Opinion
08 Civ. 9656 (DAB).
March 31, 2010
MEMORANDUM ORDER
Plaintiff Simflex Nyame ("Plaintiff") brings this employment discrimination action against his former employer, Bronx-Lebanon Hospital Center ("Bronx-Lebanon") and former supervisors at Bronx-Lebanon, Jennifer Marciano ("Marciano") and Diane Fine ("Fine") (collectively, "Defendants"). Plaintiff, an African-American male and immigrant from Ghana, alleges that Defendants terminated his employment on or about May 11, 2007 on account of his race, in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2002e et seq. ("Title VII"), and New York State and City Human Rights Laws. Plaintiff alleges further that Defendants denied him severance pay to which he was entitled under Bronx-Lebanon's Severance Plan, in violation of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1101et. seq. ("ERISA"), and failed to pay him the vacation pay he had earned, in violation of New York State Labor Laws.
Defendants now move to dismiss each of Plaintiff's claims for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, Defendants' Motion to Dismiss the Complaint is GRANTED in part and DENIED in part.
I. BACKGROUND
The following facts alleged in the Complaint in 08 Civ. 9656 (DAB) ("Complaint" or "Compl.") are assumed to be true for purposes of this Motion to Dismiss.
Plaintiff Simflex Nyame, a resident of Queens County, New York, is an African-American male and immigrant from Ghana. (Compl. ¶ 3.) Plaintiff was employed by Defendant Bronx-Lebanon from March 1990 until his termination on or about May 11, 2007, a span of over seventeen years. (Id.) Bronx-Lebanon is a not-for-profit health care system licensed to operate a hospital facility and outpatient centers in Bronx County, New York. (Id. ¶ 4.) Defendant Jennifer Marciano ("Marciano"), a Caucasian female, has been employed by Bronx-Lebanon since the fall of 2006 as Associate Director of Social Work and Administrative Director of Bronx-Lebanon's AIDS Program. (Id. ¶ 5.) Defendant Diana Fine ("Fine"), a Caucasian female, has been employed by Bronx-Lebanon since 1994 as a Program Administrator. (Id. ¶ 6.)
Plaintiff was initially employed by Bronx-Lebanon in March 1990 as a Substance Abuse Counselor. (Id. ¶ 8.) From October 1990 until his termination on or about May 11, 2007, Plaintiff was employed as a Project Coordinator for Bronx-Lebanon's HIV Counseling, Testing, Referral and Partner Notification Program ("HIV Program"). (Id. ¶ 9.) Plaintiff alleges that over the seventeen years that he was employed at Bronx-Lebanon, there were very few, if any, other African-American Project Coordinators. (Id. ¶ 11.) During the last several years of his employment, Plaintiff was one of three Project Coordinators within the HIV Program. (Id. ¶ 12.) Plaintiff alleges that the two other Project Coordinators, both Caucasian, were paid higher salaries than Plaintiff, despite "substantially less years of seniority" as Project Coordinators. (Id.)
Defendant Fine directly supervised Plaintiff from in and about 2003 until in and about October 2006. (Compl. ¶ 15.) Defendants Fine and Marciano together supervised Plaintiff from October 2006 until his termination in May 2007. (Id.) Plaintiff alleges that Fine "has had a pattern and practice as a Program Administrator of treating African-Americans, like plaintiff, differently than other employees". (Id. ¶ 16.) Plaintiff alleges that other African-Americans and "other minority employees" made complaints to management and Human Resources regarding "the manner by which [Fine] was interacting with them" and that Fine was "reprimanded because of her conduct." (Id.) Regarding her treatment of Plaintiff specifically, Plaintiff alleges that Fine "showed displeasure toward plaintiff and in particular his African heritage" on several occasions, "referring to it in a demeaning and condescending manner by asking if that was the way things were done in Africa and whether he was speaking English." (Id. ¶ 19.) Plaintiff alleges that on several occasions he was "treated differently than others similarly employed whose duties and responsibilities comprised a part of the HIV Program." (Id. ¶ 18.) For example, despite Bronx-Lebanon's practice to award a salary increase to an employee upon earning a Masters degree, Plaintiff's request for a salary increase in 2002 when he received his Masters degree was denied, allegedly because he had not received his State certification. (Id.) When Plaintiff again requested a salary increase upon receiving his State certification in 2006, that request was also denied. (Id.)
Plaintiff alleges that he performed the duties and responsibilities of his position in a satisfactory manner throughout the seventeen years of his employment as Project Coordinator, consistently receiving satisfactory performance evaluations, including an evaluation conducted approximately six months before Plaintiff was terminated for "substandard work performance". (Id. ¶¶ 17, 22.)
It is Bronx-Lebanon's established policy and practice that before an employee is terminated for "substandard performance", the employee is given both a verbal and a written warning, so that the employee has the opportunity to correct his or her performance. (Compl. ¶ 24.) Employees are given a verbal warning first, and if no improvement ensues, a written warning is provided, and a record made of a conference between the employee and his or her supervisor. (Id.) Only if the employee shows no improvement after the written warning and conference is the employee to be terminated for "substandard performance". (Id.) However, Defendants failed to follow through with this established procedure before terminating Plaintiff in May 2007. (Id. ¶ 25.) Rather, Marciano and Fine terminated Plaintiff without notice at a meeting among the three, and Plaintiff was given a letter informing him of his immediate termination for "substandard work performance". (Id. ¶ 22.) Plaintiff received neither an oral nor written warning that his performance was no longer acceptable prior to his termination. (Id. ¶ 26.) Plaintiff alleges that other employees, in particular those who were not African-American, received both oral and written warnings before being terminated for "substandard performance". (Id. ¶ 27.) After Plaintiff was terminated, Stephen Rosenblatt, a Caucasian male, was hired to replace him. (Id. ¶ 23.)
Plaintiff alleges that Bronx-Lebanon maintains a severance pay policy ("Severance Plan") that constitutes a welfare plan within the meaning of ERISA and is designed to provide pay and benefits to employees whose employment has been involuntarily terminated. (Id. ¶ 28.) Plaintiff alleges that at the time of his termination he was entitled to substantial severance benefits pursuant to Bronx-Lebanon's Severance Plan, none of which have been paid. (Id. ¶ 29.) Plaintiff further alleges that at the time of his termination, he "had earned and was entitled to receive several weeks of vacation for the services that he had theretofore rendered while employed by Bronx-Lebanon" and "has neither received nor been paid for that earned but unused vacation." (Id. ¶ 30.)
On or about February 26, 2008, Plaintiff filed charges of race-based employment discrimination with the Equal Employment Opportunity Commission ("EEOC"), charging Defendant Bronx-Lebanon with violating Title VII of the Civil Rights Act of 1964 in terminating his employment on May 11, 2007 based on his race. (Id. ¶ 32.) The EEOC informed Plaintiff in a letter dated August 12, 2008, received by Plaintiff on August 15, 2008, that it would be unable to complete its administrative processing of Plaintiff's claim within 180 days, and that accordingly, it was terminating its processing of the charge. (Id. ¶ 34.) The letter further advised Plaintiff that he had 90 days from his receipt of the notice to file an action under Title VII in State or Federal Court. (Id.)
Plaintiff filed the above-captioned action against Defendants on November 10, 2008, within 90 days of receipt of the EEOC right-to-sue letter.
II. DISCUSSION
A. Legal Standard for a Motion to Dismiss under Rule 12(b)(6)
For a complaint to survive dismissal under Rule 12(b)(6), the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility," the Supreme Court has explained,
"when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of `entitlement to relief.'"Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556-57). "[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal quotation marks omitted). "In keeping with these principles," the Supreme Court has stated,
"a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."Iqbal, 129 S.Ct. at 1950.
In ruling on a 12(b)(6) motion, a court may consider the complaint as well as "any written instrument attached to the complaint as an exhibit or any statements or documents incorporated in it by reference." Zdenek Marek v. Old Navy (Apparel) Inc., 348 F.Supp.2d 275, 279 (S.D.N.Y. 2004) (citingYak v. Bank Brussels Lambert, 252 F.3d 127, 130 (2d Cir. 2001) (internal quotations omitted)).
B. Race Discrimination (Counts One, Two, and Three)
Plaintiff alleges that Defendants terminated his employment on May 11, 2007 on account of his race, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and New York State and City Human Rights Laws. Defendants contend that Plaintiff's allegations fail to state a claim for race discrimination because Defendants had legitimate, nondiscriminatory reasons for terminating Plaintiff's employment. Defendants argue that they can demonstrate their legitimate reasons through documentary evidence attached as exhibits to their Motion to Dismiss.
Defendants argue that Plaintiff's "additional" claims for race discrimination are time-barred. However, Plaintiff has asserted only one claim for race discrimination in the Complaint, regarding his termination — a claim that Defendants agree is timely. Plaintiff's allegations of past discrimination can be used as background evidence in support of his timely claim, and are appropriately considered by the Court here. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 112 (2002).
Courts in this Circuit analyze claims of employment discrimination based on race under Title VII and the New York State and City Human Rights Laws according to the three-stage, burden-shifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 798 (1973). Under McDonnell Douglas, a plaintiff bears the initial burden of establishing aprima facie case of discrimination through direct or circumstantial evidence. Windham v. Time Warner, Inc., 275 F.3d 179, 187 (2d Cir. 2001). In order to make out a prime facie case, a plaintiff must demonstrate: 1) that he is a member of a protected class; 2) that he was qualified for the position he held; 3) that he suffered an adverse employment action; and that 4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Holcomb v. Iona College, 521 F.3d 130, 138 (2d Cir. 2008). A plaintiff may raise such an inference by showing that the employer subjected him to disparate treatment, that is, treated him less favorably than a similarly situated employee outside of his protected group.International Broth. of Teamsters v. U.S., 431 U.S. 324, 335 (1977).
A plaintiff who makes out a prima facie case establishes a presumption of discrimination, at which point the burden of production shifts to the defendant. Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005). To meet its burden, the defendant must articulate a "legitimate, nondiscriminatory reason" for the challenged conduct. Texas Dept. of C'mty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the defendant produces such a reason, "the presumption of discrimination drops out" and the burden of proof shifts back to the plaintiff. Woodman, 411 F.3d at 76 (citation omitted). To prevail on his claim, a plaintiff must then show, without the benefit of the presumption, that the employer's action was in fact the result of racial discrimination. Holcomb, 521 F.3d at 138. The plaintiff need not prove that the explanation offered by the employer was entirely false "but only that . . . [the defendant's] stated reason was not the only reason" and that consideration of an impermissible factor "did make a difference."Montana v. First Federal Savings Loan Ass'n of Rochester, 869 F.2d 100, 105 (2d Cir. 1989).
Defendants argue that Plaintiff's race discrimination claim must be dismissed as a matter of law because Defendants had legitimate, nondiscriminatory reasons for terminating Plaintiff's employment. Defendants aim to support this claim through "documentary evidence" attached as exhibits to their Motion. The documents Defendants have attached in support of their Motion are neither integral to nor incorporated by reference in the Complaint and are therefore patently inappropriate for the Court to consider in deciding this Rule 12(b)(6) Motion to Dismiss. See Global Network Communs., Inc. v. City Of New York, 458 F.3d 150, 154 (2d Cir. 2006). The Court strikes Defendants' exhibits from the record and does not consider them here.
The Supreme Court has held that in pleading a case for employment discrimination under Title VII, a plaintiff need not allege facts that establish a prima facie case. Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). Rather, at this early stage, Plaintiff need only make "a short and plain statement of the claim . . . [that] give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."Swierkiewicz, 534 U.S. at 512 (quotation marks and citations omitted); see also Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (applying Swierkiewicz to NYCHRL and NYSHRL discrimination claims). The Swierkiewicz pleading standard for employment discrimination claims applies together with and not counter to the heightened "plausibility" standard for pleading set byTwombly and Iqbal. See Twombly, 550 U.S. at 547 ("This analysis does not run counter to Swierkiewicz. . . . [T]he Court is not requiring heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face."); see also Iqbal, 129 S.Ct. at 1953 ("Our decision inTwombly expounded the pleading standard for all civil actions, and it applies to antitrust and discrimination suits alike") (internal quotation marks and citations omitted). While the Supreme Court did not explicitly address Swierkiewicz in Iqbal, courts in this District have repeatedly found that Twombly,Iqbal, and Swierkiewicz apply together in determining whether a plaintiff has pled a plausible case for employment discrimination. See Barbosa v. Continuum Health Partners, Inc., No. 09 Civ. 6572, 2010 WL 768888, at *3 (S.D.N.Y. Mar. 8, 2010);Fowler v. Scores Holding Co., ___ F.Supp.2d ___, No. 08 Civ. 7796, 2009 WL 5178475, at *2 (S.D.N.Y. Dec. 28, 2009); Gillman v. Inner City Broad. Corp., No. 08 Civ. 8909, 2009 WL 3003244, at *3 (S.D.N.Y. Sept. 18, 2009). "Reconciling Swierkiewicz, Twombly, and Iqbal, a complaint need not establish a prima facie case of employment discrimination to survive a motion to dismiss; however `the claim must be facially plausible and must give fair notice to the defendants of the basis for the claim.'" Barbosa, 2010 WL 768888, at *3 (quoting Fowler v. Scores Holding Co., ___ F.Supp.2d ___, 2009 WL 5178475, at *2).
Plaintiff's Complaint does not rely upon conclusory assertions of law, but makes specific factual allegations that support a case for race discrimination. Plaintiff alleges that in his over seventeen years with Bronx-Lebanon, there were very few, if any, other African-American Project Coordinators, and his two fellow Project Coordinators, both Caucasian, were paid higher salaries than Plaintiff, despite "substantially less years of seniority" as Project Coordinators. (Compl. ¶¶ 11-12.) Plaintiff alleges that when he sought a pay raise after receiving his Masters degree, in accordance with Bronx-Lebanon's established policy for awarding pay raises to employees with Masters Degrees, Defendants refused. (Id. ¶ 18.) Plaintiff alleges that Defendant Fine, his supervisor, made disparaging, "demeaning and condescending" remarks to Plaintiff about his African heritage. (Id. ¶ 19.) Specifically, Plaintiff alleges that Fine asked him whether "that was the way things were done in Africa" and "whether he was speaking English." (Id.) Plaintiff alleges that African-Americans and other minority employees made a number of complaints to management and Human Resources regarding Fine's behavior toward them, and that Fine had been reprimanded for her conduct. (Id. ¶ 16.) With regard to his termination, Plaintiff alleges that he was given no warning at all before being terminated for "substandard work performance" after seventeen years of employment, despite specific Bronx-Lebanon policy to provide employees with both an oral and a written warning prior to such termination. (Id. ¶¶ 22-26.) Plaintiff alleges that a Caucasian male was hired to replace him. (Id. ¶ 23.) Plaintiff offers these incidents and circumstances as evidence in support of his claim that when he was terminated without notice on or about May 11, 2007, it was on account of his race.
The Court finds that Plaintiff has with this Complaint pled enough facts to state a plausible case for race discrimination. As such, Defendants' Motion to Dismiss Counts One, Two, and Three of the Complaint is DENIED.
C. Denial of Severance Pay under ERISA (Count 4)
Plaintiff alleges in Count Four of the Complaint that Defendant Bronx-Lebanon denied him severance benefits to which he was entitled under Defendant's Severance Plan. Plaintiff alleges that he is entitled under ERISA, 29 U.S.C. § 1132(a)(1)(B) to recover the severance benefits due to him and enforce and clarify his rights under the Severance Plan. Defendants argue that Plaintiff's ERISA claim fails as a matter of law because he has not pled the threshold elements of such a claim.
ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), provides that a person to whom benefits are owed under an ERISA plan may bring a civil action to recover them. To prevail under § 502, a plaintiff must show that (1) the plan is covered by ERISA, (2) plaintiff is a participant or beneficiary of the plan, and (3) plaintiff was wrongfully denied severance pay owed under the plan. Giordano v. Thomson, 564 F.3d 163, 168 (2d Cir. 2009) (internal citations omitted). Here, Plaintiff has alleged, upon information and belief, that Defendant Bronx-Lebanon "maintained and continues to maintain a severance pay policy (`Severance Plan') constituting an employee welfare plan within the meaning of ERISA", and that "plaintiff having been employed by Bronx-Lebanon for over seventeen years at the time of his termination was entitled pursuant to Bronx-Lebanon's Severance Plan to substantial severance benefits, none of which have been paid." (Compl. ¶¶ 28-29.) Plaintiff's conclusory statements are insufficient to make out a plausible claim under ERISA. As Plaintiff has failed to set forth anything to make out the ERISA elements set forth above, Defendants' Motion to Dismiss Count Four of the Complaint is GRANTED.
D. Denial of Vacation Pay (Count 5)
Plaintiff alleges in Count Five of his Complaint that Bronx-Lebanon has failed to pay Plaintiff unpaid vacation benefits that he earned prior to his termination, in violation of Section 198 of the New York State Labor Laws. Defendants argue that Plaintiff's claim fails because he is seeking pay for unused vacation time, rather than unpaid vacation benefits.
Defendants concede that vacation pay is included as wages under New York Labor Law, but argue that "the right to receive payment in lieu of vacation time is not." (Defs.' Reply at 9.) Plaintiff alleges in Count Five that "Bronx-Lebanon has and continues to fail to pay plaintiff the unpaid vacation benefits that he had earned prior to his termination . . ." (Compl. ¶ 56.) Plaintiff alleges earlier in the Complaint that at the time of his termination, he "had earned and was entitled to receive several weeks of vacation for the services that he had theretofore rendered" as an employee and that he "has neither received nor been paid for that earned but unused vacation." (Id. ¶ 30.) The cases Defendants have cited do not support the proposition that payment in lieu of vacation may not be recovered under New York Labor Law. Rather, these cases state that whether payment for accrued vacation is appropriate depends ultimately upon the agreement between an employee and his employer. See DeLeonardis v. Credit Agricole Indosuez, 2000 WL 1718543, at *9 (S.D.N.Y. Nov. 15, 2000) ("Section 198-c was construed to require only that the employer abide by the terms of its agreement to provide benefits . . ."); Grisetti v. Super Value, Inc., 189 Misc. 2d 800, 801 (2d Dep't 2001) ("Any rights incidental to vacation time, such as the option to receive payment in lieu thereof . . . are dependent on the employment contract."). To state a claim under New York Labor Law, Plaintiff must allege that he is entitled either to vacation pay or to payment in lieu of vacation time under his employment agreement with Bronx-Lebanon. Plaintiff's allegations in Count Five are insufficient to state a claim, and Defendants' Motion to Dismiss Count Five is GRANTED.
E. Leave to Replead
Even when a complaint has been dismissed, permission to amend it "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). A court may dismiss without leave to amend when amendment would be futile. Oneida Indian Nation of New York v. City of Sherrill, 337 F.3d 139, 168 (2d Cir. 2003) (internal citations omitted), rev'd on other grounds, 544 U.S. 197, 125 S.Ct. 1478, 161 L.Ed.2d 386 (2005). "A proposed amendment to a pleading would be futile if it could not withstand a motion to dismiss pursuant to Rule 12(b)(6)." Id. (citingRicciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). Because the Court has granted Defendants' Motion to Dismiss Counts Four and Five of Plaintiff's Complaint for insufficient pleading, the Court finds that amendment might not be futile. Accordingly, Plaintiff is granted leave to amend Counts Four and Five of his Complaint.
III. CONCLUSION
For the reasons set forth above, Defendants' Motion to Dismiss is GRANTED in part and DENIED in part. Plaintiff is granted leave to amend Counts Four and Five of his Complaint within forty-five (45) days of the date of this Memorandum and Order. Failure to abide by this deadline will result in the dismissal of Counts Four and Five of the Complaint with prejudice. Defendants shall answer the Amended Complaint within forty-five (45) days of being served with the Amended Complaint.
SO ORDERED.