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Doran v. New York State Department of Health Office of the Medicaid Inspector General

United States District Court, S.D. New York

March 2, 2017

ROBERT DORAN, MARIA BAEZ, ALEXANDER SHAPOROV, and BERNARD LINN, Plaintiffs,
v.
NEW YORK STATE DEPARTMENT OF HEALTH OFFICE OF THE MEDICAID INSPECTOR GENERAL, DENNIS ROSEN, JAMES C. COX, DAN COYNE, ANNA COSCHIGNANO, SHERRI TOMPKINS, ROBERT BYRNES, RUSSELL S. RIZZO, MATHEW CHIESA, CHRISTOPHER BEDELL, and JOHN and JANE DOES 1-5 (said names being fictitious, the persons intended being those who aided and abetted the unlawful conduct of the named Defendants), Defendants.

          MEMORANDUM AND ORDER

          P. Kevin Castel United States District Judge

         Plaintiffs Robert Doran, Maria Baez, Alexader Shaporov, and Bernard Linn bring this action for employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”), the Civil Rights Act of 1871, 42 U.S.C. § 1983, N.Y. Exec. L. § 290 et seq. (“NYSHRL”), and the New York City Human Rights Law, N.Y. City Admin. Code § 8-101 et seq. (“NYCHRL”). Plaintiffs allege that defendants the Office of the Medicaid Inspector General (“OMIG”), Dennis Rosen, Anna Coschignano, Robert Byrnes, Daniel Coyne, James Cox, Sherri Tompkins, Mathew Chiesa, Russell Rizzo, and Christopher Bedell discriminated against plaintiffs based on their race, sex, national origin, and age, retaliated against plaintiffs for complaining about this discrimination, and created a hostile work environment. Defendants have moved to dismiss the Second Amended Complaint (“SAC”) pursuant to Rules 12(b)(1), 12(b)(2), 12(b)(5), and 12(b)(6), Fed. R. Civ. P., for lack of subject matter jurisdiction, lack of personal jurisdiction, insufficient service of process, and failure to state a claim upon which relief can be granted.

         BACKGROUND

         Plaintiffs are individuals of various ages, races, sexes, and national origins who are currently employed at OMIG, located within the New York State Department of Health. Plaintiffs are stationed in OMIG's New York City office and work as Medicaid Investigators and Management Specialists, who perform and supervise Medicaid fraud investigations as well as manage Medicaid and Medicaid fraud cases. (SAC ¶ 9-10.) Medicaid Investigators range from Levels 1-5, with Level 1 being the lowest position, Level 5 being a director level position, and the levels in between progressively increasing in the amount of supervisory responsibility they entail and the complexity of the cases to which they are assigned. (SAC ¶ 14-18.) Management Specialists review Medicaid participant applications. (SAC ¶ 19.)

         I. Plaintiffs.

         Plaintiff Robert Doran is a 59 year old white-Caucasian man of non-Italian ancestry. (SAC ¶ 21.) He has an undergraduate degree in accounting and management and is a graduate of the Criminal Investigator School and Internal Revenue Service (“IRS”) Special Agent School at the Federal Law Enforcement Training Center in Glynco, Georgia. (SAC ¶ 22.) Doran has over thirty years of experience working for federal and state agencies, including OMIG, the IRS, and the New York State Department of Labor. (SAC ¶ 23.) Before joining OMIG, Doran was a Senior Special Agent with the IRS Criminal Investigation Division. (SAC ¶ 24.) Doran has been continuously employed in the Fraud Investigations Unit of OMIG since February 5, 2009. (SAC ¶ 26.) He is currently a Level 2 Medicaid Investigator (MI-2), and has been for over 6 years. (SAC ¶ 28.)

         Plaintiff Maria Baez is a 42 year old Hispanic woman. (SAC ¶ 30.) She holds an undergraduate degree in Criminal Justice. (SAC ¶ 33.) Baez has worked for state and other public agencies, such as the Bureau of Fraud Investigation of the City of New York's Human Resources Administration, where she worked as a Welfare Fraud Investigator. (SAC ¶ 34-35.) Since August 18, 2008, Baez has been continuously employed by OMIG as an MI-2 in the Fraud Investigations Unit. (SAC ¶ 36.)

         Plaintiff Alexander Shaporov is a white-Caucasian man of Russian ancestry who was born in Russia and immigrated to the U.S. when he was 13 years old. (SAC ¶ 38-39.) He has an undergraduate degree in Criminal Justice and a Masters of Public Administration in Forensic Investigations and Auditing and a Certificate in Pharmaceutical and Medical Device Law Compliance. (SAC ¶ 41.) He is certified as a Fraud Examiner by the Association of Certified Fraud Examiners. (SAC ¶ 41.) Since February 5, 2009 Shaporov has been continuously employed by OMIG. (SAC ¶ 42.) Shaporov is currently an MI-2, and has been since 2014. (SAC ¶ 43.)

         Plaintiff Bernard Linn is a 63 year old white-Caucasian man of Jewish heritage and ancestry. (SAC ¶ 45.) Linn has an undergraduate degree in Political Science and a Master's Degree in Accounting. (SAC ¶ 46.) Linn has been continuously employed in the Fraud Investigation Unit in OMIG since March 30, 1978. (SAC ¶ 48.) Linn has been an MI-2 since 2006. (SAC ¶ 49.)

         II. Defendants.

         Defendant OMIG is an agency of the State of New York and an independent entity created within the New York State Department of Health to protect the Medicaid program by conducting fraud, waste, and abuse of control activities for all state agencies responsible for services that Medicaid funds. (SAC ¶ 51.)

         Defendant Dennis Rosen is the current Inspector General of OMIG, and has been since around January 2015. (SAC ¶ 52.) Plaintiff alleges that Rosen has appointing authority and final authority for policy-making and personnel decisions at OMIG. (SAC ¶ 53.)

         Defendant Coschignano is a white-Caucasian woman. (SAC ¶ 55.) Coschignano worked at OMIG from April 2012 until November 2014. (SAC ¶ 59.) She was at all relevant times the Deputy Medicaid Inspector General (“DMIG”) of OMIG. (SAC ¶ 56.) Plaintiff alleges that Coschignano had final authority for personnel decisions. (SAC ¶ 58.)

         Defendant Robert Byrnes is a white-Caucasian man. (SAC ¶ 60.) During the relevant time period Byrnes was a MI-4, then a MI-5, and served as the Assistant Medicaid Investigator in Charge for the New York office. (SAC ¶ 61.)

         Defendant Daniel Coyne is a white-Caucasian man. (SAC ¶ 63.) During the relevant time period Coyne was the Assistant Medicaid Inspector General for Investigations and the acting DMIG stationed in the New York City office. (SAC ¶ 64.) In November 2014 Coyne became acting DMIG after Coschingano resigned. (SAC ¶ 66.) Plaintiff alleges that Coyne had final authority for personnel decisions. (SAC ¶ 67.)

         Defendant James Cox is a white-Caucasian man. (SAC ¶ 68.) Cox was the acting Medicaid Inspector General of OMIG from 2011 until his resignation in November 2014. (SAC ¶¶ 70, 72.) Plaintiff alleges that Cox had final authority for personnel decisions at OMIG. (SAC ¶ 73.)

         Defendant Sherri Tompkins is a white-Caucasian woman. (SAC ¶ 74.) Tompkins was an Associate Personnel Administrator of OMIG during the relevant time period. (SAC ¶ 75.)

         Defendant Mathew Chiesa is a white-Caucasian man who during the relevant time period was an Associate Personnel Administrator of OMIG. (SAC ¶¶ 77-78.)

         Defendant Russell Rizzo is a white-Caucasian man of Italian ancestry and has been a MI-4 at the New York City office of OMIG since April 2014. (SAC ¶¶ 80-82.) Beginning in April 2014, Rizzo supervised plaintiffs. (SAC ¶ 83.)

         Defendant Christopher Bedell is a 34 year old white non-Jewish man. (SAC ¶ 85, 114, 267.) Bedell was an MI-2 who was promoted to MI-3 in June 2013. (SAC ¶ 86.)

         Defendant Rosen is sued in his official capacity for injunctive relief. (SAC ¶ 54.) All other individual defendants are sued in both their official and individual capacities. (SAC ¶¶ 57, 62, 65, 71, 76, 79, 84, 87.)

         Plaintiffs allege that during the relevant time period all of the individual defendants were “responsible for developing, implementing and enforcing personnel policies and procedures affecting the terms and conditions of employment of employees within OMIG, including Plaintiffs.” (SAC ¶ 88.)

         III. Challenged Promotions.

         On September 11, 2012, Bedell was promoted to MI-2 (“September 2012 MI-2 Position”). (SAC ¶ 103). The SAC alleges that when Bedell applied he was not qualified due to his lack of the requisite criminal or welfare fraud investigatory experience. (SAC ¶ 104.) The job requirements for this position were modified by Coschignano in order to allow Bedell to qualify for the position by removing the requirement of two years of supervisory experience with the involvement and knowledge of Tompkins, Chiesa, and Cox. (SAC ¶ 103). Further, Coschignano, with the participation of Tompkins and Chiesa, removed the Certified Fraud Examiner Certification requirement for the position. (SAC ¶ 111.) Bedell, with Coschignano's knowledge, misrepresented his criminal and welfare fraud investigative experience on his resume. (SAC ¶ 105.) No vacancy notice was posted for the position and no interviews were conducted. (SAC ¶ 313.) Bedell was promoted after less than 2 years as an MI-1, a position he obtained with no prior Medicaid fraud or criminal investigatory experience. (SAC ¶ 114.) Shaporov was more qualified for the position than Bedell. (SAC ¶ 314.)

         On September 11, 2012, Eunice Green, an African-American woman over forty years of age was promoted to MI-3 (“September 2012 MI-3 Position”). (SAC ¶ 100.) Coschignano, with the participation of Tompkins and Chiesa, removed the Certified Fraud Examiner Certification requirement for the position. (SAC ¶ 111.) Green was promoted without the posting of a vacancy notice or the conducting of any interviews. (SAC ¶ 163.) The promotion of Green was made and announced by Coschignano, with the active participation of all other defendants besides Rizzo. (SAC ¶ 164.) Baez, Doran, and Shaporov were all more qualified for the position. (SAC ¶¶ 161, 224, 336.)

         On January 9, 2013, Anthony Canade, a white man of Italian ancestry, was promoted to MI-3 (“January 2013 MI-3 Position”). (SAC ¶ 100.) Canade lacked the required qualifications for the position. (SAC ¶ 168.) Canade was promoted without the posting of a vacancy notice or the conducting of any interviews. (SAC ¶¶ 169, 227.) Canade is younger than Linn and not Jewish. (SAC ¶ 264.) Plaintiffs were all more qualified for the position. (SAC ¶¶ 167, 228, 264, 336.)

         On June 24, 2013, Bedell was promoted to MI-3 (“June 2013 MI-3 Position”). (SAC ¶ 100.) Bedell, who was previously promoted to MI-2 in September 2012, was allowed to complete his probationary period as an MI-2 early in order to apply for the MI-3 position. (SAC ¶ 114.) Bedell's interview questionnaire was scored differently than the plaintiffs who applied, for example, by receiving partial points on certain questions where plaintiffs were unable to obtain partial points. (SAC ¶¶ 115-118, 178.) Doran and Linn applied for the position, and Shaporov either applied or was prevented from applying. (SAC ¶¶ 172, 266, 336.) All three were denied the promotion despite being more qualified than Bedell. (SAC ¶¶ 173-74, 267, 336.)

         On April 10, 2014, Lisa Gerardi, a white woman of Italian ancestry, was hired as an MI-3 (“April 2014 MI-3 Position”). (SAC ¶ 100.) Gerardi's selection was made and announced by Tompkins with the participation of all other defendants except Rizzo. (SAC ¶ 190.) The interview questionnaires that were used to score candidates were modified, such that a different set of questions was used for plaintiffs as was used for candidates not previously employed at OMIG, such as Gerardi. (SAC ¶¶ 108-10, 189.) OMIG employees were restricted to answering questions about their experience at OMIG, while Gerardi had separate questions. (SAC ¶ 272.) Gerardi is younger than Doran, (SAC ¶ 188), and Linn, and not Jewish, (SAC ¶ 271). Plaintiffs were all qualified for the position, and either applied for the position or were prevented from applying. (SAC ¶¶ 188, 236, 269, 336.)

         On April 28, 2014, Rizzo, a non-Jewish man of Italian ancestry (SAC ¶¶ 195, 285) was hired as an MI-4 (“April 2014 MI-4 Position”). (SAC ¶ 100.) Coschignano selected Rizzo with the help of Tompkins. (SAC ¶ 196.) No outside job announcement for the position was made. (SAC ¶ 198.) The interview questionnaires that were used to score candidates were modified, such that a different set of questions was used for defendants as was used for candidates not previously employed at OMIG, such as Rizzo. (SAC ¶¶ 108-10.) Rizzo had no experience as an auditor, accountant, or financial investigator, no experience with New York State Medicaid laws and regulations, and no accounting degree. (SAC ¶ 197.) Doran and Linn were more qualified for the position and applied but were rejected. (SAC ¶¶ 193-94, 284-85.) Shaporov was well qualified for the position and was either denied the position or prevented from applying. (SAC ¶ 336.)

         On September 25, 2014, Thomas Cheriyan, an Indian-American man, was promoted to acting MI-3 (“September 2014 MI-3 Position”). (SAC ¶¶ 100, 210.) Coschignano made and announced the temporary promotion of Cheriyan with the active participation of all other defendants. (SAC ¶ 211.) The promotion was made without a job vacancy posting (SAC ¶ 212.) Lacking the required investigatory experience, Cheriyan was unqualified for this promotion. (SAC ¶ 150.) Plaintiffs were all more qualified for the position. (SAC ¶¶ 212, 241, 336.)

         In January 2016, Cheriyan was selected for a permanent MI-3 position (“January 2016 MI-3 Position”). (SAC ¶ 216.) Baez, Doran, and Shaporov had previously applied for this position and were interviewed on October 1, 2015. (SAC ¶¶ 214-15.)

         On February 27, 2014, Eugene Greco, a white man of non-Jewish heritage or ancestry, was promoted to the position of Principal Medical Facilities Auditor. (SAC ¶ 100.) Coschignano and Cox selected Greco, with the active participation of some or all of the defendants. (SAC ¶ 278.) Greco had been at OMIG for six years and lacked a graduate degree in accounting. (SAC ¶¶ 279-80.) He was much younger than 61. (SAC ¶ 281.) Linn applied and was interviewed for the position, and was more qualified than Greco. (SAC ¶¶ 275, 277.)

         In 2015, Mark Kelly, a non-Jewish white-Caucasian man was promoted to DMIG. (SAC ¶ 100.) Linn was qualified for the position, applied, and was rejected. (SAC ¶ 291.) Kelly is younger than Linn and less qualified. (Id.)

         IV. Other Discriminatory and ...


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