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.