The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
REPORT RECOMMENDATION and DECISION and ORDER
This case was referred to the undersigned by Honorable Richard J. Arcara on December 16, 2005. The matter is presently before the court on motions to dismiss filed on December 12, 2005 by Defendant Roswell Park Cancer Institute (Doc. No. 4), and James L. Mohler, M.D. (Doc. No. 9).*fn1
The instant action arises from an incident in which Plaintiff A.L.A. Sulieman, M.D. ("Plaintiff" or "Dr. Sulieman"), who is both a native of Iraq*fn3 and a Muslim, while employed as a Clinical Fellow pursuant to a Fellowship Contract ("the Fellowship") in the Urologic Oncology Department of Defendant Roswell Park Cancer Institute ("Roswell Park"), allegedly witnessed Defendant Program Director James L. Mohler, M.D. ("Dr. Mohler"), commit malpractice while performing a surgical procedure, necessitating a second surgical procedure. On July 7, 2004, Plaintiff commenced working in Roswell Park's Urologic Oncology Fellowship program that was to conclude in June 2005. Plaintiff initially had a good working relationship with Dr. Mohler until September 15, 2004, when Plaintiff, while assisting Dr. Mohler in a surgical proceeding, observed the patient bleeding, although Dr. Mohler insisted on attributing the bleeding to "irrigation fluid." Complaint, Facts Statement at 1. Plaintiff maintains that Dr. Mohler refused to admit his error, even though the patient later went into a state of shock, requiring a second surgical procedure to stop the bleeding, and Dr. Mohler attempted to cover up the malpractice by changing operative and clinical notes in the patient's chart.
Id. at 1-4. According to Plaintiff, following the incident, the working relationship between Plaintiff and Dr. Mohler deteriorated, with Dr. Mohler often advising Plaintiff to return to Iraq, of which Plaintiff is a native, despite the fact that Plaintiff was married to an American, his ex-wife, and has two children, who are United States citizens by birth, living in Michigan. Plaintiff maintains that when, on January 11, 2004, he requested permission from Dr. Mohler to travel to Michigan to attend a court hearing and to visit with his children who resided with Plaintiff's ex-wife, Dr. Mohler instructed Plaintiff to apply for unpaid vacation time.
On February 11, 2005, Dr. Mohler presented Plaintiff with a letter request that Plaintiff take an indefinite leave of absence. When Plaintiff refused, Dr. Mohler asked Plaintiff to resign his Fellowship because Dr. Mohler no longer wanted Plaintiff to work at Roswell Park.
Immediately upon receiving the letter request, Plaintiff filed a complaint with Dr. Mohler's supervisor, Medical Director Judy Smith, M.D. ("Dr. Smith"). By letter dated March 8, 2005, Dr. Mohler and Mr. Richard Paris, Chief of Human Resources Department, informed Plaintiff that his Fellowship ended on February 17, 2005.
On April 15, 2005, Plaintiff filed an administrative charge with the Equal Employment Opportunity Commission ("EEOC") ("EEOC Complaint"), alleging Roswell Park discriminated against Plaintiff by subjecting Plaintiff to disparate terms and conditions of employment and eventually terminating Plaintiff because of his race. Plaintiff raised his concerns about Dr. Mohler at a mediation session with the EEOC held on May 23, 2005. On August 1, 2005, the EEOC issued Plaintiff a Notice of Right to Sue, thereby terminating the EEOC's investigation into the matter and granting Plaintiff the right to file a civil action regarding the administratively grieved claims.
On October 24, 2005, Plaintiff, proceeding pro se, commenced this employment discrimination action alleging four causes of action, including (1) violation of an unspecified "whistle blower statute" ("First Cause of Action"); (2) wrongful discharge ("Second Cause of Action"); (3) retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 et seq. ("Title VII") ("Third Cause of Action"); and (4) employment discrimination based on national origin and religion in violation of Title VII ("Fourth Cause of Action"). On December 12, 2005, the instant motions to seeking dismissal were filed by Roswell Park and Dr. Mohler ("Defendants").
Roswell Park's motion to dismiss (Doc. No. 4) ("Roswell Park's Motion"), is supported by the Declaration of James R. Grasso, Esq. (Doc. No. 5) ("Grasso Declaration"), the Declaration of Michael Sexton (Doc. No. 6) ("Sexton Declaration"), and a Memorandum of Law (Doc. No. 7) ("Roswell Park's Memorandum"). Dr. Mohler's motion to dismiss (Doc. No. 9) ("Dr. Mohler's Motion"), is supported by the Declaration of Assistant Attorney General Stephen Gawlik (Doc. No. 10) ("Gawlik Declaration"), and a Memorandum of Law (Doc. No. 11) ("Dr. Mohler's Memorandum").
On December 22, 2005, Plaintiff filed a Response in Opposition to Roswell Park's Motion (Doc. No. 14) ("Plaintiff's Opposition to Roswell Park's Motion"), and a Response in Opposition to Dr. Mohler's Motion (Doc. No. 16) ("Plaintiff's Opposition to Dr. Mohler's Motion"). Filed on December 30, 2005, in further support of Roswell Park's Motion is Roswell Park's Reply Memorandum (Doc. No. 17) ("Roswell Park's Reply"). Oral argument was deemed unnecessary.
Based on the following, Roswell Park's motion should be DENIED insofar as Roswell Park seeks dismissal of Plaintiff's Third and Fourth Causes of Action for failure to exhaust administrative remedies, DENIED insofar as Roswell Park seeks to dismiss the First Cause of Action alleging a violation of an unspecified whistle blower statute, and is GRANTED insofar as Roswell Park seeks to amend the caption; Dr. Mohler's motion should be DENIED insofar as it seeks to dismiss Plaintiff's First Cause of Action alleging a violation of an unspecified whistle blower statute, DENIED insofar as Dr. Mohler argues insufficient service of process, and GRANTED as to Plaintiff's Title VII claims.
1. Failure to State a Claim
On a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court looks to the four corners of the complaint and is required to accept the plaintiff's allegations as true and to construe those allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Village Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995), cert. denied, 519 U.S. 808 (1996). The court is required to read the complaint with great generosity on a motion to dismiss. Yoder v. Orthomolecular Nutrition Institute, 751 F.2d 555, 558 (2d Cir. 1985). The complaint will be dismissed only if "it appears beyond doubt" that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985).
The issue on a motion to dismiss is not whether a plaintiff is likely to prevail ultimately, "but whether the claimant is entitled to offer evidence to support the claims.
Indeed, it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test." Weisman v. LeLandais, 532 F.2d 308, 311 (2d ...