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Linda Fertig v. Hra Medical Assistance Program

May 6, 2011


The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.,


On October 7, 2010, Plaintiff Linda Fertig ("Ms. Fertig") filed a Complaint ("Compl.") in New York State Supreme Court in New York County, against her former employer, HRA Medical Assistance Program ("HRA"), the City of New York, and various individuals employed by HRA. Ms. Fertig alleges that she was harassed at work and ultimately fired from her position as a city employee based on her interracial marriage, and claims: 1) employment discrimination in violation of 42 U.S.C. § 1983 and New York Executive Law § 296 ("N.Y. Human Rights Law"), and 2) intentional infliction of emotional distress under New York state tort law. Defendants filed for the removal of Ms. Fertig's Complaint to federal court on October 28, 2010.

On February 3, 2011, Defendants moved this Court for an order granting a motion to dismiss the Complaint on the grounds that: 1) Ms. Fertig is collaterally estopped from bringing her discrimination claims because of a state court prior determination on the same issue, and 2) Ms. Fertig's claims of discrimination and intentional infliction of emotional distress are barred by the applicable statutes of limitations. (Def.'s Mem. at 2.) Plaintiff submitted her opposition papers on March 1, 2011. Defendant submitted its reply memorandum on March 28, 2011. This Court held oral argument on the motion on April 8, 2011.

For the following reasons, Defendants' motion to dismiss is granted.


From 1983 until April 17, 2009, Ms. Fertig was employed by Defendant HRA Medical Assistance Program. (Compl. at ¶¶ 3,8.) Ms. Fertig served as a provisional Eligibility Specialist after taking a Civil Service Examination on January 30, 1993, but was ultimately never certified as a full Eligibility Specialist.*fn1 (Id. at ¶ 4-8.) There were repeated issues with Ms. Fertig's productivity and the error rate in her work (id. at ¶¶ 11-30), and Ms. Fertig also suffered from work-induced panic attacks. (Id. at ¶¶ 10, 13, 22.) Ms. Fertig was reassigned to less demanding work on multiple occasions. (Id. at ¶¶ 11, 14, 21.)

In November of 2005, Ms. Fertig (formerly, Ms. Reddick) married Joel Fertig. (Id. at ¶ 2.) The marriage was interracial. Fertig v. HRA Medical Assistance Program, No. 17672/09, slip op. at 6 (N.Y. Sup. 2010). Ms. Fertig alleges that her supervisor, Joanne Bethea ("Ms. Bethea"), began harassing her based on her interracial marital status beginning in May of 2007. (Compl. at ¶ 3.) During a discussion with Ms. Bethea on an unspecified date, Ms. Fertig alleges that Ms. Bethea suggested that her productivity and error problems might be caused by problems in her marriage. (Id. at ¶ 29.) Ms. Fertig also alleges that on another unspecified date, her supervisor, Beverly Watson ("Ms. Watson"), told Ms. Fertig that she wished she could put her "back on processing because she was very knowledgeable, but the bottom line was that if she stayed married to her present husband, the Defendants would not allow her to do eligibility specialist work again." (Id. at ¶ 28.) Ms. Fertig did not file a discrimination complaint with HRA or any other organization about Defendants' alleged statements regarding her marriage. Ms. Fertig was terminated on April 17, 2009 pursuant to N.Y. Civ. Serv. Law § 65(2) (McKinney's 2011), which limits provisional appointments to nine months if there is an eligible list of candidates.*fn2

(Def.'s Mem. at 4.)

On July 2, 2009, Ms. Fertig commenced an action pro se in New York State Supreme Court for the County of Queens pursuant to N.Y.C.P.L.R. Art. 78.*fn3 Ms. Fertig alleged that Defendants failed to adhere to the CCSC's 1999 determination that she was qualified as an Eligibility Specialist, that DCAS was negligent in not certifying her as an Eligibility Specialist, and that she was "discriminated upon." Fertig, No. 17672/09, slip op. at 2. The opinion states that in reply to Defendants' cross motion to dismiss the Complaint, Ms. Fertig claimed that,

respondent failed to appoint her to a permanent position, due to negligence and discrimination; that her petition states a claim for discrimination in violation of "Article VII" based upon the failure to appoint her as a permanent eligibility specialist; that she was terminated in violation of Article VII; and that after she got married, her work performance was criticized, and she was harassed by her former supervisor and co-workers.

Id. at 3.

Ms. Fertig's claim that Defendants were negligent in failing to appoint her as an Eligibility Specialist was dismissed by the New York State Supreme Court, Queens County on the ground that a provisional employee has no right to a position if a valid Eligible List exists, and on the ground that her claim was barred by laches. Id. at 4-5. Ms. Fertig's discrimination claim under Title VII and the N.Y. Human Rights Law was also dismissed because isolated comments are insufficient for a Title VII claim, and because Ms. Fertig did not "allege that her supervisor or co-workers made any statements about her marriage or about any members of her own race or that of her husband's race." Id. at 5-6. No oral hearing was held.

On October 7, 2010, Ms. Fertig filed the Complaint in the instant action in the New York State Supreme Court in New York County. The Complaint was ...

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