United States District Court, W.D. New York
DECISION AND ORDER
Elizabeth A. Wolford United States District Judge
Saurin Popat, M.D. ("Plaintiff) brings various claims
arising out of his employment against five defendants:
(1)Elad Levy, M.D. ("Dr. Levy"); (2) The State
University of New York at Buffalo (the
"University"); (3) University at Buffalo School of
Medicine and Biomedical Sciences ("Medical
School"); (4) Kaleida Health ("Kaleida"); and
(5) University at Buffalo Neurosurgery, Inc.
("UBNS") (collectively, "Defendants").
(Dkt. 21 at 1). Plaintiff alleges violations of Title VII of
the Civil Rights Act of 1964 ("Title VII"), 42
U.S.C. §§ 2000e, et seq., 42 U.S.C.
§§ 1981 and 1983, the New York State Human Rights
Law, New York Executive Law §§ 290, et
seq. ("NYSHRL"), the United States
Constitution, the New York State Constitution, and New York
State common law. (Id. at ¶ 1). He raises six
claims: (1) race and national origin discrimination and
hostile work environment under Title VII; (2) retaliation
under Title VII; (3) discrimination and retaliation under
NYSHRL; (4) discrimination and retaliation under § 1981;
(5) discrimination and retaliation under § 1983; and (6)
tortious interference. (Id. at 9-15).
before the Court is UBNS and Dr. Levy's motion to dismiss
all of Plaintiffs claims, except those arising under §
1981, pursuant to Federal Rule of Civil Procedure
12(b)(6). (Dkt. 32). For the reasons set forth
below, the motion to dismiss is granted in part and denied in
following facts are taken from the amended complaint and
assumed to be true for purposes of this motion.
University controls and operates the Medical School and the
University at Buffalo Neurosurgery Group ("UBNG").
(Dkt. 21 at ¶ 11). The UBNG is "an academic
neurosurgical group comprised of physicians and other
healthcare employees who are part of the University's
'UBMD Physicians Group, ' which boasts more than 500
doctors . . . practicing medicine and teaching medical
students and residents at [the University at Buffalo]'s
Medical School and in area hospitals, including Kaleida
facilities." (Id.). The UBMD Physicians Group,
also known as UBMD, Inc., "provides marketing services
to other physician practice groups associated with the
University, including [UBNS]." (Id. at ¶
12). "UBNS is a New York not-for-profit corporation
associated with the University, providing academic support
and is a clinician care component for the University."
(Id. at ¶ 13). Like UBNG, UBNS is part of the
UBMD Physicians Group. (Id. at ¶ 15). Kaleida
"is a large healthcare provider in Western New
York" that "operates several hospitals and surgical
facilities." (Id. at ¶ 14). Kaleida's
neurosurgeons are all from the University, and Kaleida
publicly identifies Plaintiff as '"a Kaleida Health
physician.'" (Id.). Together, "[t]he
University, UBNS, and Kaleida, in addition to being direct
employers of Plaintiff, are also joint-employers of Plaintiff
. . . [and] have: (i) an interrelation of operations; (ii)
centralized control of labor relations; (iii) common
management; and (iv) common ownership or financial
control." (Id. at ¶ 16).
Levy is "a Caucasian individual . . . employed by the
University, UBNS, and Kaleida." (Id. at ¶
15). He is a University professor, a physician with UBNG and
UBNS, Chief of Neurosurgery at Kaleida, and Co-Director of
Kaleida Health Stroke Center and Cerebrovascular surgery.
is of African and Southeast Asian origin and a doctor
currently employed by the Delaware Medical Group, P.C., as
its Director of Head and Neck/Skull Base Surgery.
(Id. at ¶¶ 18-19). He was previously
employed by the University as a faculty member in the
Departments of Neurosurgery and Otolaryngology at the Medical
School. (Id. at ¶ 20). The University
compensated him and had the power to terminate his
employment. (Id. at ¶¶ 21-22). He was
"also considered an employee of Kaleida"
(id. at ¶ 23), because he oversaw procedures of
medical students and residents in Kaleida surgical
facilities, and Kaleida gave him certain privileges and
asserted direction and control over his work performance
(id. at ¶¶ 22-24).
alleges that the University, UBNS, and Kaleida allowed Dr.
Levy "to engage in severe and pervasive discrimination
against women and people of color, " and "to
retaliate against Plaintiff for having complained of these
wrongful acts." (Id. at ¶ 26). He also
alleges that those defendants "interfered with his
employment with the University, Kaleida, and Delaware Medical
Group." (Id.). Plaintiff further alleges that
"Dr. Levy engaged in severe and pervasive harassment
toward Plaintiff due to his race and national origin, and he
has otherwise created a hostile work environment for
dark-skinned employees." (Id. at ¶ 27).
alleges two incidents in which Dr. Levy made inappropriate
comments about race or national origin. First, Dr. Levy
referred or allowed other individuals "to refer to UBNS
as 'BUNS, ' an acronym for 'Brown University
Neurosurgery' because of the prevalence of physicians of
color in that department." (Id. at ¶ 28).
Second, on July 22, 2014, Dr. Levy "stated that he felt
like he was at a 'UPS convention'" during an
operation in which Plaintiff, Dr. Levy, and others
participated. (Id. at ¶¶ 29-31). Plaintiff
Dr. Levy was asked to repeat himself and he did so by
stating, "A UPS convention. Do you know what the UPS
slogan is?" He specifically turned to Plaintiff and
directly asked, "Do you know?" to which Plaintiff
replied that he did not. Next, Dr. Levy stated, "What
can Brown do for you?" There were eight people,
including Plaintiff, in the operating room that had brown
skin tones and were of African-American, South-East Asian, or
Middle Eastern descent or origin.
(Id. at ¶¶ 32-34).
August 14, 2014, Plaintiff complained, by letter, about Dr.
Levy to Dr. Michael E. Cain, Dean of the Medical School, and
Jody Lomeo, CEO of Kaleida, and requested an investigation of
Dr. Levy's discrimination based on the comments and his
"other abusive and harassing conduct that . . .
creat[ed] the hostile work environment." (Id.
at ¶¶ 37-38). Plaintiff alleges that Dean Cain (or
his representative) released Plaintiffs letter to Dr. Levy on
or before August 19, 2014, despite the University's
policy of confidentiality in such matters. (Id. at
¶ 39). Ten days later, on August 29, 2014, Dr. Levy
terminated Plaintiffs faculty position. (Id. at
alleges that Kaleida failed to investigate Dr. Levy, and that
the University, "[d]espite . . . issuing a report that
strongly suggests that Plaintiffs complaints are accurate and
that Dr. Levy committed wrongful acts, " has not taken
"definitive action" about the complaint, other than
to require Dr. Levy to participate in anti-discrimination
training. (Id. at ¶ 40).
further alleges that, as retaliation for complaining about
Dr. Levy, Defendants each "have interfered with the
employment relationship between Plaintiff and Delaware
Medical Group"-his current employer-by, inter
alia, ceasing referrals to Plaintiff or the Delaware
Medical Group, and also by conspiring to interfere with his
employment. (Id. at ¶ 42).
also alleges that, for several years, he had been building a
specialized, shared practice-called the "Specialty
Practice Group"-with employees of the University, UBNS,
and Kaleida. (Id. at ¶ 43). According to
Plaintiff, "the University, Kaleida, UBNS, and Dr. Levy
... are unlawfully and improperly exerting pressure on the
other doctors in their employ and under their control to
retaliate against and punish Plaintiff for having made
complaints about Dr. Levy and to interfere with his
employment relationship with the Delaware Medical
Group." (Id. at ¶ 44). Plaintiff contends
that Defendants, inter alia, "acted with a
discriminatory animus toward [him] and retaliated against him
for complaining of the discrimination and hostile work
environment by interfering with his employment with Delaware
Medical Group and interfering with his economic advantage and
contracts with other doctors employed and/or controlled by
"filed a timely charge of discrimination against
Defendants" with the Equal Employment Opportunity
Commission ("EEOC"). (Id. at ¶ 7).
Plaintiffs amended complaint does not specify the respondents
named in the EEOC charge, nor is the identity of the
respondents apparent from two right-to-sue letters that are
attached to the amended complaint. (Id. at 18-19).
Those right-to-sue letters were dated September 16, 2015.
commenced this action on December 15, 2015, by filing a
complaint. (Dkt. 1). On March 15, 2016, Plaintiff filed his
amended complaint, which became the operative pleading in
this case. (Dkt. 21). On April 15, 2016, UBNS and Dr. Levy
moved to dismiss the amended complaint. (Dkt. 32). A motion
hearing was held before the undersigned on October 28, 2016,
at which time the Court requested additional briefing from
both parties and reserved decision. (Dkt. 38). The parties
submitted additional briefing on November 14 and 15, 2016.
(Dkt. 39; Dkt. 40; Dkt. 41).
Standard under Rule 12(b)(6)
survive a motion to dismiss, a complaint 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim has facial plausibility when "the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. Generally, the
Court must accept as true all of the allegations contained in
the complaint. See Id. That rule does not apply to
legal conclusions, however: "threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements ... are not entitled to the assumption of
truth." Id.; see also Twombly, 555 U.S. at 555
(stating that a court is "not bound to accept as true a
legal conclusion couched as a factual allegation").
plausibility standard "asks for more than a sheer
possibility that a defendant has acted unlawfully."
Iqbal, 556 U.S. at 678. "Where a complaint
pleads facts that are 'merely consistent with' a
defendant's liability, it 'stops short of the line
between possibility and plausibility of 'entitlement to
relief.'" Id. (quoting Twombly,
550 U.S. at 557). "Determining whether a complaint
states a plausible claim for relief [is] ... a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense."
Id. at 679. Plausibility is "a standard lower
than probability." Anderson News, L.L.C. v. Am.
Media, Inc., 680 F.3d 162, 184 (2d Cir. 2012). "[A]
given set of actions may well be subject to diverging
interpretations, each of which is plausible, " and
"[t]he choice between or among plausible inferences or
scenarios is one for the factfinder." Id. A
court "may not properly dismiss a complaint that states
a plausible version of the events merely because the court
finds that a different version is more plausible."
Id. at 185.
Title VII Claims (First and Second Claims for
first and second claims are for race and national origin
discrimination, hostile work environment, and retaliation in
violation of Title VII. (Dkt. 21 at 9-10). UBNS and Dr. Levy
seek to dismiss these claims, arguing that Dr. Levy cannot be
held liable under Title VII as an individual, that Plaintiff
failed to exhaust his administrative remedies against UBNS,
and that UBNS is not Plaintiffs employer for purposes of
Title VII. (Dkt. 32-3 at 7-12).
Individual Liability of Dr. Levy
concedes that he cannot hold Dr. Levy individually liable
under Title VII. (Dkt. 35 at 14 n.3). Accordingly, the Court
dismisses all of Plaintiff s Title VII claims asserted
against Dr. Levy individually. See, e.g., Lore v. City of
Syracuse, 670 F.3d 127, 169 (2d Cir. 2012) ("Title
VII does not impose liability on individuals....").
Plaintiffs Failure to Name UBNS in EEOC Charge
argues that Plaintiffs Title VII claims against it should be
dismissed because Plaintiff did not name UBNS in any charge
filed with the EEOC or complaint filed with the New York
State Division of Human Rights, and so he failed to exhaust
administrate remedies. (Dkt. 32-3 at 9-12). Plaintiff argues
that the "identity of interest" exception to the
naming requirement applies and allows him to proceed against