United States District Court, S.D. New York
MEMORANDUM DECISION AND ORDER
B. DANIELS, United States District Judge
Alexander Anderson, an employee of Lincoln Hospital, filed
this action against Defendants the City of New York, the New
York City Health and Hospital Corporation ("HHC"),
Miriam Carasa, Abdul Mondul, David Nadal, Athena Motal, Milly
Toro, Nicole Robinson, and Maria Kazaki-Maher, claiming that
Defendants discriminated against him, subjected him to a
hostile work environment, and retaliated against him, in
violation of the Age Discrimination in Employment Act of
1967, 29 U.S.C. §§ 621 et seq.; Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq. ("Title VII"); 42 U.S.C. §
1981; 42 U.S.C. § 1983 ("Section 1983"); the
New York City Human Rights Law, New York City Admin. Code
§§ 8-101 et seq. ("NYCHRL"); and
Article I, §§ 6, 8, and 11 of the New York
Constitution. (First Am. Compl. ("FAC"), ECF
No. 35.) Defendants moved to dismiss the FAC pursuant to
Rules 4(m) and 12(b)(4), (5), and (6) of the Federal Rules of
Civil Procedure. (Defs.' Mot. Dismiss ("Mot"),
ECF Nos. 40-42.)
matter was referred to Magistrate Judge Katharine H. Parker
on March 2, 2016. (ECF No. 3.) Before this Court is
Magistrate Judge Parker's Report and Recommendation
("Report, " ECF No. 48) recommending that
Defendants' Motion to Dismiss be granted with respect to:
(i) all counts as to New York City; (ii) Counts 5, 6, 7, 8, 10,
11, 12, and 13 as to all Defendants; (iii) Count 9 as to HHC,
and Individual Defendants Nadal, Kazaki-Maher, and
Toro; (iv) Count 18 as to all Defendants except
HHC; and (v) Plaintiffs claims for punitive damages as to
HHC. (Report at 53-54.) The Report further recommends that
Plaintiffs request for additional time to serve Defendant
Kazaki-Maher be granted. (Id.)
Magistrate Judge Parker advised this Court that certain
portions of Plaintiffs remaining claims ought to fail due to
various deficiencies, the Report does not recommend dismissing
those remaining claims in their entirety. Although
those remaining claims will not be completely dismissed
per se, because this Court adopts the Report's
recommendations in full, the deficient portions of those
remaining claims are not to be further litigated.
Judge Parker advised the parties that failure to file timely
objections to the Report would constitute a waiver of those
objections on appeal. (Id. at 54); see also
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Plaintiff
filed objections to that part of the Report which found that
some of Plaintiff s claims were time-barred. (Pl.'s Objs.
to Report ("Pl.'s Objs."), ECF No. 49.)
Defendants filed a response. (Defs.' Resp. to Pl.'s
Obj. ("Defs.' Resp."), ECF No. 52.) Plaintiff
also filed a letter in reply to Defendants' Response.
("Pl.'s Reply Letter"), ECF No. 54.) This Court
overrules Plaintiffs Objections and adopts the Report's
recommendations in full.
court may accept, reject, or modify, in whole or in part, the
findings and recommendations set forth within the Report.
See 28 U.S.C. § 636(b)(1)(C). The district
judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions. See
Id.; Fed. R. Civ. P. 72(b). When no objections to a
Report are made, the Court may adopt the Report if
"there is no clear error on the face of the
record." Adee Motor Cars, LLC v.
Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y. 2005) (internal
citation omitted). There is no clear error on the face of the
record as to those portions of the Report to which no
objections were made.
there are objections to the Report, this Court must make a
de novo determination as to the objected-to portions
of the Report. 28 U.S.C. § 636(b)(1)(C); see also
Rivera v. Barnhart, 423 F.Supp.2d 271, 273 (S.D.N.Y.
2006). The Court need not conduct a de novo hearing
on the matter. See United States v. Raddatz, 447
U.S. 667, 675-76 (1980). Rather, it is sufficient that the
Court "arrive at its own, independent conclusion"
regarding those portions of the Report to which objections
were made. Nelson v. Smith, 618 F.Supp. 1186,
1189-90 (S.D.N.Y. 1985) (internal citation omitted). If a
party's objection reiterates a prior argument, or
consists entirely of conclusory or general arguments, the
Court should review the Report for clear error. See
McDonaugh v. Astrue, 672 F.Supp.2d 542, 547 (S.D.N.Y.
2009); DiPilato v. 7-Eleven, Inc., 662 F.Supp.2d
333, 339-40 (S.D.N.Y. 2009).
only objections are to Magistrate Judge Parker's
determination that the statute of limitations bars any Title
VII claims based on acts occurring before February 13, 2014.
(Pl.'s Objs. at 1.) Based on newly submitted evidence,
Plaintiff argues that the statute of limitations instead bars
only claims based on acts that occurred before November 19,
2013. (Id.) This Court considered the issues raised
in Plaintiffs Objections and reviewed de novo the
objected-to portions of the Report.
TITLE VII STATUTE OF LIMITATIONS
alleges that, in violation of Title VII, he applied for and
was denied positions within Lincoln Hospital on four separate
occasions: (1) on December 13, 2013, when Defendant
Kazaki-Maher was appointed as the PASA Program Supervisor, a
position that was recently vacated and in which Plaintiff
expressed interest (FAC ¶¶ 103-09); (2) in March
2014, when Defendants Motal and Robinson hired Jessica
Erickson as the MCU Social Worker Supervisor Level III, a
position for which Plaintiff interviewed (FAC ¶¶
134-38); (3) in June 2014, when Defendant Motal hired liana
Holowitz for the MICA Addiction Counselor Supervisor Level
III, a position for which Plaintiff interviewed (FAC
¶¶ 170-74); and (4) in March 2015, when Defendant
Robinson hired Enid Jones-Burton as the MICA Addiction
Counselor Supervisor, a position in which Plaintiff expressed
interest (FAC ¶¶ 225-27).
VII's statute of limitations bars claims based on events
occurring more than 300 days before filing a charge of
discrimination with the Equal Employment Opportunity
Commission ("EEOC"). Riddle v. Citigroup,
499 F.App'x 66, 69 (2d Cir. 2011) (citing 42 U.S.C.
§§ 2000e-5(e)(1), (f)(1) (Litle VII)). "[A]
private plaintiff must first file a timely charge with the
EEOC . . . [a]s a predicate to filing suit under [Title
VII]." Id. Lhe filing of an EEOC Intake
Questionnaire ("Questionnaire") may constitute a
charge for the purposes of bringing a Title VII claim, but
only if it is "reasonably construed as a request for the
agency to take remedial action to protect the employee's
rights or otherwise settle a dispute between the employer and
the employee." Fed. Express Corp. v. Holowecki,
552 U.S. 389, 402 (2008).
filed a Questionnaire with the EEOC on September 15, 2014.
(See Pl.'s Objs., Ex. A.) Plaintiff thereafter
filed a formal charge of discrimination with the EEOC on
December 10, 2014 (see Decl. Garrett Kamen Supp.
Defs.' Mot. Dismiss ("Kamen Decl."), Ex. B, ECF
No. 42-2) and then an amended charge on February 26, 2015
(see Kamen Decl., Ex. C, ECF No. 42-3), asserting
race and sex discrimination and retaliation. Plaintiff argues
that the date from which the statute of limitations should be
calculated is September 15, 2014-when he filed the
Questionnaire-allowing him to bring claims based on acts
occurring on or after November 19, 2013. (Pl.'s Opp'n
Defs.' Mot. Dismiss ("Pl.'s Opp'n"),
ECF No. 46, at 6.) Were this the case, none of the four
occasions on which Plaintiff was allegedly denied a promotion
would be time-barred. While Plaintiff referred to the
Questionnaire as being attached to his Complaint as Exhibit K
(id.), Defendants correctly noted that no such
document was attached to the Complaint or any other of
Plaintiff s filings. (Defs.' Reply Pl.'s Opp'n
Mot. Dismiss ("Defs.' Reply"), ECF No. 47, at
2.) Having not seen the Questionnaire, Magistrate Judge
Parker recommended that "the statute of limitations
period for Plaintiffs Title VII claims should be calculated
from the date of the EEOC charge filed on December 10, 2014[,
]" barring all Title VII claims based on acts occurring
before February 13, 2014. (Id. at 46-47.) Plaintiffs
Title VII claim based on Defendants' alleged failure to
promote him on December 13, 2013 would therefore be
Objections to the Report, Plaintiff finally provided this
Court with the Questionnaire. (Pl.'s Objs., Ex. A, ECF
No. 49-1.) While this Court may consider further evidence
raised in objections to a Report (see Fed. R. Civ.
P. 72(b); 28 U.S.C. § 636(b)(1)(C)), Defendants
correctly argue that "courts generally do not consider
new evidence raised in objections to a magistrate judge's
report and recommendation absent a compelling justification
for failure to present such evidence to the magistrate
judge." (Defs.' Resp. at 3 (citing Azkour v.
Little Rest Twelve, Inc., No. 10 Civ. 4132, 2012 U.S.
Dist. LEXIS 42210, at *10 (S.D.N.Y. Mar. 27, 2012)) (internal
quotations and citations omitted).) Plaintiff explained his
failure to provide Magistrate Judge Parker with the
Questionnaire only as a "mistake." (Pl.'s Objs.
at 2.) This does not constitute a "compelling
justification." See, e.g., Berbick v. Precinct
42,977 F.Supp.2d 268, 274 (S.D.N.Y. 2013) (holding that
"Defendants' (or their attorneys') ...