LaPietra should be dismissed because
the complaint does not contain a single allegation connecting
them to the complained of events. Rule 8 of the Federal Rules of
Civil Procedure only requires "a short and plain statement of the
claim showing that the pleader is entitled to relief. . . ."
Fed.R.Civ.P. 8(a). In order to plead a prima facie case under
section 1983, the Plaintiff must allege personal involvement on
the part of each individual defendant. See Feingold,
366 F.3d at 159. A fair reading of the complaint reveals that the
Plaintiff has met this minimal burden with regard to Krause and
LaPietra. The complaint alleges that Krause and LaPietra were
personally involved in making the decision not to renew Pinero's
contract. These allegations are sufficient to allege a connection
between the termination and the two individual defendants.
The complaint is less specific as to Moretti, but nevertheless
sufficient to state a claim under Section 1983. The complaint
states that Moretti was the individual that signed the letter
that informed Pinero that she would not be reinstated. The
complaint also generally alleges that Moretti was personally
involved in the decision to terminate the Plaintiff. As such, the
Court finds that these allegations are sufficient under Rule 8 to
allege Moretti's personal involvement in the complained of
conduct. The motion to dismiss the Section 1983 claim against
these individuals is denied.
D. As to the Section 1985 Claim The Plaintiff's sixth cause of action alleges that the
individual defendants conspired to discriminate against her. "In
order to maintain an action under Section 1985, a plaintiff `must
provide some factual basis supporting a meeting of the minds,
such that defendants entered into an agreement, express or tacit,
to achieve the unlawful end.'" Webb v. Goord, 340 F.3d 105,
110-11 (2d Cir. 2003) (quoting Romer v. Morgenthau,
119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000)). The Second Circuit has
repeatedly held that a "complaint containing only conclusory,
vague, or general allegations of conspiracy to deprive a person
of constitutional rights cannot withstand a motion to dismiss."
Gyadu v. Hartford Ins. Co., 197 F.3d 590, 591 (2d Cir. 1999);
accord Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983).
Here, the plaintiff has not alleged, except in the most
conclusory fashion, that there was a "meeting of the minds" among
any of the Defendants. As such, the conspiracy allegation in the
Plaintiff's sixth cause of action must be dismissed for failure
to state a claim. See Boddie v. Schnieder, 105 F.3d 857, 862
(2d Cir. 1997) (affirming the dismissal of "conclusory, vague or
general allegations of conspiracy to deprive a person of
For all the above reasons, the Defendants' partial motion to
dismiss under Rule 12(b)(6) is granted in part and denied as
follows: it is hereby ORDERED, that the Defendants' motion to dismiss Stony Brook
under Rule 12(b)(6) is DENIED; and it is further
ORDERED, that the Defendants' motion to dismiss all federal
and state-law retaliation claims in the complaint is GRANTED,
and it is further
ORDERED, that the Defendants' motion to dismiss the
Plaintiff's Section 1983 claim against Defendants Moretti,
Krause, and LaPietra is DENIED; and it is further
ORDERED, that the Defendants' motion to dismiss the
Plaintiff's Section 1985 claim is GRANTED; and it is further
ORDERED, that the parties are directed to contact United
States Magistrate Judge Michael L. Orenstein forthwith to
schedule the completion of discovery.
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