The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
Defendants Bronx Lebanon Hospital Center ("Hospital"), Hospital Administrative Director Andreas Evdokas ("Evdokas") and Assistant Vice President of Clinical Services Raymond Esteves ("Esteves") move to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), the Complaint filed December 17, 2007 by Plaintiff Pearline O. Liburd ("Liburd"). Liburd presses seven claims against each of the Defendants, for discrimination based on her race, color, sex, and age, the creation of a hostile work environment, and retaliation for complaining about it. For the reasons set forth below, Defendants' motion to dismiss is granted in part and denied in part.
Liburd, a black woman of African-Caribbean descent, was hired by the Hospital on October 24, 1994 to implement its federally funded Harm Reduction Program ("HRP"), which provided counseling on harm reduction, recovery readiness, and HIV treatment options for substance-abuse HIV patients. Compl. ¶¶ 4, 6, 16-17. Liburd was employed as the HRP's Administrative Director until the Hospital terminated her employment on May 12, 2006, when she was fifty-nine years old. Id. ¶¶ 5-6. Esteves was Liburd's supervisor from May 1, 2002 to December 9, 2005, followed by Evdokas until her termination. Id. ¶ 20.
A. Alleged Discrimination During 2005
The Complaint alleges that in February 2005 Esteves pressured Liburd to lie to the HRP's federal funding agency about his purchase of computers with HRP's grant money. Id. ¶ 27. He ordered the computers, billed them to the HRP and told Liburd to "come up with a creative justification for the computers for the funding agency." She objected but ultimately complied with his request. Liburd's Oct. 16, 2006 Charge of Discrimination ("Charge") at 1, Ex. B to Defs.' Mem. Supp. Mot. Dismiss. ("Defs.' Mem."). Liburd claims that from that point on Esteves and Evdokas discriminated against her on account of her race, color, gender and age.
Liburd alleges that from June 2005 until her termination, Esteves called the HRP office daily to harass her. Charge ¶ 6. Throughout 2005 she asserts that Esteves used a harsh and condescending tone of voice toward her at monthly departmental meetings and that at a September 2005 meeting he "verbally abused" her because she asked to attend a professional conference. Compl. ¶¶ 33-34. She claims that Esteves had no reason to deny her request to attend the conference because it had already been funded and she had attended in previous years. She alleges that Evdokas was present but said nothing on her behalf. Id. ¶ 34. In front of her staff, Esteves threatened to transfer her to another department. Id. ¶ 35.
According to the Complaint, Liburd overheard Esteves tell Evdokas in September 2005: "I want her ass out of here." Esteves started calling other HRP employees to monitor her whereabouts and again told Liburd she would be transferred. Id. ¶¶ 36-38. The next month, Liburd alleges that Esteves and Evdokas, with no explanation, stripped her of key executive responsibilities, including hiring and firing. Id. ¶ 39. Liburd asked Evdokas for a transfer to escape Esteves' continued harassment, but she alleges Evdokas refused her request because he and Esteves were conspiring to terminate her employment. Id. ¶¶ 40-41. Consequently, on October 18, 2005, Liburd wrote a memorandum to Dr. Levine, Chairman of the Psychiatry Department and Esteves' and Evdokas' supervisor, to complain about the "harassment." She asserts that Dr. Levine failed to intervene. Id. ¶ 42. In October 2005, Liburd claims she heard Esteves refer to her as a "black ass." Id. ¶ 43.
B. Alleged Discrimination During 2006
In February 2006 Liburd complained to Evdokas that Esteves refused to say "hello" to her and would fix her with a "vicious stare." Id. ¶ 45. In March 2006 she alleges that at a meeting presided over by Esteves, Esteves ignored her in front of other employees whenever she directed a question to him. Id. ¶ 46. From March to May 2006, Esteves increased his monitoring of Liburd by calling the HRP every morning to ask other employees for her whereabouts. Id. ¶ 47. In April 2006, Esteves and Evdokas eliminated certain HRP programs that she had implemented-acupuncture, the Friday free breakfast program and the Saturday program-even though these programs had been successful with HRP patients and the Friday and Saturday programs were already fully funded by federal grants, she alleges. Id. ¶ 48.
Liburd's Charge claims that in April 2006 Esteves told another employee that he wanted to fire Liburd, explaining, "I have a problem with black people and I don't like her. I want her black ass out of here." Charge ¶ 7. The Complaint asserts that around this time Esteves asked Tina Goldman, a white female Hospital employee and the Department of Psychiatry Office Manager, to help him "nail," or fire, Liburd and get rid of her "black ass." Compl. ¶ 49. In April 2006 Esteves and Evdokas allegedly set an unrealistic time frame of one week for Liburd to close the HRP's inactive case files. Id. ¶¶ 53-54.
Liburd asserts that in May 2006 Esteves and Evdokas "selectively" disciplined her for making allegedly unauthorized telephone calls, even though all HRP employees had access to her telephone and some of the unauthorized calls took place when she was out of the office. Id. ¶ 55. During a meeting on May 8, 2006, Jason Nhambiu ("Nhambiu"), the Hospital's Director of Labor Relations, ordered Liburd to repay $5,942.74 of unauthorized charges for calls made in February and March 2006 and to account for nearly 300 calls within the next twenty-four hours. Id. ¶¶ 62-63. Fifteen minutes later, Liburd alleges, Evdokas told her that Esteves wanted the accounting immediately, and then followed her through the office, including to the ladies' room. Id. ¶ 64. On May 12, 2006, Nhambiu told Liburd that Esteves and Evdokas were dissatisfied with her management, and shortly thereafter Defendants fired her. Id. ¶¶ 65-66.
Liburd alleges that Defendants replaced her with Jennifer Marciano ("Marciano"), a younger, less experienced, white female who was paid more than Liburd. Id. ¶ 68. In 2007, one year after her termination, the Hospital replaced the HRP with a wellness program, and Esteves promoted Marciano to the position of Co-Director of Psychiatry along with Ibet Hernandez, a white Hispanic female. Id. ¶ 69.
Liburd contends that her Complaint states claims for race and color discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") (Count I); age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 ("ADEA") (Count II); hostile work environment under Title VII (Count III); discrimination and retaliation in violation of 42 U.S.C. § 1983 ("§ 1983") (Count IV); sex discrimination under Title VII (Count V); color and race discrimination under 42 U.S.C. § 1981 ("§ 1981") (Count VI); and hostile work environment based on race under § 1981 (Count VII).
To withstand a motion to dismiss, a complaint must plead "enough facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007) (Twombly); see also Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (applying Twombly standard to motion to dismiss Title VII claims). The factual allegations "must be enough to raise a right to relief above the speculative level." 127 S.Ct. at 1974. The court must accept all the well-pleaded allegations of the claim as true and must draw all reasonable inferences in the claimant's favor. Id. at 1965. A motion to dismiss is properly granted when a complaint provides no "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. "While Twombly does not require heightened fact pleading of specifics, it ...