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PINERO v. LONG ISLAND STATE VETERANS HOME

July 1, 2005.

EDITH PINERO, Plaintiff,
v.
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.

  I. BACKGROUND

  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.

  II. ...


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