Opinion
22 Civ. 04553 (PGG) (GWG)
06-08-2023
LISA QUARLES, Plaintiff, v. NEW YORK CITY HEALTH AND HOSPITALS, JONATHAN WANGEL, in his individual and official capacities, and ANDREA COHEN, in her individual and official capacities, Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Lisa Quarles has brought suit against defendants New York City Health and Hospitals (“H+H”), Jonathan Wangel, and Andrea Cohen for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); 42 U.S.C. §§ 1981, 1983; the New York State Human Rights Law, N.Y. Exec. Law. § 290 et seq. (“NYSHRL”); and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (“NYCHRL”). See Complaint, filed Jan. 13, 2022 (Docket # 1) (“Compl.”). Defendants have moved to dismiss on various grounds. For the reasons that follow, the motion should be granted in part and denied in part.
See Motion to Dismiss, filed Nov. 18, 2022 (Docket # 29) (“Mot.”); Declaration of Angela M. Wanslow, filed Nov. 18, 2022 (Docket # 30) (“Wanslow Decl.”); Memorandum of Law in Support, filed Nov. 18, 2022 (Docket # 31) (“Def. Mem.”); Memorandum of Law in Opposition, filed Nov. 18, 2022 (Docket # 28; duplicate at Docket # 33) (“Opp.”); Reply Memorandum of Law in Support, filed Nov. 18, 2022 (Docket # 32) (“Def. Reply”).
I. BACKGROUND
The complaint makes the following factual allegations, which we assume are true for the purposes of the motion to dismiss:
Quarles is an African American woman. Compl. ¶ 11. H+H is a New York corporation that oversees hospitals and clinics in New York City. Id. ¶ 12. Wangel is the “Deputy Counsel and Assistant Vice President of Labor Relations” for H+H. Id. ¶ 13. Cohen is the “Head of Labor Relations” for H+H. Id. ¶ 14.
H+H hired Quarles as a “Labor Relations Specialist” either in January or February 2019. Id. ¶¶ 33-34. Quarles had 25 years of experience in this area, including as a director of labor relations for a different hospital. Id. ¶¶ 15-16. A labor relations specialist “is a position beneath Director in title, salary, and prestige.” Id. ¶ 17. When H+H hired Quarles, she was told she would be able to apply for the position of “Director of Labor Relations” at some point in the future and that there were “always openings” for this role. Id. ¶ 34. Quarles has worked at H+H's Lincoln Hospital as a labor relations specialist since then, id. ¶ 11, yet she performs all of the duties of a Director of Labor Relations at that hospital without the formal title or commensurate pay, id. ¶¶ 21-22.
In June 2019, Quarles applied for three director positions - two at H+H's Central Office and one at “Elmhurst/Queens.” Id. ¶ 38. Quarles interviewed for the director position at Elmhurst/Queens on July 2, 2019. Id. ¶ 41. At the interview, Quarles was told she would be able to interview for other director positions when they came open, and she told the hiring panel that she would be willing to “go wherever the Director position was located.” Id. ¶¶ 45-46. H+H hired Frederick Garrity, a “Caucasian male” who had 17 years of “relevant experience,” but no experience with H+H, as labor relations director. Id. ¶¶ 42, 44, 59. At some point, he became “the highest paid Director of Labor Relations.” Id. ¶ 44.
Quarles applied again for a director position at H+H's Central Office on December 4, 2019. Id. ¶ 47. Quarles did not receive an interview, and Wangel hired a Caucasian female named Samantha Kent, “who previously worked with Mr. Wangel.” Id.
Quarles also asserts that she was more qualified than a Caucasian male named JJ Blitstein, who H+H brought in from outside H+H and hired for a director role. Id. ¶ 58. Quarles appears to say H+H hired Blitstein to be “Director of Coler/Carter/Gouverneur/Seaview/ McKinney,” but does not say whether she applied or received an interview for this role. Id. ¶ 39.
Kent left her directorship at the Central Office around January or February 2020, and Quarles tried to speak with Wangel about the vacated role. Id. ¶¶ 48-49. Wangel scheduled and cancelled meetings with Quarles ten times from April to October 2020. Id. ¶ 49. Wangel did not want to talk with Quarles until he spoke with her supervisor, Michelle Kelly, about Quarles' performance. Id. ¶ 50. Kelly resigned from H+H in 2021 without ever speaking to Wangel about Quarles' performance or a promotion. Id. Kelly has testified that Wangel wanted Kelly to come up with a plan to identify Quarles' weaknesses and improve. Id. ¶ 51. Kelly testified that Wangel failed for over a year to meet with her and Quarles and that she believed his request for her to document Quarles' weaknesses “was nothing more than a further attempt to keep a Black Woman . . . from becoming Director.” Id.
Quarles tried to “reach an agreement” with H+H and retained counsel “to protect her rights.” Id. ¶ 64. Since this time, her questions are “turned against her as some form of deficiency in her work,” supervisors have sometimes ceased communications, and she “is often told to let the attorneys speak to each other . . . and receives no further answer to her” questions. Id.¶ 65.
Quarles filed complaints with both the New York State Division of Human Rights (“NYSDHR”) and the United States Equal Employment Opportunity Commission (“EEOC”) on February 9, 2021, charging defendants “with discrimination based upon Plaintiff's race, color and sex in violation of”' the NYSHRL. Id. ¶ 9. The Department of Justice issued Quarles a Notice of Right to Sue Within 90 Days on October 15, 2021. Id. ¶ 10.
Quarles filed suit against defendants on January 13, 2022 in the Eastern District of New York. See id. The case was transferred to the Southern District on June 2, 2022. See Transfer Order, filed June 2, 2022 (Docket # 14). Defendants filed the instant motion to dismiss on November 18, 2022. See Mot.
In conjunction with their motion to dismiss, defendants seek to have the Court take judicial notice of the NYSDHR proceedings. See Exhibit A, annexed as Ex. A to Wanslow Decl. (Docket # 30-1) (“SDHR Rec.”). We summarize the NYSDHR documents briefly here before discussing judicial notice.
Quarles filed a discrimination complaint - apparently pro se - with the NYSDHR on February 9, 2021, see SDHR Rec. at 37-46, 161-172, though at some point she retained counsel, see, e.g., id at 147-161. The NYSDHR investigated her allegations of unequal pay and failure to promote based on race and sex and found “NO PROBABLE CAUSE to believe that the respondents have engaged in or are engaging in the unlawful discriminatory practice complained of.” Id. at 150-153. The division informed Quarles that an appeal of the decision could be made by filing a petition with the New York State Supreme Court in the appropriate county and that she had the right to request “a review by EEOC” of this action by writing to EEOC within 15. days. It also stated that if she did not do so, the “EEOC will generally adopt our action in your case.” Id. at 153.
“SDHR Rec. at ” refers to pagination appearing in the lower right corner.
II. LAW GOVERNING A MOTION TO DISMISS UNDER FED. R. CIV. P. 12(b)(6)
A party may move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) when the opposing party's complaint “fail[s] to state a claim upon which relief can be granted.” While a court must accept as true all of the factual allegations contained in a complaint, that principle does not apply to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“[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.”) (punctuation omitted). In other words, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,” Iqbal, 556 U.S. at 678, and a court's first task is to disregard any conclusory statements in a complaint, id. at 679.
Next, a court must determine if the complaint contains “sufficient factual matter” which, if accepted as true, states a claim that is “plausible on its face.” Id. at 678 (punctuation omitted). “A claim has facial plausibility 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.” Id. (punctuation omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” a complaint is insufficient under Fed.R.Civ.P. 8(a) because it has merely “alleged” but not “‘show[n]' . . . that the pleader is entitled to relief.” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
III. DISCUSSION
A. Judicial Notice of the NYSDHR Proceeding
Defendants have provided the Court with a record of the NYSDHR proceedings regarding Quarles' claims. See SDHR Rec. Quarles does not question the authenticity of the record but argues that the Court should not refer to it in adjudicating the motion to dismiss because it is outside the four corners of the complaint. Opp. at 6-8.
We reject this argument on two grounds. First, a document outside the pleadings may be considered where the document either is “incorporated in [the complaint] by reference” or is “integral to the complaint.” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (citations omitted). “A matter is deemed integral to the complaint when the complaint relies heavily upon its terms and effect.” Palin v. New York Times Co., 940 F.3d 804, 811 (2d Cir. 2019) (citations and punctuation omitted). Here, the complaint alleges that Quarles filed a charge before the NYSDHR. Compl. ¶ 9. Additionally, it quotes at length from the testimony presented to the NYSDHR, id. ¶¶ 35-37, and it appears to rebut arguments apparently put forward by defendants in those proceedings - even referring to defendants here as “respondents” and characterizing their prior position, which appears to be derived from the NYSDHR, id. ¶ 39. On similar facts, courts have deemed the record of an NYSDHR proceeding to be incorporated or integral to the complaint. See, e.g., Zoulas v. New York City Dep't of Educ., 400 F.Supp.3d 25, 48 (S.D.N.Y. 2019) (“The Court concludes that Zoulas' SDHR complaint and rebuttal are incorporated by reference because she includes allegations contained in these documents in her complaint and opposition and explicitly cites them in both filings.”).
In any event, a court may take judicial notice of public records under Fed.R.Evid. 201. See Blue Tree Hotels Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). Indeed, courts have routinely taken judicial notice of NYSDHR proceedings at the motion to dismiss stage. See, e.g., Mejia v. New York City Health & Hosps. Corp., 2014 WL 2115109, at *2 (S.D.N.Y. May 19, 2014), aff'd, 622 Fed.Appx. 70 (2d Cir. 2015); Zoulas, 400 F.Supp.3d at 48 (“Furthermore, the Court is permitted to take judicial notice of Zoulas' filings with the SDHR.”); Isbell v. City of New York, 316 F.Supp.3d 571, 587 (S.D.N.Y. 2018) (“To the extent that a particular filing with the NYSDHR is not referenced or otherwise incorporated into the Amended Complaint, I may take judicial notice of it for purposes of deciding Defendants' motion.”). Quarles herself, in arguing against the Court taking notice of the NYSDHR proceedings, conceded as much by noting: “[a]t the motion to dismiss stage, courts may take judicial notice of administrative documents” as long as they are considered only “to establish their existence and legal effect or to determine what statements they contained not for the truth of matters asserted.'” Opp. at 7 (quoting Saunders v. New York Convention Ctr. Operating Corp., 2021 WL 4340793, at *7 (S.D.N.Y. Sept. 23, 2021)).
Here, we take judicial notice of the NYSDHR record as provided by defendants “simply ‘to establish the fact of such litigation and related filings' and/or to ‘ascertain the legal nature of the claim[s]' brought in those actions, but ‘not to support any factual determination in [this] litigation.'” Volpe v. Nassau Cnty., 915 F.Supp.2d 284, 291 (E.D.N.Y. 2013) (quoting Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d Cir. 1992)).
B. Withdrawn Claims
Quarles does not oppose two of defendants' arguments. One argument seeks to dismiss any Title VII claims against Defendants Wangel and Cohen in their individual capacities. Quarles in her opposition brief clarifies that she does not have “any Title VII claims against Defendants Wangel and Cohen in their individual capacities.” Opp. at 10. This concession is in accordance with case law. See, e.g., Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2004) (“[I]ndividuals are not subject to liability under Title VII.”) (citation omitted).
A second argument seeks to dismiss her claims under the NYSHRL and NYCHRL. Quarles in her brief states that she “voluntary withdraws” these claims. Opp. at 13; Def. Mem. at 8-9. This too is in accordance with case law. See Philbert v. City of New York, 2022 WL 94574, at *9 (S.D.N.Y. Jan. 7, 2022) (claims under NYSHRL and the NYCHRL “must be dismissed if the complainant has lodged a complaint with . . . the [NY]SDHR”).
Accordingly, defendants' motion to dismiss the Title VII claims against defendants Wangel and Cohen and to dismiss all NYSHRL and NYCHRL claims should be granted.
C. Time Bar for Title VII Claims
Defendants move to dismiss Quarles' Title VII claims as barred by the statute of limitations. Def. Mem. 5-6. Title VII imposes a time bar on claims of unlawful employment practices where the plaintiff has sought administrative relief, such as complaints to the EEOC and NYSDHR, beyond 300 days of the occurrence of the complained-of practice. See 42 U.S.C. § 2000e-5(e)(1). In such a situation, “only events that occurred during the 300-day period prior to filing . . . are actionable under Title VII.” Hoffman v. Williamsville Sch. Dist., 443 Fed.Appx. 647, 649 (2d Cir. 2011) (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996)).
Quarles filed her complaints with the EEOC and NYSDHR on February 9, 2021. Compl. ¶ 9. Thus, any claims under Title VII accruing 300 days before - that is, April 15, 2020 - are untimely. Quarles argues, however, that “where the discriminatory assertions are ongoing, retititious [sic] and ratified by Defendants, the 300[-]day statute of limitations is inapplicable.” Opp. at 8. Quarles indicates that she is referring to a theory of “continuing violation,” where the continuation of ongoing unlawful employment practices goes beyond the filing of the administrative charge and time bar, and thus there is an exception to the statutory time bar. Id. at 8-9.
As one case has summarized the law in this area:
Under the continuing violation exception to the Title VII limitations period - a “disfavored” principle, Sherman v. Nat'l Grid, 993 F.Supp.2d 219, 225 (N.D.N.Y. 2014) - “if 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, [then] all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone.” Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 155-56 (2d Cir. 2012) (internal quotation marks omitted). “The continuing violation exception applies to cases involving specific discriminatory policies or mechanisms such as discriminatory seniority lists or discriminatory employment tests.” Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993) (citation omitted), overruled on other grounds by Greathouse v. JHS Sec. Inc., 784 F.3d 105 (2d Cir. 2015), and abrogated on other grounds by Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 131 S.Ct. 1325, 179 L.Ed.2d 379 (2011). “However, multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation.” Id.Flores v. Entergy Nuclear Operations, Inc., 313 F.Supp.3d 511, 524-525 (S.D.N.Y. 2018), aff'd, 768 F .App'x 328 (2d Cir. 2021).
The continuing violations exception is inapplicable to Quarles' failure to promote claims. A “discrete discriminatory act,” such as the decision not to promote, “starts a new clock for filing charges alleging that act.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-14 (2002) (“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.”) (punctuation omitted); see also De Jesus-Hall v. New York State Unified Ct. Sys., 2020 WL 978517, at *6 (S.D.N.Y. Feb. 27, 2020) (finding the continuing violations exception inapplicable because rather than drawing on an “ongoing refusal” to place plaintiff in a more desirable position, plaintiff drew on discrete events that occurred before the period of the complaint that was timely), aff'd, 856 Fed.Appx. 328 (2d Cir. 2021); Akhtar v. Saudia, 2021 WL 1758807, at *8 (S.D.N.Y. May 4, 2021) (allegations of denials of raises and specific promotions “are insufficient to independently qualify as a sound basis for her Title VII claim where they are time-barred, or otherwise to provide bases to ‘pull in' time-barred discriminatory acts occurring before” the statutory deadline). Here, almost all of Quarles' failure to hire and promote allegations, see Compl. ¶¶ 33-34, 38, 41-42, 47, occurred as discrete events in 2019 - well prior to April 15, 2020. As such, the motion to dismiss the Title VII claims based on a theory of failure to hire or promote Quarles to a director position that accrued before April 15, 2020, should be granted. The one exception that occurred after April 15, 2020, concerns the allegations relating to the failure to promote that refer to Quarles attempting to meet with Wangel from April 2020 onwards regarding a vacant director position. Id. ¶¶ 48-51.
In addition to the failure-to-promote claims, it appears that the complaint also alleges a Title VII claim based on unequal pay. See Compl. ¶¶ 21-22. Specifically, the complaint alleges that H+H assigned Quarles the duties of a director, “without the title, pay and benefits” that should go along with that role. Id. Quarles makes the allegation regarding her current pay, and thus this claim is timely.
In sum, any claims occurring before April 15, 2020, alleged in the complaint must be dismissed as time barred.
D. § 1981
Defendants moved to dismiss Quarles' § 1981 claims as inapplicable against state actors. See Def. Mem. at 9-10. The Second Circuit has squarely held that “§ 1983 ‘constitutes the exclusive federal remedy for violation[s] of the rights guaranteed in § 1981 by state governmental units.'” Duplan v. City of New York, 888 F.3d 612, 619-20 (2d Cir. 2018) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989)). Quarles asserts, without relevant citation, that pleading her complaint against Wangel and Cohen in their individual capacities makes § 1981 the proper vehicle. Opp. at 13-14. Quarles also argues that the availability of equitable relief under § 1981 and her corresponding request for such relief renders her invocation of this statute appropriate against all defendants. Id. at 14.
These arguments are rejected. The Supreme Court's holding in Jett has consistently “been interpreted to encompass not only governmental entities but also individuals sued in their individual capacities who are ‘state actors.'” Roddini v. City Univ. of New York, 2003 WL 435981, at *5 (S.D.N.Y. Feb. 21, 2003); see also Westbrook v. City Univ. of New York, 591 F.Supp.2d 207, 223 (E.D.N.Y. 2008) (same). Indeed, the Second Circuit recently affirmed a rejection of similar arguments. Farooq v. City of New York, 2022 WL 793117, at *5 n.4 (2d Cir. Mar. 16, 2022), affg 2020 WL 5018387, at *6 (S.D.N.Y. Aug. 25, 2020) (construing § 1981 claims in a suit against H+H and its employees sued in their official and individual capacities as claims under § 1983 because § 1981 “provides no remedy against state actors”). Quarles provides no citation in support her argument as to equitable relief, and it is contrary to the Second Circuit's categorical holding in Duplan.
Thus, the motion to dismiss all § 1981 claims should be granted.
E. Collateral Estoppel from the NYSDHR Proceeding
Defendants argue that the NYSDHR's “no probable cause” finding collaterally estops Quarles from bringing her § 1983 claims. See Def. Mem. at 9-14.
Defendants also make this argument with respect to the § 1981, NYSHRL, and NYCHRL claims. Def. Mem. at 9-14. Because those claims should be dismissed for the reasons already stated, however, we consider only the preclusive effect of the SDHR proceedings with respect to the § 1983 claim.
As the Supreme Court held in Univ. of Tennessee v. Elliott, 478 U.S. 788 (1986), “when a state agency acting in a judicial capacity resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts.” Id. at 799 (citations and punctuation omitted). In determining the preclusive effect of a NYSDHR proceeding, federal courts follow the New York Court of Appeals' analysis in Schwartz v. Public Adm'r, 24 N.Y.2d 65 (1969), which “held that there must be an ‘identity of issue which has necessarily been decided in the prior action and is decisive of the present action,' and the party to be estopped must have had a ‘full and fair opportunity to contest the decision now said to be controlling.'” Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 730 (2d Cir. 2001) (quoting Schwartz, 24 N.Y.2d at 71); accord Simmons v. Trans Express Inc., 37 N.Y.3d 107, 112 (2021) (“The doctrine applies only where the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the party who is being estopped had a full and fair opportunity to litigate the issue in the earlier action.”) (citations and quotations omitted). “The party seeking to invoke collateral estoppel has the burden of showing the identity of the issue, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate.” Bonner v. Lynott, 203 A.D.3d 1526, 1532 (3d Dep't 2022).
On the identity of issue prong of the analysis, defendants argue that the complaint asserts the same claims as those in the NYSDHR complaint, see SDHR Rec. at 161-172 - namely, that defendants discriminated against her by failing to promote her based on race and gender and that they paid her less than white employees. See Def. Mem. at 11. Quarles makes no argument in her opposition brief on the question of the identity of the issue. Accordingly, we conclude that this prong of the test has been met.
On the second prong, Quarles argues that the NYSDHR proceedings did not provide her with a “full and fair opportunity to litigate her claims.” Opp. at 15. Quarles argues this is so because she was initially pro se, she did not appeal the determination in state court, there was no discovery between the parties, and there was no hearing where Quarles was permitted direct and cross-examination of witnesses. Id. at 15-16.
The record before us indicates that Quarles filed her initial complaint pro se, see SDHR Rec. at 27-45, and that she later obtained counsel. Her attorney submitted letters to the NYSDHR along with two affidavits in support of her claims. See id. at 47-50, 51-61, 63-65, 6769. It is unclear on the record before us if Quarles herself or an attorney submitted the amended complaint before the NYSDHR. See SDHR Rec. 161-172. Courts find the availability of counsel in administrative determinations weighs in favor of collateral estoppel, and conversely, they tend to find it a “significant” consideration against full and fair litigation where a plaintiff “was pro se before the SDHR.” Ramirez, 2020 WL 470011, at *6.
As to discovery, the record gives no indication one way or another as to whether discovery occurred, although the record indicates that H+H provided to the NYSDHR documents regarding the pay of Quarles and other employees, her application materials, and the demographic information on select roles at H+H. SDHR Rec. at 95. The record does not show whether Quarles had the ability to request information from H+H to prove her claims. Nor does it show whether she had the opportunity to depose a party for questioning. Thus, there is no reason to believe that discovery was available to Quarles.
The record does not indicate that there was a hearing where Quarles had the opportunity to present or cross-examine witnesses. While there are notes of interviews conducted by the NYSDHR of Quarles, Wangel, Cohen, and an additional witness from H+H, Id. at 86-91, there is no indication that anyone other than an investigator for the NYSDHR was able to question any witness. While we recognize that even the ability to present and cross-examine witnesses has not been deemed “necessary to invoke collateral estoppel,” Haygood v. Unity Health Sys., 2015 WL 3484943, at *7 (W.D.N.Y. June 2, 2015), aff'd., 642 Fed.Appx. 27 (2d Cir. 2016), courts have sometimes found it significant whether the plaintiff had such an opportunity before the NYSDHR. Compare Kosakow, 274 F.3d at 735 (no collateral estoppel where plaintiff “did not receive any type of hearing wherein she could confront the witnesses against her”), with Peguero-Miles v. City Univ. of New York, 2015 WL 4092336, at *7-8 (S.D.N.Y. July 6, 2015) (finding preclusive effect from a NYSDHR hearing where plaintiff did have such an opportunity).
In general, courts have tended to deny preclusion where an administrative proceeding has not afforded a plaintiff the ability to develop the record fully themselves, to engage in discovery, and especially to present and confront witnesses, and where the plaintiff has explained how these faults impacted their ability to litigate fully and fairly. See, e.g., Bonner, 203 A.D.3d at 1532 (“although not dispositive, it is significant to note that SDHR's determination was made on the papers, without cross-examination or the opportunity to call witnesses”); Basak v. New York State Dep't of Health, 9 F.Supp.3d 383, 398 (S.D.N.Y. 2014) (noting that plaintiff did not have “any hearing to confront witnesses” and “was given no opportunity for discovery”); Martin v. City Univ. of New York, 2018 WL 6510805, at *7 (S.D.N.Y. Dec. 11, 2018) (no preclusion where the record does not indicate plaintiff “was provided with discovery[] or . . . had the opportunity to present and cross-examine witnesses”).
In support of their argument on this point, the only case upon which defendants rely is Johnson v. County of Nassau, 411 F.Supp.2d 171, 183 (E.D.N.Y. 2006), which found collateral estoppel from an NYSDHR no probable cause finding despite the lack of a hearing. In making that finding, the court found that while the lack of a hearing counseled against collateral estoppel, the court would give this fact little weight because plaintiff failed to explain “how a hearing would have altered the outcome[] or what facts could have been brought out that may have changed the result.” Id. Here, however, Quarles argues at length that the denial of any opportunity to call or cross-examine Cohen and Wangel denied her the ability to draw out key points she has raised, including why her duties but not her pay or title were equivalent to a director and why defendants passed her over for a promotion. Opp. at 15-17. Defendants make no effort to dispute these assertions.
The Second Circuit has held that it is appropriate to consider a res judicata defense on a motion to dismiss but has implied that it is only appropriate where “all relevant facts are shown by the court's own records.” Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992). That is not the case here, and, logically, the same principle should apply to a defense of collateral estoppel. Given the posture of this case, it is simply unclear exactly what occurred during the NYSDHR proceeding, and thus the Court does not view the issue as amenable to resolution in the context of a motion to dismiss. Thus, the motion to dismiss the § 1983 claims on account of collateral estoppel should be denied at this time.
F. Failure to Promote
As to the plaintiff's § 1983 claim for failure to promote, defendants argue that Quarles has failed to allege discrimination because she has not pleaded “that such failure was motivated by discriminatory intent” with respect to any promotion and that “Defendants' decision to hire other candidates was motivated by discriminatory intent.” Def. Mem. at 17. Defendants also argue that she cannot claim discrimination for JJ Blitstein's hiring as director of Coler/Carter/Gouverneur/Seaview/McKinney because Quarles did not allege that she applied for the job. Id. at 18. Defendants argue that with respect to the Elmhurst Hospital directorship for which Frederick Garrity was hired, Quarles has failed to allege “that Garrity was hired over Plaintiff because of her race or gender or that he was otherwise significantly less qualified than her.” Id. at 19. Likewise, defendants argue that Quarles failed to allege that the hiring of Samantha Kent for the H+H Central Office directorship was motivated by discrimination or that “Kent was significantly less qualified than Plaintiff.” Id. at 19. We address each of these arguments next.
Apart from § 1983's “color of law requirement” - which defendants have not placed at issue - “a plaintiff's equal protection claim parallels his Title VII claim, except that a § 1983 claim, unlike a Title VII claim, can be brought against an individual.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 88 (2d Cir. 2015) (citation and punctuation omitted). “The basic elements of such claims, whether pursued under Title VII or § 1983, are similar: . . . a plaintiff claiming disparate treatment under either statute must plausibly allege that she suffered an ‘adverse employment action' taken ‘because of her [race or] sex.” Naumovski v. Norris, 934 F.3d 200, 212 (2d Cir. 2019) (citation omitted). At this stage, “[t]he facts required by Iqbal to be alleged in the complaint need not give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination. They need only give plausible support to a minimal inference of discriminatory motivation.” Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015). In meeting this “minimal” burden, “plaintiffs usually must rely on ‘bits and pieces' of information to support an inference of discrimination, i.e., a ‘mosaic' of intentional discrimination.” Vega, 801 F.3d at 86 (citations omitted).
We next analyze the six possible director roles for which Quarles has made allegations.
Quarles applied for two director positions in H+H's Central Office in June 2019. Compl. ¶ 38. The complaint does not say who H+H hired for these jobs or provide any specific allegations that would allow an inference of discriminatory conduct. Because of the threadbare nature of the allegations, Quarles has not pleaded a claim for the failure to promote to either of these positions.
Regarding a position at Coler/Carter/Gouverneur/Seaview/McKinney, Quarles alleges that H+H hired JJ Blitstein, who was less qualified than her and a Caucasian man, but she does not say whether she applied for or was considered for the role. Compl. ¶¶ 39, 58. Courts “require a plaintiff to allege that she or he applied for a specific position or positions and was rejected therefrom, rather than merely asserting that on several occasions she or he generally requested promotion.” Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998). Because Quarles does not allege that she applied for this position, she has not pleaded a claim with respect to it. We note that Quarles' generic allegation that she applied for a position of Director of Labor Relations in her “initial application” (the date of which is not clear), that this application “remains on file,” and that she has “made no secret of the fact that she desires to be a Director” is insufficient to show that she applied for this position or any particular position. Compl. ¶ 63.
Quarles alleges that after Samantha Kent vacated a director role at H+H's Central Office, Quarles wanted to talk to Wangel about the role. Id. ¶¶ 48-49. Quarles alleges that Wangel avoided meeting with her and that he did not want to talk with Quarles until he spoke with her supervisor, Michelle Kelly, about Quarles' performance. Id. ¶ 50. According to Kelly, Wangel wanted Kelly to come up with a plan to identify Quarles' weaknesses and improve. Id. ¶ 51. Yet, according to Kelly, Wangel failed for over a year to meet with Kelly and Quarles, and Kelly believed Wangel's request for her to document Quarles' weaknesses “was nothing more than a further attempt to keep a Black Woman . . . from becoming Director.” Id. Quarles' complaint, however, does not include any allegation that she applied for the position or who H+H hired in her place, nor does she attempt to articulate a justified reason for not applying. For the reason just stated, these omissions are fatal to her claim. See Brown, 163 F.3d at 710. The motion to dismiss the § 1983 claim and the Title VII claim (to the extent it survives the April 15, 2020 time bar) with respect to this application must be denied.
We turn next to the remaining two director positions for which Quarles alleges that she applied and for which defendants hired someone else outside of her protected class.
First, Quarles alleges she applied for a director position at H+H's Elmhurst/Queens hospital in June 2019. Compl. ¶ 38. Quarles interviewed for this position, but defendants instead hired Frederick Garrity, a Caucasian man who had 17 years of experience, less than her at least 25 years of experience at the time of his hire. Id. ¶¶ 45-46. Defendants argue that Quarles has not plausibly alleged enough facts to give rise to an inference of discriminatory intent behind this decision. Def. Mem. 18-19. Quarles alleges she had some eight years more experience than Garrity, Compl. ¶ 42, and was an in-house candidate with exemplary performance, id. ¶ 44. She alleges also that she is an African American woman and that Garrity is a white man, who was hired despite his lesser qualifications. Id. ¶ 44.
Second, Quarles applied for a director position at H+H's Central Office on December 4, 2019. Compl. ¶ 47. Quarles did not receive an interview, and Wangel hired a Caucasian female named Samantha Kent, “who previously worked with Mr. Wangel.” Id. Defendants argue that Quarles' allegations on this point “are not sufficient to plead that Kent was significantly less qualified than Plaintiff or to otherwise raise an inference of discrimination.” Def. Mem. at 19. Once again, Quarles alleged someone outside of her protected class received a promotion over her, although other than stating Kent “previously worked with Mr. Wangel,” see Comp. ¶ 47, she does not provide any other information about the decision to promote Kent over Quarles.
Defendants argue that Quarles has failed to carry her burden insomuch as she has not shown either Garrity or Kent were “significantly less qualified” than her and has otherwise failed to provide facts that raise an inference of discrimination.” See Def. Mem. at 19. However, defendants' argument that Quarles is required to show those outside her protected class who were promoted over her were “significantly less qualified” places too high a burden on the plaintiff at the motion to dismiss stage. While the case defendants rely on, Toussaint v. City of New York, 2021 WL 4429316 (S.D.N.Y. Sept. 27, 2021), in fact states the standard in the fashion proposed by defendants, the two cases Toussaint itself relies on both arose in the context of summary judgment. See id. at *7 (citing Anyanwu v. City of New York, 2013 WL 5193990, at *14 (S.D.N.Y. Sept. 16, 2013), and Terry v. Ashcroft, 336 F.3d 128, 139 (2d Cir. 2003)). However, “at the initial stage of a litigation, the plaintiff's burden is ‘minimal' - [s]he need only plausibly allege facts that provide ‘at least minimal support for the proposition that the employer was motivated by discriminatory intent.'” Vega, 801 F.3d at 86-87 (quoting Littlejohn, 795 F.3d at 311); accord Buon v. Spindler, 65 F.4th 64, 83 (2d Cir. 2023).
Here, Quarles has carried her “minimal” burden at this stage with respect to the Elmhurst position for which Garrity was hired because she has alleged that she applied for the job, was qualified for the job, and that defendants hired someone else outside of her protected class who had less experience. See Spires v. MetLife Grp., Inc., 2019 WL 4464393, at *5 (S.D.N.Y. Sept. 18, 2019) (finding a party has satisfied the “minimal” standard where he alleges the employer declined to promote him in favor of “a similarly situated individual outside of his protected class” and “provides specific reasons why” the other individual “was both less experienced and less qualified.”). Thus, the motion to dismiss the § 1983 claim based on a failure to promote to the Elmhurst director position should be denied.
However, Quarles has not satisfied even her “minimal” burden to show that the decision to hire Kent over her was motivated by discrimination. Quarles has provided no information whatsoever regarding Kent or the circumstances of the promotion other than to say that Kent had previously worked with Wangel. While we recognize that there is disagreement in the courts regarding whether the qualifications of a comparator must be alleged in a pleading, see generally Nguedi v. Fed. Reserve Bank of New York, 2017 WL 5991757, at *6 (S.D.N.Y. Dec. 1, 2017); Ray v. New York State Ins. Fund, 2018 WL 3475467, at *16 (S.D.N.Y. July 18, 2018), here there is no basis to infer merely from the fact that Kent did not share Quarles protected characteristic that a reason for Kent's selection reflects discriminatory animus against Quarles. Without any plausible allegation that plaintiff's “protected characteristic was causally linked to the adverse employment action,” Cardwell v. Davis Polk & Wardwell LLP, 2021 WL 4434935, at *22 (S.D.N.Y. Sept. 23, 2021), Quarles cannot meet her burden of raising even a “minimal” inference of discrimination. See, e.g., Hodges v. Sessions, 2018 WL 4232918, at *5 (S.D.N.Y.
Sept. 5, 2018) (granting motion to dismiss where plaintiff failed to allege the promotion of someone “outside one of his protected classes and who was similarly or less qualified, nor [did] he provide[] any other allegations evincing discriminatory animus”); Blige v. City Univ. of New York, 2017 WL 498580, at *9 (S.D.N.Y. Jan. 19, 2017) (“[N]umerous courts within the Second Circuit have granted motions to dismiss disparate treatment claims where the complaint was entirely devoid of any details regarding the purported comparators, e.g., who they are, what their positions or responsibilities were at the company, how their conduct compared to plaintiffs' or how they were treated differently by defendants”) (citation omitted and punctuation altered), adopted, 2017 WL 1064716 (S.D.N.Y. Mar. 21, 2017).
G. Unequal Pay
Defendants argue that Quarles has not alleged an unequal pay theory of discrimination sufficient to establish a 14th Amendment violation under § 1983 and/or to state a claim under Title VII to the extent her claims proceed past Title VII's cutoff date of April 15, 2020. See Def. Mem. at 17, 20-22.
The complaint alleges that it is making a claim of unequal pay motivated by discrimination. See, e.g., Compl. ¶¶ 2-3. To the extent this allegation is distinct from the failure to promote theory, the entire substance of the allegations are as follows:
Ms. Quarles is the lone Labor Relation Specialist working at Lincoln Hospital handling all of its union grievances against [H+H], disciplinary actions [H+H initiates] against employees, including investigation and mediation, drafting reports, assisting [H+H] attorneys and more. According to Defendants, this is a description of the job duties and responsibilities of a Director of Labor Relations. [Ms.] Quarles is successful[] in this role daily.... Ms. Quarles has been put into a role where she serves as a Director, with all of the responsibilities but without the title, pay and benefits. On one hand, Defendants trust Ms. Quarles in this capacity, yet then claim that she is not proficient enough at her job to become a titled Director.Compl. ¶¶ 21-22. The complaint adds that H+H forced Quarles “to work out of title as [a] Labor Relations Specialist with the responsibilities of a Director at a fraction of the pay.” Id. ¶ 25.
If plaintiff intends these allegations to articulate a claim of discrimination on the basis of unequal pay, they are devoid of any allegation that discrimination plays a role in defendant's actions. Because Quarles has failed to allege any link between unequal pay and discrimination, the motion to dismiss should be granted as to any purported unequal pay claim under § 1983 or Title VII.
H. Retaliation
Quarles uses the term “retaliation” a few times in her complaint, see Compl. ¶ 2, 3, 27, 64-65, and at one point states that she is asserting a claim under Title VII and § 296 of the New
York State Executive Law, id. ¶ 27, though she does not list a retaliation claim as a separate cause of action. The full extent of her substantive factual allegations concerning retaliation are as follows:
After being unable to reach an agreement with [H+H] and retaining counsel to protect her rights, [H+H], in retaliation became even more aggressive in their mistreatment of Ms. Quarles.[] . . . Ms. Quarles['] every question is now turned against her as some form of deficiency in her work. Communication with her supervisors ceased in many instances. Ms. Quarles is often told to let the attorneys speak to each other[] and receives no further answer to her query. Even though her job performance is based upon effective communication, Defendants, in pure retaliatory fashion, have isolated Ms. Quarles and intensified their differential treatment of her.Compl. ¶¶ 64-65.
Defendants seek to dismiss the retaliation claim because, among other things, Quarles has not alleged any connection between her NYSDHR complaint or other protected activity and mistreatment she has faced. See Def. Mem. at 22-23. Under Title VII and the NYSHRL, “[t]o establish a prima facie case of retaliation, an employee must show that (1) she was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.” Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012). “[A]n adverse employment action is ‘a materially adverse change in the terms and conditions of employment.'” Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008) (quoting Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004).
Here, Quarles has failed to allege a plausible claim of retaliation. As to adverse action, her sparse allegations do not provide any specifics about who is mistreating her and do not reflect anything “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012) (citation omitted).
Additionally, Quarles has not alleged any connection between that mistreatment and her protected activity, such as her NYSDHR or EEOC complaint. Without any allegation of a connection between protected activity and an adverse employment action, the complaint does not state a retaliation claim.
I. National Origin
Quarles from time to time alleges discrimination on the basis of “national origin.” See Compl. ¶¶ 24, 28-29, 56, 67. Defendants argue that Quarles has failed to state a claim for national origin discrimination because she does not specify her national origin or that of any comparator. Def. Mem. at 17 n.6. Quarles does not respond to this argument, and we agree that she has made no non-conclusory allegations on this point. Thus, the motion to dismiss should be granted with respect to any claim of national origin discrimination.
J. Cohen's Lack of Personal Involvement
Defendants argue that the Court should dismiss Quarles' § 1983 claims against Cohen as she failed to allege Cohen's personal involvement in any deprivation of her rights. See Def. Mem. at 6-8. The complaint's allegations against Cohen appear to rely on her status as head of labor relations for H+H, Compl. ¶ 14, rather than alleging Cohen directly caused any injury to Quarles. In her opposition to the motion to dismiss, Quarles makes clear she is relying on a theory of supervisory liability. Opp. at 10-13.
The Supreme Court held in Iqbal that in a § 1983 suit against a supervisor, rather than relying on vicarious liability, “a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” 556 U.S. at 676 (2009). The Second Circuit has held that “after Iqbal, there is no special rule for supervisory liability.” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). Instead, as Quarles herself quotes, “[t]o establish a violation of § 1983 by a supervisor, as with everyone else, then, the plaintiff must establish a deliberate, intentional act on the part of the defendant to violate the plaintiff's legal rights.” Opp. at 11 (quoting Tangreti, 983 F.3d at 618).
The complaint, however, provides no factual allegations at all about what Cohen did to plaintiff. On the few occasions Quarles mentions Cohen, see Compl. ¶¶ 78-79, 81-84, 89, it is only to allege that she is head of labor relations or to group her into conclusory statements about discrimination. There are no specific facts about Cohen's actions that could give rise to a plausible claim of discrimination. Thus, the motion to dismiss the § 1983 claims against Cohen individually should be granted.
K. Municipal Liability
Defendants argue that Quarles cannot maintain a claim against H+H, a municipal entity, because she has failed to plead a claim under Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978), and its progeny. See Def. Mem. at 23-24.
The elements of a Monell claim are (1) a municipal policy or custom that (2) causes the plaintiff to be subjected to (3) the deprivation of a constitutional right. Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). Monell expressly prohibits respondeat superior liability for municipalities, Monell, 436 U.S. at 691, 98 S.Ct. 2018, meaning that a plaintiff must demonstrate that “through its deliberate conduct, the municipality was the ‘moving force' behind the injury alleged,” Bd. of Cty. Comm'rs of Bryan Cty., Okla. v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997); Roe v. City of Waterbury, 542 F.3d 31, 40 (2d Cir. 2008). “[G]overnments should be held responsible when, and only when, their official policies cause their employees to violate another person's constitutional rights.” City of St. Louis v. Praprotnik, 485 U.S. 112, 122, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion).Agosto v. New York City Dep't of Educ., 982 F.3d 86, 97-98 (2d Cir. 2020) (emphasis in original).
§ 1983 liability against a municipal entity can stem from an “government's policy . . . made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Monell, 436 U.S. at 694. “The authority to make policy necessarily means the authority to make final policy. Stated another way, the official must have had state-law authority to adopt rules for the conduct of the municipal government.” Agosto, 982 F.3d at 98 (citations and quotations omitted).
The only allegations on this claim are as follows:
Defendant [H+H's] Office through its employees, agents, assigns, servants and in particular Wangel and Cohen acting under color of law, and through their employees servants, agents and designees, have engaged in a course of action and behavior rising to the level of a policy, custom, and condoned practice, in abusing the rights and discriminating against persons situated as Plaintiff is. These actions have risen to the level of a pattern, practice, custom and/or usage which has deprived Plaintiff of rights, privileges and immunities secured by the Constitution
and laws in violation of 42 U.S.C. § 1983 to her as a Black woman. These actions were condoned, adopted and fostered by policy makers of Defendants office.Compl. ¶ 89. The complaint is thus devoid of any allegations as to what municipal policy is at issue. It also fails to allege that Cohen and Wangel had authority to make whatever final municipal policy is being challenged. The allegations are wholly conclusory, and thus the motion to dismiss the § 1983 claim against H+H should be granted.
IV. LEAVE TO AMEND
In her opposition to the motion to dismiss, Quarles requested leave to amend should the Court grant dismissal. Opp. at 26. Defendants do not explicitly oppose this request, but they do request dismissal be with prejudice. Def. Reply. at 10. “[D]ismissal with prejudice is appropriate when the flaws in pleading are incurable.” Kling v. World Health Org., 532 F.Supp.3d 141, 154 (S.D.N.Y. 2021) (citation and punctuation omitted). While the defects in some claims could not be cured through repleading, we cannot say that none of the claims could be cured. Thus, the request for leave to amend should be granted to the extent Quarles can cure any deficiencies by good faith repleading, Conclusion
For the foregoing reasons, defendants' motion to dismiss (Docket # 29) should be granted in part and denied in part.
Specifically, the following claims should be dismissed: all Title VII claims, including failure to promote, unequal pay, and retaliation; all NYSHRL and NYCHRL claims; all § 1981 claims; all § 1983 claims for failure to promote except for Quarles' failure to promote claim with respect to the H+H's Elmhurst/Queens Director of Labor Relations position; any § 1983 unequal pay claim; any claim of retaliation; any claim of discrimination on account of national origin; any § 1983 claims against Cohen; and any § 1983 claim against H+H as a municipal entity based on a theory of Monell liability.
The following claim may proceed on the current complaint: her § 1983 failure to promote claim with respect to the H+H's Elmhurst/Queens Director of Labor Relations position.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Gardephe. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).