Wilson v. Lenox Hill Hospital/Northwell Health

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KAREN WILSON, NOT FOR PUBLICATION

Plaintiff, MEMORANDUM & ORDER

19-CV-5537 (AMD) (LB)

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FILED

LENOX HILL HOSPITAL, US DISTaLERKS OFFICE

NORTHWELL HEALTH, NY

* OFT

Defendants.

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ANN M. DONNELLY, United States District Judge: rFICE

On September 27, 2019, the pro se plaintiff, Karen Wilson, filed this action against her

current employer pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ef seq.,

and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 to 634. (ECF No. 1.)

The Court grants the plaintiff's application to proceed in forma pauperis pursuant to 28 U.S.C. §

1915. (ECF No. 2.) For the reasons discussed below, the Court directs the plaintiff to file an

amended complaint within 30 days of this order.

I Background

The following factual allegations are drawn from the complaint (ECF No. 1), and are

assumed to be true for the purpose of this order. The plaintiff has been employed at Lenox Hill

Hospital! for 18 years as a customer service representative. (/d. at 6.) On an unspecified date,

the plaintiff filed a complaint with the human resources department because she had been doing

“out of title job duties,” such as handling legal documents, for 15 years. (/d.) The plaintiff

claims that her supervisor, “Lon,” retaliated against her for filing the complaint with human

' Lenox Hill Hospital is a member hospital of Northwell Health.

resources. (/d. at 6-7, 10.) While she was on medical leave, he (and possibly others) vandalized

her workspace, removed her personal belongings and religious quotes, and spilled liquid on her

desk. (/d. at 7.) Her supervisor also sexually harassed her—by touching her shoulder without

her consent—and gave her poor marks on her job evaluations. (/d. at 4, 7.)

On June 11, 2019, the plaintiff filed a charge of discrimination with the Equal

Employment Opportunity Commission, (/d. at 10), and on August 16, 2019, the EEOC issued its

right-to-sue letter (/d. at 11).

il. Standard of Review

A complaint must plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face

when the plaintiff “pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citing Twombly, 550 U.S. at 556). Pro se complaints are held to less stringent standards

than pleadings prepared by attorneys; the court must read a pro se litigant’s complaint liberally

and interpret it to raise the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89, 94

(2007); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191-93 (2d Cir. 2008).

Furthermore, under 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss an in forma

pauperis action when the action “(i) is frivolous or malicious; (ii) fails to state a claim on which

relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from

such relief.”

A. Title VII and ADEA Discrimination Claims

Title VII makes it unlawful for an employer to “discriminate against any individual with

respect to [her] compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The

ADEA makes it unlawful for an employer to “discriminate against any individual...because of

such individual’s age.” 29 U.S.C. § 623(a)(1). To establish a prima facie case of discrimination

under Title VII or the ADEA, the plaintiff must show that (1) she is a member of a protected

class, (2) she was qualified for the position she held, (3) she suffered an adverse employment

action, and (4) the adverse employment action took place under circumstances giving rise to an

inference of discrimination. See Ruiz v. County of Rockland, 609 F.3d 486, 492 (2d Cir. 2010)

(Title VID; Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007) (ADEA).

At the pleading stage, the plaintiff has a “minimal” initial burden; she need not prove every

element of a prima facie case of discrimination, but she must allege facts which plausibly

suggest that her employer took an adverse action against her, and that her race, sex, national

origin, or age was a “motivating factor” in that action. See Vega v. Hempstead Union Free Sch.

Dist., 801 F.3d 72, 84-86 (2d Cir. 2015).

Here, the plaintiff alleges that she was born in 1972, and is Black and female. She also

alleges that the defendant touched her shoulder without consent, removed personal belongings

from her workspace, and spilled liquid on her desk. The plaintiff does not allege, however, that

the defendant took any of these actions because of the plaintiff's race, gender, or age. See, e.g.,

Chowdhury v. Sadovnik, No. 17-CV-2613, 2017 WL 4083157, at *4-5 (E.D.NLY. Sept. 14, 2017)

(dismissing Title VII and ADEA discrimination claims because there were no factual allegations

linking the defendants’ adverse employment actions to the plaintiffs race, religion, or age).

Therefore, the plaintiff has not pled a Title VIJ or ADEA discrimination claim.

B. Title VII and ADEA Retaliation Claims

Both Title VII and the ADEA contain similar anti-retaliation provisions. Under 42

U.S.C. § 2000e-3(a), an employer cannot discriminate against an employee “because [sJhe has

made a charge” under Title VII. Likewise, an employer cannot discriminate against an employee

“because such individual.... has made a charge” under the ADEA. 29 U.S.C. § 623(d). To state

‘a prima facie case of retaliation under Title VII or the ADEA, a plaintiff must demonstrate that

“(1) she 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). As with discrimination claims, at the pleading stage, the allegations need only give

“plausible support’ to the reduced prima facie requirements...” Chowdhury, 2017 WL

4083157, at *6 (quoting Littlejohn v. City of New York, 795 F.3d 297, 315-16 (2d Cir. 2015)).

A formal or informal complaint about discrimination qualifies as a protected activity for

purposes of retaliation claims “so long as the employee has a good faith, reasonable belief that

the underlying challenged actions of the employer violated the law.” Kelly v. Howard I Shapiro

& Associates Consulting Engineers, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (citation and internal

quotation marks omitted). However, vague or ambiguous complaints are insufficient, and the

“employer should ‘reasonably have understood that the plaintiff's complaint was directed at

conduct prohibited by Title VII’” or the ADEA. Chowdhury, 2017 WL 4083157, at *6 (quoting

Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 108 (2d Cir. 2011)). Mere

complaints of unfair treatment by an individual are not protected under Title VII and the ADEA.

Simpson v. MTA/New York City Transit Authority, No. 16-CV-3783, 2016 WL 8711077, at *5

(E.D.N.Y. Aug. 26, 2016) (dismissing retaliation claim because the plaintiff did not allege that

she filed a complaint or grievance with supervisors about the acts of allege discrimination on the

basis of her age or race).

Here, the plaintiff filed a complaint with her employer’s human resources department

because she had been doing “out of title job duties,” such as handling legal documents. It is

unclear whether the plaintiff framed this complaint as a general workplace issue, or as related to

unlawful discrimination on the basis of her race or age. If the plaintiff's complaint to human

resources alleged that she was assigned out of title job duties because of her race or age—and if

her employer retaliated against her because of that complaint—the plaintiff would have stated a

retaliation claim under Title VII or the ADEA. As currently written, however, the complaint

does not state a claim for retaliation under Title VII or the ADEA.

Ill. Leave to Amend

In light of the plaintiff's pro se status, the Court grants the plaintiff leave to file an

amended complaint. For her discrimination claims, the plaintiff must allege facts to show that

she suffered discrimination because of her race, gender, or age. For her retaliation claims, she

must allege facts to show that she complained of unfair treatment due to her race, gender, or age,

and suffered retaliation because of her complaint. The plaintiff is advised that the amended

complaint will completely replace the complaint, must be captioned, “Amended Complaint,” and

must bear the same docket number as this memorandum and order. The Court encourages the

plaintiff to make an appointment with the Federal Pro Se Legal Assistance Project which

provides limited representation to pro se litigants in this district.”

IV. Conclusion

2 The Clerk of Court will mail the plaintiff a copy of the Pro Se Legal Assistant Project flyer with this

order. ;

The Court grants the plaintiff 30 days from the date of this memorandum to amend the

complaint. No summons will issue at this time and all further proceedings will be stayed for 30

days. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken

in good faith and in forma pauperis status is therefore denied for the purpose of an appeal. See

Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

Dated: October 15, 2019

Brooklyn, New York

SO ORDERED.

s/Ann M. Donnelly

ANN M. DONNELLY

United States District Judge

The Federal Pro Se Legal Assistance Project (the “Project”) is a free service offered by the

City Bar Justice Center of the New York City Bar Association. The Project provides free in-

formation, advice, and limited-scope legal assistance to non-incarcerated, pro se litigants in

the Eastern District of New York. The Project staff work for the City Bar Justice Center, not

for the United States District Court.

Services We Can Provide:

e Explain federal court procedures and rules involved in your case.

e Provide brief legal counseling.

e Advise you about potential federal claims prior to filing suit.

e Review draft pleadings and correspondence with the court.

e Give referrals to legal, governmental and social services.

What does “Limited-Scope” Mean?

“Limited-scope” legal assistance means that even though the Project attorney may provide

you information, advice, and some legal assistance, she will not be the lawyer representing

you on your case. You will still act as your own lawyer unless you retain a lawyer on your

own,

Appointments and Hours

The Project attorney meets with pro se litigants by appointment. Our office is located on the

ground floor of the Brooklyn courthouse for the Eastern District of New York in Room N-

108.

Appointments are available Monday through Thursday.

To schedule an appointment please call 212-382-4729 or stop by the office. We make every

effort to return calls within two business days.

Cat Itaya, Esq. Federal Pro Se Legal Assistance Project Eze

Project Director c/o U.S. District Court, EDNY

Tel: 212-382-4729 225 Cadman Plaza East CITY BAR

Brooklyn, NY 11201 JU STICE

David Preciado (212) 382-4729

Project Coordinator www.citybarjusticecenter.org C E N TE R

Tel: 212-382-4743 □□□