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Anderson v. City of New York

United States District Court, S.D. New York

July 27, 2017

CITY OF NEW YORK; HEALTH AND HOSPITAL CORPORATION; MIRIAM CARASA, individually and as Chief Operation Officer for Lincoln Hospital; ABDUL MONDUL, individually and as Chief Patient Safety Officer for Lincoln Hospital; DAVID NADAL, individually and as Director of Labor Relations; ATHENA MOTAL, individually and as Executive Director of Social Services; MILLY TORO, individually and as Associate Director of Social Services; NICOLE ROBINSON, individually and as Director of Behavioral Health Department; and MARIA KAZAKI-MAHER, individually and as PASA Program Supervisor, Defendants.


          GEORGE B. DANIELS, United States District Judge

         Plaintiff 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.[1] (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.)

         This 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)[2] recommending that Defendants' Motion to Dismiss be granted with respect to: (i) all counts as to New York City[3]; (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[4]; (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.)[5]

         Though Magistrate Judge Parker advised this Court that certain portions of Plaintiffs remaining claims ought to fail due to various deficiencies[6], 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.

         Magistrate 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.


         This 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.

         When 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).

         Plaintiffs 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.


         Plaintiff 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).

         Title 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).

         Plaintiff 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 time-barred.

         In his 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') ...

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