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Laura Russo v. the New York and Presbyterian Hospital

March 12, 2012

LAURA RUSSO,
PLAINTIFF,
v.
THE NEW YORK AND PRESBYTERIAN HOSPITAL, NEW YORK HOSPITAL QUEENS AND MARK ADKINS, M.D.,
DEFENDANTS.



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

MEMORANDUM AND ORDER

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, naming him as a defendant. (See Sec. Am. Compl., Doc. Entry No. 35.) The claims against defendant Adkins are for sexual harassment and retaliation in violation of New York State Executive Law and New York City Human Rights Law. Defendant Adkins moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In a March, 3, 2011 Summary Order, this Court dismissed plaintiff's claims against defendant Adkins without prejudice and with leave to replead. (See 3/3/11 Summ. Order, Doc. Entry No. 37.) Subsequently, plaintiff filed a Third Amended Complaint (see Th. Am. Compl., Doc. Entry No. 39), which defendant Adkins now moves to dismiss, pursuant to Rule 12(b)(6).

For the reasons set forth below, defendant Adkins' motion to dismiss is denied. Plaintiff's claims for retaliation and sex discrimination on the basis of a hostile work environment will proceed.

BACKGROUND*fn1

Plaintiff worked as a perfusionist for Defendants NYPH and NYHQ until her termination on May 28, 2008. As a perfusionist, she assisted surgeons by regulating the physiological and metabolic needs of surgical patients during surgeries. Defendant Adkins was one of the surgeons with whom she worked during her tenure at NYPH and NYHQ. It is the interactions between plaintiff and defendant Adkins, both in the operating room and throughout the hospitals, which form the basis of this action. Plaintiff's allegations include both day-to-day incidences and significant detail with respect to a surgery that occurred on May 16, 2008, during which a patient suffered from a medical error defendant Adkins attributed to plaintiff.

In the March 3, 2011 Summary Order, this Court dismissed plaintiff's retaliation claim against defendant Adkins on the grounds that plaintiff failed to allege that defendant Adkins participated in plaintiff's termination and that plaintiff failed to allege that she participated in protected activity. (3/3/11 Summ. Order at 4-8.) In that same Order, this Court dismissed plaintiff's sex discrimination claim for a hostile work environment on the ground that plaintiff failed to specify which allegations against defendant Adkins fell within the three-year statute of limitations. (Id. at 9.) As set forth below, the Third Amended Complaint addresses some, but not all, of these infirmities.

LEGAL STANDARDS

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).

DISCUSSION

1.RETALIATION

"Under both the New York State and New York City Human Rights laws, it is unlawful to retaliate against an employee for opposing discriminatory practices." Harper v. New York City Housing Auth., 673 F. Supp. 2d 174, 181 (S.D.N.Y. 2009) (citing N.Y. Exec. Law §§ 290 et seq.; N.Y. City Admin. Code §§ 8-101 et seq). "To state a claim for relief, a plaintiff must allege that '(1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action.'" Id. (citation omitted).

A. Plaintiff's Participation in Protected Activity

NYPH and NYHQ terminated plaintiff on May 28, 2008, just days after the botched May 16, 2008 surgery. The Second Amended Complaint, which was the subject of this Court's March 3, 2011 Summary Order, failed to provide sufficient detail as to whether plaintiff participated in protected activity prior to her termination. Plaintiff has since provided additional detail. Plaintiff alleges that, on May, 19, 2008, she told William DuBois, her supervisor, "about the harassment and discrimination" and that she "was going to report the incident to Human Resources." (Th. Am. Compl. ¶ 77.) According to plaintiff, DuBois informed her that she could discuss her complaints with Human Resources, but also suggested that he could remedy the situation himself. (Id. at ¶ 78.) He also indicated that "'although retaliation is illegal it is also very real' and that Adkins would likely retaliate." (Id.) Plaintiff alleges that, on May 22, 2008, she met with Human Resources and discussed her "concerns of discrimination and retaliation." (Id. at ¶ 84.) She also alleges that during this meeting the human resources representative spoke on the telephone with DuBois, informing DuBois that plaintiff was filing "a complaint for sexual harassment against Mark Adkins." (Id. at ¶ 87.)

It is unclear whether plaintiff discussed the day-to-day allegations during these discussions with DuBois and the human resources representative or whether she simply discussed the May 16, 2008 surgery and its aftermath. A few hours after meeting with Human Resources, plaintiff filed a written summation, a copy of which was provided to the Court for the first time as Exhibit A to the Third Amended Complaint. The summation discusses the May 16, 2008 surgery and plaintiff indicates that defendant Adkins' behavior was "inappropriate" and that he "verbally harassed" her in front of other hospital employees. (Th. Am. Compl., Ex. A at 2.) She indicated that he was "showing signs of abusive physician behavior." (Id.) She indicated that she told DuBois on May 19, 2008, that she was "uncomfortable talking/working with him after the language used toward [her]." (Id. at 2-3.) She ...


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