Summary
finding that the waiver provision does not apply to claims under federal law because otherwise "serious federal constitutional problems . . . would be raised were a state statute [deemed] to nullify a federal provision"
Summary of this case from Kramsky v. Chetrit Group, LLCOpinion
No. 03-CV-6233 (JBW).
July 9, 2004
MEMORANDUM ORDER
I. Introduction
Plaintiff Alicia Nicolls brought suit against her employer, Brookdale University Hospital and Medical Center ("Brookdale"), and four individuals, David Rosen, Lewis Marshall, Kathy Lind, Michael Epter, and Daniela Niec for labor violations, discrimination, retaliation, and other alleged wrongs. Defendants have moved to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For reasons stated below, the motion is granted in part and denied in part.
II. Facts
The complaint was filed on December 10, 2003. It supports the following statement of facts:
Plaintiff is a black female from Barbados hired by Brookdale as a full-time physician assistant in December of 1993. She was the first black physician assistant in the emergency medical department. During her training, Brookdale officials "suggested that the Physician Assistants . . . note the doctor's name and/or code on patient charts for the Hospital's administrative convenience." Compl. at ¶ 14. Plaintiff considered this training instruction distinct from Brookdale's policy that "doctors and Physician Assistants `co-sign' the charts for billing and accountability purposes." Id. ¶ 15. As a result of her training, plaintiff "noted doctor names in her own handwriting for the Hospital's administrative convenience." Id. at ¶ 16.
Defendant Lind is the Director of Nursing. Soon after her hiring, she began supervising, disciplining and terminating physician assistants. During plaintiff's tenure, approximately 80 percent of the 20 physician assistants in emergency medicine were black. Since Lind's employment, Brookdale has, it is alleged, "wrongfully terminated, demoted, and otherwise adversely disciplined approximately 20 Physician Assistants of Plaintiff's race. . . ." Id. at ¶ 28. Moreover, while Lind and defendant Marshall supervised the emergency medicine department, black physician assistants were given, according to the complaint, unfavorable work schedules, discriminated against, a made to suffer other elements of a hostile work environment.
About April of 2001, Lind is said to have told plaintiff, "I have [an] eighteen-month goal to get rid of all of you." Id. at ¶ 31. Plaintiff interpreted Lind's comment to refer to black physician assistants. Around that time, Lind began demoting black physician assistants and hiring predominantly white and Asian nurse practitioners. Plaintiff and other physician assistants, being concerned about the hospitals practices, decided to form a union. Since 2000, those in the position of physician assistant have become affiliated with Local 1199, New York's Health and Human Service Employee's Union, SEIU, AFL-CIO.
In September of 2001 plaintiff was elected union delegate. In both her union and personal capacity, she received complaints from other employees concerning Brookdale and Lind's discriminatory practices. She voiced the complaints of others, and her own complaints, to management.
On August 28, 2002, Brookdale accused plaintiff of improperly signing patient charts. The hospital alleged that she had "forged certain doctor's signatures, engaged in fraud, and falsified medical records although she had written their names in her own handwriting as previously instructed by the Hospital." Id. at ¶ 45. She was suspended pending an investigation. Defendants Epter and Niec, doctors in the emergency medicine department, denied knowledge of the hospital's policy of authorizing physician assistants to note their codes on the charts. Plaintiff claims their statements are false.
She was terminated on September 6, 2002 and received notice of the termination on September 16, 2002. Plaintiff has lost her employment and union benefits. She has been unable to replace the lost income.
Plaintiff's grievance regarding the hospital's action is slated for arbitration. She has filed a charge with the National Labor Relations Board alleging that Brookdale has engaged in "union-busting." That investigation is stayed pending the resolution of the union's arbitration with the hospital.
III. Law and Application of Law to Facts
A. Standard of Review
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss for "failure to state a claim upon which relief may be granted." Defendant has the burden of proving "beyond doubt that the plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99 (1957). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683 (1974).
In reviewing a Rule 12(b)(6) motion, the task of the court "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). A court must accept the plaintiff's factual allegations as true, drawing all reasonable inference in plaintiff's favor. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996).
Materials de hors the complaint are generally not considered on a motion to dismiss unless the court treats it as one for summary judgment, giving all the parties a reasonable opportunity to present relevant evidence under Rule 56. See Fed.R.Civ.P. 12(b)(6); Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("[T]he problem that arises when a court reviews statements extraneous to a complaint generally is the lack of notice to the plaintiff that they may be so considered; it is for that reason — requiring notice so that the party against whom the motion to dismiss is made may respond — that Rule 12(b)(6) motions are ordinarily converted into summary judgment motions."); see also Festa v. Local 3 Int'l Bhd. Of Elec. Workers, 905 F.2d 35, 38 (2d Cir. 1990) (court's consideration of affidavits filed with motion to dismiss was improper without converting motion to one for summary judgment). The purpose of this practice is to give the non-moving party proper notice, thus avoiding prejudice. B. Discrimination Claims and Statute of Limitations
1. Law
a. Statute of Limitations
Plaintiff has brought suit under federal, state and city anti-discrimination laws. Defendants argue that the claims under Title VII, section 1981 and state laws are in part time-barred. Congress enacted a catchall four year statute of limitations for suits arising under federal statutes enacted after December 1, 1990. See 28 U.S.C. § 1658. Claims under section 1981 "are subject to the 4-year statute of limitations if they arose under an Act of Congress enacted after that date." See Jones v. R.R. Donnelley Sons Co., 124 S. Ct. 1836, 1839 (2004). As here, the plaintiffs in Jones claimed that they were subject to discrimination, wrongful termination and a hostile work environment under section 1981. The Court held that the action arose under portions of section 1981 that were added in 1991 so that the catchall four year statute of limitations applied. See id. at 1840.
The statute of limitations for claims under state and city anti-discrimination laws is three years. See Murphy v. American Home Products, 58 N.Y.2d 293, 307, 461 N.Y.S.2d 232, 239 (1983) ("[T]he institution of civil actions to recover damages for unlawful discriminatory practices . . . is governed by the three-year period of limitations. . . .").
Analysis of the statute of limitations governing suits under Title VII requires more than the application of a bright-line rule. Generally, if the discriminatory acts giving rise to the suit have occurred and ended more than three hundred days before plaintiff filed her Equal Employment Opportunity Commission (EEOC) charge, the action is time-barred. See 42 U.S.C. § 2000e-5(e)(1); Lambert v. Gensee Hospital, 10 F.3d 46, 53 (2d Cir. 1993).
There is a "continuing discrimination" or "continuing violation" sub-rule: "[I]f a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone." Lambert, 10 F.3d at 53. The continuing discrimination exception applies to cases "involving specific discriminatory policies or mechanisms such as discriminatory seniority lists, . . . or discriminatory employment tests. . . ." Id. (citations omitted).
"Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable `unlawful employment practice.'" Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). Multiple, even similar, discriminatory incidents do not constitute continuing discrimination if they are not "the result of a discriminatory policy or mechanism." Lambert, 10 F.3d at 53; Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) ("[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges."). The prejudicial acts must be continuous in time. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998).
b. EEOC Time Requirements
Section 2000e-5 of title 42 of the United States Code requires claims to be filed within 300 days of the act, or last act in a series, relied upon by plaintiff.
2. Application of Law to Facts
First, plaintiff's claims under section 1981 are governed by a four year limitations period, and her claims under local anti-discrimination laws are governed by the three year limitations period. Any claims based solely on events occurring prior to December 10, 1999 (section 1981 claims) and December 10, 2000 (state and city claims) are barred by the statute of limitations. Plaintiff specifically alleges a pattern of continuing discrimination against black physician assistants in that a hospital supervisor informed her that there was "an eighteen-month goal to get rid of all of you [black physician assistants]." Compl. at ¶ 31. Other than the discrete act of her own termination, plaintiff's allegations center on general continuing discriminatory practices and atmosphere.
Plaintiff filed her EEOC charge on July 2, 2003. Under the 300-day basic rule of section 2000e-5 of title 42 of the United States Code, claims based on acts occurring before September 5, 2002 are time-barred. She was terminated on September 6, 2002, and therefore EEOC claims arising from her termination are timely.
Under the liberal standards of Rule 12(b)(6) analysis, plaintiff has alleged continuing discrimination. A supervisor's assertion that there is a stated goal to eliminate all employees of a identifiable race may constitute a hospital "policy" or "mechanism." This discriminatory policy is alleged to have continued up to and beyond September 5, 2002. Accepting plaintiff's allegations as true, defendants' motion to dismiss plaintiff's federal, state and local discrimination claims as time-barred or based under the EEOC is denied.
C. New York State Labor Law
1. Law
Defendants argue that plaintiff has failed to state a claim for the violation of New York's Whistleblower Statute, retaliation and violation of wages and benefit provisions. The Whistleblower Statute states that:
An employer shall not take any retaliatory personnel action against an employee because such employee does any of the following: (a) discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety;
(b) provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any such violation of a law, rule or regulation by such employer; or
(c) objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation.
N.Y. Labor Law § 740(2)(a). The statute of limitations for such an action is "one year after the alleged retaliatory personnel action was taken." Id. at § 740(4)(a); see, e.g., Feinman v. Morgan Stanley Dean Witter, 752 N.Y.S.2d 229, 232 (N.Y.Sup.Ct. 2002).
Section 215 of the New York Labor Laws prohibits discharging an employee for making a complaint about a violation of the Labor Law or participating in a proceeding relating to the Labor Law. N.Y. Labor Law § 215. To establish a claim under section 215, plaintiff "must show that she complained to [her employer] about its violations of the Labor Law and that she was terminated because of her complaints." Jacques v. DiMarzio, Inc., 200 F. Supp.2d 151, 162 (E.D.N.Y. 2002).
2. Application of Law to Facts
Plaintiff's claims under the Whistleblower Statute are time-barred. The alleged retaliatory action against plaintiff based on alleged complaints was her dismissal on September 6, 2002. Any alleged retaliatory action taken before that, such as demotion, mistreatment or pay reductions, necessarily occurred before plaintiff's termination. Having filed her complaint in December of 2003, plaintiff's claims fall outside the period of limitations. As to her claims under section 215, plaintiff has not pleaded with a level of specificity sufficient to support a cause of action. The court cannot determine what alleged violation of New York's Labor Law triggered plaintiff's claim under section 215. See, e.g., Mack v. Transport Workers Union of Amer., 2002 WL 500377, *5 (S.D.N.Y. 2002) ("As to her supposed claims under the New York Labor Law, plaintiff has failed even to specify which sections of that law she claims to apply. . . ."). Plaintiff's sixth cause of action is dismissed. Plaintiff may amend her complaint within thirty days to eliminate this defect.
D. Waiver under New York Labor Law § 740(7)
1. Law
Section 740(7) of New York's Labor Laws, the Whistleblower Statute, reads:
Existing rights. Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any other law or regulation or under any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law.
(Emphasis added). Defendant moves for dismissal of plaintiff's breach of contract claims and state and city discrimination claims, arguing that plaintiff has waived those causes of actions pursuant to the 740(7) waiver. See, e.g., Borden v. North Shore Univ. Hosp., 712 N.Y.S.2d 155, 157 (2d Dept. 2002) ("The plaintiff's cause of action against the hospital to recover damages for breach of contract arose from the Labor Law § 740 cause of action, and, therefore, was properly dismissed pursuant to Labor Law § 740(7).").
First, there is conflicting case law on what causes of action are deemed waived by section 740(7). Some courts have limited the waiver to all claims that arise out of the same course of conduct as the section 740 claim or relate to the retaliatory action on which the section 740 claim is based. See Borden, 712 N.Y.S.2d at 157; Pipas v. Syracuse Home Assn., 226 A.D.2d 1097, 1097 (N.Y.Sup.Ct. 1996) ("The tort causes of action, which relate to the retaliatory discharge, are barred by plaintiff's election to assert a Labor Law § 740 cause of action."). In Collette v. St. Luke's Roosevelt Hospital, however, the court ruled that the waiver provision applied "only to rights and remedies concerning whistleblowing as defined in the Act." 132 F. Supp.2d 256, 274 (S.D.N.Y. 2001); see also Kraus v. Brandstetter, 185 A.D.2d 302, 302-03 (2d Dept. 1992) ("Although Labor Law § 740 provides that the institution of an action under the statute constitutes a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule, regulation, or remedy under the common law, the waiver only applies to those causes of action relating to retaliatory discharge."). The Collette court reasoned that "requiring the employee, as the price of asserting whistleblower protection, to waive any rights he might have under independent causes of action . . . that may have arisen from the same course of employer conduct as the retaliatory firing, will create a disincentive to invoking the Act's protection, thus in turn deterring the very whistleblowing conduct that the Act intends to encourage." Id. at 271 (citing legislative history).
Second, since this court has dismissed plaintiff's cause of action under section 740 based on the statute of limitations, see Section III.I.2, supra, there is a question as to whether the dismissal revives plaintiff's claims, which would be otherwise dismissed under section 740(7). There is question about whether "a mere filing of a claim under this section constitute[s] an irrevocable waiver of [plaintiff's] right to seek relief under any other cause of action." Clarke v. TRW, Inc., 1994 WL 591677 (N.D.N.Y. 1994). Compare Rotwein v. Sunharbor Manor Residential Health Care Facility, 181 N.Y.S.2d 477, 483 (N.Y.Sup.Ct. 1999) ("[T]here is a waiver by the mere institution of an action containing a Labor Law § 740 claim."), with Clarke, 1994 WL 591677 at *3 (a section 740(7) waiver "may be inapplicable where the Section 740 action is dismissed prior to judgment because it is not in accordance with the statutory requirements").
2. Application of Law Facts
This court is persuaded by the ruling in Collette v. St. Luke's Roosevelt Hospital that the section 740(7) waiver applies only to causes of action that arise from the same course of conduct as the retaliatory action. Judge Lynch's opinion expertly marshals and analyzes the evidence compelling this result. A literal reading of section 740(7) would dictate the absurd result that "when an employee brings a whistleblower suit, all concurrent or future lawsuits brought by that employee, in any capacity whatsoever, are waived." Collette, 132 F. Supp.2d at 262. This narrow interpretation of section 740(7) is supported by the Whistleblower Statute's legislative history and the practice commentaries provided by New York State. See id. The practice commentary stated explicitly that "`the `rights and remedies' which are `deemed' waived are those for retaliation as such rather than all rights arising out of the incident involved. . . .'" Clarke, 1994 WL 591677 at *4 (quoting R. Givens, Practice Commentary to N.Y. Labor Law § 740 at 577-78 (McKinney 1998) (emphasis in original).
Holding that the waiver does not apply to claims under federal law, avoids serious federal constitutional problems, which would be raised were a state statute to nullify a federal provision. See id. at 266 ("[W]henever possible, an ambiguous statute should be construed to avoid constitutional questions.") (citing Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 1212 S. Ct. 675, 683 (2001)).
To the extent that plaintiff's fifth cause of action alleges violations of the state Human Rights Law and the city's Administrative Code based on the alleged retaliation, the claims are dismissed. To bring suit under the state and local anti-discrimination laws, plaintiff is granted leave within thirty days to replead, basing her causes of action on "purposeful discrimination" and "hostile work environment" without reference to the defendants' alleged "retaliation." See Compl. at ¶¶ 87 89.
Plaintiff's seventh cause of action alleges that defendants have breached their contractual obligations pursuant to a collective bargaining agreement, government regulations and the "employee handbook." See Compl. at ¶¶ 99 100. To the extent that defendants' alleged breach of their contractual duties arise from the alleged retaliatory actions (termination), plaintiff has waived the right to bring suit pursuant to section 740(7). The seventh cause of action is dismissed. Plaintiff may replead within thirty days to demonstrate that the claims do not arise from defendants' alleged retaliatory actions.
As to the second issue of statutory interpretation, dismissal of plaintiff's whistleblower action does not negate the section 740(7) waiver. See Section III.I, supra. Plaintiff's claims based on conduct arising from defendants' retaliatory action cannot be revived merely because the collateral section 740 claims have been dismissed. The language of section 740(7) is clear and leads to a harsh result, but not an absurd one. It clearly states that the waiver applies when a plaintiff has instituted an action under section 740(7). See N.Y. Labor Law § 740(7); see also Webster's Third International Dictionary (Unabridged) 1171 (1966) (defining institute as "to originate" and "cause to come into existence"). The design of this austere measure is to require prospective plaintiffs to consider carefully potential whistleblower suits before commencing such an action. This plaintiff, having risked filing a time-barred whistleblower action, cannot revive her claims arising from her termination. The court will permit withdrawal of the whistleblower claims, or circumvention if that is possible, by amendment within thirty days. Withdrawal will be deemed the equivalent failing to file the claim.
E. 42 U.S.C. § 1981 1. Law
Defendants move to dismiss plaintiff's section 1981 claims on two grounds: 1) section 1981 does not provide for actions based on national origin discrimination and 2) the individual defendants cannot be held liable under the law.
First, section 1981 does not prohibit discrimination based on national origin. The Supreme Court has concluded that Congress intended to prohibit discrimination solely based on an individual's "ancestry or ethnic characteristics." Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987). Although ethnicity may correspond to national origin, it is the former that matters under section 1981. See id. ("If respondent on remand can prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or his religion, he will have made out a case under § 1981.").
Second, supervisors can be held liable under section 1981 if plaintiff can "demonstrate `some affirmative link to causally connect the actor with the discriminatory action.'" Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000) (citations omitted). The claim must be based on the individual's personal involvement in discriminatory conduct. Id.
2. Application of Law to Facts
First, plaintiff's section 1981 claim is not entirely predicated on national origin discrimination. Although plaintiff does acknowledge that physician assistants "predominantly were black people from the West Indies," see Compl. at ¶ 37, and that she is "a black female of West Indies ancestry and ethnicity," see id. at ¶ 71, the national origin acknowledgments are merely descriptive. The section 1981 claims are, at bottom, based on plaintiff's ancestry and ethnicity and, more specifically, her racial identity. Defendants' motion to dismiss all of plaintiff's section 1981 claims is denied.
Second, defendants claim that the pleadings do not support section 1981 claims against the individual defendants. Defendants are in part correct. Defendants Rosen, Epter and Niec are not alleged to have been personally involved in discriminatory conduct. Defendants Lind and Marshall, however, are alleged to have discriminated against black physician assistants in their supervisory duties. See Compl. at ¶ 38. Plaintiff voiced numerous complaints about defendant Lind. See id. at ¶ 41. Lind and Marshall's hands-on supervisory roles and alleged behavior affirmatively link them to the to the alleged discriminatory actions.
Defendants motion is granted with respect to Rosen, Epter and Niec and denied with respect to Lind and Marshall. Plaintiff may amend within thirty days to avoid this conclusion.
F. State and City Claims Against Individual Defendants
1. Law
Defendants move to dismiss plaintiff's claims under New York State and City Human Rights Laws against the individual defendants. "For an individual to be liable for discriminatory conduct under the [Human Rights Laws], that individual must have actively participated in the discrimination." Hirsch v. Columbia University, College of Physicians Surgeons, 293 F. Supp.2d 372, 278 (S.D.N.Y. 2003); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995) (applying rule "that a defendant who actually participates in the conduct giving rise to a discrimination claim may be held personally liable under the [Human Rights Laws]").
2. Application of Law to Facts
Defendants Epter and Niec merely denied knowledge of the hospital's alleged prior policy to allow physician assistants to note their codes on charts. See Compl. at ¶ 47. Defendant Rosen only "engaged in business partnerships with Lind's relatives." Id. at ¶ 7. Defendants Marshall and Lind are alleged to have personally participated in the discrimination through their roles as supervisors. See Section III.E.2., supra. Under the Rule 12(b)(6) standard, viewing the allegations as true, Marshall and Lind can be held personally liable.
The claims under New York State and City Human Rights Laws against Epter, Niec and Rosen are dismissed. Plaintiff may amend within thirty days to avoid this conclusion.
G. Labor Management Relations Act
1. Law
The Labor Management Relations Act (LMRA) defines certain unfair labor practices and mandates a procedure through the National Labor Relations Board (NLRB) to process and remedy the alleged improper practices. 29 U.S.C. § 141 et seq. "As a general rule, federal courts do not have jurisdiction over activity which `is arguably subject to § 7 or § 8 of the [NLRA],' and they `must defer to the exclusive competence of the National Labor Relations Board.'" Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 83 (1982) (citing San Diego Bldg. Trades Counsel v. Garmon, 359 U.S. 236, 245 (1959)).
Section 7 of the LMRA states that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining. . . ." 29 U.S.C. § 157. Section 8 of the LMRA provides that "[i]t shall be an unfair labor practice for an employer . . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7 of the LMRA]," 29 U.S.C. § 158(a)(1), or "by discrimination in regard to hire or tenure of employment . . . to encourage or discourage membership in any labor organization." 29 U.S.C. § 158(a)(3). "The NLRA preempts state and federal court jurisdiction of conduct which is arguably prohibited under either § 7 or § 8 of the [LMRA]." Commer v. Amer. Fed'n of State, County and Mun. Employees, 272 F. Supp.2d 332, 339 (S.D.N.Y. 2003).
2. Application of Law to Facts
Plaintiff has alleged that defendants disciplined and terminated her "in part because of her unionization efforts, complaints, and whistleblowing" in violation of the LMRA. See Compl. at ¶¶ 77 78. A claim based on these allegations has been filed with the NLRB and is stayed pending resolution of the union's arbitration with the hospital. See id. at ¶ 60. Plaintiff's claims are "arguably" within the purview of section 7 and 8. The court lacks jurisdiction. Plaintiff's third cause of action is dismissed.
H. Fair Standards Labor Act
1. Law
Section 216 of the Fair Standards Labor Act (FSLA) creates a private cause of action for violation of sections 206, 207 and 215(a)(3). 29 U.S.C. §§ 206, 207, 215 216. Under section 215(a)(3) of the FSLA an employer may not "discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding. . . ." 29 U.S.C. § 215(a)(3). "The plain language of this provision limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor." Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir. 1993) (finding no claim under FSLA when employee merely complained to supervisor and did not file formal complaint); Ahmed v. Gelfand, 160 F. Supp.2d 408, 417 (E.D.N.Y. 2001) (same); Booze v. Shawmut Bank, 62 F. Supp.2d 593, 598 (D. Conn. 1999) (informal complaint does not satisfy FSLA).
Plaintiff's complaint may be construed to allege a cause of action for violation of either section 206 or 207 of the FSLA. Section 206 governs the payment of the federal minium wage. 29 U.S.C. § 206 ("not less than $5.15 an hour"). Section 207 provides primarily that employees shall shall be compensated at a higher pay rate for work exceeding forty hours a week. 29 U.S.C. § 207 ("not less than one and one-half times the regular rate at which he is employed").
2. Application of Law to Facts
Plaintiff has not alleged that she filed a formal complaint, instituted proceedings or testified as to any actions taken by her employer in violation of the FSLA. Plaintiff has merely complained orally to co-workers and, perhaps, supervisors concerning her grievances. There is no action under section 215(a)(3) in the absence of formal procedures. To the extent that the court can construe plaintiff's pleadings as alleging a cause of action due to violations sections 206 and 207 of the FSLA, plaintiff has not alleged sufficient facts to support such a claim. She has not alleged any violations of the minimum wage laws, nor has she specifically alleged that she was not paid based on lawful overtime pay scales.
Plaintiff has failed to state a cause of action under the FSLA. The fourth cause of action is dismissed. Plaintiff may amend within thirty days to avoid this conclusion.
I. Defamation Claims
1. Law
"Under New York law, the plaintiff must establish four elements in order to prevail on a defamation claim: (1) a false and defamatory statement of fact; (2) regarding the plaintiff; (3) published to a third party by the defendant; and (4) resulting in injury to the plaintiff." Kforce, Inc. v. Alden Personnel, 288 F. Supp.2d 513, 516 (S.D.N.Y. 2003); see also Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 779 N.E.2d 167, 171 (N.Y. 2002). The fourth element is presumed when the statement takes the form of slander or libel per se. Priviteria v. Phelps, 435 N.Y.S.2d 402, 404 (4th Dept. 1981).
A slanderous statement is actionable per se if it imputes: (1) the commission of a crime; (2) a loathsome disease; (3) unchaste behavior in a woman; (4) homosexual behavior; or (5) affects plaintiff in his trade, occupation, or business. Id. All other slander is only actionable upon allegation and proof of special damages. Id. Special damages include the loss of something of economic value which must flow directly from the injury to reputation caused by the defamation and not from the general effects of the slander. Matherson v. Marchello, 473 N.Y.S.2d 998, 1001 (2d Dept. 1984).
To be actionable in libel, a statement must be false, defamatory, and injurious to a person's reputation and thereby expose him to public shame or contempt. Christopher Lisa Matthew Poliano Inc. v. North American Precis Syndicate, Inc., 514 N.Y.S.2d 239, 241 (1st Dept. 1987).
An employer "has the right, without judicial interference, to assess an employee's performance on the job . . . since `[a] communication made by one person to another upon a subject in which both have an interest is protected by a qualified privilege.'" Williams v. Varig Brazilian Airlines, 564 N.Y.S.2d 328, 331 (1st Dept. 1991) (citing Stillman v. Ford, 290 N.Y.S.2d 893 (1968)). Moreover, "[c]ommunications between a `plaintiff's former employer . . . [and] the plaintiff's prospective employer cannot support a cause of action to recover damages for defamation' because New York recognizes a `qualified privilege' with respect to communications between former and prospective employers `as to the character of a former employee . . . even though such information may prove ultimately to be inaccurate.'" Cellamare v. Millbank, Tweed, Hadley McCloy LLP, 2003 WL 22937683 (S.D.N.Y. Dec. 2, 2003) (citations omitted).
A qualified privilege "can only be overcome by a showing that the defamatory remarks `were made with actual malice.'" Id. at *9. To show actual malice, a plaintiff must prove spite, ill will, or "such culpable recklessness or gross negligence as constitutes a wanton disregard of the rights of others." Konowitz v. Archway School, Inc., 65 A.D.2d 752, 753 (2d Dept. 1978). The Supreme Court has established an "actual malice" standard consistent with First Amendment principles: "knowledge that [the statement] was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). New York recognizes the common law and constitutional standards for actual malice in defamation suits. See Liberman v. Gelstein, 80 N.Y.2d 429, 438 (1992).
2. Application of Law to Facts
Plaintiff complains of statements made by hospital employees concerning her alleged forgery of doctor's signatures. Specifically, plaintiff alleges that defendants said that she "forged doctor's signatures, engaged in fraud, and falsified medical records." See Compl. at ¶ 104. Plaintiff has already admitted to noting the "doctor names in her handwriting." Id. at ¶ 16. The court assumes that plaintiff merely takes issue with the word "forgery" and "fraud." Defendants argue that plaintiff has not plead the first element of defamation, that of a false statement of fact. But plaintiff does claim that the statements — as plaintiff's acts are described by defendants — are false. The court accepts this assertion as true.
Plaintiff has claimed that the alleged defamatory statements were published to third parties within the hospital. Statements about plaintiff's employment are of common interest to hospital employees and administrators, and are thereby protected by New York's qualified privilege. Plaintiff must also allege that the statements were made with actual malice. Plaintiff has alleged that the statements were made "knowingly", "recklessly," "intelligently," and "negligently." Id. at ¶¶ 103-06. Plaintiff also alleges that defendants "conspired to make the false statements." Id. at ¶ 105. Taken as true, plaintiff's allegations support a claim that defendants acted with "reckless disregard for the truth." Hellenic Wiring Contracting Corp. v. Petracca Sons, Inc., 763 N.Y.S.2d 301, 303 (1st Dept. 2003).
Injury to plaintiff is presumed when, as here, the alleged statements qualify as slander per se. Defendants' statements that she "forged doctor's signatures, engaged in fraud, and falsified medical records" affected plaintiff's ability to carry on her trade or occupation. The slander per se exception for statements affecting a plaintiffs "trade, occupation, or profession . . . is limited to defamation of a kind incompatible with the proper conduct of the business, trade, profession or office itself." Liberman, 80 N.Y.2d at 436 (citations omitted). When one's profession is characterized primarily by service as an assistant to medical doctors, charges that one forges doctor's signatures and falsifies medical records are statements "of significance and importance for that purpose, rather than a more general reflection upon the plaintiff's character or qualities." Id. (citations omitted). Plaintiff's cause of action is sustainable in the absence of special damages.
Finally, plaintiff alleges that these actions have continued to occur even after her termination. Moreover, the union and hospital continue to dispute the co-signature policy. The court cannot assume on the pleadings, as defendants have, that all of the alleged defamatory statements occurred prior to December 10, 2002. The defamation cause of action is not barred by the statute of limitations. See N.Y.C.P.L.R. § 215(3) (one year statute of limitations). Defendants' motion to dismiss the eighth cause of action is denied.
J. Contract Claims Against Individuals
1. Law
"To state a claim for breach of contract under New York law, a plaintiff must allege: (1) the existence of an agreement between plaintiff and defendant; (2) adequate performance of the contract by plaintiff; (3) breach of contract by defendants, and (4) damages." Coddington v. Adelphi Univ., 45 F. Supp.2d 211, 218 (E.D.N.Y. 1999); see also First Investors Corp. v. Liberty Mut. Ins. Co., 152 F.3d 162, 168 (2d Cir. 1998). "In order to recover on a claim for breach of contract, [plaintiff] must allege, among other elements, the existence of a valid contract" between herself and the individual defendants. GR Moojestic Treats, Inc. v. Maggiemoo's Intern., LLC, 2004 WL 1110423 (S.D.N.Y. May 19, 2004).
2. Application of Law to Facts
Nowhere in the complaint does plaintiff allege that there existed an agreement between herself and the individuals defendants. The employment contract — if any — existed only between the employee and employer. Plaintiff's seventh cause of action is dimissed as against defendants Lind, Marshall, Epter, Niec and Rosen.
K. Individual Liability Under Title VII
1. Law
Individual liability does not exist under Title VII. See Tomka v. Seiler, 66 F.3d 1295, 1313 (2d Cir. 1995) ("We now hold that individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII."); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000) ("[W]e held that individuals may not be held personally liable under Title VII of the Civil Rights Act of 1964.").
2. Application of Law to Facts
Plaintiff has brought suit against five individuals for violations under Title VII. These claims against individual defendants cannot stand Defendants motion to dismiss with respect to individual liability under Title VII is granted.
L. Violation of Company Policy
1. Law
Defendants argue that since plaintiff conceded noting the doctor's names in her "own handwriting," she has conceded violating hospital policy, and, therefore, the firing was legitimate. "In a Title VII case the burden is on the plaintiff to establish a prima facie case of discrimination." Shunway v. United Parcel Svc., Inc., 118 F.3d 60, 63 (2d Cir. 1997). "Direct evidence is not necessary, and a plaintiff charging discrimination against an employer is usually constrained to rely on the cumulative weight of circumstantial evidence." Luciano v. Olsten Corp., 110 F.3d 210, 215 (2d Cir. 1997).
One of the elements plaintiff must prove is that the circumstances under which she was terminated "give rise to an inference of discrimination on the basis of race." Terry v. Ashcroft, 336 F.3d 128, 139 (2d Cir. 2003); see also Shunway, 118 F.3d at 62 (nondiscriminatory reason for termination where decision to discharge plaintiff was based on violation of company policy against inter-office fraternization); Mangaroo v. Boundless Tech., Inc., 253 F. Supp.2d 390, 398 (E.D.N.Y. 2003) ("[O]nce an employer has put-forth nondiscriminatory reasons for its employment action, it is entitled to summary judgment `unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.'") (citations omitted); Lugo v. Milford Mgmt. Corp., 956 F. Supp. 1120, 1129 (S.D.N.Y. 1997) (finding legitimate termination when plaintiff violated company policy).
2. Application of Law to Facts
This ground for dismissal cannot be recognized on a motion to dismiss under Rule 12(b)(6). Plaintiff alleges that it was company policy — taught in training — that physician assistants note doctor's names in patient records. Accepting that allegation as true, plaintiff did not violate company policy, and her termination was not based on a violation of company policy. The complaint alleges sufficient facts to support an inference of discrimination on the basis of race through distortion of company policy to plaintiff's disadvantage. The motion is denied.
IV. Conclusion
Defendants' motions to dismiss are granted in part, with leave to amend as indicated in this memorandum.
The parties will prepare promptly for trial. Discovery is to be expedited to be completed by September 15, 2004. A pre-trial conference will be held on October 12, 2004 at 10:00 a.m. Trial is set for October 18, 2004. Summary judgment motions, if any, must be made promptly so as not to delay trial.
SO ORDERED.