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Bascom v. Fried

March 31, 2008

EGLON BASCOM, PLAINTIFFS,
v.
ETHAN FRIED AND BROOKDALE HOSPITAL, DEFENDANTS.



The opinion of the court was delivered by: Gershon, United States District Judge

MEMORANDUM AND ORDER

Plaintiff pro se Eglon Bascom brings this action against defendants Ethan Fried, M.D., and Brookdale Hospital alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and defamation under New York law. Defendants move to dismiss the complaint under Fed. R. Civ. P. 12(b)(6). Defendants' motion is granted, but plaintiff is given leave to replead.

BACKGROUND

I. Bascom I

The instant complaint incorporates by reference facts alleged in plaintiff pro se's previously dismissed complaint. Order of dismissal, Bascom v. Fried, et al. ("Bascom I"), 02-CV-6627 (E.D.N.Y. February 4, 2004), aff'd, 116 Fed.Appx. 300 (2d Cir. 2004). Therefore, the following facts, alleged therein, are accepted as true for purposes of this motion:

From July 1, 1998 through June 30, 1999, plaintiff was employed as a first-year resident in the Internal Medicine Department of Brookdale Hospital in Brooklyn, New York. Beginning in September 1998, plaintiff reported unspecified harassment from Dr. Fried, the Program Director of Residency Training at Brookdale Hospital. In December 1998, despite a finding of clinical competency by the hospital's Clinical Competency Committee, Dr. Fried informed plaintiff that he was "under a lot of pressure" to fire plaintiff. Plaintiff thereafter secured a position for his second-year residency training at Cabrini Hospital. Dr. Fried then sent a "derogatory" letter to Cabrini Hospital and notified the American Board of Internal Medicine that plaintiff's performance during his first year as a resident at Brookdale Hospital was "marginal." Plaintiff was thereafter denied a position as a third-year resident at Cabrini Hospital. At the time plaintiff filed the complaint in Bascom I, he had not secured a third-year residency training position with another hospital.

On October 2, 2001, Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination on the basis of race and national origin by defendants Brookdale Hospital and Dr. Fried. The EEOC issued a right-to-sue letter on December 17, 2001. Plaintiff filed suit in Bascom I on December 23, 2002.

Finding that plaintiff filed his complaint with the EEOC well after the 300-day period provided in 42 U.S.C. §2000e-(5)(c), this court found his discrimination claims untimely and dismissed the complaint with prejudice. See Bascom I. The Second Circuit affirmed, holding further that Bascom had failed to plead facts sufficient to support a "continuing violation" theory. Bascom v. Fried, et al., 116 Fed.Appx. 300 (2d Cir. 2004).

II. Allegations in the Instant Complaint

The following additional facts are alleged in the instant complaint and accepted as true for purposes of this motion:

Plaintiff identifies himself as black and Christian; defendants, white and Jewish. Echoing allegations from Bascom I, plaintiff asserts that defendants Fried and Brookdale Hospital terminated his employment on an unspecified date and subsequently "got [him] fired from" Cabrini Hospital. Further, they "continued by giving negative professional references that rose to the level of defamation of character to all prospective employers." Plaintiff is unable to gain employment. On December 14, 2006, he was rejected by a prospective employer as the result of "negative professional letters out there."

On December 28, 2006, plaintiff filed another EEOC charge against Brookdale Hospital alleging discrimination and retaliation on the basis of race and national origin in violation of Title VII. The EEOC issued a right-to-sue letter on January 22, 2007. On February 7, 2007, plaintiff filed the instant complaint, alleging discrimination and retaliation on the basis of national origin, race, and religion. The complaint seeks a permanent injunction, compensatory damages, punitive damages, and other equitable relief.*fn1

DISCUSSION

I. Standard of ...


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