Opinion
Index No. 63095/2023
05-10-2024
Wanda Hughes-Greene and CHERYL GILLEN, Plaintiffs, v. Westchester Medical Center, and WESTCHESTER MEDICAL CENTER HEALTH CARE CORPORATION d/b/a WESTCHESTER MEDICAL CENTER HEALTH CARE NETWORK, Defendants.
FOR PLAINTIFF CHRISTOPHER J. BERLINGERI, ESQ. BERLINGERI LAW, PLLC FOR DEFENDANTS MARC A. SITTENREICH, ESQ. GARFUNKEL WILD, P.C.
Unpublished Opinion
FOR PLAINTIFF
CHRISTOPHER J. BERLINGERI, ESQ. BERLINGERI LAW, PLLC
FOR DEFENDANTS
MARC A. SITTENREICH, ESQ. GARFUNKEL WILD, P.C.
HON. DAMARIS E. TORRENT, A.J.S.C.
The following papers numbered 1 to 8 were read on this motion (Seq. No. 1) by defendant for an order dismissing the complaint pursuant to CPLR 3211(a)(7):
PAPERS NUMBERED
Notice of Motion / Affirmation (Sittenreich) / Exhibits A - B /
Memorandum of Law 1 - 5
Affirmation in Opposition (Berlingeri) / Exhibit A 6 - 7
Memorandum of Law in Reply 8
Upon the foregoing papers, the motion is granted, and the complaint is dismissed.
Plaintiffs Hughes-Greene and Gillen assert claims against Defendant Westchester Medical Center (WMC) for religious discrimination under the New York State Human Rights Law (NYSHRL) and retaliation, as well as additional race discrimination and hostile work environment claims on behalf of Plaintiff Hughes-Greene (Executive Law § 296.10). Plaintiff Hughes-Greene was employed "as an administrative assistant in the Defendants' anesthesiology department and supported the department's Chairman, Assistant Chairman and Directors," and Plaintiff Gillen was employed "as a registered nurse in the Defendants' nursing department and worked as a labor and delivery nurse" (Complaint ¶ 8-9).
It is alleged that after WMC implemented a mandatory COVID-19 vaccination policy in August 2021, Plaintiffs were denied religious accommodations and were terminated from employment (id. ¶ 13-24, 35-40). It is further alleged that Plaintiff Hughes-Greene was pressured to explain their vaccination status as the only African American in the department and was subjected to discrimination following WMC's COVID-19 vaccination policy (id. ¶ 26-34). Plaintiffs seek compensatory and punitive damages, costs and disbursements incurred in connection with this action, pre-judgment and post-judgment interest, further relief as the Court finds necessary and proper, and a judgment declaring that Defendant engaged in unlawful practices under New York State laws (id. ¶ A-F).
10 NYCRR § 2.61 ("State Mandate") became effective August 26, 2021, and required specific "covered entities" to require "personnel" to be fully vaccinated against COVID-19 (Defendant's Exhibit B, p. 2-3). There is no dispute that Defendant is a covered entity as defined under the State Mandate and was subject to its requirements.
Legal Standard
As stated in CPLR 3211(a)(7), a party may present a motion to dismiss one or more causes of action asserted against them on the ground that "the pleading fails to state a cause of action." On such a motion, "the pleading is to be afforded a liberal construction" where the court is to "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 N.Y.2d 83, 88-89 [1994][internal citation omitted]). Bare legal conclusions, factual claims the record contradicts, or "legal conclusions or factual claims which are inherently incredible are not entitled to any such consideration" (Browne v Lyft, Inc., 219 A.D.3d 445, 446 [2d Dept 2023]; see Everett v Eastchester Police Dept., 127 A.D.3d 1131, 1132 [2d Dept 2015]). "Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142 [2017]).
Courts "typically treat Title VII [of the Civil Rights Act of 1964] and NYSHRL discrimination claims as analytically identical, applying the same standard of proof to both claims" (Salamon v Our Lady of Victory Hosp., 514 F.3d 217, 226 n.9 [2d Cir. 2008]; see Algarin v NYC Health + Hosps. Corp., 678 F.Supp.3d 497, 507 ["Given the overlapping standards, the parties have addressed the Title VII and NYSHRL claims together and the Court will follow that approach."]). This Court will continue the case analysis on this basis.
Discussion
I. Religious Discrimination
NYSHRL states that it is "unlawful practice for any employer... to impose upon a person as a condition of obtaining or retaining employment... any terms or conditions that would require such person to violate or forego a sincerely held practice of his or her religion... unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee's or prospective employee's sincerely held religious observance or practice without undue hardship on the conduct of the employer's business" (Executive Law § 296.10[a]). Furthermore, § 296.10(d)(1) defines undue hardship as "requiring significant expense or difficulty," and "an accommodation shall be considered to constitute an undue hardship if it will result in the inability of an employee to perform the essential functions of the position in which he or she is employed."
On a motion to dismiss a complaint asserting a plausible discrimination claim, the burden is on the employer to show that it could not accommodate the employees' religious beliefs without undue hardship (see Knight v Connecticut Dept. of Pub. Health, 275 F.3d 156, 167 [2d Cir 2001]; Algarin, 678 F.Supp.3d at 508). "[U]ndue hardship is shown when a burden is substantial in the overall context of an employer's business... So even if Title VII said only that an employer need not be made to suffer a hardship, an employer could not escape liability simply by showing that an accommodation would impose some sort of additional costs. Those costs would have to... rise to an excessive or unjustifiable level... it means something very different from a burden that is merely more than de minimis..." (Groff v DeJoy, 600 U.S. 447, 469 [internal quotations and citations omitted]).
Plaintiffs share the claim of religious discrimination; therefore, a separate analysis for each of the plaintiffs is unnecessary. Plaintiffs contend they were terminated for their "deeply held religious beliefs against the [COVID-19] vaccination," and Defendant's "duty to follow NYSHRL is paramount by granting accommodations for religious reasons" (Affirmation in Opposition to Defendants' Motion to Dismiss [hereinafter Opp. Br.] ¶ 13-14). The plaintiffs mistakenly claim the State Mandate was "held back from implementation due to a stay" at the time the plaintiffs were denied religious exemptions, and later "struck down" (Opp. Br., ¶ 14).
While the plaintiffs do not offer a citation referencing or supporting this statement, the court can infer its reliance on Dr. A. v. Hochul, where a preliminary injunction was granted on behalf of the plaintiff's religious conflicts with the State Mandate (567 F.Supp.3d 362, 377 [NDNY 2021]). Yet, the ruling on this case was appealed, which led to the Second Circuit's decision to vacate Dr. A. 's preliminary injunction (We the Patriots USA, Inc. v Hochul, 17 F 4th 266, 296 [2d Cir 2021]). Furthermore, Plaintiffs assert, "Defendants could have placed Plaintiff on unpaid leave with employment status until the DOH mandate was sorted out in Court" (Opp. Br., ¶ 22). However, "indefinite leave is not considered a reasonable accommodation under the State HRL" (Romanello v Intesa Sanpaolo, S.p.A., 22 N.Y.3d 881, 884 [2013]). As stated, the preliminary injunction in We the Patriots USA, Inc. was appealed, meaning hospitals and covered entities under the State Mandate were still required to follow its obligations (17 F 4th at 296).
The plaintiffs also argue that the ruling under Groff would likely alter the Court's understanding of "cost or undue burden," divorcing itself from We the Patriots USA, Inc. However, recent cases hold that an employer's violation of the State Mandate due to an employee's religious preference rises to "an excessive or unjustifiable level" (Groff, 600 U.S. at 469 [internal quotations and citations omitted]). "Where, as here, an employee's request would require her employer to violate a state regulation, the proposed 'accommodation' constitutes an undue hardship as a matter of law" (Conde v Mid Hudson Regional Hosp. Med. Ctr., 2024 U.S. Dist LEXIS 8658 * 16, 2024 WL 168282 * 7 [SDNY Jan. 12, 2024, No. 22-CV-3085(VB)]). "[T]he burden placed on an employer from violating a state law, like the State Mandate in this case, is both excessive and unjustifiable" (Parks v. Montefiore Med. Ctr., 2024 U.S. Dist LEXIS 37391 * 6, 2024 WL 917330 * 2 [SDNY March 4, 2024, No. 23-CV-4945(JPO)]). As described in Corrales v. Montefiore Med. Ctr., "Defendant shows that it could not reasonably accommodate Plaintiff's religious needs without undue hardship; Montefiore would have violated binding law resulting in serious consequences and penalties, and it would have exposed its staff and visitors, including those who may have been immunocompromised or otherwise especially vulnerable" ([Sup Ct, Bronx County, October 25, 2023, Cohen, J., Index No. 809058/2023E][internal quotations and citation omitted]).
II. Race Discrimination and Hostile Work Environment
The following analysis of race discrimination and hostile work environment claims only applies to Plaintiff Hughes-Green.
Race Discrimination
"Although intermediate evidentiary burdens shift back and forth under this framework, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff" (Croons v NY State Office of Mental Health, 18 F.Supp.3d 193, 203 [NDNY 2014][internal quotations omitted]; see Risco v McHugh, 886 F.Supp.2d 75, 100 [SDNY 2012]). "An inference of discrimination can arise from circumstances including, but not limited to, the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge" (Littlejohn v City of New York, 795 F.3d 297, 312 [d Cir 2015][internal quotations omitted]; see Leibowitz v Cornell Univ., 584 F.3d 487, 502 [2d Cir 2009]).
First, Plaintiff Hughes-Green explains they were within "earshot" when other employees were "discussing individuals who refused to take the COVID-19" vaccine and referring to them as "anti-vaxxers" (Opp. Br., ¶ 32). The second incident occurred "weeks after the announcement of the [mandatory vaccination] policy" (Id. ¶ 33). Plaintiff states a supervisor employed by Defendant and the Chair of the anesthesiology department "discussed how they observed low turnout at COVID-19 vaccine locations for African Americans," where they turned to Plaintiff and "asked whether she has received the COVID-19 vaccine yet" (Id. ¶ 34).
These incidents as race/color discrimination are unconvincing because they relate more to vaccination status rather than Hughes-Greene's race or color. The reference of "anti-vaxxers" refers to unvaccinated persons - not a group of protected persons - and Plaintiff was not involved in the conversation nor was their name mentioned (Opp. Br., ¶ 32). As to the second occasion, Plaintiff feels they were "singled out and put on the spot" to explain why they were unvaccinated, but even if the question "was construed to have a racially derogatory connotation," the circumstances surrounding this conversation "did not give rise to anything more than a petty slight or trivial inconvenience" (Golston-Green v City of New York, 184 A.D.3d 24, 43 [2d Dept 2020]).
Hostile Work Environment
"A hostile work environment claim is distinct from a disparate treatment claim and requires a showing that the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the plaintiff's working conditions and create an abusive working environment" (Ruiz v. Armstrong, ___ Misc.3d ___, 2024 NY Slip Op 24054 at *7-8 [Sup Ct, Kings County 2017][internal quotations omitted]). "A hostile work environment claim will be dismissed under the State Human Rights Law pursuant to CPLR 3211(a)(7) where a plaintiff's facts fall short of alleging that the workplace was permeated with discriminatory intimidation, ridicule and insult that was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment" (id. at *8 [internal quotations and citations omitted]; see Lucenti v Potter, 432 F.Supp.2d 347, 362 [SDNY 2006]["Allegations of even constant reprimands and work criticism by themselves are not sufficient to establish a hostile environment claim"]).
"Moreover, the use of racial slurs and insults by a supervisor without the knowledge or acquiescence of the employer does not constitute an unlawful discriminatory practice actionable under the State Human Rights Law" (Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 311 [2004]). "[A]n employer cannot be held liable for an employee's discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it" (id. [internal quotations and citations omitted]). While Plaintiff does contend that they were "frequently" questioned and "harassed by Defendants' employees to coerce her to get the vaccine," the facts do not prove that WMC directed criticism that was "permeated with discriminatory intimidation" based on Plaintiff's race or color (Ruiz, ___ Misc.3d ___, 2024 NY Slip Op 24054 at *7 [internal quotations omitted]; Opp. Br., ¶ 35).
Like Forrest, "The record is devoid of proof that plaintiff ever reported any of the alleged remarks or indeed any other allegations of racial harassment to anyone at" WMC (3 N.Y.3d at 311-312). Even when considering "Plaintiff Hughes-Green was the only African American woman in her department who refused to take the vaccine," frequent questions from coworkers cannot be considered "severe or pervasive so as to alter the conditions of employment and create an abusive working environment" because the questions could have been directed at any unvaccinated employee, regardless of race or color (Ruiz, - Misc.3d -, 2024 NY Slip Op 24054 at *7 [internal quotations omitted]; Opp. Br., ¶ 30).
III. Retaliation
Retaliation under Executive Law § 296(7) states it is an unlawful discriminatory practice for any person to retaliate against an individual because he has filed a complaint. To establish a prima facie case of retaliation under Executive Law § 296, a plaintiff must demonstrate that they were engaged in a protected activity, the claimant's employer was aware that he participated in such activity, plaintiff suffered an adverse employment action based upon this activity, and there was a causal connection between the protected activity and the adverse action (Adeniran v State of New York, 106 A.D.3d 844 [2d Dept 2013]). Plaintiffs do not oppose the branch of the motion seeking dismissal of their retaliation claim.
Accordingly, it is hereby
ORDERED that the motion is granted, and defendant shall have judgment dismissing the complaint; and the Clerk shall enter judgment accordingly; and it is further
ORDERED that, within ten (10) days of the date hereof, defendant shall serve a copy of this Decision and Order, with notice of entry, upon plaintiffs, and shall file proof of said service on NYSCEF.
The foregoing constitutes the Decision and Order of the Court.