United States District Court, S.D. New York
Decided March 25, 2014
[Copyrighted Material Omitted]
For Apurba Kumar Basak, Plaintiff: Thomas Anthony Ricotta, White, Ricotta & Marks, P.C., Jackson Heights, NY, USA.
For New York State Department of Health, Celeste Johnson, individually, Celeste Johnson, in her official capacity, Defendants: Todd Alan Spiegelman, LEAD ATTORNEY, New York State Office of the Attorney General (NYC), New York, NY, USA.
MEMORANDUM & ORDER
MICHAEL H. DOLINGER, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Apurba Kumar Basak commenced this lawsuit against his employer, the New York State Department of Health (" DOH" ), and a senior supervisor at the DOH, Ms. Celeste Johnson. Invoking 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., he complains of discrimination on the basis of his national origin in the conditions of his employment and retaliation for his complaints about that discrimination, culminating in his demotion in 2012 after approximately 34 years of service. His complaint may also be read to assert claims of disability and age discrimination.
Defendants have moved to dismiss some or all of the complaint on a host of grounds. First, they assert that plaintiff's Title VII claims are time-barred insofar as they are premised on events predating September 6, 2011. Second, they argue that his claims of national-origin discrimination and retaliation should be dismissed under Rule 12(b)(6) as implausible. Third, they contend that his § 1983 claims are barred by collateral estoppel based on findings by the State Division of Human Rights. Finally, they hypothesize that plaintiff might be asserting claims of age or disability discrimination under § 1983, and they argue that such claims should be dismissed because they are precluded by the Age Discrimination in Employment Act (" ADEA" ), 29 U.S.C. § 621 et seq., and the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12101 et al.. Plaintiff, of course, opposes the motion.
I. The Nature of Plaintiff's Claims
In plaintiff's complaint he describes himself as " a 65 year old man of East Indian descent" and states that he " suffers from loss of total vision of right eye." (Compl. ¶ 8). According to plaintiff, he began employment with DOH in 1978, when he was hired as a Regional Medical Care Administrator (grade 22). He reports that he was promoted in 1985 to Associate Medical Care Administrator (grade 25). (Id. ¶ ¶ 9, 10). In 1997, he alleges, he began to serve as Regional Coordinator for the Office of Professional Medical Conduct (" OPMC" ). Then in 1999 he was appointed Acting Director for the New York State Medicaid Program. (Id. ¶ ¶ 12-13). Subsequently,
in 2004 and 2006, Basak was promoted, respectively, to the position of Manager of Complaint Investigation for the Long Term Care Program (grade 27) and to the position of Regional Program Director for OPMC. (Id. ¶ ¶ 14, 15).
Plaintiff recounts that for all of these assignments he was located at the New York City office of DOH. (Id. ¶ ¶ 9, 10, 12- 13). He further alleges that through this entire period he performed very effectively. (Id. ¶ ¶ 16-17).
The events of which plaintiff now complains are said to have begun in November 2010 when defendant Johnson, the Regional Director of DOH, called him to a meeting with her and Regional Personnel Director Ellen Poliski, and told him that he was being transferred to the New Rochelle Office " and that his younger, less experienced deputy... would assume the responsibilities of the New York City office as part of a 'Succession Planning'" by DOH. Plaintiff reports that he protested the move, as he lived a considerable distance away, in Warren, New Jersey, and the commute would compel him to drive at least four hours a day, a notable hardship in view of his partial blindness. He alleges that he asked for an accommodation, and that his request was denied, with Ms. Poliski saying " that's your problem" . (Id. ¶ ¶ 18-19).
Basak was transferred to New Rochelle on or about December 10, 2010. (Id. ¶ 21). The professional organization (or union) to which he belonged -- which he refers to as the Office of Management Confidential Employees (" OMCE" ) -- wrote to the DOH Commissioner protesting the transfer. In response the Commissioner's office sent a letter to OMCE reiterating that the transfer was " for 'Succession Planning'" . (Id. ¶ ¶ 22-23).
Plaintiff alleges that subsequently Johnson engaged in insulting comments that betrayed a hostility to his national origin. Specifically, on February 8, 2011, he attended a meeting with her and one of his own subordinates. During the course of the meeting, Basak objected to something that Johnson had said, and she responded angrily that " she was speaking English," and asked Basak, apparently rhetorically, whether " he understands English." According to Basak, he speaks with an East Indian accent, and hence he interpreted this comment as a slur. (Id. ¶ 24). He further alleges, in vague terms, that Ms. Johnson had made a comparable comment some months earlier in the presence of two of Basak's deputies. (Id.).
Plaintiff goes on to state that, in the wake of Johnson's remark, he made a formal in-house complaint of national-origin discrimination to Betsy Alberti, the DOH Director for the Bureau of Employee Relations/Staff Development. His complaint apparently bore at least modest fruit. He recites that the Human Resources Manager subsequently told him that Ms. Johnson had been advised of the complaint and instructed not to engage in retaliatory measures. (Id. ¶ ¶ 25-26).
According to plaintiff, despite this instruction he was subsequently subjected to " a pattern of retaliatory actions." (Id. ¶ 26). He alleges that Johnson, Poliski and the DOH Deputy Director of Downstate OPMC all began calling him at home, falsely accusing him of fraud and inadequate investigation of complaints handled by his department. (Id. ¶ 27). He reports that he again complained to Ms. Alberti but " the retaliation... persisted." (Id. ¶ 28). Thus, he says, he was notified in November 2011 of an investigation into suspected misconduct by him, and he was interrogated on December 19, 2011 by a William Bevilacqua, Senior Investigator, Employee Relations, who accused him of falsifying his time records. (Id. ¶ 29). According
to plaintiff, despite the bogus nature of this accusation, on February 2, 2012 he was called to a meeting and informed that his appointment as Assistant Director of Professional Misconduct was being terminated as of February 8, 2012. As a result he was demoted to Health Program Administrator 3, with the functional title of Assistant Manager of Complaint Investigation. This demotion lowered his civil service slot by four grades and cost him about $20,000.00 in annual base salary. (Id. ¶ ¶ 30-31).
In the wake of this demotion, on July 2, 2012, plaintiff filed a charge with the New York State Division of Human Rights (" SDHR" ). (Id. ¶ 32). Although a copy of the charge is not attached to the complaint, in that document Basak complained of discrimination, in violation of the New York State Human Rights Law, on the basis of age, disability, national origin, race and color, and he also alleged retaliation. (Spiegelman Decl. Ex. B at 1, 9). The SDHR issued a finding of no probable cause on December 28, 2012, and plaintiff filed his original complaint in this court on May 8, 2013.
II. Assessment of Defendants' Motion
We address each of the defendants' arguments for dismissal in the order in which they present them. For reasons that follow, we conclude that the motion must be granted in part.
A. The Limitations Defense: Title VII National Origins Claim
Defendants first focus on plaintiff's claim for national-origin discrimination, arguing that it is time-barred. We agree in part.
There is no dispute that the limitations period under Title VII for claims filed with a state agency is 300 days from the alleged wrongful act. 42 U.S.C. § 2000e-5(e)(1). See, e.g., Patterson v. Cnty. of Oneida, 375 F.3d 206, 220 (2d Cir. 2004). Plaintiff filed with the SDHR on July 2, 2012 (Am. Compl. ¶ 32), thus establishing a limitations cut-off of September 5, 2011.
Defendants assert that the one set of acts predating September 2011 that plaintiff alleges was discriminatory consisted of Ms. Johnson's queries as to whether plaintiff understood English, conduct that allegedly took place in February 2011 and some months earlier. Characterizing this set of allegations as the only pled basis for the plaintiff's claim of national-origin discrimination, defendants assert that the claim in its entirety must be dismissed. (Defs.' Mem. at 7-8).
There is no question that plaintiff cannot assert a national-origin discrimination claim predicated on these alleged incidents. They are plainly time-barred. Moreover, the complaint is devoid of any allegation that the subsequent actions of defendants were motivated by national-origin animus. Rather, the plaintiff is very explicit in labeling all of them -- including the accusatory telephone calls, the charges against him of misconduct, and his demotion -- as acts of retaliation following his complaint to Ms. Alberti in February 2011. (Am. Compl. ¶ ¶ 26-31).
Defendants' timeliness argument falls short in one respect, however, since plaintiff is purporting to assert a claim of national-origin discrimination under § 1983 as well as under Title VII. The statute of limitations that governs ...