United States District Court, S.D. New York
MEMORANDUM AND OPINION
ANDREW L. CARTER, Jr., District Judge.
Plaintiff Ren Yuan Deng ("Deng") brings this pro se action for monetary damages, as well as costs and reasonable attorney's fees, against defendants New York State Office of Mental Health ("OMH") and, in their individual capacities, Michael Hogan ("Hogan"), Molly Finnerty ("Finnerty"), Emily Leckman-Westin ("Leckman"), Lynn Heath ("Heath"), Barbara Forte ("Forte"), and Paul Connelly ("Connelly"). This is primarily a discrimination suit arising out of Deng's previous employment at OMH. Plaintiff's lengthy Amended Complaint sets forth a sundry list of claims, each falling under the umbrella of one of 11 self-styled themes that this Opinion substantially tracks for convenience. Deng alleges violations under 42 U.S.C. § 1983 ("Section 1983"), Title VII of the Civil Rights Act of 1964 ("Title VII"), the New York State Humans Rights Law ("NYSHRL"), the New York City Human Rights Law ("NYCHRL"), the Family and Medical Leave Act ("FMLA"), the New York Labor Law, and the Fair Labor Standards Act ("FLSA"). This Opinion resolves defendants' Motion to Dismiss.
Deng pleads facts sufficient to state some claims for disparate treatment (which she categorizes as "Intentional Racial Discrimination") under the Equal Protection Clause and Title VII against Finnerty, Leckman, and Heath. In addition, some of her First Amendment retaliation causes of action against Finnerty, Leckman, Heath, Forte, Connelly, and Hogan survive. Further, Deng has met her burden with respect to making out a FMLA retaliation claim for wage deductions against Finnerty, Leckman, Forte, Connelly, and Heath. Similarly, the plaintiff's New York Labor Law Section 193 claim for wage deductions against Finnerty, Leckman, Forte, Connelly, and Heath passes muster. Deng's remaining claims are dismissed. For the reasons set forth in greater detail below, the Motion to Dismiss is GRANTED in part and DENIED in part.
The allegations in the Amended Complaint are assumed true only for purposes of the Motion to Dismiss. Deng is a woman of Chinese ancestry who began her employment as a biostatistician in OMH in November 2001. Am. Compl. ¶¶ 5-6. She was assigned to the Bureau of Evidence-Based Services and Implementation Science ("EBSIS"), led by Director Finnerty. Id. ¶ 10. Deng's title was Research Scientist IV. Id. ¶ 6. From the beginning of her employment through her termination by arbitration on May 17, 2013, Id. ¶ 154, Deng never received a promotion, Id. ¶ 11.
At least by the end of 2004, Deng began to experience discriminatory treatment due to her race. The normal three-year probationary period for new hires was extended by six months for her on the concocted basis that her "performance was serious[ly] lacking." Id. ¶ 13. This occurred despite the fact that on October 5, 2004, she had received a Workforce Champion Award from the Governor's Office of Employee Relations for her work on a project creating a set of quality and safety pharmacy indicators. Id. ¶ 9. A white colleague of Deng's named Tom White received credit for her contributions on the team that won the award, and he was promoted from Research Scientist IV to Research Scientist V shortly afterward. Id. ¶ 13. But not before being assigned to supervise Deng, with whom he shared the same rank. Id. In fact, in spite of Deng's excellent job performance, Finnerty marginalized her by placing Finnerty's name and the name of white employees on Deng's work and allowing the white employees to present the work instead of her. Id. ¶ 10.
Prior to Leckman's fateful arrival in 2006, there were approximately five Research Scientists in EBSIS. Id. ¶ 14. The other four employees were white. Id. Unlike her colleagues, Deng was never given leadership responsibility or the opportunity to publish. Id. Rather, Finnerty reserved desirable opportunities like publishing and attending conferences almost exclusively for white employees. Id. ¶ 15. In addition, Finnerty had a practice of promoting only white employees for reasons that were not job-related. Id.
In 2006, Deng was made to use her vacation or personal leave time with respect to the one-and-a-half days she worked from home due to illness. Id. ¶ 24. Finnerty told her that she would have to use her accrued time because of the OMH policy against working from home, even though Finnerty had not required white employees to do the same. Id. In mid-2007, Leckman, who is white and held the title of Research Scientist II at the time, was promoted over an Asian Research Scientist III named Shao, despite Leckman not having experience related to the job and Shao having a much longer tenure at OMH. Id. ¶ 26. Finnerty mentioned that communicating with Leckman was easier, although English as a first language was not a job-related skill. Id.
In September 2007, Finnerty assigned Deng to the PSYCKES Medicaid project, led by Leckman. Id. ¶ 35. Deng discovered that she was not being provided access to the project data that the team had been using, but rather had been working from a decoy folder created by Leckman for her. Id. Deng's access to the real project folder was blocked for approximately eight months. Id. Finnerty did not take any remedial action upon being informed of Leckman's behavior. Id. After being removed from the PSYCKES Medicaid project, Deng was assigned to the FACT project. Id. ¶ 36. One year into her assignment, Finnerty appointed Leckman as a consultant to the team. Id. In that capacity, Leckman ordered Deng to rerun the yearlong statistical work that had been done for the purpose of allowing Leckman to receive credit for contributing to the group. Id. On one occasion, Leckman told Deng, "I don't like your method, " but did not elaborate on how Deng could improve. Id.
In early 2008, Deng learned that a Research Scientist V position was open. Id. ¶ 27. She approached Finnerty and requested a promotion. Id. Finnerty turned her face to the side, making it apparent that Deng would not receive her support. Id. Finnerty's support was essential for a promotion. Id. In March 2009, Leckman was elevated to Research Scientist V, the most senior position in EBSIS. Id. ¶ 29. She ascended to the job prior to the end of her three-year probationary period, and in spite of the fact that she had been on maternity leave twice in three years. Id. Deng was more qualified than Leckman for the position. Id. ¶ 31.
In June 2010, Finnerty informed Deng that if she wanted to work on the highly coveted Pool State Data project, she must accept Leckman as her supervisor. Id. ¶ 39. Deng explained that she had had a very negative experience working with Leckman. Id. Finnerty indicated that Deng could not refuse a supervisor and added that Deng would be subject to disciplinary action if she attended any project meetings without first submitting to Leckman. Id. Finnerty's intensive emails regarding this matter caused Deng emotional distress. Id.
On July 28, 2010, Deng complained to Assistant Director of Personnel Connelly and an individual named Prochera of being discriminated against for being Chinese American. Id. ¶ 42. She requested a transfer. Id. The following day, Finnerty blocked Deng's access to the OMH email system and servers. Id. Her email access was restored on August 5, 2010. Id. Her server access was restored on November 19, 2010. Id. In the interim, she lost access "to OMH major Oracle databases, most system shared drives, Novell, and Deng's own personal folders. Deng's own personal folders contain the files that were used in connection with Deng's on-going work at OMH." Id. ¶ 56.
On September 24, 2010, Deng accepted Leckman as her supervisor. Id. ¶ 48. In October 2010, Deng received a Notice of Discipline ("NOD") suggesting a four-week suspension without pay for misconduct, including repeated insubordination towards Finnerty, failure to report to Leckman, and failure to follow HR Director Heath's order to meet with Leckman immediately. Id. ¶ 50. Deng denied all wrongdoing. Id. On October 25, 2010, Leckman informed Deng that she was being removed from the Pool State Data project, which caused Deng to cry. Id. ¶ 51. On November 11, 2010, Deng filed a charge of discrimination with the Equal Employment Opportunity Commission. Id. ¶ 53.
Since Deng filed her EEOC charge, she was "subjected to... adverse employment actions in retaliation." Id. ¶ 54. Deng was added to the "Medication Adherence" project in November 2010 after the filing. Id. ¶ 59. Leckman repeatedly ridiculed Deng's performance while simultaneously declining to provide "any explanation or meaningful input on how to improve the product" and preventing Deng from presenting her work to an expert panel for constructive feedback. Id. She even cancelled a meeting with the panel on the false basis that Deng's work was not ready to be presented. Id. Leckman's stated expectation of one to two deliverables each week was objectively unreasonable in light of the demanding nature of the project. Id. Leckman further alienated Deng by prohibiting her membership in the group email listserv for the first four months of her assignment. Id.
Deng was also excluded from EBSIS staff meetings shortly after her complaint to the EEOC, which meant that "she was not privy to any information required to do her job." Id. ¶ 55. And she appears to have been again denied access to OMH servers, such that she emailed Leckman and the IT manager, Phi, requesting the restoration of her access on January 11, 2011. Id. ¶ 56.
On April 28, 2011, Deng was relocated from a quiet office to a loud workstation. Id. ¶ 58. During the summer months, in part due to OMH's failure to repair a broken air conditioner, "the excessive heat and poor ventilation made it difficult to breathe." Id. Meanwhile, there were three vacant offices with functioning air conditioners. Id. Also, the door by Deng's workstation slammed each time it was opened and closed, breaking her concentration. Id. On July 7, 2011, Deng complained to the OMH Diversity Management Division, but there was no reply. Id.
On December 18, 2011, Deng broke her kneecap in an accident. Id. ¶ 84. On or around that date, she attempted to take FMLA leave. See id. ¶ 85. She returned to work on March 23, 2012. Id. ¶ 88. OMH refused to pay Deng for the sick leave she took, deeming it "unauthorized leave without pay." Id. ¶ 90. Deng became sick due to this determination. Id. On April 5, 2012, Finnerty informed Deng of a new Bureau attendance policy requiring Deng to obtain Leckman's approval prior to taking sick leave. Id. ¶ 93. This policy was designed to retaliate against Deng for taking sick leave and to force her to accept Leckman's supervision. Id. The new policy allowed OMH to deduct wages from Deng's paycheck, beginning with an ostensibly unauthorized doctor's appointment on June 1, 2012, for which Deng had attempted to use her paid sick leave. Id. ¶ 107.
Between the filing of Deng's EEOC charge and her suspension without pay on October 4, 2013, Id. ¶¶ 147, 152, she received several notices of interrogation (one of which caused her to collapse), Id. ¶¶ 45, 66; was subjected to multiple interrogations and counseling sessions, Id. ¶¶ 64, 69, 79, 96, 145; and had three NODs and a counseling memorandum placed in her file, which were cited in the arbitration ending in her termination, Id. ¶ 149. Finnerty and Leckman also made surprise visits from Albany to chastise and generally supervise her. Id. ¶¶ 64-65, 71, 78. In addition, Leckman frequently emailed and called Leckman with orders, which caused Deng distress. See, e.g., ¶¶ 39, 63, 79.
Deng's arbitration on May 17, 2013 resulted in a finding that there had not been probable cause to suspend her without pay on October 3, 2012. Id. ¶ 155. OMH was ordered to compensate Deng for her lost salary and benefits. However, the arbitration also resulted in a finding that there was just cause to terminate Deng, which OMH did. Id.
Throughout this timeframe, Deng made periodic complaints to Commissioner Hogan. Beginning on April 21, 2011, Deng complained a total of five times, to no avail. Deng requested that he prevent her relocation to Finnerty's office because Finnerty played a role in the discriminatory acts that were the subject of Deng's then-recently filed complaint with the Equal Employment Opportunity Commission ("EEOC"). Id. ¶ 57. Hogan replied: "It is not wise or practical for me to intervene in employee complaints, particularly where formal grievance processes have already been invoked..." Id. On one of the four remaining occasions, Deng sent Hogan some work product and requested a small grant. Id. ¶ 67. In two other communications - emails sent two hours apart - Deng described being harassed in retaliation for complaining about the discrimination she faced. Id. ¶¶ 79-80. Heath replied to Deng's emails, Id. ¶ 81. Likewise, Heath replied to an email Deng sent the Commissioner requesting a transfer so that she would no longer be under the supervision of Finnerty and Leckman. Id. ¶¶ 95, 98. Notwithstanding his silence, Hogan had actual knowledge of a "[m]istreatment plan" devised by Finnerty, Leckman, Heath, Forte, and Connelly in retaliation for Deng's complaints of discrimination, and through his indifference, tacitly authorized and condoned their behavior. Id. ¶ 63.
STANDARD OF REVIEW
To survive a motion to dismiss, a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The pleading "need not include detailed factual allegations, but must contain sufficient factual matter... to state a claim to relief that is plausible on its face." Corona Realty Holding, LLC v. Town of N. Hempstead, 382 F.App'x 70, 71 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotations omitted). Recital of the elements of a cause of action, "supported by mere conclusory statements, " is insufficient to show plausibility. Id. at 72. And yet "[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted) (internal quotations omitted). Indeed, "the pleadings of a pro se plaintiff... should be interpreted to raise the strongest arguments that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (internal quotations omitted).
I. Section 1983 Claims against OMH
Deng's Section 1983 claims against OMH, a state agency, are dismissed for lack of subject matter jurisdiction. See Gross v. New York, 428 F.App'x 52, 53 (2d Cir. 2011) ("The Eleventh Amendment bars § 1983 claims against states, absent their consent.... New York has waived its immunity from liability and consented to be sued only to the extent that claims are brought in the New York Court of Claims, as opposed to federal court....") (citation omitted).
II. New York State and New York City Human Rights Law Claims
Deng's NYSHRL and NYCHRL claims against OMH also fail. Rumain v. Baruch Coll. of the City Univ. of N. Y., No. 06 Civ. 8256, 2007 U.S. Dist. LEXIS 36964, at *6 (S.D.N.Y. May 17, 2007) ("Plaintiff's proposed claims under the State and City human rights laws are barred by the Eleventh Amendment since New York has not waived its immunity from suit in federal court under those laws.") (citing Richardson v. N.Y.State Dep't of Corr. Servs., 180 F.3d 426, 432, 447-49 (2d Cir. 1999)). Presented with this argument by defendants, Deng abandons her claims against OMH and attempts instead to pin aider and abettor liability onto the individual defendants under NYSHRL § 296(6). Opp'n 24-25. That provision states: "It shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so." N.Y. Exec. Law § 296(6) (McKinney). Aside from being barred for failure of the plaintiff to raise the claim in the Amended Complaint,  Deng's theory is unavailing because a predicate for aider and abettor liability under this provision is employer liability. DeWitt v. Lieberman, 48 F.Supp.2d 280, 293 (S.D.N.Y. 1999).
III. Title VII Claims Against the Individual Defendants
Deng's claims under Title VII against the individual defendants are dismissed. See Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir. 1995) ("the statutory scheme and remedial provisions of Title VII indicate that Congress intended to limit liability to employer-entities").
IV. Personal Involvement of Hogan
"It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Shomo v. City of N.Y., 579 F.3d 176, 184 (2d Cir. 2009). In this context, the common law doctrine of respondeat superior does not apply; that would be too easy. Instead, a defendant's actions must be the proximate cause of the injury described. Walker v. Clemson, No. 11 Civ. 9623, 2012 WL 2335865, at *7 (S.D.N.Y. June 20, 2012), adopted, 2012 WL 3714449 (S.D.N.Y. Aug. 28, 2012). Defendants posit that Hogan, who was OMH Commissioner at the time of the relevant events, lacks the requisite personal involvement in the harm Deng alleges was inflicted upon her. Mot. Dismiss 25-26.
The Second Circuit has stated the rules for establishing a supervisor's personal involvement ...