United States District Court, E.D. New York
DECISION & ORDER
WILLIAM F. KUNTZ, II, United States District Judge.
Ogbaegbe ("Plaintiff) originally filed this action
against New York City Health and Hospitals Corporation
("HHC"), Kings County Hospital Center
("KCHC"), and Sodexo, Inc. ("Sodexo")
(collectively, "Defendants") in Supreme Court of
the State of New York, County of Kings, alleging, inter
alia, claims of unlawful discrimination, retaliation,
and hostile work environment on the basis of his national
origin and gender in the course of his employment. In March
2016, Plaintiff filed an amended complaint which included,
for the first time, a federal claim arising under 42 U.S.C.
§ 1981 against defendant Sodexo. On April 18, 2016,
defendant Sodexo, with the consent of the other named
defendants, filed a notice of removal pursuant to 28 U.S.C.
§§ 1441 and 1446. On February 14, 2017, this Court
granted a stipulation and order of dismissal with prejudice
by and between Plaintiff and Sodexo, the only named defendant
against whom a federal cause of action was asserted.
Plaintiff now moves for partial summary judgment as to his
claim for unlawful retaliation and HHC now moves for
summary judgment as to all remaining claims asserted against
it. For the reasons discussed below, this Court declines to
exercise supplemental jurisdiction over Plaintiffs remaining
claims against HHC, and this action is hereby remanded to
is a resident and domiciliary of the State of New York and
HHC is a corporation organized under the laws of the State of
New York with its principal place of business at 346
Broadway, New York, New York. First Amended Complaint
("FAC") ¶¶ 5, 7, ECF No. 1-1; Civil Cover
Sheet, ECF No. 3 (noting Plaintiffs county of residence! as
Kings County). Plaintiff alleges that on or about December 8,
2008, Plaintiff began working as a dietician at KCHC, which
is a member of HHC. FAC ¶¶ 8, 17; Plaintiffs Rule
56.1 Statement of Facts in Support of Plaintiff s Motion for
Partial Summary Judgment ("Pls. Facts") ¶ 5,
ECF No. 39-2. On or about July 2011, Plaintiff alleges
defendant Sodexo took over management of the food and dietary
services for KCHC, and Sodexo directly supervised the dietary
staff, including Plaintiff. FAC ¶ 20; Pls. Facts ¶
20. Plaintiff claims he was not advised of any of the new
policies or procedures implemented by his new supervisors.
Pls. Facts ¶ 28. Plaintiff alleges that
"immediately after Sodexo's appointment as
contractor for the dietary program, [he] was subjected to a
campaign of disparate treatment and harassment on the basis
of his gender (male) and national origin (Nigerian)."
FAC ¶ 24.
on January 5, 2012, Plaintiff received a performance
evaluation from two of his supervisors which rated his
performance as "Needs Improvement (Below Standard),
" and Plaintiff filed an objection to this evaluation on
January 20, 2012. Pls. Facts ¶¶ 32, 43; FAC ¶
32. On March 13, 2012, Plaintiff was issued a request for
disciplinary action for allegedly failing to timely turn in
productivity logs, among other issues. Pls. Facts ¶ 51.
A disciplinary hearing was held on May 2, 2012, and Plaintiff
was charged with insubordination, missing deadlines,
inappropriate patient care, and failure to submit weekly
logs. FAC ¶ 33; Pls. Facts ¶ 53. On June 20, 2012,
Plaintiff was issued an additional disciplinary allegation
recommending a 20-day suspension, FAC ¶ 37, and on June
26, 2012, Plaintiff received a second negative annual
performance review even though only five months had passed
since his prior negative review, id. ¶ 38. That
same day, Plaintiff filed a grievance with his union
complaining about the way management was treating him.
Id. ¶ 39. On August 7, 2012, Plaintiff was
escorted off of the KCHC premises by security. Id.
¶ 40; Pls. Facts ¶ 73. The next day, Defendants
imposed the 20-day suspension that had previously been
recommended. FAC ¶ 41. On August 21, 2012, Plaintiff
filed a charge with the New York State Division of Human
Rights alleging claims of disparate treatment based on
gender, national origin, and race. Id. ¶ 42;
Pls. Facts ¶ 77. Plaintiff returned to work on September
5, 2012, and was terminated on September 19, 2012. FAC
¶¶ 45-46; Pls. Facts ¶ 87. HHC disputes many
of Plaintiff s factual assertions and claims Plaintiff was
terminated not because of his gender or national origin, but
instead because of "well documented performance and
productivity issues." HHC Memo in Support of Motion for
Summary Judgment at 1, ECF No. 36-1.
asserts the following causes of action: (1) violation of 42
U.S.C. § 1981 against Sodexo, FAC ¶¶ 56-59;
(2) national origin and gender discrimination in violation of
the New York City Human Rights Law ("NYCHRL"),
N.Y.C. Administrative Code § 8-101 et seq.
against all defendants,  FAC ¶¶ 60-65; (3) unlawful
retaliation in violation of the NYCHRL, N.Y.C. Administrative
Code § 8-107 against HHC and KCHC, FAC ¶¶
66-73; (4) hostile work environment based upon national
origin and gender discrimination in violation of the NYCHRL,
N.Y.C. Administrative Code § 8-101 et seq.
against all defendants, FAC ¶¶ 74-81; (5) unlawful
deductions in violation of N.Y. Labor Law § 193 against
HHC and KCHC, FAC ¶¶ 82-84; (6) conversion against
HHC and KCHC, FAC ¶¶ 85-90; and (7) unjust
enrichment against HHC and KCHC, FAC ¶¶ 91-95. In
the notice of removal, Plaintiff asserts there is federal
jurisdiction because "[t]he Court has original
jurisdiction over this matter pursuant to 28 U.S.C. §
1331 ... in that federal question jurisdiction exists as
Plaintiffs First Amended pomplaint is based, in pertinent
part, on allegations that Sodexo's conduct violated 42
U.S.C. § 1981, " and "[s]ince this Court has
original jurisdiction over a federal question, pursuant to 28
U.S.C. § 1367, it also maintains supplemental
jurisdiction over Plaintiffs related state law claims."
Notice of Removal ¶¶5-6, ECF No. 1.
letter filed on January 18, 2017, Plaintiff informed this
Court that he was withdrawing his fifth cause of action
alleging unlawful deductions in violation of N.Y. Labor Law
§ 193 against HHC and KCHC. Plaintiffs January 18, 2017
Letter at 1, ECF No. 32. That letter also stated Plaintiffs
intent to dismiss KCHC from this action because
"individual facilities owned and operated by the New
York City Health & Hospitals Corporation ... do not have
the capacity to be sued." Id. On February 14,
2017, this Court so-ordered a stipulation and order of
dismissal with prejudice pursuant to Rule 41(a) of the
Federal Rules of Civil Procedure by and between Plaintiff and
Sodexo. ECF No. 35. On June 6, 2017, Plaintiff moved for
partial summary judgment regarding his third cause of action,
unlawful retaliation in violation of the NYCHRL,
HHC moved for summary judgment as to all causes of action
asserted against it. See ECF Nos. 36-41. Plaintiff
stated he was also withdrawing his cause of action for gender
discrimination in violation of NYCHRL § 8-101 et
seq. Plaintiffs Memo in Opposition to HHC Motion for
Summary Judgment at 1 n.2, ECF No. 37. Plaintiff acknowledges
HHC is the only remaining defendant in this action.
Id. at 1 n.1.
the following causes of action remain against only HHC: (1)
national origin discrimination in violation of the NYCHRL,
N.Y.C. Administrative Code § 8-101 et seq.\ (2)
unlawful retaliation in violation of the NYCHRL, N.Y.C.
Administrative Code § 8-107; (3) hostile work
environment in violation of the NYCHRL, N.Y.C. Administrative
Code § 8-101 et seq.\ (4) conversion; and (5)
28, section 1367 of the U.S. Code provides that "in any
civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article
III of the United States Constitution." 28 U.S.C. §
1367(a). "The Supplemental Jurisdiction statute, 28
U.S.C. § 1367, enables federal district courts to
entertain claims not otherwise within their adjudicatory
authority when those claims 'are so related to claims ...
within [federal-court competence] that they form part of the
same case or controversy.'" Artis v. Dist. of
Columbia, 138 S.Ct. 594, 597 (2018) (quoting 28 U.S.C.
§ 1367(a)). "For purposes of section 1367(a),
claims form part of the same case or controversy if they
derive from a common nucleus of operative fact."
Shahriar v. Smith & Wollensky Rest. Grp., Inc.,
659 F.3d 234, 254 (2d Cir. 2011) (quotation marks and
citation omitted). "Included within this supplemental
jurisdiction are state claims brought along with federal
claims arising from the same episode." Artis,
138 S.Ct. at 597.
(c) of § 1367 sets forth situations in which a district
court "may decline to exercise supplemental jurisdiction
over a claim." 28 U.S.C. § 1367(c). Specifically,
"[t]he district courts may decline to exercise
supplemental jurisdiction over a claim under subsection (a)
if... (1) the claim raises a novel or complex issue of State
law, (2) the claim substantially predominates over the claim
or claims over which the district court has original
jurisdiction, (3) the district court has dismissed all claims
over which it has original jurisdiction, or (4) in
exceptional circumstances, there are other compelling reasons
for declining jurisdiction." Id. "The
exercise of supplemental jurisdiction is within the sound
discretion of the district court. Courts 'consider and
weigh in each case, and at every stage of the litigation, the
values of judicial economy, convenience, fairness, and comity
in order to decide whether to exercise' supplemental
jurisdiction." Lundy v. Catholic Health Sys. of Long
Island Inc., 711 F.3d 106, 117-18 (2d Cir. 2013) (citing
and quoting Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 349-50(1988)).
"in the usual case in which all federal-law claims are
eliminated before trial, the balance of factors ... will
point toward declining to exercise jurisdiction over the
remaining state-law claims." Cohill, 484 U.S.
at 350 n.7; Artis, 138 S.Ct. at 597-98 ("When
district courts dismiss all claims independently qualifying
for the exercise of federal jurisdiction, they ordinarily
dismiss as well all related state claims." (citing 28
U.S.C. § 1367(c)(3))); Motorola Credit Corp. v.
Uzan, 388 F.3d 39, 56 (2d Cir. 2004) ("[O]ur Court
has held, as a general proposition, that if [all] federal
claims are dismissed before trial... the state
claims should be dismissed as well." (quotation marks
and citations omitted)); Valencia ex rel. Franco v.
Zee, 316 F.3d 299, 305 (2d Cir. 2003) (quoting
Cohill, 484 U.S. at 350 n.7); Schiffman v.
Epstein, 04-CV-2661, 2009 WL 1787760, at *7 (S.D.N.Y.
June 23, 2009) (Robinson, J.) ("The strong preference in
this Circuit is for district courts to decline to exercise
supplemental jurisdiction under § 1367(c)(3) when all of
the federal claims are dismissed from the suit prior to
trial." (citation omitted)); see also 16
Moore 's Federal Practice § 106.66 (3d ed.