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Laura Russo v. the New York and Presbyterian Hospital

March 3, 2011


The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge


On December 7, 2009, Plaintiff Laura Russo filed this action against New York and Presbyterian Hospital ("NYPH") and New York Hospital Queens ("NYHQ"), alleging that she was discriminated against on the basis of sex. On May 19, 2010, Plaintiff served Mark Adkins, M.D. with the Second Amended Complaint, which named him as a defendant. The claims against Adkins are for sexual harassment and retaliation in violation of New York State Executive Law and New York City Human Rights Law. Adkins moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the claims against him. For the reasons set forth below, Adkins' motion to dismiss is granted. However, in light of the fact that Plaintiff is granted leave to replead, the dismissal of the complaint is held in abeyance.


In 1994, Plaintiff was hired by the defendants as a Perfusionist, which is a position responsible for supporting the physiological and metabolic needs of the surgical patient so the surgeon can operate. (Compl. ¶¶ 11, 13.) She maintained that position until her termination on May 28, 2008. (Compl. ¶ 12.)

In September 2004, defendant Dr. Mark Adkins was appointed Chairman of Cardiothoracic Surgery at NYHQ. (Compl. ¶ 14.) Plaintiff alleges that Adkins would "brush up against Russo, block her path, and in turn try to force Russo to brush up against him. Additionally, Adkins would block Plaintiff's path" and force her "to be stuck in a position directly in front of him." (Compl. ¶ 17.) Plaintiff further alleges that Adkins would "act in a physically intimidating manner towards women" and "make repeated comments of an underlying sexual nature towards women." (Compl. ¶ 18.) Plaintiff also alleges that, during surgery, Adkins would make derogatory comments about women and breast sizes, and he would play "inappropriate and sexually charged music." (Compl. ¶ 19.)

Plaintiff alleges that, on May 15, 2008, she assisted a procedure performed by Adkins. (Comp. ¶¶ 26-31.) After the procedure was finished, the primary perfusionist told Plaintiff that she was permitted to go home. (Compl ¶¶ 27-42.) Plaintiff left the hospital. (Compl ¶ 42.) Plaintiff alleges that, after she left, there was a complication with the patient, and Adkins wanted Plaintiff to return to the hospital. (Compl. ¶ 46.) Plaintiff alleges that, when she returned to the operating room, "Dr. Adkins verbally attacked the plaintiff, yelling things such as 'Don't you ever fucking do that again.'" (Compl. ¶ 52.) Plaintiff further alleges that Adkins "screamed and yelled at Russo in a vulgar manner" and "cursed approximately twenty (20) times, many of which were directed solely at Ms. Russo." (Compl. ¶ 53.) Plaintiff also alleges that Adkins yelled, in the presence of six colleagues, "Is this your plan? Your fucking plan to get your fucking Chinese boyfriend back here?" (Compl. ¶ 53.)

Plaintiff called the "covering in charge perfusionist" because "the vulgarity and Adkins' demeanor was getting worse." (Compl. ¶¶ 56-57.) Plaintiff claims that she told the in charge perfusionist "that Adkins was screaming, using vulgarity and implying that in some way . . .

Russo had planned this event." (Compl. ¶ 57.) Plaintiff also told the in charge perfusionist that Adkins was "demonstrating 'abusive physician's behavior.'" (Compl. ¶ 57.)

On May 16, 2008, after Plaintiff returned home, William DeBois, Plaintiff's supervisor, called Plaintiff. (Compl. ¶ 71.) Plaintiff informed DeBois that "Adkins had harassed and discriminated against her." (Compl. ¶ 71.) On May 19, 2008, Plaintiff and DeBois continued their discussion, and Plaintiff "requested to have a meeting with DeBois and Adkins, in order to resolve concerns about sexism, language, vulgarity, and harassment that she had been subjected to." (Compl. ¶ 72.) On May 20, 2008, Plaintiff and DeBois spoke, and DeBois informed Plaintiff that "they would all meet the next day." (Compl. 77.) That evening, Plaintiff received a phone call from DeBois, who said that Plaintiff was relieved of all duties effective immediately. (Compl. ¶ 78.)

On May 22, 2008, Plaintiff went to Human Resources at NYP and met with Rachel Bautista, Plaintiff's Human Resources Representative, regarding Plaintiff's "concerns of discrimination and retaliation." (Compl. ¶ 80.) Bautista suggested that Plaintiff "write it all down and give it to her." (Compl. ¶ 82.) On May 22, 2008, Plaintiff provided Bautista with a summary of what happened. (Compl. ¶ 83.) On May 27, 2008, Plaintiff went to Human Resources at NYHQ, where plaintiff met with two individuals who took notes on what Plaintiff said. On May 28, 2008, Plaintiff met with DeBois at NYP and DeBois informed Plaintiff that "he and Human Resources decided to terminate her employment effective immediately." (Compl. ¶ 86.)


Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The pleading standard under Rule 8 does not require "detailed factual allegations," Bell Atlantic Corp.v.Twombly, 550 U.S. 544, 555 (2007), "but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A complaint does not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). A plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do. Twombly, 550 U.S. at 555. On a Rule 12(b)(6) motion, the court must accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party. Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002). The court may only consider the pleading itself, documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, and matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995).



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