Opinion
00 Civ. 7858 (GBD)
December 5, 2003
OPINION
Plaintiff brings this suit against defendants alleging violations of 42 U.S.C. § 1981, the New York Human Rights Law, the New York City Human Rights law and New York's common laws. Defendants filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, defendants' motions to dismiss are granted.
I. Background
Plaintiff Dr. Michael Hall brings the present action based upon events leading to his termination from defendant New York Hospital's ("NYH") Ophthalmology Residency Program in October, 1997. Plaintiff joined the hospital as a post graduate medical resident on July l, 1995. He served in that capacity until October 17, 1997, when he was "terminated for . . . unsatisfactory performance." Defendant's Memorandum of Law in Support of Motion to Dismiss ("Defendants' Brief) at 1. Plaintiff alleges, however, that his termination resulted from his complaints that two of his patients, who are black, were denied prompt treatment by the hospital. Plaintiff asserts that he was "terminated because of his whistle blowing activities" in conjunction with "his opposition to defendants' illegal and discriminatory treatment of black patients with respect to the provision of emergency services . . ." Complaint at 9, 11 ¶¶ 11(z), 18.
Specifically, on July 15, 1997, plaintiff was asked to perform emergency surgery on a patient who suffered trauma to his eye. Plaintiff claims that "[i]n contravention of defendant hospital's own professed policy, several senior physicians, all of whom were white, intentionally refused to authorize the transfer of the patient to another medical facility when it became apparent that defendant hospital could not provide or perform emergency surgery on the aforementioned patient."Id. at 5, ¶ 11(f). He maintains that "despite [his] protests, several senior physicians, all of whom were white, intentionally ignored and otherwise refused the patient's request to transfer to another medical facility." Id at 5, ¶ 11(h). Plaintiff makes no allegations that the unnamed senior physicians were aware that the patient was black nor that he informed anyone of the patient's race. Most importantly, plaintiff makes no specific allegation that the decision not to transfer this patient to another facility was based on those physicians' knowledge that the patient was black. He instead alleges generally that the defendants "intentionally departed from the obvious duty of care owed to the patient, in part, because the patient was black." Id at 5, ¶ 11(i). Plaintiff claims that he "immediately wrote memoranda to hospital authorities decrying" the treatment his patients received because he "sought to vindicate the rights of this black patient." Id. at 5-6 ¶ 11(j)
The second incident allegedly occurred on August 11, 1997 when "plaintiff was tasked to perform emergency surgery on a black child who had suffered a traumatic penetrating eye injury." Id. at 6, ¶ 11(n). Plaintiff alleges that he "contacted several senior physicians, all of whom were white, including three pediatric ophthalmologists, to assist him in the evaluation and treatment of the black child." Id. at 7, ¶ 11(r). Plaintiff alleges, however, that his requests for assistance were rebuffed as "said physicians gave pretextual explanations for not coming in and intentionally refused to assist plaintiff in his attempt to treat the child." Id. Specifically, plaintiff alleges that "some of the senior physicians asked excessive and medically unnecessary questions, such as what part of New York City the child was from . . . [as well as] the child's race and health insurance." Id. at 7, 11(q). Plaintiff, however, makes no allegation that the senior physicians were aware of the patient's race or that he informed anyone of the patient's race. Most importantly, he makes no allegation that the decision to rebuff his requests for assistance was based on those physicians' knowledge of the child's race. Again, plaintiff claims that he "verbally decried this obvious departure from the duty of care owed to a black patient."
Plaintiff alleges that on August 13, 1997, he approached the offices of his superior maximus, defendant Dr. D. Jackson Coleman, and his direct supervisor, defendant Dr. Kip Dolphin, and complained about NYH's departure from the standard duty of care owed to the aforementioned black patients. Plaintiff then claims that "Drs. Coleman and Dolphin later sought to silence [him] by revoking his privileges and terminating his employ." Id. at 8, ¶ 11(v). He further asserts that "Drs. Coleman and Dolphin sought to engender plaintiff's resignation or to terminate his employ in naked retaliation for [his] whistle blowing activities." Id. at 9, ¶ 11(y).
On April 24, 1998, plaintiff commenced an action against NYH in the New York State Supreme Court, alleging that the hospital had wrongfully terminated his residency. In that original action, plaintiff made no mention of the July 15, 1997 incident. He did, however, describe the August 11, 1997 incident. Specifically, plaintiff alleged that
on or about August 11, 1997, Dr. Hall was unable to secure backup or supervision of a pediatric ophthalmic emergency by the attending physician despite having called four (4) ophthalmologists, including the attending-on-call physician. When he was finally able to contact the program director, Dr. Kip Dolphin, and explain the situation, Dr. Dolphin told him to keep the child pain-free and initiate surgery the next day. Despite this, Dr. D. Jackson Coleman, the Chief of Ophthalmology, held Dr. Hall responsible for making the child wait.
Plaintiff's Verified Complaint, ¶ 20. Furthermore, plaintiff asserted that "Dr. Coleman wanted Dr. Hall out of the residency program because Dr. Hall had reported, and had threatened to report, multiple incidents he had witnessed . . . where he believed that NYH had breached its own clinical policies, and, thus, had put patients at risk."Id., ¶ 23. The State Supreme Court dismissed plaintiff's complaint for failing to follow the review process set forth in N.Y. Public Health Law § 2801-b.
Plaintiff subsequently commenced a federal action in this district on October 14, 1999. Unlike his state court claim, plaintiff's federal lawsuit included defendants Coleman and Dolphin, and alleged for the first time that defendants "departed from the standard duty of care owed to the child [in the August 11, 1997 incident] because [the patient] was black." First Federal Complaint at 5, ¶ 9(r). Plaintiff made no allegations of racial discrimination as to the July 15, 1997 incident. His § 1981 claim in that action alleged that
[b]y adversely affecting the terms, conditions and privileges of plaintiff's employment by (sic) because of his opposition to defendant's illegal and discriminatory treatment of black patients with respect to the provision of emergency services, defendants have violated 42 U.S.C. § 1981.
First Federal Complaint at 8, ¶ 18. The U.S. District Court dismissed plaintiff's federal action for likewise failing to abide by the review process outlined under N.Y. Public Health Law § 2801-b. Plaintiff subsequently filed his second federal complaint by this action on October 16, 2000. Plaintiff thereafter abandoned that complaint with the filing of his Amended Complaint, the subject of defendants' motion to dismiss.
In dismissing plaintiff's complaint, the Court held that "the other issues by defendants, such as the arguments that plaintiff's complaint fails to state a claim under . . . § 1981 . . ., are rendered moot by the instant dismissal, and may be re-raised if and when plaintiff re-files his claims." Hall v. New York Hosp., 2000 WL 222858, * l (S.D.N.Y. 2000).
Plaintiff's Amended Complaint alleges seven causes of action: violations of 42 U.S.C. § 1981 and 1985; prima facie tort; Section 296 of the New York Human Rights Law and the New York City Human Rights Law; fraud; breach of contract; defamation and slander; and tortious interference with prospective business and economic opportunities.
Plaintiff alleged a violation of 42 U.S.C. § 1985 in his Amended Complaint. He has subsequently withdrawn that claim and it will not be considered by the Court. See Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss ("Plaintiff's brief) at 1, n. 1.
II. Discussion
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint where the complaint "fail[s] . . . to state a claim upon which relief can be granted[.]" FED. R. Civ. P. 12(b)(6). In reviewing a motion to dismiss, this Court accepts the allegations in the complaint as true and draws all reasonable inferences in favor of the non-moving party. See Patel v. Searles, 305 F.3d 130, 134-35 (2d Cir. 2002). Here, a motion to dismiss will only be granted if the plaintiff can prove no set of facts in support of its claim that would entitle it to relief. See Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1494 (2d Cir. 1992). A court may look at the complaint and any documents attached to, or incorporated by reference in, the complaint. See Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999). Lastly, it is well settled in this circuit that a complaint consisting of nothing more than naked assertions, and setting forth no facts upon which a court could find a violation of the Civil Rights Acts, fails to state a claim under Rule 12(b)(6). See Martin v. N.Y. State Dept, of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978).A. Plaintiff's $1981 Claim
Section 1981 provides, to the extent pertinent here, that "[a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. § 1981(a). In order to establish a claim under § 1981, a plaintiff must allege facts to support the following elements: (1) the plaintiff is a member of a racial minority; (2) defendant intended to discriminate against plaintiff on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, etc.). See Mian v. Donaldson. Lufkin Jenrette Securities Corporation, 7 F.3d 1085, 1087 (2d Cir. 1993);Harris v. Allstate Ins. Co., 83 F. Supp.2d 423, 431 (S.D.N.Y. 2000). Retaliation claims are cognizable under § 1981 to make that section an available and effective remedy for racially motivated employment discrimination. See Choudhury v. Polytechnic Institute of N.Y., 735 F.2d 38 (2d. Cir. 1984); Hawkins v. 1115 Legal Service Care, 163 F.3d 684 (2d Cir. 1998).
In the present case, although plaintiff is not a member of a racial minority, the Second Circuit has held that whites have standing to sue under § 1981. See DeMatties v. Eastman Kodak Co., 511 F.2d 306, 312 (2d Cir. 1975) (relying on Sullivan v. Little Hunting Park, In., 396 U.S. 229, 237, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969)); Pettman v. United States Chess Federation E, 675 F. Supp. 175 (S.D.N.Y. 1987): see also Faraca v. Clements, 506 F.2d 956 (5th Cir. 1975); Des Vergnes v. Seekonk Water District 601 F.2d 9 (1* Cir. 1979). Furthermore, a number of courts, including this one, have recognized that an employee who has been the subject of retaliatory discharge because of his or her efforts to vindicate the § 1981 rights of racial minorities may bring an action under § 1981. See DeMatteis, 511 F.2d at 312;Winston v. Lear Siegler, Inc., 558 F.2d 1266 (6th Cir. 1977);Skinner v. Total Petroleum, 859 F.2d 1439 (10th Cir. 1988).
Plaintiff alleges that he was unlawfully terminated from the hospital's Ophthalmology Residency Program in retaliation for his actions wherein he "sought to vindicate the rights" of-two black patients. Plaintiff's § 1981 claims are based solely on two allegations: (1) In July 1997, a black patient he was treating lost an eye because "several senior physicians, all of whom were white, intentionally refused to authorize the transfer of the patient to another medical facility;" and (2) On August 11, 1997, "Various senior physicians . . . all of whom were white . . . intentionally refused to assist plaintiff in his attempt to treat the child." Complaint at 5, ¶ 11(f) and at 7, ¶ 11(p). Plaintiff claims that as a result of his spoken and written protests "decrying the obvious departure from the duty of care owed to the black patient," he was terminated from his position.
The seminal case in this district governing lawsuits by non-minorities alleging violations of § 1981 is DeMatties v. Eastman Kodak Co., 511 F.2d 306 (2d Cir. 1975). DeMatteis, a white male, brought suit under § 1981 alleging that his employer had forced him out of his job because he had sold his house, located in a predominantly white neighborhood populated mostly by other white Kodak employees, to a black fellow employee. DeMatteis claimed that Kodak forced him to retire "in reprisal for his part in vindicating the right of a black fellow employee . . . to make . . . (a) contract() . . . similar to that which whites in the neighborhood have fully been able to make,"DeMatteis, 511 F.2d at 312(internal quotations omitted). Relying on the Supreme Court's decision in Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct 400, 24 L.Ed.2d 386 (1969), the Court held that DeMatteis, despite being a white plaintiff, had standing to sue under § 1981. Central to a § 1981 action, therefore, is an allegation that plaintiff was fired "because of his actions in advocating the Section 1981 rights of others." Pettman v. U.S. Chess Federation E, 675 F. Supp. 175, 176 (S.D.N.Y. 1987).
Plaintiff's amended complaint can only survive a motion to dismiss if it alleges facts sufficient to show that he was terminated from his position in retaliation for his role in vindicating the Section 1981 rights of a member or members of a racial minority group. Furthermore, "[e]ssential to an action under Section 1981 are allegations that the defendants' acts were purposefully discriminatory and racially motivated." Albert v. Carovano, 851 F.2d 561 (2d Cir. 1988). Plaintiff's amended complaint cannot withstand scrutiny under Rule 12(b)(6).
Defendants argue that "no direct evidence of racial animus is alleged nor is there anything inherently discriminatory about the alleged conduct." Defendants' Reply Brief at 3. Defendants further assert that "there is nothing inherently discriminatory about the fact that certain unidentified physicians elected not to transfer a black patient to another medical facility, or that certain . . . staff were allegedly not immediately available to assist" plaintiff. Defendants' Brief at 11. Furthermore, defendants argue that plaintiff offers no factual allegations to support his contention that the hospital "departed from the obvious duty of car owed to the patient, in part, because the patient was black." Complaint at 5. The mere fact that the patient was black and the senior physicians were white cannot suffice to create an inference of discriminatory intent or racial animus.
With regards to both incidents, plaintiff makes no allegation that he informed the white senior physicians that the patient was black. In the August, 1997 incident, plaintiff merely alleges that "some of the senior physicians asked excessive and medically unnecessary questions, such as what part of New York City the child was from . . . [while] some of the senior physicians also inquired about the child's race and health insurance." Complaint at 7 (emphasis added). This allegation is insufficient for several reasons. First, plaintiff makes no allegation that the senior physicians were actually made aware that the patient in question was black. Second, plaintiff alleges no facts to support a conclusion that a departure from the standard of care occurred because the patient was black. Nor does he allege that the individual defendants responsible for his termination were aware of his patient's race. Regarding these events, therefore, plaintiff provides no support for his contention that these patients received a disparate standard of care from other patients because of their race. Plaintiff's allegations are entirely conclusory and are unsupported by facts sufficient to lead to a conclusion that the hospital treated him or these patients unfairly because they were black.
What is conspicuously absent in plaintiff's complaint is any allegation that the physicians knew that the patient was black, and then subsequently refused to assist plaintiff because the patient was black. Nowhere in his complaint does plaintiff claim that he informed any hospital physicians that his two patients were black, or that he specifically complained of disparate treatment provided to blacks as compared to whites, or that the issue of race was ever discussed in connection with his patients' care or his complaints about their treatment. In his attorney's Opposition Brief, plaintiff merely argues that "[w]hile the complaint does not specifically allege that plaintiff stated to Coleman and Dolphin that other senior physicians refused to assist him because the [patient] was black, this Court may infer from the Amended Complaint that plaintiff complained about everything he witnessed, including senior physicians' preoccupation with race and socioeconomic issues." Plaintiff's Brief at 14.
Plaintiff's allegation of racial discrimination is based solely on the following factual assertions: (1) he complained about the departure from the duty of care owed to two of his patients; (2) those two patients were black; (3) some non-treating senior physicians who were white asked about the race of one of those patients; and (4) "plaintiff was unaware at the timer, of similar lapses being visited upon white patients." Complaint at 5, ¶ 11(j), at 7, ¶ 11(s).
Plaintiff additionally fails to state a claim under § 1981 because of the insufficiency of his allegations concerning the reasons for his termination. In his carefully worded and artfully plead Amended Complaint, plaintiff makes no direct factual allegation to indicate that he was fired by the hospital in retaliation for his actions in vindicating the § 1981 rights of these black patients. Plaintiff generally avers that he "was terminated because of his whistle blowing activities" and that he "was directly injured as a result of his vociferous opposition to the racially discriminatory practices of defendants' agents as well as his exposure of defendants' lapses in the expected duty of medical care." Complaint at 9, ¶ 11(z). Quite simply, plaintiff does not factually allege that he was fired by the hospital because he was advocating the § 1981 rights of members of a racial minority.
Furthermore, plaintiff's complaint contains no allegation regarding the § 1981 contract rights he sought to vindicate. Rather, plaintiff appears to base his § 1981 claim on the termination of his own employment contract. Plaintiff argues that "the DeMatteis court signaled that it was sufficient for a Section 1981 plaintiff to allege in his complaint that he was injured or that his ability to enter into a contract was adversely impacted because of his representation of and/or his assocation with blacks." Plaintiffs Brief at 12. Plaintiff's analysis is misguided. Under DeMatteis, the right to make and enforce contracts which plaintiff attempted to vindicate, and for which he was retaliated against and suffered clear harm, belonged to the black employee. The fact that the white plaintiff was also involved in the contract is irrelevant in a § 1981 analysis as it is the rights of the member of the racial minority group that § 1981 seeks to protect. Plaintiff's complaint here merely states that he sought to vindicate his black patients' rights to-not have the hospital depart from their standard duty of care. Plaintiff makes no other allegations in support of his claim. Plaintiffs fails to allege what specific, § 1981 rights he was vindicating. He fails to allege how and when those rights were being violated. He fails to allege who, specifically, the violators were. See Pettman, 675 F. Supp. at 178. "The Section 1981 rights being vindicated by white plaintiffs must be identified with some particularity in order to limit actions under that statute to its purpose." Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988).
Plaintiff's complaint clearly fails to allege a claim under 42 U.S.C. § 1981. "In order to survive a motion to dismiss, the plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent." Yusef v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994) (citations omitted). Plaintiff has failed to allege racial animus or discriminatory intent. Defendants' motion to dismiss is granted.
B. Plaintiff's Second Amended Complaint
On April 6, 2001, plaintiff sought leave to file a Second Amended Complaint alleging an additional claim under 42 U.S.C § 2000(e). During a conference with the parties, this Court denied, without prejudice, plaintiff's request to submit his Second Amended Complaint. Upon review, plaintiff's Second Amended Complaint states no additional factual allegations, The Court finds, therefore, that plaintiff's Second Amended Complaint would be futile and fail for the same reasons as set forth above. Therefore, plaintiff's request to submit his Second Amended Complaint is denied.
C. Plaintiff's State TAW Claims
As plaintiff's federal claims have been dismissed, this Court declines to exercise supplemental jurisdiction over plaintiff's pendant state claims consistent with United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct 1130, 1139, 16 L.Ed.2d 218 (1966). Plaintiff's state claims are therefore dismissed without prejudice.
So Ordered.