The opinion of the court was delivered by: Garaufis, United States District Judge
Defendants TJH Medical Services, P.C. ("TJH"); Medisys Management, LLC ("Medisys Management"); Medisys Health Network, Inc. ("Medisys Health"); the Jamaica Hospital Medical Center ("Jamaica Hospital"); Thomas Santucci, individually and as an aider and abettor; Pauline Marks ("Marks"), individually and as an aider and abettor; Richard Pinsker ("Pinsker"), individually and as an aider and abettor; and Surendra Mahadevia ("Mahadevia"), individually and as an aider and abettor (collectively, "Defendants"), move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Plaintiff moves to amend his discrimination claims. For the reasons set forth below, Defendants' motion is GRANTED as to Plaintiff's Fair Labor Standards Act ("FLSA") and Sherman Act claims, DENIED as to Plaintiff's Title VII retaliation claim, and GRANTED in part as to Plaintiff's Title VII discrimination claim for alleged activities that occurred before June 1, 2004. I also dismiss this action as against Dr. William O'Connell. Plaintiff's motion to amend his complaint is GRANTED.
As this is a motion to dismiss under Fed. R. Civ. P. 12(b)(6), this recitation of the facts shall presume the truth of all facts as alleged by the Plaintiff, and allow for all permissible inferences in favor of Plaintiff's claims.
Plaintiff Satish Deshpane, M.D. ("Deshpande" or "Plaintiff") commenced his employment with defendant Jamaica Hospital as a faculty supervisor in the Department of Medicine in or around March 9, 1994. (Am. Compl. ¶ 7(a).) At that time, Plaintiff entered into an employment contract with Jamaica Hospital specifying his employment for no less than forty hours per week. (Id. ¶¶ 7(a), (b) and (d).) Plaintiff was informed that he had to utilize a daily time card, work at least forty hours each week, and account for each hour that he worked on his attendance sheets. (Id. ¶¶ 7(a)-(b).) Plaintiff was required to work on weekends, holidays and weekends by Jamaica Hospital and Dr. Thomas Santucci, the Chairman of the Department of Medicine, for which he was never paid overtime. (Id. ¶¶ 7(b), (c), and (i).) Plaintiff's contract provided for automatic yearly renewal on the anniversary of his hire; however, Jamaica Hospital terminated the contract on January 13, 1995, and Plaintiff was transferred to TJH Medical Services, where he worked as an at-will employee. (Id. ¶¶ 7(d), (f), and (g).)
On or about May 29, 2001, several attending physicians at TJH Medical Services, including Plaintiff, criticized management at TJH Medical Services for its perceived pattern and practice of "selecting and promoting attendings and residents from [Gujarat,*fn1 ] a distinct region of India which is culturally and linguistically distinct from others." (Id. ¶ 7(h).) Subsequent to Plaintiff's (and others') complaints, the Chairman of the Department of Medicine stated that staff who complained about this preference for Gujaratis would not receive a raise and should be fired. Dr. William O'Connell, Dr. Santucci's deputy, stated that "something 'bad' may happen to those who complain[.]" (Id. ¶ 7(i).) On or about June 16, 2001, Plaintiff complained to Dr. Santucci about these actions.*fn2 Plaintiff complained again to Dr. Santucci on or around August 26, 2002 and September 30, 2002, claiming that he was denied "promotional opportunities and lucrative job assignments," based on his "creed," and because he is not Gujarati. (Id. ¶ 7(k).) Plaintiff also alleges that he criticized the preference of Gujarati staff to other "functionaries within the Department of Medicine, the Jamaica Hospital and TJH Medical Services, P.C." (Id. ¶ 7(l).) Plaintiff claims that he was denied raises for as much as $50,000 annually because of the Defendants' preference for Gujarati staff. (Id. ¶ 7(k).)
Furthermore, Plaintiff claims that in retaliation for his complaints about the Defendants' preferential treatment of Gujarati staff, he was denied "significant promotional opportunities and lucrative job assignments, and critically, termination of his employment relationship." (Id. ¶ 7(m).) Plaintiff alleges that on October 25, 2002, he complained to Margaret Johnson, TJH's Chief Corporate Compliance Officer and General Counsel, and Marks, TJH's Executive Director about his department's preference for Gujarati staff and his unfavorable assignments and lack of promotions caused by his complaints, and that Johnson and Marks suggested to Plaintiff that he resign. (Id. ¶ 7(n).) On June 1, 2004, in July 2004, and on September 14, 2004, Plaintiff complained "to functionaries" of the Department of Medicine and of TJH about his exclusion from "significant promotional opportunities and lucrative job assignments and a hostile work environment because he" is not Gujarati. (Id. ¶ 7(aa).) On or about September 14, 2004, Plaintiff was informed that he was "being watched," and TJH Executive Director Marks instructed Plaintiff to quit, which he refused to do. (Id. ¶ 7(bb).) In addition, Plaintiff alleges numerous instances in which he complained to Defendants regarding patient care issues. (See id. ¶¶ 7(o)-(z), (ii).)
On or around September 23, 2004, Plaintiff received a letter from Marks informing him that the employment agreement that he entered into in Jamaica Hospital was still in effect, and forwarding him a new agreement that prohibited Plaintiff from "moonlighting" at other medical institutions. (Id. ¶ 7(cc)-(ee).) This new limitation significantly reduced Plaintiff's income. (Id. ¶ 7(ff).) On October 21, 2004, Plaintiff requested from Marks that he be permitted to "moonlight," which other attending physicians had been permitted to do. (Id. ¶ 7(gg).) On October 29, 2004, Defendants represented to Plaintiff that he had resigned. (Id. ¶ 7(hh).) On November 10, 2004, Plaintiff confronted Marks with the allegation that his "resignation" was a retaliatory pretext with which to terminate him. (Id. ¶ 7(jj).) Defendants confirmed the following day that he was still compensated by Jamaica Hospital. (Id. ¶ 7(kk).) On or about November 12, 2004, Defendants terminated Plaintiff's employment, citing a clause in his 1994 employment contract. (Id. ¶ 7(ll).)
Plaintiff alleges that he was terminated "because he is not a [Gujarati], because he vociferously complained about departures from the standard of care owed to patients, because he complained about discrimination and because defendants sought to restrain and to monopolize the practice of medicine in a certain location." (Id. ¶ 7(nn).) In his Amended Complaint, Plaintiff claimed violations of the overtime requirement of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., national origin and race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., restraint of trade in violation of the Sherman Act, 15 U.S.C. § 1, and a number of common law and other state claims. (See Id. ¶¶ 13-22.) Plaintiff now withdraws all claims except those arising under FLSA, Title VII, and the Sherman Act, and requests to amend the complaint to plead discrimination claims under Title VII and Section 1981. (See Pl. Mem. Opp. Mot. Dismiss, at 1 n.1, 12 n.3.) The court grants that request.
Defendants now move to dismiss the complaint for failure to state a claim.*fn3
In reviewing a motion to dismiss for failure to state a claim pursuant to Fed R. Civ. P. 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences from those allegations in the light most favorable to the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268 (1994); Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). The complaint may be dismissed only if "it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hoover v. Ronwin, 466 U.S. 558, 587 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In deciding such a motion, the "issue is not whether a ...