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Popat v. Levy

United States District Court, W.D. New York

May 19, 2017

SAURIN POPAT, M.D., Plaintiff,
v.
ELAD LEVY, M.D., et al., Defendants.

          DECISION AND ORDER

          Elizabeth A. Wolford United States District Judge

         INTRODUCTION

         Plaintiff 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).

         Presently 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).[1] (Dkt. 32). For the reasons set forth below, the motion to dismiss is granted in part and denied in part.

         BACKGROUND

         The following facts are taken from the amended complaint and assumed to be true for purposes of this motion.

         I. Factual Background

         The 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."[2] (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).

         Dr. 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. (Id.).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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 further alleged:

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).

         On 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 ¶ 36).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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 Defendants." (Id.).

         II. Procedural History

         Plaintiff "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. (Id.).

         Plaintiff 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).

         DISCUSSION

         I. Standard under Rule 12(b)(6)

         "To 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").

         The 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.

         II. Title VII Claims (First and Second Claims for Relief)

         Plaintiffs 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).

         A. Individual Liability of Dr. Levy

         Plaintiff 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....").

         B. Plaintiffs Failure to Name UBNS in EEOC Charge

         UBNS 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 ...


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