Akinde v. New York City Health and Hospital Corporation

UNITED STATES DISTRICT COURT ELECTRONICALLY FILED

DOC #: _________________

SOUTHERN DISTRICT OF NEW YORK

DATE FILED: 09/13/19

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:

OLUDOTUN AKINDE, :

:

Plaintiff, : 1:16-cv-8882-GHW

-v - :

: MEMORANDUM OPINION

NEW YORK CITY HEALTH AND HOSPITAL : AND ORDER

CORPORATION and SHARI SINGLETON, :

:

Defendants. :

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GREGORY H. WOODS, United States District Judge:

Pro se plaintiff Oludontun Akinde brought this case in November 2016, alleging that his

employer’s decision to place him on involuntary leave in September 2016 violated his due process

rights and constituted illegal discrimination and retaliation. Defendants have moved to dismiss

Plaintiff’s complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (6). For the reasons discussed below,

Defendants’ motion to dismiss Plaintiff’s complaint is GRANTED IN PART AND DENIED IN

PART.

I. BACKGROUND

Plaintiff filed his complaint in this case on November 14, 2016, naming as defendants New

York City Health and Hospitals Corporation (“NYC HHC”) and Shari Singleton. Dkt. No. 2. At

the time he filed his complaint, Plaintiff was an employee of NYC HHC, staffed at Harlem Hospital

Center, but on involuntary leave. Plaintiff’s complaint alleges that on September 12, 2016, he

reported to his supervisor Mark Sollazzo that he had seen three employees of Harlem Hospital

Center outside his house on two different occasions, and that he had taken pictures of those

employees. Id. at ¶ 2. Plaintiff was concerned because he knew that the employees did not live near

his home, which is in Westchester County. Id. at ¶ 3. Plaintiff believed that the employees had

visited his home to intimidate him and retaliate against him for filing a complaint against the hospital

with the New York State Division of Human Rights in 2013 as well as a lawsuit in New York State

Supreme Court in September 2015.1 Id. at ¶¶ 4-7. Approximately thirty minutes after Plaintiff

informed Mr. Sollazzo about the incidents at his home, Shari Singleton, an employee of the Labor

Relations group, and a Harlem Hospital Center police officer arrived at Plaintiff’s office and handed

him a letter placing him on an involuntary leave of absence in accordance with NYC HHC’s

“Regulation 1,” which is entitled “Unsatisfactory Job Performance of Permanent Employee

Resulting from Medical Disabilities.” Id. at ¶ 9, Ex. 1. Plaintiff alleges that Ms. Singleton noted on

this letter that she was shown pictures of Harlem Hospital Center staff outside Plaintiff’s home. Id.

at ¶ 11, Ex. 3.

Plaintiff claims that his suspension violated various provisions of Regulation 1, including

Section III.A, which states that employees may be placed on an involuntary leave of absence

pending a medical examination and hearing “if the facility’s Appointing Officer . . . determines that

there is probable cause to believe that the continued presence of the employee on the job is a

potential danger to persons or property, or would seriously interfere with operations.” Id. at ¶¶ 9,

10, Ex. 1. He argues that his actions on September 12, 2016 did not warrant a belief that he was a

danger to himself or others or that his presence at work would seriously interfere with the

operations of the hospital. Id. at ¶ 16. On September 13, 2016, Plaintiff wrote a letter to Ms.

Singleton, objecting to being placed on leave and claiming that he was not a danger to himself, other

staff, or hospital properties. Id. at ¶ 12, Ex. 2. Plaintiff was sent to a Harlem Hospital Center

appointed doctor, Dr. Rahtz, on October 19, 2016 for an evaluation. Id. at ¶¶ 11, 13-14. Plaintiff

1 Plaintiff’s later filings suggest that the September 2015 lawsuit described in his complaint is actually a case

which was filed in New York State Supreme Court, New York County on April 29, 2016, under Index No.

153641/2016.

alleges that NYC HHC sent Dr. Rahtz fabricated documents that were not discussed with or shown

to him before the evaluation, and that Dr. Rahtz improperly relied on that information when

evaluating Plaintiff. Id.

Plaintiff’s complaint alleges that NYC HHC’s decision to place him on involuntary leave in

contravention of Regulation 1 violated his right to due process and constituted illegal retaliation. Id.

at ¶ 17. At the time he filed his complaint, Plaintiff’s requested relief included that he be allowed to

draw a regular salary until the Personnel Review Board determined that he should be placed on

involuntary leave and that he be returned back to work. Id. at ¶¶ 15, 18.

On April 14, 2017, Defendants moved to dismiss Plaintiff’s complaint in its entirety. Dkt.

No. 11. On July 7, 2017, District Judge Katherine Forrest granted Defendants’ motion to dismiss.

Dkt. No. 24. Judge Forrest found that the action was moot because at the time the motion to

dismiss was decided, Plaintiff had received the injunctive relief requested in his complaint—i.e., a

hearing before NYC HHC’s Personnel Review Board. On August 15, 2017, Plaintiff filed a notice

of appeal of Judge Forrest’s decision. Dkt. No. 26.

On October 9, 2018, the Second Circuit vacated the district court judgment and remanded

this case for further proceedings. Dkt. No. 28. The Second Circuit concluded that—although it

agreed with Judge Forrest’s determination that any request for injunctive relief was moot—the

complaint could be read to assert a claim for monetary damages in the form of lost wages. Id. at 2.

Accordingly, the case was remanded for consideration of a potential damages claim and was

reassigned to this Court.

On November 30, 2018, Defendants again filed a motion to dismiss the complaint in its

entirely. Dkt. No. 33. In his opposition to Defendants’ motion to dismiss, Dkt. Nos. 39, 40,

Plaintiff included a recounting of the events surrounding his involuntary leave of absence which is

substantially similar to the allegations in his complaint. However, Plaintiff also included a number

of new facts in support of his due process, discrimination, and retaliation claims, including additional

factual allegations regarding events which occurred before and after November 14, 2016, the date on

which Plaintiff filed his original complaint. Those additional alleged facts are as follows.

On November 20, 2013, Plaintiff filed a complaint with the New York State Division of

Human Rights (“NYSDHR”) alleging that NYC HHC had engaged in unlawful discriminatory

practices. Dkt. No. 40, Ex. 14. On December 11, 2013, the NYSDHR found probable cause that

NYC HHC had engaged in unlawful discriminatory practices when it suspended Plaintiff under

Regulation 1 in January 2013, because NYC HHC had refused to consider medical evaluations

provided by Plaintiff’s independent physicians. Id. In May 2014, Plaintiff was transferred from his

job in Quality Management/Risk Management to the Material Management Department. Dkt. No.

39 at 6. He claims that he was transferred as a result of his 2013 NYSDHR complaint. Id. He also

claims that when he asked his supervisor Mark Sollazzo why he was transferred, Mr. Solazzo told

him “because of your [m]ental illness and because you are a n****r.” Id. Mr. Solazzo also told

Plaintiff, “you can return to your hut in Nigeria for Americans to work.” Id. Plaintiff states that he

reported Mr. Solazzo to the Labor Relations Department orally and via email and received no

response. Id.

On December 9, 2015, at Plaintiff’s request, the NYSDHR vacated its probable cause

determination in order to allow Plaintiff to pursue his case in state court. Dkt. No. 40, Ex. 15. On

April 29, 2016, Plaintiff filed a case in New York State Supreme Court, asserting claims for disability

discrimination, hostile work environment, and retaliation under the New York State Human Rights

Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”). Id., Ex. 16.

Plaintiff claims that after he filed his case in April 2016, Defendants retaliated against him in

a variety of ways. First he alleges that Mark Sollazzo repeatedly called him “crazy” and a “n****r”

and told Plaintiff to return to his “hut in Nigeria.”2 Plaintiff states that he reported this conduct to

Labor Relations and the NYC HHC Office of Equal Employment Opportunity (“EEO”) through

his hospital-issued email account. Dkt. No. 39 at 5. Second, in May 2016, NYC HHC reinstated

Plaintiff to a job requiring hard labor, even though he was medically exempted from hard labor duty

in 2014. Id. at 9-10; Dkt. No. 40, Ex. 13. Third, a few days after he filed his New York state court

lawsuit, the Director of Human Resources, Indramattie Harilall, falsely accused Plaintiff of violating

HIPAA and forced him to complete HIPAA privacy training, even though Plaintiff told Ms. Harilall

that he had no access to patient records and therefore could not possibly have violated HIPAA.

Dkt. No. 39 at 10. Plaintiff claims that Ms. Harilall also later told him that he was not promoted to

the position of Director of Ambulatory Care because of his HIPAA violation and that she could not

consider him for any other positions because of his “mental illness.” Id. He also states that on May

5, 2016, Labor Relations personnel told him to withdraw his case because he was “returned back to

work.” Id. at 2.

On September 6, 2016,3 Plaintiff met with Nicole Phillips, the Regional Director of the

EEO, and told her about the retaliation he had suffered and about his hostile work environment. Id.

at 13. He claims that she promised him she would contact him after their meeting, but never

did. Id.

Plaintiff was placed on involuntary leave on September 12, 2016. In his opposition papers,

Plaintiff adds additional allegations supporting his argument that he should not have been

suspended pursuant to Regulation 1. Plaintiff claims that Regulation 1 should not have applied to

2 Although Plaintiff claims that this behavior was retaliation for his April 2016 lawsuit, he also alleges that Mr.

Sollazzo repeated these slurs “more than a thousand times between May 2014 and September 2016.”

Dkt. No. 39 at 5-7.

3 Plaintiff’s pleadings also appear to state that he met with Ms. Phillips in August 2016. Dkt. No. 39 at 2. It

is not clear to the Court whether that alleged August meeting is the same as or separate from the September

6, 2012 meeting.

him because he was qualified for his job and there was no evidence that he suffered from

unsatisfactory job performance prior to September 2016. Dkt. No. 39 at 7, 20. He also notes that

in the years and months leading up to his involuntary leave, several doctors concluded he was

competent to work, including the doctor who examined him during his employer-mandated physical

on August 18, 2016. Id. at 7-8, 14; Dkt. No. 40, Exs. 8-12, 22.

After Plaintiff was placed on involuntary leave, he was sent in October 2016 to be evaluated

by Dr. Roger A. Rahtz, a psychiatrist approved by the NYC HHC Personnel Review Board. Dkt.

No. 2 at ¶ 11; Dkt. 40, Exs. 23, 27 at 3. Dr. Rahtz concluded in a November 2016 letter that

Plaintiff was medically unable to perform the essential duties of his position and recommended

continuing Plaintiff’s involuntary leave for one year. Dkt. 40, Ex. 27 at 3. Plaintiff contends that

Dr. Rahtz erroneously reached this conclusion as the result of Defendants supplying him with

“fabricated or distorted damaging information,” including “pressuring damaging phone calls” placed

before and after the evaluation. Dkt. No. 39 at 15. For instance, Plaintiff asserts that Defendants

deliberately mischaracterized certain of his behaviors—such as putting hospital-issued plastic

coverings over his desk after protracted ceiling leaks and wearing protective gear to protect himself

from allergic reactions to dust and chemicals—as “abnormal behavior” resulting from his supposed

paranoid belief that his coworkers were putting harmful chemicals on his belongings. Id. at 2, 4-5.

In November 2016, Plaintiff also visited two independent psychiatrists—Dr. Bruce

Schweiger and Dr. Kingsley Nwokeji—both of whom concluded that he was psychologically fit to

return to work. Dkt. No. 40, Ex. 33. On November 23, 2016, Plaintiff emailed those evaluations to

Ms. Singleton asking that he be reinstated to his position, but received no response. Id., Ex. 26; Dkt.

No. 39 at 15.

On December 5, 2016 and January 4, 2017, a hearing regarding Plaintiff’s involuntary leave

was held in front of Hearing Officer Peter Korn. Dkt. No. 40, Ex. 27. According to Plaintiff, at

that hearing, Ms. Singleton admitted that she knew the individuals from Plaintiff’s photograph were

Harlem Hospital Center employees. Dkt. No. 40 at 23. Plaintiff also claims that the Harlem

Hospital Center police officer who delivered the notice of involuntary medical leave with Ms.

Singleton admitted that Plaintiff was not a threat to the hospital and that he recognized one of the

individuals from Plaintiff’s photograph as a Harlem Hospital Center employee. Dkt. No. 39 at 15-

16. In addition, Plaintiff states that various witnesses admitted that he did not have a record of poor

job performance before he was suspended in September 2016. Id. at 16. Finally, Plaintiff raises

several issues with the evidence presented against him, including that NYC HHC offered testimony

from Diones Aquino, one of the individuals Plaintiff claims came to his house to intimidate him,

and that NYC HHC was allowed to rely on the testimony of Dr. Rahtz, who was not independent

and who reached his conclusions based on false evidence supplied by Defendants. Id. at 15.

On February 23, 2017, Hearing Officer Korn recommended that the Plaintiff’s appeal be

denied. Dkt. No. 40, Ex. 27 at 4. Based on that recommendation, which was relayed in a letter

addressed to Ms. Ebone Carrington, the CEO and COO of NYC HHC, Plaintiff claims that

Hearing Officer Korn “illegally and inappropriately reached out to . . . [e]xecutives at Harlem

Hospital . . . advising them not to accept [Plaintiff] back.” Dkt. No. 40 at 23, Ex. 27 at 4. On

February 28, 2017, Indramattie Harilall, acting as Ms. Carrington’s designee, agreed with Hearing

Officer Korn’s findings and upheld Plaintiff’s involuntary medical leave of absence. Dkt. No. 40,

Ex. 27 at 4.

On September 25, 2017, the NYC HHC Personnel Review Board upheld Plaintiff’s

involuntary leave as of September 12, 2016. Id., Ex. 27 at 4-5. On October 24, 2017, Nicole Phillips

forwarded to Shari Singleton a letter from the EEO, responding to a request from Plaintiff to return

to duty following his leave of absence. Id., Ex. 29. Ms. Phillips’ letter recommended that Plaintiff’s

request for an accommodation be denied because Plaintiff was not capable of performing essential

duties of his job, with or without an accommodation. Id. On January 25, 2018, NYC HHC sent

Plaintiff a letter notifying him that his employment would be terminated as of February 26, 2018

unless he asked for reinstatement to his position by that date. Id., Ex. 32. On February 14, 2018,

Plaintiff’s counsel responded to NYC HHC’s letter, attaching reports from Dr. Schweiger and Dr.

Nwokeji. Id., Ex. 33; Dkt. No. 39 at 18-19.

II. LEGAL STANDARD

“In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all

uncontroverted facts in the complaint . . . as true, and draw all reasonable inferences in favor of the

party asserting jurisdiction. But where jurisdictional facts are placed in dispute, the court has the

power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as

affidavits. In that case, the party asserting subject matter jurisdiction has the burden of proving by a

preponderance of the evidence that it exists.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752

F.3d 239, 243 (2d Cir. 2014) (quotations omitted); see also Makarova v. United States, 201 F.3d 110, 113

(2d Cir. 2000).

To survive a motion to dismiss under Federal Rule of Civil Procedure 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).

To determine plausibility, courts follow a “two-pronged approach.” Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009). “First, although ‘a court must accept as true all of the allegations contained in a

complaint,’ that ‘tenet’ ‘is inapplicable to legal conclusions’ and ‘threadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice.’” Harris v. Mills, 572

F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678) (alterations omitted). Second, a court

determines “whether the ‘well-pleaded factual allegations,’ assumed to be true, ‘plausibly give rise to

an entitlement to relief.’” Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting Iqbal, 556

U.S. at 679). Determining whether a complaint states a plausible claim is a “context-specific task

that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556

U.S. at 679.

Because Plaintiff is proceeding pro se, the Court must liberally construe his allegations and

“interpret[] [them] to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of

Prisons, 470 F.3d 471, 474 (2d Cir. 2006); see also, e.g., Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014)

(“Where . . . the complaint was filed pro se, it must be construed liberally to raise the strongest

arguments it suggests.” (quotations omitted)). Furthermore, the Court may consider new facts

raised in a pro se litigant’s opposition papers to the extent that they are consistent with the complaint,

treating the new factual allegations as amending the original complaint. See Walker v. Schult, 717 F.3d

119, 122 n.1 (2d Cir. 2013) (“A district court deciding a motion to dismiss may consider factual

allegations made by a pro se party in his papers opposing the motion.”); Brooks v. Jackson, No. 11 Civ.

6627 (JMF), 2013 WL 5339151, at *3 (S.D.N.Y. Sept. 23, 2013) (“[B]ecause a pro se plaintiff’s

allegations must be construed liberally, it is appropriate for a court to consider factual allegations

made in a pro se plaintiff’s opposition memorandum, as long as the allegations are consistent with the

complaint.”). Nevertheless, “dismissal of a pro se complaint is . . . appropriate where a plaintiff has

clearly failed to meet the minimum pleading requirements.” Rahman v. Schriro, 22 F. Supp. 3d 305,

310 (S.D.N.Y. 2014) (citing Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997)).

III. DISCUSSION

a. Plaintiff’s complaint states a claim under 42 U.S.C. § 1983 for violation of

his procedural due process rights.

Plaintiff asserts in his complaint that his suspension pursuant to Regulation 1 violated due

process. Dkt. No. 2 at ¶¶ 1, 12, 15, 17-18. The Court therefore interprets Plaintiff’s complaint as

raising a claim pursuant to 42 U.S.C. § 1983 for violation of his Fourteenth Amendment procedural

due process rights.

The Fourteenth Amendment’s Due Process Clause provides that “[n]o State shall . . .

deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend.

XIV, § 1. The Due Process Clause thus “bars arbitrary, wrongful government actions, and

guarantees procedural fairness when a state action deprives a citizen of a protected interest in life,

liberty, or property.” Wiesner v. Rosenberger, No. 98 Civ. 1512 (HB), 1998 WL 695927, at *3 (S.D.N.Y.

Oct. 6, 1998) (citing Daniels v. Williams, 474 U.S. 327, 330-32 (1986)). “The fundamental

requirement of the Due Process Clause is that an individual be given the opportunity to be heard at

‘a meaningful time and in a meaningful manner.’” Patterson v. City of Utica, 370 F.3d 322, 336 (2d Cir.

2004) (quoting Goldberg v. Kelly, 397 U.S. 254, 267 (1970)). “To plead a violation of procedural due

process, . . . a plaintiff must first identify a property right, second show that the government has

deprived him of that right, and third show that the deprivation was effected without due process.”

J.S. v. T’Kach, 714 F.3d 99, 105 (2d Cir. 2013) (quotations omitted). “The appropriate process

depends on the balancing of three factors: (1) ‘the private interest that will be affected by the official

action;’ (2) ‘the risk of erroneous deprivation of such interest through the procedures used;’ and (3)

‘the Government’s interest, including the function involved and the fiscal and administrative

burdens that the additional or substitute procedural requirement would entail.’” Panzella v. Sposato,

863 F.3d 210, 218 (2d Cir. 2017) (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). “[T]he

ultimate conclusion about procedural adequacy . . . turns on the full set of pre- and post-deprivation

procedures available.” O’Connor v. Pierson, 426 F.3d 187, 197 (2d Cir. 2005). Where post-deprivation

process is concededly adequate, a plaintiff must demonstrate that the “pre-deprivation process was

so inadequate that it violated the Constitution.” Id. at 198.

Based on documents attached to Plaintiff’s opposition papers which suggest that Plaintiff

was a member of a public employees union, e.g., Dkt. No. 40, Ex. 23, the Court finds that, for

purposes of surviving a motion to dismiss, Plaintiff has sufficiently pled that his involuntary

suspension on September 12, 2016 infringed his protected property interest in his employment. See

Monroe v. Schenectady Cty., 1 F. Supp. 2d 168, 171 (N.D.N.Y. 1997), aff’d sub nom. Monroe v. Cty. of

Schnectady, 152 F.3d 919 (2d Cir. 1998) (“[I]t is well-established that a property interest arises where a

collective bargaining agreement between a public employer and a union protects union members

from termination without just cause.”). The remaining issue, therefore, is whether that deprivation

was effected without due process.

Plaintiff’s complaint and opposition to Defendants’ motion to dismiss raise four categories

of objections regarding the process he received. First, Plaintiff asserts that the witnesses at the

hearing on his involuntary leave acted improperly—including, for instance, by lying during their

testimony. Second, he claims that the hearing itself was not fair or neutral, largely because the

witnesses who testified on behalf of NYC HHC and the hearing officer were biased. Third, he

appears to assert that he did not receive sufficient pre-deprivation process, because the decision to

place him on involuntary leave occurred prior to any formal hearing, review, or opportunity to be

heard. Fourth, he challenges NYC HHC’s determination that there was in fact probable cause to

believe his continued presence in the workplace was a potential danger to persons or property, such

that he could be placed on immediate involuntary leave pursuant to Section III.A of Regulation 1.

Plaintiff’s first and second categories of objections challenge the adequacy of the post-

deprivation process he received. With respect to these objections, it is clear that any complaints

Plaintiff may have regarding the NYC HHC Personnel Review Board hearing he received could

have been raised in an Article 78 proceeding in New York state court. See Locurto v. Safir, 264 F.3d

154, 174-75 (2d Cir. 2001) (“Petitioners proceeding under Article 78 may raise claims that the agency

adjudicator was biased and prejudged the outcome . . . or that ex parte communications with other

officials may have infected the adjudicator’s ruling.”); see also Griffin v. City of New York, No. 15-cv-

9926 (LAP), 2016 WL 10570968, at *3 (S.D.N.Y. Dec. 14, 2016) (“To the extent that Plaintiff

challenges the veracity of the documents that the defendants submitted during the administrative

proceeding that ultimately resulted in the end of Plaintiff’s public employment, New York State law

provides a remedy—an Article 78 proceeding.”). Indeed, as the Personnel Review Board noted in

its final decision upholding Plaintiff’s involuntary leave, its determination was subject to review “in

accordance with Article 78 of the civil practice law and rules (CPLR).” Dkt. No. 40, Ex. 27 at 5.

Because Plaintiff could have raised his objections to the NYC HHC Personnel Review Board

hearing in an Article 78 proceeding, Plaintiff was afforded all the post-deprivation process that was

due to him. See Locurto, 264 F.3d at 175 (“An Article 78 proceeding . . . constitutes a wholly

adequate post-deprivation hearing for due process purposes.”).

Plaintiff’s fourth set of objections—which challenge NYC HHC’s factual determination that

he was a danger to himself or others or that his presence in the workplace would seriously interfere

with operations—similarly do not state a claim for a violation of due process. To the extent that

Plaintiff objects not to the adequacy of the process he received, but to the substantive outcome of

that process, his challenge to agency decision-making should have been raised in an Article 78

proceeding. See C.P.L.R. § 7803 (Article 78 proceeding includes review based on claims that an

agency decision was “arbitrary and capricious,” “an abuse of discretion,” or not “supported by

substantial evidence.”). Such a claim may not be brought in federal court, and therefore must be

dismissed. See Cartagena v. City of New York, 257 F. Supp. 2d 708, 710 (S.D.N.Y. 2003) (“State law

does not permit Article 78 proceedings to be brought in federal court, and hence [federal courts] do

not have the power to exercise supplemental jurisdiction over . . . Article 78 claims.”); see also Blatch v.

Hernandez, 360 F. Supp. 2d 595, 637 (S.D.N.Y. 2005) (Article 78 claim “must be dismissed for lack

of subject matter jurisdiction, as New York State has not empowered the federal courts to consider

such claims.”).

However, Plaintiff’s third set of objections—which essentially raise a challenge to the

adequacy of the pre-deprivation process afforded to him—present a more difficult question. In

Gilbert v. Homar, the Supreme Court considered the issue of the pre-deprivation process due to a

tenured public employee who was summarily suspended without pay after being arrested and

charged with drug-related crimes. 520 U.S. 924 (1997). In analyzing the Mathews factors, the Court

in Gilbert concluded that the suspended employee was not entitled to any pre-deprivation process for

several reasons. Id. at 931-35. The Court noted that the deprivation of property the employee

suffered was merely a temporary period without pay prior to a post-suspension hearing, and thus a

far less substantial interest than the complete loss of employment occasioned by a final termination.

Id. at 932. Further, the Court found that the government had a significant interest in immediately

suspending an employee facing felony charges, in part due to its interest in preserving public

confidence in the integrity of its institutions. Id. at 932-33. Therefore, the critical piece of the

Court’s analysis was its determination that the risk of an erroneous deprivation in such situations

was low, as the employee’s arrest based on probable cause meant that there had already been an

independent third-party determination of the reasonable grounds supporting the suspension without

pay. Id. at 933-34. Accordingly, in light of the admittedly sufficient post-deprivation process which

was provided to the employee in the form of a hearing, the Court concluded that the failure to

provide the suspended employee with any pre-deprivation process was not a violation of the Fifth

and Fourteenth Amendments. Id. at 931-35.

Just as in Gilbert, Plaintiff’s property interest—while significant—is merely the interest in not

being suspended without pay pending a hearing. On the other hand, courts have long recognized

that the government maintains a significant interest in protecting public health and safety. See, e.g.,

Mackey v. Montrym, 443 U.S. 1, 17 (1979). The main divergence between this case and Gilbert,

therefore, is the fact that Regulation 1 imbues a sole NYC HCC official—rather than a neutral third-

party—with the responsibility for making the probable cause determination regarding the danger or

potential for disruption presented by an employee, arguably heightening the risk of an erroneous

deprivation. At this stage of the proceedings, the Court cannot conclude that the risk of an

erroneous deprivation resulting from these procedures is insignificant. Plaintiff has claimed he was

suspended pursuant to Regulation 1 even though he had no history of poor work performance,

several doctors had repeatedly certified he was fit to work, nothing about his behavior on September

12, 2016 would have suggested he was a danger to himself or others, various hospital personnel later

admitted he was not a danger to himself or others, and Ms. Singleton herself acknowledged that

Plaintiff showed her a picture of Harlem Hospital Center employees outside his home. While these

factual allegations do not directly relate to the process by which NYC HHC determined that

Plaintiff was a danger to himself or others or was potentially disruptive to hospital operations, they

raise sufficient concerns about the accuracy of that process to pose a serious question about the risk

of an erroneous deprivation. Thus, while the Court does not foreclose the possibility that

Defendants may, after proceeding through discovery, produce sufficient evidence to demonstrate

the constitutional sufficiency of the Regulation 1 procedure through a summary judgment motion,

Defendants are not entitled to dismissal of Plaintiff’s procedural due process claim at this stage of

the litigation.4

4 Defendants also argue that Defendant Singleton should be dismissed from this case because she is entitled

to qualified and absolute immunity for her role in Plaintiff’s alleged constitutional deprivation. “A

government official ‘is entitled to qualified immunity if his actions do not “violate clearly established statutory

or constitutional rights of which a reasonable person would have known” or “if it was objectively reasonable”

for the public official to believe that his actions were lawful at the time of the challenged act.’” Tolliver v.

Ercole, No. 08-cv-4023 (DAB), 2010 WL 1222053, at *3 (S.D.N.Y. Mar. 29, 2010) (quoting Field Day, LLC v.

Cty. of Suffolk, 463 F.3d 167, 191 (2d Cir. 2006)). Absolute immunity, on the other hand, “is accorded to

judges and prosecutors functioning in their individual capacities and, under certain circumstances, is also

extended to officials of government agencies ‘performing certain functions analogous to those of a

b. Plaintiff’s complaint states a claim against NYC HHC for violations of

Title VII and the Americans with Disabilities Act.

Title VII of the Civil Rights Act of 1964 forbids employment discrimination against “any

individual” based on that individual’s “race, color, religion, sex, or national origin.” 42 U.S.C. §

2000e-2(a). Title VII’s antiretaliation provision prohibits an employer from “discriminat[ing]

against” an employee or job applicant because that individual “opposed any practice” made unlawful

by Title VII or “made a charge, testified, assisted, or participated in” a Title VII proceeding or

investigation. § 2000e-3(a). Title I of the Americans with Disabilities Act (“the ADA”) contains

parallel provisions to Title VII’s antidiscrimination and antiretaliation provisions, offering similar

protections to individuals who have a “physical or mental impairment that substantially limits one or

more major life activities, . . . a record of such an impairment, or . . . [who are] regarded as having

such an impairment.” 42 U.S.C. §§ 12102, 12112. Construed liberally, Plaintiff’s complaint can be

read to assert claims for race and disability discrimination and retaliation under both Title VII and

the ADA.

As an initial matter, however, to the extent that Plaintiff attempts to assert claims against Ms.

Singleton for discrimination or retaliation under Title VII and the ADA, those claims are dismissed.

Title VII does not provide for individual liability. See, e.g., Carris v. First Student, Inc., 132 F. Supp. 3d

321, 365 (N.D.N.Y. 2015) (“It is well established that ‘employers, not individuals, are liable under

prosecutor’ or judge.” Bohmer v. New York, 684 F. Supp. 2d 357, 362 (S.D.N.Y. 2010) (quoting Butz v.

Economou, 438 U.S. 478, 511-12 (1978)). “In deciding whether an official’s conduct in an administrative

proceeding should be accorded absolute immunity, the Court employs a ‘functional approach’ to determine

whether the procedures used by the agency are sufficiently similar to the judicial process to warrant a grant of

immunity, and then look to whether the actions taken by the official are ‘functionally comparable’ to that of a

judge or prosecutor.” Id. at 362-63 (quoting Cleavinger v. Saxner, 474 U.S. 193, 201-02 (1985) and Butz, 438

U.S. at 513). At this stage of the proceeding—with essentially no record on which to base any evaluation of

the pre-deprivation process Plaintiff received—the Court cannot conclude that Ms. Singleton’s actions were

“objectively reasonable” or were so similar to the prosecutorial function that she is entitled to the protections

of qualified or absolute immunity. See Tolliver, 2010 WL 1222053, at *3 (“Further, while ‘a qualified immunity

defense can be presented in a Rule 12(b)(6) motion . . . the defense faces a formidable hurdle when advanced

on such a motion and is usually not successful.” (quoting Field Day, 463 F.3d at 192)).

Title VII.’” (quoting Reynolds v. Barrett, 685 F.3d 193, 202 (2d Cir. 2012))). Similarly, individual

defendants cannot be held liable under the retaliation provisions of the ADA. Spiegel v. Schulmann,

604 F.3d 72, 79-80 (2d Cir. 2010). Although the Second Circuit has not specifically addressed the

issue of whether individuals can be held liable under other provisions of the ADA, many district

courts in this Circuit have determined that the ADA’s other provisions likewise do not provide for

individual liability. See Ivanov v. New York City Transit Auth., No. 13-cv-4280 (PKC), 2014 WL

2600230, at *5 (S.D.N.Y. June 5, 2014) (“Because an individual is not an ‘employer’ under Title VII,

an individual is also not an ‘employer’ under the ADA and, therefore, may not be liable for disability

discrimination.”); see also, e.g., Milner v. HRA Police Dep’t/Agency, No. 15-cv-6320 (VSB), 2018 WL

1583675, at *5 (S.D.N.Y. Mar. 28, 2018); Garvey v. Town of Clarkstown, New York, No. 13-cv-8305

(KBF), 2018 WL 1026379, at *8 (S.D.N.Y. Feb. 22, 2018), aff’d sub nom. Garvey v. Sullivan, 773 F.

App’x 634 (2d Cir. 2019); Garcia v. Kings Cty. Hosp. Ctr., No. 16 CIV. 3151 (ER), 2018 WL 389212, at

*3 (S.D.N.Y. Jan. 11, 2018). Furthermore, Plaintiff is denied leave to replead his Title VII and

ADA claims against Ms. Singleton because the Court concludes that any further attempt to plead

those claims against an individual would be futile. See Advanced Magnetics, Inc. v. Bayfront Partners, Inc.,

106 F.3d 11, 18 (2d Cir. 1997).

However, Plaintiff’s complaint does state claims against NYC HHC for discrimination and

retaliation in violation of Title VII and the ADA. “To establish a prima facie case [of employment

discrimination under Title VII and the ADA], a plaintiff must show that: (1) she was a member of a

protected class; (2) she was competent to perform the job in question, or was performing the job

duties satisfactorily; (3) she suffered a materially adverse employment action; and (4) the action

occurred under circumstances that give rise to an inference of discrimination.” Henderson v. Physician

Affiliate Grp. of New York P.C., No. 18-cv-3430 (JMF), 2019 WL 3778504, at *4 (S.D.N.Y. Aug. 12,

2019). “At the pleadings stage, then, a plaintiff must allege that the employer took adverse action

against her at least in part for a discriminatory reason, and she may do so by alleging facts that

directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible

inference of discrimination.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015).

To plausibly allege a Title VII or ADA retaliation claim, “a plaintiff must plead facts to show that:

(1) he was engaged in an activity protected [under the statute] . . . ; (2) defendants were aware of his

participation in the protected activity; (3) defendants took adverse action against him; and (4) a

causal connection existed between the protected activity and the adverse action.” Jeanty v. Newburgh

Beacon Bus Corp., No. 17-cv-9175 (CS), 2018 WL 6047832, at *9 (S.D.N.Y. Nov. 19, 2018)

(quotations omitted).

Here, the Plaintiff has pleaded that he is an African American man who was perceived by his

employer as suffering from various mental health issues. Plaintiff alleges that he was qualified for

his job, both because of his credentials and because numerous doctors had cleared him to work in

the years and months preceding the imposition of involuntary leave. He claims that his direct

supervisor—who was involved in the incident that led to the imposition of Plaintiff’s involuntary

leave—referred to him using various slurs “over a thousand times” during the two-and-a-half years

preceding the imposition of Plaintiff’s involuntary leave, reflecting animus towards both his race and

his perceived disability. He also claims that he was specifically told by Human Resources personnel

that he would not be considered for any other positions because of his mental disability. And

Plaintiff alleges that a mere six days after he met with the Regional Director of the NYC HHC

Office of Equal Employment Opportunity to inform her of the discrimination and retaliation he had

suffered as a result of his race and perceived disability, he was placed on involuntary medical leave.

These allegations are clearly sufficient to meet Plaintiff’s “minimal burden to show discriminatory

intent” in order to state a claim for race and perceived disability discrimination and retaliation.

Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015).

Defendant NYC HHC’s arguments as to why Plaintiff’s federal discrimination and

retaliation claims should be dismissed are unavailing. First, Defendant argues that Plaintiff’s claims

are precluded by the New York Supreme Court’s decision to dismiss his April 2016 state court

action. But the core of Plaintiff’s complaint here is that he was discriminated and retaliated against

as a result of his decision to file that action. It is therefore not at all clear to the Court how the

dismissal of the April 2016 action has any bearing on the claims at issue in this case, which are based

entirely on events which took place after that action was filed. Defendant also claims that any

discrimination or retaliation claims must be dismissed because Plaintiff has not filed an

administrative charge with the United States Equal Employment Opportunity Commission

regarding the events underlying this lawsuit. But an employee is not required to plead that his claims

of discrimination and retaliation have been administratively exhausted with the Equal Employment

Opportunity Commission in order to state a claim. Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d

486 (2d Cir. 2018). Regardless of the ultimate merits of Defendant’s administrative exhaustion

argument, it is not a basis upon which the Court may dismiss Plaintiff’s Title VII and ADA claims.

Finally, Defendant argues that “[n]othing in the Complaint indicates that HHC had any reason to

know of such harassment, and liability cannot be imputed to an employer on [these] facts,” citing

Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004). Dkt. No. 41 at 10. But Feingold related to

circumstances in which the alleged discrimination was perpetrated by the plaintiff’s co-workers, thus

requiring the plaintiff to demonstrate that his “employer either provided no reasonable avenue for

complaint or knew of the harassment but did nothing about it.” Feingold, 366 F.3d at 152

(quotations omitted). Here, Plaintiff need not plead additional facts to show that his employer was

aware of the discrimination and retaliation he suffered because his claim is that such discrimination

and retaliation were perpetrated by his direct manager. Accordingly, Defendant NYC HHC’s motion to

dismiss Plaintiff’s Title VII and ADA claims is denied.

c. Plaintiff’s complaint fails to state a claim for discrimination under 42

U.S.C. § 1981 or for violation of his equal protection rights under 42 U.S.C.

§ 1983.

Plaintiff’s complaint can also be read to assert claims under 42 U.S.C. § 1981—which

prohibits intentional racial discrimination in the making and enforcement of contracts—and under

42 U.S.C. § 1983 for violation of his Fourteenth Amendment equal protection rights. However, for

the reasons discussed below, Plaintiff has failed to plead viable claims against either of the

defendants for discrimination under § 1981 or denial of equal protection under § 1983.

First, Plaintiff’s complaint does not state a claim against Ms. Singleton pursuant to § 1981 or

§ 1983 because there are no allegations in the complaint which support an inference that Ms.

Singleton engaged in intentional discrimination. See Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206,

226 (2d Cir. 2004) (“[A] plaintiff pursuing a claimed violation of § 1981 or denial of equal protection

under § 1983 must show that the discrimination was intentional.”). The only allegations in Plaintiff’s

complaint and opposition papers which even reference Ms. Singleton are that Ms. Singleton was the

person who delivered the notice of involuntary leave to Plaintiff and that Ms. Singleton allegedly

acknowledged that the individuals in Plaintiff’s photograph were Harlem Hospital Center

employees. Neither of these allegations suggests in any way that Ms. Singleton engaged in

intentional discrimination. Plaintiff’s § 1981 and § 1983 equal protection claims against Ms.

Singleton are therefore dismissed. To the extent that Plaintiff can allege facts which would support

an inference of a discriminatory animus on the part of Ms. Singleton, Plaintiff is granted leave to

replead these claims.

Plaintiff has also failed to plead viable § 1981 or § 1983 claims against NYC HHC. Under

the principles articulated in Monell v. Department of Social Services, 436 U.S. 658 (1978), “[w]hen a

defendant sued for discrimination under §§ 1981 or 1983 is a municipality, ‘the plaintiff is required

to show that the challenged acts were performed pursuant to a municipal policy or custom.’”

Littlejohn, 795 F.3d at 314-15 (quoting Patterson, 375 F.3d at 226). “[NYC HHC] is ‘a public benefit

corporation created to provide health and medical services to New York City residents pursuant to

[the] New York City Health and Hospitals Corporation Act.” Dames v. Pigott, No. 18-cv-8352 (VSB),

2019 WL 4014102, at *5 (S.D.N.Y. Aug. 26, 2019) (quoting Simpkins v. Bellevue Hosp., 832 F. Supp.

69, 73 (S.D.N.Y. 1993)). It “therefore qualifies as a ‘municipal corporation,’ whose liability under

§ 1983 is governed by the principles set forth in Monell.” Id.

Plaintiff has not alleged any facts that the discrimination and retaliation he claims to have

suffered occurred pursuant to a municipal policy or custom. Any claims he brings against NYC

HHC under § 1981 or § 1983 are therefore dismissed. However, if Plaintiff can allege the existence

of a municipal policy or custom, he is granted leave to replead these claims.

d. Plaintiff’s NYSHRL and NYCHRL claims are barred by the election of

remedies doctrine.

Defendants have also moved under Fed. R. Civ. P. 12(b)(1) to dismiss Plaintiff’s claims for

discrimination and retaliation under the NYSHRL and NYCHRL on the ground that those claims

are barred by the election of remedies doctrine. The Court agrees with Defendants that Plaintiff’s

decision to file a claim with the New York State Division of Human Rights on May 16, 2018, see

Dkt. No. 35, Ex. 8, now bars him from pursuing claims here under the NYSHRL and NYCHRL.

The NYSHRL contains an election of remedies provision, which provides that “[a]ny person

claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any

court of appropriate jurisdiction for damages, . . . unless such person had filed a complaint

hereunder or with any local commission on human rights . . . .” N.Y. Exec. Law § 297(9). The

NYCHRL contains a nearly identical provision. N.Y.C. Code § 8-502(a); see also Higgins v. NYP

Holdings, Inc., 836 F. Supp. 2d 182, 187-89 (S.D.N.Y. 2011). “The election-of-remedies requirement

is jurisdictional: once a plaintiff files a complaint with the SDHR, federal and state courts are

without subject matter jurisdiction to hear NYSHRL claims based on the same underlying conduct

that gives rise to the SDHR complaint.” Yajaira Bezares C. v. The Donna Karan Co. Store LLC, No. 13-

cv-8560 (JGK), 2014 WL 2134600, at *4 (S.D.N.Y. May 22, 2014).

Plaintiff’s May 16, 2018 NYSDHR complaint includes allegations regarding Plaintiff’s

September 2016 suspension that are nearly identical to the allegations in Plaintiff’s complaint and

opposition papers in this case. For instance, Plaintiff represented to the NYSDHR that in

September 2016, his manager reported to hospital police that Plaintiff was exhibiting unusual

behavior. Dkt. No. 35, Ex. 8. Plaintiff also repeated to the NYSDHR the same allegations that he

made in this case regarding the Harlem Hospital Center employees who appeared at his house and

how he was placed on involuntary leave after he reported their threats to him. Id. He also renewed

his argument regarding the biases of the individuals who reviewed his appeal of the involuntary leave

decision, pointing to the same claimed defects in the NYC HHC Personnel Review Board hearing

that he raised in this case. Id. Plaintiff’s complaint to the NYSDHR was therefore clearly based on

“the same operative events” as the complaint in this case, thus preventing him from bringing

NYSHRL and NYCHRL claims based on those facts. Chakraborty v. Soto, No. 16-cv-9128 (KPF),

2017 WL 5157616, at *8 (S.D.N.Y. Nov. 6, 2017). Nor does Plaintiff’s decision to include Ms.

Singleton as an additional defendant in this case save his NYSHRL and NYCHRL claims from

dismissal on election of remedies grounds. Id. (“[P]laintiff [cannot] evade the derivative bar by suing

a defendant who was not named in his NYSDHR or NYCCHR proceeding.”). The Court therefore

concludes that it does not have subject matter jurisdiction over Plaintiff’s NYSHRL and NYCHRL

claims. Those claims are dismissed pursuant to Fed. R. Civ. P. 12(b)(1).

IV. CONCLUSION

For the reasons stated above, Defendants’ motion to dismiss Plaintiff’s due process claim

under 42 U.S.C. § 1983 is denied. Plaintiff’s Title VII and ADA claims against Ms. Singleton are

dismissed with prejudice. Plaintiff is denied leave to replead these claims. Defendants’ motion to

dismiss Plaintiffs ‘Title VII and ADA claims against NYC HHC is denied. Plaintiffs claims for

discrimination under 42 U.S.C. § 1981 and for violation of his equal protection rights under 42

U.S.C. § 1983 are dismissed with leave to replead. Plaintiffs NYSHRL and NYCHRL claims are

dismissed for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Any amended

complaint must be filed no later than 30 days after the date of this order.

The Court requests that counsel for Defendants mail a copy of this order to Plaintiff and

provide Plaintiff with copies of any unpublished cases cited in this decision pursuant to Local Rule

of the United States District Courts for the Southern and Eastern Districts of New York 7.2.

The Clerk of Court is directed to terminate the motion pending at Dkt. No. 33.

SO ORDERED.

Dated: September 13, 2019

New York, New York J a AU seu

eos! . WOODS

United States District Judge

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