Opinion
21-CV-9142 (VEC)
03-10-2023
KRISTIN LEVY, Plaintiff, v. NYC HEALTH + HOSPITALS and MEDICAL STAFFING SERVICES, INC., Defendants.
OPINION & ORDER
VALERIE CAPRONI, United States District Judge.
Kristin Levy has sued a city-owned hospital and a medical staffing agency for employment discrimination. Am. Compl., Dkt. 26. Plaintiff brings claims pursuant to Title VII, the New York State Human Rights Law (“NYSHRL”), the New York City Human Rights Law (“NYCHRL”), section 1981, and section 1983. Id. Defendants separately moved to dismiss, Dkts. 30, 33, and Plaintiff opposed the motions, Dkts. 42, 44. For the reasons discussed below, Defendant Medical Staffing Services, Inc.'s motion to dismiss is GRANTED, and Defendant NYC Health + Hospitals' motion to dismiss is GRANTED except as to Plaintiff's hostile work environment and retaliation claims pursuant to Title VII and section 1981, as to which the motion is DENIED.
The well-pled facts alleged in the Amended Complaint are assumed true for purposes of evaluating Defendants' motions to dismiss. See Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014).
Ms. Levy is Black woman with “dark skin color.” Am. Compl. ¶ 8. She worked for Defendant Medical Staffing Services, Inc. (“Medical Staffing”) and Defendant NYC Health + Hospitals (“the Hospital”) as a mortuary technician from April 28, 2020 to May 21, 2020. Id. ¶¶ 8-10, 43-44. Plaintiff alleges that Defendants were joint employers and that her supervisors, Shruti Dimri and Jennifer Coard, were employed by the Hospital. Id. ¶¶ 10-11, 15. Ms. Dimri is South Asian, and her skin is a lighter color than Plaintiff's. Id. ¶ 20.
In Plaintiff's administrative complaint filed with the United States Equal Employment Opportunity Commission (“EEOC”) and the New York City Commission on Human Rights (“NYCCHR”), Plaintiff appears to have mistakenly stated that her supervisor's surname was Tiwari instead of Dimri and that she worked at a hospital in Brooklyn instead of Queens. See Reynolds Decl. Ex. 1, Dkt. 32 at 1 (“Admin. Compl.”); Am. Compl., Dkt. 26 ¶¶ 9, 11. Plaintiff's claims in the Amended Complaint are “reasonably related” to her claims in the administrative complaint, as they detail “incidents of discrimination carried out precisely in the same manner alleged in the” administrative complaint. Williams v. New York City Hous. Auth., 458 F.3d 67, 70 n.1 (2d Cir. 2006) (internal quotation omitted). An investigation into Ms. Dimri's conduct could “reasonably be expected to grow out of the charge that was made” administratively. Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (internal quotation omitted). In fact, the Hospital was able to identify the correct supervisor and work location in its response to Plaintiff's administrative complaint. Reynolds Decl. Ex. 2, Dkt. 32 at 2-3. The administrative complaint satisfies the requirement of “loose pleading” of a plaintiff's complaint, the “primary purpose” of which “is to alert the EEOC to the discrimination that a plaintiff claims she is suffering.” Deravin, 335 F.3d at 201 (cleaned up).
Ms. Levy alleges that Ms. Dimri discriminated against her on the basis of her race and skin color. Id. ¶ 19. Beginning on May 6, 2020, Ms. Dimri “repeatedly” used a racial slur with reference to Ms. Levy and Ms. Levy's Black coworkers. Id. ¶¶ 22-23, 26-27, 37-40. After Ms. Levy objected, Ms. Dimri began reprimanding Ms. Levy and other Black employees for misconduct, such as returning late from lunch, for which non-Black employees of lighter skin color were not disciplined. Id. ¶¶ 29-31. Ms. Dimri persisted in using the slur throughout Ms. Levy's employment. Id. ¶¶ 24-27, 33, 40.
On May 15, 2020, Ms. Levy complained about Ms. Dimri's use of the racial slur to Ms. Coard, who was Ms. Dimri's supervisor. Id. ¶¶ 32-33. Ms. Coard accused Ms. Levy of lying. Id. ¶¶ 34-35. On May 20, 2020, Ms. Levy again complained to Ms. Coard about Ms. Dimri's continued use of a racial slur. Id. ¶¶ 37, 40. Ms. Coard asked Ms. Levy to write a statement detailing her experiences of discrimination; the day after Ms. Levy emailed Ms. Coard the statement, Ms. Coard fired her at a meeting called to discuss Ms. Levy's complaint. Id. ¶¶ 41-44. Ms. Levy alleges, “[u]pon information and belief,” that she was replaced by an individual with lighter skin color who was not Black. Id. ¶ 49.
On March 9, 2021, Plaintiff filed complaints with the New York City Commission on Human Rights (“NYCCHR”) and the United States Equal Employment Opportunity Commission (“EEOC”). Am. Compl. ¶ 50; see also Reynolds Decl. Ex. 1 (“Admin. Compl.”), Dkt. 32.
DISCUSSION
I. Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must allege sufficient facts, taken as true, to state a plausible claim for relief.” Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing BellAtl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). “Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “[T]o survive a motion under Rule 12(b)(6), a complaint does not need to contain detailed or elaborate factual allegations, but only allegations sufficient to raise an entitlement to relief above the speculative level.” Keiler v. Harlequin Enters., Ltd., 751 F.3d 64, 70 (2d Cir. 2014) (citation omitted).
II. This Court Lacks Jurisdiction Over Plaintiff's NYCHRL and NYSHRL Claims
The Court does not have subject matter jurisdiction over Plaintiff's claims brought pursuant to the NYCHRL and the NYSHRL because she previously brought those claims to the NYCCHR. Am. Compl. ¶ 50; see also Admin. Compl. Although Defendants failed to raise this issue in their briefs, it is black letter law that federal courts may raise the issue of subject matter jurisdiction sua sponte. See Transatl. Marine Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105, 107-108 (2d Cir. 1997). Pursuant to the “‘election of remedies' doctrine, a complainant who files a complaint with . . . the New York City Commission on Human Rights . . .” generally is barred from bringing those same claims under the NYCHRL or the NYSHRL in federal court. Chakraborty v. Soto, No. 16-CV-9128, 2017 WL 5157616, at *7 (S.D.N.Y. Nov. 6, 2017); see also York v. Assoc. of Bar of City of New York, 286 F.3d 122, 127 (2d Cir. 2002). Courts may exercise subject matter jurisdiction over claims brought before the NYCCHR only if the complaint was dismissed “on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled.” Bryan v. Mem. Sloan Kettering Cancer Ctr., No. 18-CV-1300, 2022 WL 4096862, at *7 n.2 (S.D.N.Y. May 18, 2022) (cleaned up). Plaintiff, who bears the burden of demonstrating that this Court has subject matter jurisdiction, see Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), has alleged no facts suggesting that any of those exceptions apply. Although Plaintiff alleges that the NYCCHR “granted [her] an administrative closure,” Am. Compl. ¶ 51, she has not alleged that “[t]he Administrative Closure order . . . indicat[ed] that the dismissal of plaintiff's complaint was for ‘administrative convenience,'” Jourihan v. Ecuadorian Line, Inc., No. 95-CV-10698, 1997 WL 2518, at *7 (S.D.N.Y. Jan. 3, 1997) (dismissing plaintiff's NYSHRL claims under the election of remedies doctrine). See also Adeniji v. Harman Firm, LLP, No. 19-CV-8032, 2022 WL 254939, at *3-4, *4 n.7 (Jan. 27, 2022).
The Court may consider materials outside of the pleadings, included Plaintiff's administrative complaint that was submitted to the NYCCHR and that Defendants submitted in conjunction with their motions to dismiss, when evaluating whether the Court has subject matter jurisdiction. See M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir. 2013). See also Michael J. Redenburg, Esq. PC v. Midvale Indem. Co., 515 F.Supp.3d 95, 102 (S.D.N.Y. 2021) (collecting cases). Although Plaintiff incorrectly stated the last name of the supervisor who made the allegedly discriminatory comments and the location where she worked, see Hospital Mem. Dkt. 31 at 6, “[c]laims need not be identical in order to be barred by the state or city election of remedies provisions,” Rosario v. New York City Dep't of Educ., No. 10-CV-1610, 2011 WL 1465763, at *2 (S.D.N.Y. Apr. 15, 2011). The election of remedies doctrine bars courts from hearing “claims arising out of the same incidents on which an NYSDHR or NYCCHR complaint was based.” Chakraborty v. Soto, No. 16-CV-9128, 2017 WL 5157616, at *7 (S.D.N.Y. 2017) (cleaned up).
Because the Court lacks subject matter jurisdiction over Ms. Levy's NYCHRL and NYSHRL claims, they are dismissed.
It is, of course, of no moment that the administrative complaint filed with the NYCCHR cited neither the NYCHRL nor the NYSHRL. See Gomez v. New York City Police Dep't, 191 F.Supp.3d 293, 298-99 (S.D.N.Y. 2016) (holding that the election of remedies doctrine barred plaintiff's NYSHRL claim even though the administrative complaint did not cite the NYSHRL).
III. The Hospital's Motion to Dismiss Plaintiff's § 1983 Claim Is Granted
Plaintiff fails plausibly to allege that the Hospital violated section 1983. See Am. Compl. To state a claim pursuant to section 1983, Plaintiff must allege that the Hospital has a “policy, custom, or practice” that proximately caused her injuries. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). The Amended Complaint is devoid of any allegations that the Hospital has a policy or practice that violates section 1983.
New York City Health + Hospitals, Inc. is a municipal corporation and thus subject to suit under section 1983. See Dames v. Pigott, No. 18-CV-8352, 2019 WL 4014102, at *5 (S.D.N.Y. Aug. 26, 2019).
Plaintiff claims that Ms. Coard is a final policymaker because she had “final decisionmaking authority related to th[e] decision to terminate Ms. Levy,” and, therefore, Ms. Coard's actions constitute a municipal policy. Am. Compl. ¶ 48; see also id. ¶¶ 32, 75, 124. Ms. Coard's ability to make final personnel decisions does not make her a final policymaker within the meaning of Monell. See Ahmad v. New York City Health and Hosps. Corp., No. 20-CV-675, 2021 WL 1225875, at *34 (S.D.N.Y. Mar. 31, 2021) (holding that a supervisor at New York City Health and Hospitals Corp. was not a final policymaker). Just “because an employee of the municipality has the authority to make decisions that are unreviewable does not make that employee a policymaker.” Id. (citing Agosto v. New York City Dep't of Educ., 982 F.3d 86, 98 (2d Cir. 2020)). The contrary rule would subject municipalities to liability under section 1983 for “any adverse employment action by a manager.” Huda v. New York City Health and Hosps. Corp., No. 19-CV-11556, 2021 WL 1163975, at *5 (S.D.N.Y. Mar. 26, 2021).
Because Plaintiff has failed to allege adequately that she was harmed by a policy, custom or practice of New York City Health + Hospitals, the Hospital's motion to dismiss her claims brought pursuant to section 1983 is granted.
IV. Plaintiff's Claims Pursuant to Title VII and § 1981
A. Legal Standard
As is relevant here, Title VII prohibits employers from discriminating on the basis of race and color. 42 U.S.C. § 2000e-2(a)(1). A plaintiff alleging discrimination in violation of Title VII must allege “sufficient facts to make [her] claim plausible . . . in light of the presumption that arises in plaintiff's favor under [McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),] in the first stage of the litigation.” Littlejohn v. City of New York, 795 F.3d 297, 310 (2d Cir. 2015). The pleading requirements for claims brought pursuant to 42 U.S.C. § 1981 is substantively similar to the pleading standard for claims brought pursuant to Title VII. See Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 225-27 (2d Cir. 2004).
To defeat a motion to dismiss, a plaintiff need only plead facts from which the Court can plausibly infer a prima facie case of discrimination. See Menaker v. Hofstra Univ., 935 F.3d 20, 30 (2d Cir. 2019). “[W]hile a discrimination complaint need not allege facts establishing each element of a prima facie case of discrimination to survive a motion to dismiss, it must at a minimum assert nonconclusory factual matter sufficient to nudge its claims across the line from conceivable to plausible to proceed.” Equal Emp. Opportunity Comm'n v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014) (cleaned up). The elements of a prima facie case are “an outline of what is necessary to render a plaintiff's employment discrimination claims for relief plausible.” Yan v. Ziba Mode Inc., No. 15-CV-47, 2016 WL 1276456, at *3 (S.D.N.Y. Mar. 29, 2016) (cleaned up).
Accordingly, “what must be plausibly supported by facts alleged in the complaint is that the plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Littlejohn, 795 F.3d at 311. The alleged facts “need only give plausible support to a minimal inference of discriminatory motivation.” Id. Nonetheless, a complaint is properly dismissed if the plaintiff fails “to plead any facts that would create an inference that any adverse action taken by any defendant was based upon [a protected characteristic of the plaintiff].” Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (per curiam) (cleaned up).
B. Medical Staffing's Motion to Dismiss Plaintiff's Claims of Discrimination and Retaliation Is Granted
Ms. Levy sues Defendant Medical Staffing for racial discrimination, retaliation, and subjecting her to a hostile work environment pursuant to Title VII and section 1981. See Am. Compl. ¶¶ 55-56, 63-64, 102, 116. While Plaintiff alleges that Medical Staffing had the authority “to direct, discipline, and provide work assignments to Ms. Levy,” she alleges no facts that suggest it took any adverse employment actions against her or that its employees behaved in a discriminatory manner. Am. Compl. ¶ 10.
The only two individuals whom Ms. Levy accuses of behaving in a discriminatory manner are Ms. Dimri and Ms. Coard, both of whom were Hospital employees. See id. ¶ 11. Plaintiff's claims that Medical Staffing was involved in her termination and the allegedly discriminatory acts are entirely conclusory and contradict her claim that Ms. Coard had the final authority over the decision to terminate her. Id. ¶¶ 48, 56, 65, 124.
Accordingly, Plaintiff fails to state a claim for relief under Title VII against Medical Staffing, and Medical Staffing's motion to dismiss is granted.
C. Plaintiff's Discrimination Claim Against the Hospital Is Dismissed
Plaintiff's discrimination claim against the Hospital is based on her allegations that Ms. Dimri used a racial slur repeatedly, that Plaintiff was reprimanded for misconduct for which non Black and lighter skinned employees were not reprimanded, and that she was replaced by an individual who was not Black and had a lighter skin color.
The Hospital does not dispute that Ms. Levy is a member of a protected class or that she was qualified for the job. Rather, the Hospital argues that Ms. Levy's claims of discrimination fail because she has not plausibly alleged that her race or color was a motivating factor in her termination, the sole adverse action alleged by the Plaintiff. Hospital Mem., Dkt. 31 at 2.
Although Plaintiff only alleged race discrimination in her administrative complaint, see Admin. Compl., she may bring her claim of color discrimination in federal court because it is reasonably related to her race discrimination claim. See O'Quinn v. City of New York, No. 19-CV-9663, 2021 WL 4429787, at *6 (S.D.N.Y. Sept. 27, 2021) (“[T]he prevailing view in this district [is] that a color discrimination claim and a race discrimination claim are of the same type and character such that the defendant cannot claim to be unfairly surprised by the allegation of color discrimination.” (cleaned up).)
1. Racial Slurs
Plaintiff alleges that, beginning on May 6, 2020, Ms. Dimri repeatedly used a racial slur when speaking to and within earshot of Plaintiff. Am. Compl. ¶¶ 22-27, 29-30, 37-40. In determining whether a statement is “probative of discriminatory intent,” courts consider the following factors, no one of which is dispositive: “(1) who made the remark (i.e., a decisionmaker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).” Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 149 (2d Cir. 2010).
Title VII requires a Plaintiff to have filed an administrative complaint with the EEOC or the equivalent state agency within 300 days of the alleged discriminatory conduct in order to be able to sue in court. See id. at *4. Plaintiff's administrative complaint filed with the EEOC and the NYCCHR is dated March 9, 2021. See Admin. Compl. Accordingly, any claims predating May 13, 2020, including the alleged use of a racial slur on May 6, 2020, fall outside of Title VII's statute of limitations. See Am. Compl. ¶¶ 22-23. While claims that arise outside of the 300-day statute of limitations cannot be standalone discrimination claims, they may be considered as part of a hostile work environment claim because such claims, by their “‘very nature involve[] repeated conduct.'” Chin v. Port Auth. of NY & NJ, 685 F.3d 135, 156 (2d Cir. 2012) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002)). Accordingly, the Court will consider the allegations regarding the use of racial slurs prior to May 13, 2020, only for the purposes of evaluating whether Plaintiff has adequately alleged a Title VII hostile work environment claim. See Section IV(E), infra.
The “N-word,” which is the racial slur Plaintiff alleges Ms. Dimri repeatedly used, is extremely offensive. That said, “[t]he relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that the decision-maker was motivated by assumptions or attitudes relating to the protected class.” Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 116 (2d Cir. 2007), abrogated in part on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).
Although Plaintiff alleges that Ms. Dimri repeatedly used racial slurs in the days leading up to Plaintiff's termination, see Am. Compl. ¶¶ 37-44, that temporal proximity is insufficient to raise an inference of discriminatory intent because Plaintiff does not allege that Ms. Dimri's slurs were connected in any way to Ms. Coard's decision to fire her. See Russo v. New York Presbyterian Hsop., 972 F.Supp.2d 429, 456 (E.D.N.Y. 2013) (noting that “temporal proximity” alone is insufficient to establish causation) (citing Ben-Levy v. Bloomberg, L.P., 518 Fed.Appx. 17, 19-20 (2d Cir. 2013)). Although Ms. Dimri allegedly was Ms. Levy's supervisor, the Amended Complaint contains no facts connecting Ms. Dimri's use of racial slurs to Ms. Coard's decision to terminate her. See Mesias v. Cravath, Swaine & Moore LLP, 106 F.Supp.3d. 431, 438 (S.D.N.Y. 2015) (holding that, for remarks to raise an inference of discriminatory intent, there must be “a nexus between the remarks and an adverse employment decision.”).
The Amended Complaint alleges that Ms. Coard, not Ms. Dimri, “made the decision to terminate Ms. Levy and had final decision-making authority related to this decision.” Am. Compl. ¶ 48; see also id. ¶ 32.
Numerous courts have held that discriminatory comments in the work environment by individuals without the authority to make employment decisions are insufficient to raise an inference of discriminatory intent. See Maragh v. Roosevelt Island Op. Corp., No. 16-CV-7530, 2021 WL 3501238, at *8 (S.D.N.Y. Aug. 5 2021) (“[A]llegedly discriminatory comments made by non-decisionmakers are, as a matter of law, insufficient to raise an inference of discrimination.” (quoting De La Cruz v. City of New York, 784 F.Supp.2d 622, 643 (S.D.N.Y. 2011))); see also, e.g., Martin v. City Univ. of New York, No. 17-CV-6791, 2018 WL 6510805, at *9 (S.D.N.Y. Dec. 11, 2018); Luka v. Bard College, 263 F.Supp.3d 478, 487 (S.D.N.Y. 2017).
2. Reprimands
Plaintiff alleges that Ms. Dimri reprimanded Ms. Levy for returning to work late from lunch but did not reprimand non-Black employees with lighter skin color, including one South Asian woman, for the same or worse conduct. Am. Compl. ¶¶ 29-31. This allegation fails to state a claim for two reasons: a reprimand is not an adverse action and, even if it were, Plaintiff has not adequately alleged that she was treated differently from an appropriate comparator.
To the extent that Plaintiff seeks to allege that these reprimands were adverse employment actions that will support a claim of employment discrimination, she is in error. It is well established that reprimands tied to specific violations of workplace rules, such as “leaving work early and similar actions,” are not, by themselves, adverse employment actions. Scott v. City of New York Dep't of Corr., 641 F.Supp.2d. 211, 232 (S.D.N.Y. 2009) (internal quotation omitted) (collecting cases).
If Plaintiff wants to use the reprimands not as standalone adverse actions but to establish that the Hospital acted discriminatorily by treating Plaintiff worse than it treated a co-worker outside of her protected class, Ms. Levy “must compare herself to another employee whose situation is sufficiently similar to the plaintiff's ‘to support at least a minimal inference that the difference of treatment may be attributable to discrimination.'” Scelfo v. Aurora Concept, Inc., No. 02-CV-7835, 2006 WL 336038, at *10 (S.D.N.Y. Feb. 10, 2006) (quoting McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001)). Ms. Levy has not done so because she has provided no details regarding the situations of the employees who were not reprimanded, such as whether they were “subject to the same standards governing performance evaluation and discipline.” Hill v. Rayboy-Braustein, 467 F.Supp.2d 336, 356 (S.D.N.Y. 2006).
3. Replacement
Finally, Ms. Levy alleges, “[u]pon information and belief,” that she “was replaced by a non-African American individual with lighter skin color.” Am. Compl. ¶ 49. This speculative statement, with no facts to explain the factual basis for her belief, is insufficient plausibly to allege that she was replaced with an employee who was not Black and had a lighter complexion. See Hernandez v. City of New York, No. 18-CV-5870, 2019 WL 2410129, at *3 (S.D.N.Y. June 7, 2019) (collecting cases).
Because Plaintiff has not adequately alleged facts from which the Court can plausibly infer that the Hospital acted with discriminatory motive when it terminated her, the Hospital's motion to dismiss Plaintiff's claims for employment discrimination is granted.
D. The Hospital's Motion to Dismiss Plaintiff's Retaliation Claim Is Denied
To state a claim for retaliation, a plaintiff needs plausibly to allege “(1) that she participated in a protected activity, (2) that she suffered an adverse employment action, and (3) that there was a causal connection between her engaging in the protected activity and the adverse employment action.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010). It is undisputed that Ms. Coard's decision to terminate Plaintiff was an adverse employment action.
Plaintiff's failure to allege that Ms. Coard was not a member of the same protected class, see Hospital Mem. at 11, is irrelevant to her retaliation claim. A plaintiff need not “demonstrate a connection between the alleged retaliatory acts and [her] ethnicity'” to state a claim for retaliation. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 91 (2d Cir. 2015).
A complaint to an employer is protected activity if the employee has an “good faith, reasonable belief” that she is complaining about conduct prohibited by Title VII, even if, as a matter of law, it is not. McMenemy v. City of Rochester, 241 F.3d 279, 285 (2d Cir. 2001).
“It is undisputed that informal complaints to supervisors” about other employees' discriminatory remarks constitute protected activity under Title VII. See Alvarado v. Mt. Pleasant Cottage Sch. Dist., 404 F.Supp.3d 763, 782 (S.D.N.Y. 2019) (finding that a schoolteacher's informal complaints to her supervisor about a dean's racially disparaging comments were protected activity); Hernandez v. Kwiat Eye and Laser Surgery, PLLC, No. 20-CV-42, 2023 WL 372105, at *10 (S.D.N.Y. Jan. 24, 2023) (finding that plaintiff's internal complaints “to someone in a managerial position” regarding a supervisor's conduct were protected activity). Ms. Levy alleges that she made numerous complaints to Ms. Coard and to Ms. Dimri, who was her supervisor when Ms. Coard was absent. Am. Compl. ¶¶ 11, 21, 28, 33. Thus, Plaintiff has adequately alleged that she engaged in protected activity.
Plaintiff has also plausibly alleged a causal connection between her protected activity and her termination. A plaintiff may indirectly establish that an adverse action was retaliatory if the “protected activity was closely followed in time by the adverse action.” Summa v. Hofstra Univ., 708 F.3d 115, 127-28 (2d Cir. 2013). Plaintiff was terminated the day after she complained to Ms. Coard, the same person who fired her, at a meeting with Ms. Coard that Plaintiff alleges had been scheduled to discuss her complaint about Ms. Dimri. Am. Compl. ¶¶ 40-44.
Because Plaintiff has adequately alleged that she was retaliated against for complaining about Ms. Dimri's discriminatory behavior, the Hospitals' motion to dismiss the Plaintiff's claim of retaliation is denied.
The Amended Complaint further alleges that Defendants retaliated against Plaintiff by “allowing employees, including her supervisor Dimri, to subject Ms. Levy to harassing comments,” including using a racial slur “on multiple occasions.” Am. Compl. ¶ 104. The Court understands the import of that allegation to be that Ms. Coard failed to stop Ms. Dimiri from subjecting Ms. Levy to continued verbal abuse. The Complaint does not, however, tie the “failure to intervene” to any protected activity of Ms. Levy, a tie that is necessary to allege retaliation. See Notaro v. Fossil Indus., Inc., 820 F.Supp.2d 452, 461 (E.D.N.Y. 2011) (holding that a failure to investigate a complaint is not retaliation for making that same complaint) (citing Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 721 (2d Cir. 2010)).
E. The Hospital's Motion To Dismiss Plaintiff's Hostile Work Environment Claim Is Denied
At the motion to dismiss stage, to state a claim for hostile work environment, a plaintiff must allege that “she was faced with harassment of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.” Patante v. Clark, 508 F.3d 113 (2d Cir. 2007) (cleaned up). “For racist . . . slurs . . . to constitute a hostile work environment, there must be more than . . . sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.” Kemp v. A & J Produce Corp., 164 Fed.Appx. 12, 14 (2d Cir. 2005) (cleaned up). The Court finds that Plaintiff has adequately alleged that a supervisor's continual use of a racial slur over the course of Plaintiff's employment created a hostile environment.
“[P]erhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet . . . by a supervisor in the presence of his subordinates.” Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) (internal quotation omitted). Plaintiff describes at least two incidents in which Ms. Dimri directed a racial slur at her and alleges that, beyond those incidents, Ms. Dimiri “repeatedly” used the racial slur when referring to her and other Black employees. Am. Compl. ¶¶ 23, 26-27, 39.
Plaintiff's complaint adequately alleges “a steady barrage” of racial slurs sufficient to state a hostile work environment claim. See Kemp, 164 Fed.Appx. at 14. In Drouillard v. Sprint/United Management Co., 375 F.Supp.3d 245 (E.D.N.Y. 2019), the court denied defendant's motion for summary judgment as to the plaintiff's hostile work environment claim when the evidence showed that the plaintiff's supervisor used a racial slur approximately three times over the course of one month and repeatedly used a racial slur to refer to others in the plaintiff's presence. Id. at 262-64. Plaintiff alleges similar usage of a racial slur. Given the particularly disturbing nature of the slur, in certain circumstances, even a single use of that particular racial slur may create a hostile work environment. See Albert-Roberts v. GGG Const., LLC, 542 Fed.Appx. 62, 64 (2d Cir. 2013).
Accordingly, Plaintiff has stated a claim for a hostile work environment against the Hospital based on Ms. Dimri's alleged repeated use of a racial slur.
CONCLUSION
For the foregoing reasons, Defendant Medical Staffing Services, Inc.'s motion to dismiss is GRANTED and Defendant NYC Health + Hospitals' motion to dismiss is GRANTED except as to Plaintiff's claims for retaliation and a hostile work environment pursuant to Title VII and Section 1981, as to which it is DENIED. The Clerk of Court is respectfully directed to terminate the open motions at docket entries 30 and 33 and to terminate Defendant Medical Staffing Services, Inc. from the docket.
As of this order, discovery is no longer stayed. See Order, Dkt. 40. The parties' joint letter and proposed case management plan, as described at docket entry 23, are due on March 23, 2023. The parties are ordered to appear for an initial pretrial conference on Friday, March 31, 2023, at 10 A.M. in Courtroom 443 of the Thurgood Marshall Courthouse, 40 Foley Square, New York, New York, 10007.
SO ORDERED.