United States District Court, S.D. New York.
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge.
Plaintiff Kristen Haight brings claims for 1) negligent supervision or retention of an unfit employee and negligence; 2) quid pro quo sexual harassment; 3) hostile work environment sexual harassment; 4) age discrimination; 5) termination in order to prevent employee from obtaining pension benefits; 6) disability discrimination and failure to provide a reasonable accommodation; 7) sexual orientation discrimination; and 8) religious discrimination against Defendants NYU Langone Medical Center, Inc., NYU Medical Center and NYU School of Medicine (together, "NYU") and a claim for negligent supervision or retention of an unfit employee and negligence against Defendants Medtronic, Inc. and ConsignMed, Inc.
NYU has moved to dismiss all of Plaintiff's claims pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6). For the reasons discussed below, NYU's motion to dismiss is granted in part and denied in part.
Medtronic has moved to dismiss the claim against it under FRCP 12(b)(6) or, in the alternative, for summary judgment pursuant to FRCP 56. Medtronic's motion to dismiss is denied, and Medtronic's motion for summary judgment is denied.
A. Procedural History
Plaintiff filed her original Complaint in New York State Court on September 2, 2011, asserting claims against both NYU and Medtronic for 1) breach of contract; 2) breach of implied employment contract in employee handbook; 3) tortious interference with prospective economic advantage; 4) defamation; 5) implied covenant not to terminate; 6) intentional infliction of emotional distress; 7) negligent supervision or retention of an unfit employee and negligence; and 8) prima facie tort. NYU moved to dismiss the Complaint, and Plaintiff cross-moved to amend. Both NYU and Medtronic consented to Plaintiff's request to amend.
Plaintiff filed her First Amended Complaint on January 27, 2012, asserting the same eight claims, as well as additional claims for 1) quid pro quo sexual harassment; 2) hostile work environment sexual harassment; and 3) whistleblower protection against both NYU and Medtronic. Both NYU and Medtronic moved to dismiss the First Amended Complaint, and Plaintiff cross-moved to amend.
On July 5, 2012, the parties entered into a stipulation whereby Defendants withdrew their motions to dismiss and consented to Plaintiff's request to amend provided that 1) Plaintiff's Second Amended Complaint could contain only causes of action for discrimination under New York City and State Human Rights Laws and constitutional protections, recovery of benefits under a pension plan, and negligent supervision of an employee and 2) Defendants reserved the right to assert any and all defenses against the Second Amended Complaint, including the defense that Plaintiff had waived all other claims when she included a whistleblower claim under the New York Labor Law in her First Amended Complaint.
Plaintiff filed her Second Amended Complaint on June 17, 2013, asserting claims against NYU, Medtronic, and ConsignMed for 1) negligent supervision or retention of an unfit employee and negligence; 2) quid pro quo sexual harassment; 3) hostile work environment sexual harassment; 4) age discrimination; 5) termination in order to prevent employee from obtaining pension benefits; 6) disability discrimination and failure to provide a reasonable accommodation; 7) sexual orientation discrimination; and 8) religious discrimination.
On June 28, 2013, Medtronic's counsel sent Plaintiff's counsel a letter pursuant to 22 N.Y.C.R.R. 130.1, demanding that Plaintiff withdraw all claims against Medtronic because they lacked any factual or legal merit. On July 15, 2013, Plaintiff's counsel responded, agreeing to dismiss all claims against Medtronic other than the negligent supervision claim.
On July 16, 2013, NYU removed this action to the Southern District of New York on the grounds of federal question jurisdiction based on Plaintiff's ERISA-based claim, and Medtronic consented to removal. On September 19, 2013, Plaintiff filed her Third Amended Complaint ("Complaint"), which asserts all eight claims contained in the Second Amended Complaint against NYU and one claim against Medtronic and ConsignMed for negligent supervision or retention.
The facts are taken from the Complaint and, as is required on this motion, assumed to be true.
Defendant NYU is a hospital and medical facility in New York City. Defendants Medtronic and ConsignMed are vendors that do business with NYU. Plaintiff Kristen Haight is forty-one years old and was employed by NYU for nineteen years as a pediatric nurse. Beginning in 2003, Plaintiff was harassed and discriminated against by various NYU employees, including by a co-worker named Michelle Blate. Ms. Blate was employed by NYU from January 1995 through December 2009 and employed by Medtronic and Consignmed from January 2010 through the time Plaintiff filed her Complaint.
Plaintiff began having problems with Ms. Blate in 2005, which included Ms. Blate 1) discussing Plaintiff's medical problems with other NYU employees; 2) attempting to get Plaintiff fired because Plaintiff was not returning her late night phone calls and was otherwise refusing her advances; and 3) putting her hands down Plaintiff's underwear to adjust a label without Plaintiff's consent, which incident Plaintiff reported to NYU, but no action was taken.
Sometime in 2005 or 2006, Plaintiff requested that a security seal be placed on her medical record on the NYU computer system, which request was denied. Then, in 2007, Plaintiff became ill and needed surgery, so she pursued medical care outside of NYU. However, on January 10, 2008, Plaintiff's medical problems, which were gynecological, worsened, and she started treatment at NYU. Plaintiff requested that certain information be left out of her chart due to fear that her co-workers would find it, and the attending doctor agreed to leave out anything that would pique others' curiosity.
In the fall of 2008, Plaintiff discussed her concerns about being a patient at NYU and the potential privacy violations that might occur with her supervisors, Maria Brillant and Phyllis Marchitelli. These supervisors assured Plaintiff that NYU would protect Plaintiff's privacy, that she did not need to change her name on her medical chart, and that a Health Insurance Portability and Accountability Act ("HIPAA") investigation would be implemented. Nevertheless, on December 11, 2008, Plaintiff told her surgeon at NYU that she wanted to change her name on her medical chart. The same day, in a conversation with one of Plaintiff's supervisors, Dr. Jeffrey Wisoff, Plaintiff's surgeon commented that Plaintiff's surgery was similar to a procedure that Dr. Wisoff's daughter had had.
On January 4 and 5, 2009, Ms. Blate breached security and entered Plaintiff's medical chart electronically. These breaches were revealed by a later NYU investigation.
On January 5, 2009, the day of Plaintiff's surgery, Dr. Wisoff told Plaintiff's co-workers that she was having minor surgery and would be back in a few weeks, even though Plaintiff had asked him not to say anything to anyone about her surgery. On the same day, Dr. Wisoff's wife called Plaintiff's surgeon's secretary and asked whether Plaintiff was in recovery and then came to the recovery room to see Plaintiff. Plaintiff was admitted to the floor of the hospital on which her team worked.
During her medical leave, Dr. Wisoff called Plaintiff at home and asked her both professional and personal questions. Dr. Wisoff then put his daughter on the phone to tell Plaintiff that the way to treat endometriosis is to become pregnant. On another occasion, Dr. Wisoff gave Plaintiff a book, advising her that it had a section on women who were cursed by God because they have no children and quoting from the Bible.
On January 26, 2009, Plaintiff returned to work. That day, another surgeon referenced her surgery, so Plaintiff asked Ms. Brillant for a HIPAA investigation, which request was denied. On February 27, 2009, Plaintiff again requested a HIPAA investigation but was told that she was being paranoid and that an investigation would result in the termination of employees. On March 5, 2009, Plaintiff again requested a HIPAA investigation, and Ms. Brillant told Plaintiff that she was aware of Ms. Blate's past HIPPA violations and assured Plaintiff that Ms. Blate was going to be fired for reasons unrelated to accessing Plaintiff's chart. In March 2009, Ms. Blate accessed Plaintiff's chart again, which was also revealed by the later investigation.
In June 2009, Plaintiff met with an administrator at NYU, Maria Corbo, and spoke about her concerns regarding the HIPAA violations and NYU's refusal to investigate. At this time, Ms. Corbo initiated a HIPAA investigation for Plaintiff.
In the fall of 2009, a secretary at NYU told Plaintiff that another secretary at NYU had told her that Plaintiff was a virgin. Around this same time, other co-workers began talking negatively about Plaintiff and her medical issues, and various doctors asked Plaintiff how she was feeling and whether she was having any more surgeries. On October 28, 2009, Plaintiff filed a complaint with Ms. Corbo and the NYU HIPAA compliance officer.
In November 2009, Plaintiff started looking for other placements at NYU. Then, in December 2009, Plaintiff met with Ms. Corbo and the HIPAA compliance officer again and told them about all of the people Plaintiff suspected had accessed her medical chart illegally. Ms. Corbo and the HIPAA compliance officer commented that they could not fire the whole hospital but would look into whether Ms. Blate had accessed Plaintiff's chart.
On January 4, 2010, Dr. Wisoff told Plaintiff that Ms. Blate was on a leave of absence due to personal space issues. Shortly thereafter, Ms. Blate was fired.
Around this same time, however, Plaintiff's treatment at NYU became worse. In February 2010, Dr. Wisoff mentioned the movie The 40-Year-Old Virgin to Plaintiff. As well, a secretary at NYU asked Plaintiff whether she had fibroids and why she was not pregnant yet, then encouraged her to become pregnant. In February or March 2010, Plaintiff found a used pregnancy test on her desk, which she believes to have been left by Ms. Blate. Plaintiff also found red jelly smeared on the toilet seat in the office bathroom, which she also believes was left by Ms. Blate. The comments directed at Plaintiff by her co-workers inquiring about and encouraging pregnancy continued repeatedly for at least seven months.
In February 2010, an anesthesiologist at NYU advised Plaintiff that she had seen Ms. Blate, who had said she would be returning to the hospital soon. Then, in March 2010, a hospital vendor advised Plaintiff that she had seen Ms. Blate in the hospital lobby wearing scrubs and an ID and that Ms. Blate had said she had been hired as a nurse educator. In April 2010, another nurse at NYU also told Plaintiff that she had seen Ms. Blate in the hospital. Plaintiff would find out later from Lisa Robins, a Medtronic representative, that Ms. Blate had been hired to work at NYU for Medtronic as a nurse educator and vendor fill-in.
In March 2010, Plaintiff advised Ms. Brillant of Ms. Blate's presence in her work environment. Ms. Brillant responded that Ms. Blate was not allowed on campus and promised Plaintiff that she would be safe. Around this time, Ms. Brillant asked Plaintiff to transfer to her office and work with her.
In March or April 2010, Plaintiff began seeing Ms. Blate around the hospital. Plaintiff called NYU security, who advised Plaintiff to call the New York City Police Department ("NYPD") if she saw Ms. Blate again. In April 2010, Ms. Blate called the office to see if Plaintiff was there and say that she was on her way over. At this time, Plaintiff called NYU security, who advised her again to call the NYPD. Plaintiff called the District Attorney's Office and was advised that she needed a protective order, but needed to call the police in order to get one.
On April 8, 2010, Plaintiff met with the NYU HIPAA compliance office and made another complaint about Ms. Blate, mentioning the HIPAA violations as well as the fact that Ms. Blate was coming to the hospital, causing Plaintiff to vomit and faint. Plaintiff asked when and how many times Ms. Blate had accessed her medical chart, but was denied a response. Plaintiff did receive confirmation that Ms. Blate was fired for having accessed Plaintiff's medical chart numerous times and that there was an ongoing investigation.
On April 10, 2010, after seeing Ms. Blate at NYU again, Plaintiff told a surgical resident that she was unable to be in certain areas of the hospital due to Ms. Blate's presence and asked him to notify her when Ms. Blate was gone. Plaintiff researched hospital policies, which stated that nurse educators working for vendors, such as Ms. Blate, are not allowed to be in the operating rooms and are not allowed access to patient information. Plaintiff advised the HIPAA compliance office staff of these policies.
In April 2010, NYU's human resources and legal department sent a letter to Medtronic stating that Ms. Blate was not allowed on the NYU campus. However, Plaintiff and others continued to see Ms. Blate at the hospital.
Also in April 2010, Plaintiff advised Dr. Wisoff that she was going to visit a male friend in Europe. Dr. Wisoff told Plaintiff that he wanted to know the moment she conceived, which Plaintiff responded was disgusting. About a month later, in a conversation with Plaintiff, Dr. Wisoff again brought up The 40-Year-Old Virgin. In this same conversation, Dr. Wisoff compared sexual activity to petting something furry for the first time, which embarrassed Plaintiff.
Dr. Wisoff used sexual innuendo in front of Plaintiff on other occasions. For example, he stated that things were going to get sticky because he was sitting around masturbating while waiting for an operating room. Dr. Wisoff also told Plaintiff that he recognized her wiggle when she walked. Additionally, Dr. Wisoff touched Plaintiff's hand inappropriately when he reached for items from her.
In June 2010, Nicole Delts in human resources at NYU both called and sent a letter to Medtronic, informing Medtronic of the reason for Ms. Blate's termination from NYU. In July 2010, Plaintiff met again with Ms. Brillant and complained about Ms. Blate's presence at the hospital, saying that it was making Plaintiff physically ill. Ms. Brillant responded that Ms. Blate was not allowed on campus and that she had been informing others of this.
Around this time, a new co-worker of Plaintiff s, Jessica Lessing, said that she had lied on her resume and that she was hired only due to the fact that she was Jewish. Dr. Wisoff also stated that Ms. Lessing would not have been hired if she were not Jewish. Moreover, Dr. Wisoff joked that Plaintiff was the only Catholic allowed in the hospital. Some of Plaintiff's co-workers asked Plaintiff about whether growing up in a Catholic household was difficult. Many co-workers, with the acquiescence of Plaintiff's supervisors, also made fun of Plaintiff's Catholic beliefs, including her views on abortion.
On August 5, 2010, Plaintiff saw Ms. Blate in an operating room. The resident doctor had tried to warn Plaintiff of Ms. Blate's presence using the hospital phones. Another co-worker also confirmed seeing Ms. Blate in the operating room on that day. Thereafter, Dr. Wisoff confirmed that Ms. Blate was working as a vendor and would be around the staff
Dr. Wisoff then changed Plaintiff's schedule to coincide with days that Ms. Blate was scheduled to be in the operating room. Plaintiff explained that she could not work alongside Ms. Blate in the operating room because her presence affected Plaintiff both physically and emotionally. Dr. Wisoff commented that he could see that Plaintiff was upset and then hugged her, telling her that everything would be okay. At this point, Plaintiff vomited. On August 23, 2010, Plaintiff found a copy of a positive recommendation for Ms. Blate, endorsed by Dr. Wisoff, on her own desk.
On August 30, 2010, Ms. Blate called looking for Plaintiff and then came to Plaintiff's office. Plaintiff called NYU security, who told her to call 911. NYU security then showed up and interviewed Plaintiff
Thereafter, NYU Employee Health representative Helen Ruddy removed Plaintiff from work due to a work-related illness. A crisis counselor stated that Plaintiff had been abused. Plaintiff then received harassing emails from Ms. Brillant and her assistant about Plaintiff being out of work. Another co-worker, also upon hearing of Plaintiff's sick-leave, mentioned to some NYU secretaries that Plaintiff was "fucking useless" and the hospital should "just get rid of her. In October 2010, Dr. Wisoff's wife sent an email to the office staff about Plaintiff and her medical issues, including when Plaintiff saw the doctor.
In September or October 2010, Plaintiff received a meeting request via email from Ms. Delts. Plaintiff responded that she had received both medical and legal advice not to enter the NYU campus and that she would not speak to anyone at NYU without her lawyer. Ms. Delts advised Plaintiff that Plaintiff's lawyer would not be allowed in the meeting. An NYU representative also contacted Plaintiff to find out if she was taking worker's compensation, medical leave or another type of absence and then told her to sit tight because her situation was unique.
In October 2010, Plaintiff went to a worker's compensation hearing in which the judge ruled that Plaintiff had prima facie post-traumatic stress disorder ("PTSD") and worked in a hostile environment. In December 2010, Plaintiff requested a copy of her professional file, which request was delayed but eventually granted.
In late 2010, Lisa Robins, a Medtronic employee, learned the story of Ms. Blate's termination from NYU. Then, in January 2011, NYU notified Medtronic again via phone and letter of Ms. Blate's termination by NYU and the reasons why.
Also in January 2011, Plaintiff appeared in court again, where Ms. Brillant lied under oath. In March 2011, NYU appealed the worker's compensation judge's decision. Plaintiff's attorney then submitted an opposition to the appeal, which is currently pending.
In April 2011, Plaintiff learned that her office received two strange calls from a female caller inquiring about Plaintiff's duties and schedule. This news made Plaintiff physically ill. Also in April 2011, Plaintiff's doctor sent a note extending her leave, which NYU confirmed receiving. Around this same time, two co-workers called Plaintiff "loony tunes, " "a head case" and "a nut job." Also around this same time, Dr. Wisoff, his wife and other NYU employees discussed Plaintiff's situation.
In June 2011, Dr. Wisoff began interviewing people to replace Plaintiff. Also in June 2011, while Plaintiff was on sick-leave and the worker's compensation litigation was pending, NYU terminated Plaintiff's employment.
II. Standard of Review
A. Motion to Dismiss
On a motion to dismiss, the Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the non-moving party. Hooks v. Forman, Holt, Eliades & Ravin, LLC, 717 F.3d 282, 284 (2d Cir. 2013). To withstand dismissal, a pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
"Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. While "detailed factual allegations' are not necessary, the pleading must be supported by more than mere "labels and conclusions' or a formulaic recitation of the elements of a cause of action.'" Id. (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Id. (alteration in original) (quoting Twombly, 550 U.S. at 557).
Rule 8 of the Federal Rules of Civil Procedure "requires factual allegations that are sufficient to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012) (quoting Twombly, 550 U.S. at 555) (alteration in original). Moreover, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - ...