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Neil V. D'lima, D.D.S v. Cuba Memorial Hospital

June 12, 2011


The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court



Plaintiff Neil v. D'Lima, D.D.S. ("Plaintiff") commenced this employment discrimination action by filing a Complaint in the United States District Court for the Western District of New York. (Docket No. 1.) Plaintiff subsequently filed an Amended Complaint in which he alleges that Defendants, Cuba Memorial Hospital, Inc. ("CMH" or the "Hospital") and its CEO Andrew H. Boser, III ("Boser"), discriminated against Plaintiff on the basis of his race, color, and/or national origin (Indian), violated the New York State Human Rights Law, N.Y. Exec. L. §§ 290 et seq. (hereinafter, "NYHRL"), violated the Americans with Disabilities Act, 42 U.S.C. §§ 12112 et seq. ("ADA"), committed slander per se, and intentionally inflicted emotional distress upon him. Plaintiff further alleges, that CMH also violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (hereinafter, "Title VII").

Defendants now move to dismiss the ADA and common law claims as to the Hospital, and all claims alleged against Boser pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 Plaintiff opposes this motion.*fn2 For the reasons stated below, Defendants' motion is granted in part and denied in part.


A. Facts

CMH is a non-profit health care provider headquartered at 140 West Main Street, Cuba, New York. (Amended Compl. ¶ 11.) Boser served as CMH's Chief Executive Officer during the relevant time period. (Id. ¶ 13.)

Plaintiff was referred to CMH for employment by the National Health Service Corps, a government agency that places medical personnel in geographical areas where there is a need for such personnel. (Id. ¶ 16.) CMH is located in an area designated as a "Health Professional Shortage Area" by the United States Department of Health and Human Services. (Id. ¶ 15.) Plaintiff was employed by CMH as a dentist from January 22, 2007 until his suspension on August 5, 2008. (Id. ¶ 9; See Compl.*fn3 , Ex. B, NYSDHR Report.)

Plaintiff is of Indian descent. (Amended Compl. ¶ 10.) Throughout the course of his employment, he was treated differently than his Caucasian peers, especially by Boser, who criticized him for projecting a "negative image" to the community and dating a Caucasian female. (Id. ¶ 26.) Boser also advised Plaintiff to be careful with whom he socialized and at what locations. (Id.)

On or about July 2008, Boser secured the assistance of dental hygienist Jacie Glover ("Glover") to spread rumors to CMH employees, patients, and the community at large that Plaintiff regularly used illegal drugs on weekends and was impaired by these drugs while on duty at CMH, causing a detrimental impact on patient care. (Id. ¶ 29.)

At some point during Plaintiff's employment, Defendants became aware that the Hospital's Patient Advocate's office had received two complaints regarding the quality of dental service rendered by Plaintiff. (Compl., Ex. B, NYSDHR Report.) One for extracting the wrong tooth, and one for lack of complete treatment. (Id.; Compl., Ex.I.)

Plaintiff was suspended on August 5, 2008, with pay, for violations of the Hospital's policies and procedures. (Compl., Ex. F, Suspension Letter; Compl., Ex. K.) Plaintiff was told by Boser he was being suspended because of "patient complaints." (Compl., Ex. B, NYSDHR Report.) He was given a drug test and escorted off CMH premises. (Amended Compl., ¶ 30.) Defendants failed to provide Plaintiff with the negative drug test result until August 11, 2008, several days after they were returned. (Id. ¶ 31.) The drug test results were given to an employee who was not authorized to have them. (Id. ¶ 32.)

Plaintiff was informed he could return to work with certain conditions, including supervision by another doctor. (Compl., Ex. B, NYSDHR Report.) Plaintiff decided not to return to work because of irreparable damage to his reputation and standing in the community. (Id.; Amended Compl., ¶ 37.)

B. Procedural History

On September 26, 2008, Plaintiff dually filed a charge of discrimination on the basis of color, national origin, and race, and retaliation with the New York State Division of Human Rights ("NYSDHR") and the Equal Employment Opportunity Commission ("EEOC"). (Compl., Ex. A.) After investigation, the NYSDHR determined that probable cause existed to believe Defendants engaged in or were engaging in the unlawful discriminatory practices complained of. (Compl., Ex. B.) A Notice of Right to Sue was issued on March 31, 2009. (Compl., Ex. C; Amended Compl., Ex. A.) The case was dismissed for administrative convenience so that Plaintiff could pursue his remedies in federal court. (Compl., Ex. D.)

On June 30, 2009, Plaintiff commenced this action by filing a Complaint with the Clerk of this Court. (Docket No. 1.) On September 14, 2009, Defendants filed a Motion to Dismiss. (Docket No. 4.) In response, on January 7, 2010, Plaintiff filed an Amended Complaint and Memorandum of Law in Opposition to Defendants' Motion to Dismiss. (Docket Nos. 12, 13.) Defendants filed the instant Motion to Dismiss Plaintiff's Amended Complaint on August 10, 2009. (Docket No. 16.)


A. Rule 12(b)(6)

Defendants argue that Plaintiff's ADA claim, NYHRL claim against Boser, and his claims under New York common law for slander per se and intentional infliction of emotional distress should be dismissed under Rule 12(b)(6).

Rule 12(b)(6) allows dismissal of a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Federal pleading standards are generally not stringent. Rule 8 requires only a short and plain statement of a claim. Fed. R. Civ. P. 8(a)(2). But the plain statement must "possess enough heft to show that the pleader is entitled to relief." Bell Atlantic Corp. v. Twombly, 550 U.S. 544,127 S. Ct. 1955, 1966, 167 L. Ed. 2d 929 (2007) (internal quotation marks and alteration omitted).

In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must liberally construe the claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Roth v. Jennings, 489 F.3d 499, 510 (2d Cir. 2007); Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008). However, legal conclusions are not afforded the same presumption of truthfulness. See Iqbal, ___ U.S. ___, 129 S.Ct. at 1949 ("the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions").

The Court's responsibility on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2nd Cir. 1985). A court shall grant a motion to dismiss only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 335 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In reaching its determination, a court's review must be limited to the complaint and documents attached or incorporated by reference thereto. See Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991).

B. Application

1. Plaintiff's ADA ...

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