Opinion
1:22-cv-1342 (BKS/DJS)
07-31-2023
ELIZABETH KINOWSKI, Plaintiff, v. THE HOME FOR ELDERLY WOMEN OF MONTGOMERY COUNTY, INC., also known as Sarah Jane Sanford Home, Defendant.
For Plaintiff: Eric M. Galarneau Galarneau Law Firm PLLC Linda Mandel Clemente Mandel Clemente, P.C. For Defendant: Paul Buehler, III Bond, Schoeneck & King, PLLC
For Plaintiff:
Eric M. Galarneau
Galarneau Law Firm PLLC
Linda Mandel Clemente
Mandel Clemente, P.C.
For Defendant:
Paul Buehler, III
Bond, Schoeneck & King, PLLC
MEMORANDUM-DECISION AND ORDER
HON. BRENDA K. SANNES, CHIEF UNITED STATES DISTRICT JUDGE:
I. INTRODUCTION
Plaintiff Elizabeth Kinowski brings this employment discrimination action against her former employer, The Home for Elderly Women of Montgomery County, Inc., also known as the Sarah Jane Sanford Home (“Defendant” or “the Home”), alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq.; violations of New York State Human Rights Law (“NYSHRL”), N.Y. Executive Law § 290 et seq.; defamation; and intentional and negligent infliction of emotional distress. (See generally Dkt. No. 9 (amended complaint)). Presently before the Court is Defendant's motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Dkt. No. 15). The parties have filed responsive briefing. (Dkt. Nos. 16, 17). For the following reasons, Defendant's motion is granted in part and denied in part.
II. FACTS
A. Background
Plaintiff is a licensed registered nurse and a “devout, practicing Roman-Catholic.” (Dkt. No. 9, ¶ 15). She was employed by Defendant, “an adult home for people 65 and older” located in Amsterdam, New York, as its Administrator from October 2017 until her termination in October 2021. (Id. ¶¶ 1 n.1, 15, 17-18). Defendant has a Board of Trustees (the “Board”) which is “responsible for overseeing the Home's fiscal situation and is charged with the duty of hiring and firing” and “imposing discipline” on the Administrator. (Id. ¶¶ 19-20). The Home also has a Board of Lady Managers, which is responsible for “overseeing and planning parties and celebrations that take place at the Home.” (Id. ¶ 21).
As Administrator of the Home, Plaintiff was in charge of the Home's approximately 30 employees and was responsible for “all Home residents numbering between 22-40 during her tenure.” (Id. ¶¶ 23-24). Plaintiff was also responsible for running the Home's day-to-day operations, “promulgating and implementing Home policies,” and “meeting with and advising the Boards on various matters regarding the Home.” (Id. ¶ 25; id. ¶ 26 (alleging that, under the Home's bylaws, the Administrator was “solely responsible for making and implementing Home policy”)). Plaintiff alleges that she was well-qualified to serve as the Home's Administrator and that, prior to the events underlying this lawsuit, “the Home viewed [Plaintiff] as an excellent Administrator.” (Id. ¶¶ 27-31). As Administrator, Plaintiff was “largely responsible for leading the Home's response to the Covid-19 pandemic” and for the Home's success on two surveys conducted by the New York State Department of Health (“DOH”) in 2020. (Id. ¶¶ 35-38). In March 2021, Defendant gave Plaintiff a $15,000 raise and a $15,000 bonus. (Id. ¶ 32). In July 2021, Plaintiff was selected to attend the Heroes' Awards ceremony and “accept an award on behalf of the Home for its service to the community during the Covid-19 pandemic.” (Id. ¶ 34). Plaintiff alleges that the Home never disciplined, counseled, or censured her “in any way for poor job performance” or misconduct and that no resident, resident's family member, or employee ever made a complaint about her. (Id. ¶¶ 39-40).
B. The DOH Mandate and Plaintiff's Objection
In August 2021, DOH advised that it would be adopting regulations requiring employees in covered healthcare settings, including the Home, to receive a Covid-19 vaccine, with the regulations going into effect on August 26, 2021. (Id. ¶¶ 55-56). The regulations required covered entities to “continuously require personnel to be fully vaccinated against COVID-19” (the “DOH Mandate”). 10 N.Y.C.R.R. § 2.61(c) (Aug. 26, 2021). The regulations allowed for medical exemptions in certain circumstances but did not allow any religious exemptions. See Id. § 2.61(c), (d).
Plaintiff arranged and attended a meeting with all members of the Board, which took place on August 24, 2021, to discuss “the Home's response to these regulations.” (Dkt. No. 9, ¶¶ 57-59). Plaintiff “informed the Board” of the State's policy and stated that “she wished to adopt Home policies that allowed employees to request exemptions [to the vaccination requirement], including religious exemptions.” (Id. ¶ 60). She also told the Board that “she would like to submit a request for a religious exemption herself and stated her reasons” for the request, “including reference to express Biblical provisions which she, in good faith and religious conscience, believed required that she refuse to take the Covid vaccine.” (Id. ¶ 61; see also id. ¶¶ 42-54 (describing Plaintiff's faith and the basis for her objection to the Covid-19 vaccine on religious grounds)). Plaintiff then “attempted to hand in her written exemption request” to Kris Singh, the President of the Board, but Mr. Singh “declined to receive” the written request and said he “did not want ‘to look at it right now.'” (Id. ¶¶ 63-64).
Although the Board “did not directly comment” on Plaintiff's statements, Mr. Singh's behavior toward Plaintiff “changed markedly” after the meeting. (Id. ¶¶ 67-68). Whereas Mr. Singh and other members of the Board had previously treated Plaintiff “amiably, with respect and professionalism,” Mr. Singh “began to act bitterly, coldly and curtly” towards Plaintiff. (Id. ¶¶ 69-70). Mr. Singh and other Board members began to “deliberately exclude [Plaintiff] from multiple necessary meetings with the Board” that Plaintiff had always attended. (Id. ¶ 71). Plaintiff alleges that Board members “began to plan how they would terminate” her. (Id. ¶ 72).
C. Further Response to the Covid-19 Pandemic
On or about September 1, 2021, Plaintiff advised Home employees of the DOH Mandate. (Id. ¶ 76). Within a few days, Plaintiff received approximately 15 requests for religious exemptions from the DOH Mandate. (Id. ¶¶ 77-78). Plaintiff “arranged another meeting” with Board members to discuss these exemption requests and how the Home would respond, and she met with Mr. Singh and Board member William Sikora on September 3, 2021. (Id. ¶¶ 79-80). Plaintiff advised Mr. Singh and Mr. Sikora that “a number of employees requested a religious exemption” and offered to hand over the written requests, but Mr. Singh “declined and would not receive the requests.” (Id. ¶¶ 81-83). Plaintiff also inquired whether the Home “should consider writing to elected representatives” about the DOH Mandate; Mr. Singh said “we'll do nothing of the kind” and that it was a “unanimous decision” of the Board not to write any elected representatives. (Id. ¶¶ 84-86). Plaintiff asked Mr. Singh “if all nine members of the Board” had “voted against this proposition.” (Id. ¶ 89). Mr. Singh at first was silent but then stated that only the “executive members” of the Board had voted against the proposition. (Id. ¶¶ 90-91).
At the September 3 meeting, Mr. Singh also asked Plaintiff to “find a medical professional familiar with the Covid-19 vaccines to come in and educate staff about the vaccines.” (Id. ¶ 92). Plaintiff agreed to do so; shortly after the meeting, she hired a doctor for the assignment and Mr. Singh “approved” of her decision. (Id. ¶¶ 93-95). The doctor came to the Home on September 15, 2021 and conducted an informal presentation for the approximately ten employees who attended, including Plaintiff. (Id. ¶¶ 97-98).
D. Hiring of Covid Consultant
On September 7, 2021, a resident of the Home advised Plaintiff that she had been told the Board found a “replacement” for Plaintiff. (Id. ¶ 108). When Plaintiff asked Board Treasurer Ben Ziskin about this information, Mr. Ziskin “initially responded that it was true, but then backtracked” and stated that the Board had hired someone as a “consultant” and “Covid coordinator.” (Id. ¶¶ 109-10). On September 7 or 8, Mr. Singh told Plaintiff that she was not being terminated or replaced by the Covid consultant. (Id. ¶¶ 118-19).
The individual hired to be the Covid consultant, Jeanne So, was the prior administrator of the Home and had trained Plaintiff when Plaintiff was hired in 2017. (Id. ¶¶ 111, 122-24). Plaintiff alleges that Ms. So “was not held in high esteem by the residents” and Board of Lady Managers during her tenure as administrator, noting that, approximately one year after Ms. So's retirement, Plaintiff received a letter from a Lady Board member stating that Plaintiff had “breathed new life into the Sanford Home” and that “for the first time the residents have a voice thanks to [Plaintiff].” (Id. ¶¶ 125, 126 (emphasis omitted)). Further, Ms. So had inquired about an open position on the Board of Lady Managers following her retirement; when Plaintiff suggested that Ms. So “might have a conflict of interest” due to her prior tenure as administrator, the Board agreed and Ms. So was not appointed. (Id. ¶ 127). Plaintiff alleges that Ms. So had no special expertise in infectious disease or with Covid, or any other credential qualifying her to be a Covid consultant. (Id. ¶¶ 128-30).
After Ms. So began her duties as Covid consultant on September 9 or 10, 2021, she began “giving the Home employees administrative orders as well as attempting to directly implement Covid vaccine policies for the Home, bypassing [Plaintiff] entirely.” (Id. ¶¶ 121, 133). Ms. So restricted unvaccinated employees from using the break room, posted signs in the Home communicating her “new rules,” and “never consulted” with Plaintiff about the rules she was implementing. (Id. ¶¶ 134-36). On September 15, Plaintiff asked Ms. So to “pass any changes” she wanted to make through Plaintiff first, but Ms. So responded that she did not have to advise Plaintiff and “could institute changes without her approval.” (Id. ¶¶ 137-38). When Plaintiff discussed her concerns with Mr. Singh the next day, Mr. Singh told Plaintiff that she and Ms. So were “equals.” (Id. ¶¶ 139-41).
On September 20, 2021, the Board issued a memorandum indicating that Ms. So's role was to “implement” the Home's Covid-19 vaccination policy and that Ms. So would be “taking all direction from the Board of Trustees.” (Id. ¶ 144). The Home's stated Covid-19 vaccination policy required all employees to receive a Covid-19 vaccine, “without allowing for religious exemptions.” (Id. ¶ 145). However, the memorandum stated that the Home would not enforce that part of the DOH Mandate that “barred religious exemptions” and that the Home could “not refuse to accept a request for a religious exemption at this time.” (Id. ¶ 146). Plaintiff alleges that the Home's bylaws conferred the duty to make and implement policy upon the Administrator and therefore that the Board violated the bylaws by conferring the duty of implementing the Covid-19 vaccination policy on Ms. So. (Id. ¶¶ 147-48).