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Melvina Semper v. New York Methodist Hospital

March 30, 2010


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


Plaintiff Melvina Semper ("Plaintiff") brings this action against Defendants New York Methodist Hospital ("Methodist Hospital"), and hospital employee Joanna Zanko (together, "Defendants"). Plaintiff's Complaint alleges fourteen causes of action, including violations of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), New York State Human Rights Law, N.Y. Exec. Law §§ 296 et seq., Administrative Code of the City of New York, § 8-107.1(a), New York State Labor Law (Whistleblower Law) § 740, and state-law claims of tortious interference with contractual relations, breach of the implied covenant of good faith, and intentional and reckless infliction of emotional distress. Currently before the Court is Defendants' motion for partial dismissal of Plaintiff's claims, including Plaintiff's Title VII and state-law claims of tortious interference with contractual relations, breach of implied covenant of good faith, and intentional infliction of emotional distress, for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In addition, Plaintiff seeks leave to amend her Complaint, and, to that end, has attached a proposed Amended Complaint to her opposition to the motion to dismiss. For the reasons stated below, Defendants' motion to dismiss is GRANTED, and Plaintiff's motion for leave to amend her Complaint is DENIED.


On a motion to dismiss,*fn1 the Court must "take[] factual allegations [in the complaint] to be true and draw[] all reasonable inferences in the plaintiff's favor." Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009) (citation omitted). Here, resolution of the motion to dismiss requires concurrently ruling on Plaintiff's motion for leave to amend. Thus, the Court will consider facts pled in Plaintiff's proposed Amended Complaint*fn2 separately from those appearing in Plaintiff's original Complaint.

I. Original Complaint

Plaintiff, a black female, is a registered nurse. She received a Master's Degree in Nursing, with a concentration in leadership and management, in May 2008. (Compl. (Doc. No. 1) ¶ 5.) Individual defendant Joanna Zanko is a white employee of Methodist Hospital and, at all times relevant to this action, Plaintiff's supervisor. (Id. ¶ 3.) Plaintiff was employed by Methodist Hospital from June of 2003 until September 12, 2008, when she was "summarily terminated or constructively discharged." (Id. ¶ 4.)

In early 2007, Methodist Hospital placed an advertisement inviting applications for several vacant nurse manager positions. (Id. ¶ 8.) Plaintiff, while attending a master's degree program in nursing, unsuccessfully applied to one of these positions. (Id.) Plaintiff later learned that Methodist Hospital had filled the vacant nurse manager positions with, according to Plaintiff, less-qualified, white candidates. (Id. ¶ 9.) Plaintiff complained to her supervisors and threatened to file official complaints with respect to these allegedly discriminatory hiring decisions. (Id. ¶ 10.)

In 2007, Plaintiff concluded that Methodist Hospital's medical student and resident supervision practices were inadequate. (Id. ¶ 11.) These practices, Plaintiff opined, failed to provide adequate supervision, leading to the incorrect prescribing of medicine and the administration of inaccurate medication dosages to Methodist Hospital's elderly patients. (Id.) Plaintiff met with her supervisors, including Zanko, on numerous occasions to address these concerns, and threatened to file formal complaints with appropriate authorities in the event her concerns remained unaddressed. (Id.)

Plaintiff alleges that, instead of addressing her concerns with respect to the Hospital's hiring and supervisory practices, Defendants "criticized, harassed, intensely monitored, and highly scrutinized" Plaintiff, threatening to terminate her on multiple occasions. (Id. ¶ 13.) On September 12, 2008, Plaintiff was "summarily terminated or constructively discharged" from Methodist Hospital. (Id. ¶ 14.)

Plaintiff filed a charge with the U.S. Equal Employment Opportunity Commission ("EEOC") on July 15, 2009. (Def. Mot. to Dismiss ("Def. Mot.") Ex. 2 (Doc. No. 9-3).) The EEOC issued a Dismissal and Notice of Rights on August 14, 2009. (Pl. Mem. in Opp. to Mot. to Dismiss ("Pl. Mem.") Ex. 1 (Doc. No. 10-3).) Plaintiff brought suit in the Supreme Court of the State of New York, Kings County, on September 11, 2009. Defendants removed the action to this District pursuant to 28 U.S.C. § 1446, and immediately filed this motion to dismiss.

II. Additional Facts: Amended Complaint

Plaintiff provided this Court with a proposed Amended Complaint to which she also attached, inter alia, an Affidavit ("Pl Aff." or "Affidavit") purporting to add and clarify relevant facts. First, Plaintiff alleges that while employed by Methodist Hospital, she "witnessed several deaths and or near death experiences at the Hospital." (Pl. Proposed Am. Compl. (Doc. No. 10-4) ¶ 18.) Plaintiff attributes these deaths and or near death experiences to the Hospital's "improper quality of patient care." (Id.)

Second, Plaintiff alleges that during her employment at Methodist Hospital she accumulated four weeks of vacation time and over 300 hours of unused sick time. (Id. ¶ 26.) It is standard practice, Plaintiff claims, for Methodist Hospital to compensate employees for such entitlements in the event of discharge or termination. (Id. ¶ 27.) Since Plaintiff's termination on September 12, 2008, however, Methodist Hospital has not rendered these entitlements to Plaintiff. (Id. ¶ 28.)

Third, Plaintiff alleges that, prior to her discharge or termination, "on or about August 6, 2008," her Union filed a grievance pursuant to the parties' Collective Bargaining Agreement but that "the Union failed to process her grievance despite plaintiff's entreaties." (Id. ¶ 24.)

Drawing all possible inferences in favor of the Plaintiff, as this Court must when deciding a motion to dismiss, the Plaintiff interposes a chronology of events explaining the belated filing of her EEOC charge. Following Plaintiff's termination on September 12, 2008, on the advice of her attorney, Plaintiff prepared a draft of the EEOC charge and submitted it to her attorney for review in May 2009. (Pl. Mem. (Doc. No. 10-6) ¶ 8) Plaintiff's attorney edited the charge, dated it June 19, 2009, and returned a final version for her approval on or about that date. (Id. ¶ 9; Def. Mot. Ex. 2.) Plaintiff signed and "promptly" returned the final draft to her attorney. (Id. ¶ 10.) For reasons unknown, however, the final draft never reached the attorney. (Id. ¶ 12.) Her attorney had incorrectly assumed she would send the charge directly to the EEOC and therefore did not await any packages from Plaintiff. (Id. ¶ 12.) On July 6, 2009, roughly seventeen days after the completion of the EEOC final draft and three days shy of the statutory filing deadline, Plaintiff contacted her attorney, and concluded that the EEOC charge had never been delivered. (Id.) On July 8, 2009, Plaintiff signed and dated a new set of documents and mailed them to her attorney, who appended these documents to the original EEOC final draft (still dated June 19, 2009) and promptly filed the documents with the EEOC on July 13, 2009, 304 days after Plaintiff's termination. (Id. ¶¶ 13--15.) The EEOC received the complaint, as evidenced by the received stamp contained on the document, on July 15, 2009. (Def. Mot. Ex. 2.)


A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) requires the court to examine the legal, rather than factual, sufficiency of a complaint. As required by Rule 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A court considering a 12(b)(6) motion must "take[] factual allegations [in the complaint] to be true and draw[] all reasonable inferences in the plaintiff's favor." Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009) (citation omitted). A complaint need not contain "'detailed factual allegations,'" but it must contain "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Rather, the plaintiff's complaint must include "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 570). The determination of whether "a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950 (citing Iqbal v. Hasty, 490 F.3d 143, 157--158 (2d Cir. 2007)).

In Swierkiewicz v. Sorema N.A., the Supreme Court rejected the notion that there is a heightened pleading standard in discrimination cases, holding that the survival of a complaint in an employment discrimination case does not rest on whether it contains specific facts establishing a prima facie case under the standard set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973). 534 U.S. 506, 510 (2002) ("The prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement."); see also Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 71--72 (2d Cir. 2006) (applying Swierkiewicz to retaliation claims); Leibowitz v. Cornell Univ., 445 F.3d 586, 591 (2d Cir. 2006) (applying Swierkiewicz to discrimination claims under Title VII).

Moreover, the Second Circuit has held that the framework articulated in Swierkiewicz for analyzing whether a plausible claim for discrimination has been pleaded remains viable in the wake of Twombly and Iqbal. See, e.g., Arista Records LLC v. Doe 3, 604 F.3d 110, 120--21 (2d Cir. 2010) ("[A]lthough Twombly and Iqbal require factual amplification [where] needed to render a claim plausible, we reject [appellant's] contention that Twombly and Iqbal require the pleading of specific evidence or extra facts beyond what is needed to make the claim plausible." (internal quotations and citations omitted)); Boykin v. Key Corp., 521 F.3d 202, 213 (2d Cir. 2008) (noting that Twombly "affirmed the vitality of Swierkiewicz,which applied a notice pleading standard, and explained that its decision did not 'require heightened fact pleading of specifics.'"); Gillman v. Inner City Broad. Corp., No. 08 Civ. 8909 (LAP), 2009 WL 3003244, at *3 (S.D.N.Y. Sept. 18, 2009) ("Iqbal was not meant to displace Swierkiewicz's teachings about pleading standards for employment discrimination claims because in Twombly, which heavily informed Iqbal, the Supreme Court explicitly affirmed the vitality of Swierkiewicz."); accord E.E.O.C. v. Propak Logistics, Inc., No. 1:09-cv-311, 2010 WL 3081339, at *5 (W.D.N.C. Aug. 6, 2010) ("[E]ven after Twombly, an employment discrimination plaintiff is not required to plead specific facts but may rely on notice pleading requirements." (citing Boykin, 521 F.3d at 212--15)).


I.Title VII Claims

In her Complaint, Plaintiff alleges that Defendants engaged in unlawful discrimination, retaliation, and harassment -- each constituting an unlawful employment practice prohibited by Title VII.

a.Individual Liability Under Title VII

Plaintiff's Title VII claims against individual defendant Zanko must be dismissed as a matter of law, because there is no individual liability under Title VII. (Def. Mot. (Doc. No. 9-7) ("Def. Mem.") 1.) While Title VII grants employees the right to be "free from discrimination in employment on the basis of race, color, gender, national origin, or religion" by an employer, 42 U.S.C. § 2000e-3(a), "individuals are not subject to liability under Title VII." See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam). Accordingly, Plaintiff's Title VII claims against individual Defendant Zanko are DISMISSED.

b.Prerequisites to Filing a Title VII Claim

A Plaintiff must timely file an EEOC charge as a prerequisite to a Title VII claim in federal court. See Francis v. City of N.Y., 235 F.3d 763, 767 (2d Cir. 2000). To be timely, a prospective plaintiff must file a charge with the EEOC "within three hundred days after the alleged unlawful employment practice occurred . . . ."*fn3 42 U.S.C. 2000e-5(e)(1), (f)(1); Williams v. N.Y. City Health & Hosp. Corp., No. 08-CV-4132 (RRM)(LB), 2010 WL 2836356, at *3 (E.D.N.Y. Jul. 16, 2010). Failure to file a timely charge acts as a bar to a plaintiff's ability to bring the action. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Butts v. N.Y. City Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), aff'd after remand on other grounds, 173 F.3d 843 (2d Cir. 1999).

Courts strictly adhere to the 300-day filing period. National R.R. Passenger Corp. v. Morgan, 536 U.S. 109, 114 (2002). The 300-day period accrues when a prospective plaintiff "knew or should have known of the adverse treatment upon which he or she will ultimately sue." McMillian v. N.Y. City Dep't of Corr., No. 97-9261, 1998 WL 385986, at * 1 (S.D.N.Y. May 29, 1998) (citing Morse v. Univ. of Vt., 973 F.2d 122, 125 (2d Cir. 1992)). The court's inquiry does not focus on "the point at which the consequences of the act become painful;" rather, "[t]he timeliness of a discrimination claim is measured from the date the claimant receives notice of the allegedly discriminatory decision." Morse, 973 F.2d at 125 (emphasis in original) (citing Chardon v. Fernandez, 454 U.S. 6, 8 (1981)). However, the timely charge ...

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