Barbosa v. Continuum Health Partners Inc.

• Decision Date: 08 March 2010
• Docket Number: No. 09 Civ. 6572(SAS).,09 Civ. 6572(SAS).
• Parties: Aida BARBOSA, Plaintiff, v. CONTINUUM HEALTH PARTNERS, INC., Beth Israel Medical Center, and Jacob Perlow Hospice Corporation, Defendants.
• Court: U.S. District Court — Southern District of New York

716 F.Supp.2d 210

Aida BARBOSA, Plaintiff,

v.CONTINUUM HEALTH PARTNERS, INC., Beth Israel Medical Center, and Jacob Perlow Hospice Corporation, Defendants.

No. 09 Civ. 6572(SAS).

United States District Court,S.D. New York.

March 8, 2010.

Raymond Barbosa, Esq., Barbosa Law Group, P.C., Chicago, IL, for Plaintiff.

Ricki E. Roer, Esq., Nancy V. Wright, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, NY, for Defendants.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge:

I. INTRODUCTION

Aida Barbosa brings this action against Jacob Perlow Hospice Corporation (“Jacob Perlow”) and its parent companies, Beth Israel Medical Center (“Beth Israel”) and Continuum Health Partners, Inc. (“Continuum Health”), claiming that she was subjected to a hostile work environment and discharged on the basis of race and age in violation of both federal and state law. Specifically, Barbosa's race discrimination claims arise under Title VII of the Civil Rights Act of 1964 (“Title VII”), Section 1981 of Title 42 of the United States Code (“Section 1981”), the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”). Her age discrimination claims arise under the Age Discrimination in Employment Act (“ADEA”), the NYSHRL, and the NYCHRL. Defendants move to dismiss Barbosa's Second Amended Complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants assert, inter alia, that (1) Barbosa's Title VII and ADEA claims are untimely, (2) Continuum Health and Beth Israel were not her employers, and (3) she fails to state a claim for hostile work environment and discriminatory discharge. For the reasons discussed below, defendants' motion is granted and plaintiff is granted leave to replead her Section 1981 claims for race discrimination and her state and local claims for race and age discrimination.

II. BACKGROUNDA. Factual Background ¹

Barbosa, currently a fifty-six year old Hispanic woman, began working for Jacob Perlow and Beth Israel in 1990. ² Continuum Health “owned, operated, managed, maintained, and controlled” Jacob Perlow and Beth Israel ³ and Barbosa was a “joint employee” of all three defendants at all times relevant to her Complaint. ⁴ Barbosa's last position was “billing supervisor,” to which she was promoted in July 2007. ⁵

On or about March 2008, Barbosa's supervisor, Charlotte Smith, “harassed and threatened” her during a meeting held for the purpose of updating Smith on billing collection efforts. ⁶ Smith demanded that Barbosa deviate from “CMS and National Government Service regulations” in invoicing clients and also ordered Barbosa “to train non-Continuum employees.” ⁷ When Barbosa refused to deviate from the regulations, Smith “became infuriated” and told Barbosa that “she [Smith] was the boss and whatever she said was going to be done.” ⁸

A month later, on or about April 30, 2008, Smith ominously informed Barbosa that she had asked a former employee, Clarissa Cassanetta, a Filipina under the age of forty, to return to work in the billing office. ⁹ Smith indicated that Cassanetta refused to return to any position other than “lead biller,” the position that Barbosa then held. ¹⁰

In July 2008, Barbosa was given a “substandard” job performance evaluation which she alleges “did not reflect her actual performance.” ¹¹ She claims that she consistently performed her work “in a manner that met and exceeded the reasonable expectations of her employer.” ¹² As late as January 2008, the President and CEO of Jacob Perlow indicated in a sworn affidavit that Barbosa was “an employee in good standing at [Jacob Perlow] for the past seventeen years” and had “a stellar record during her tenure.” ¹³

Smith threatened and yelled at Barbosa on two more occasions on or about August 2009. ¹⁴ During the first incident, Smith threatened Barbosa during a meeting because “[Barbosa] had inquired about her cost of living adjustment.” ¹⁵ During a second meeting discussing Barbosa's substandard performance evaluation, Smith “angrily” refused to change anything in the evaluation and yelled at Barbosa when Barbosa refused to sign the evaluation. ¹⁶ Although “Corporate Human Resource guidelines” did not require employees to sign their evaluations, Smith threatened to include an adverse note in Barbosa's file indicating that she had refused to sign. ¹⁷

On or about August 14, 2009, Barbosa asked another supervisor, Carol Lowe, for the name and number of the “Corporate EEO officer at Continuum Health.” ¹⁸ Although Lowe indicated to Barbosa that Lowe herself was the EEO Officer, Barbosa was apparently not satisfied and again requested the name and number of Continuum Health's EEO Officer. ¹⁹ After receiving no answer, Barbosa contacted Corporate Labor and Relations at Continuum Health regarding her “situation” with Smith and was advised to seek a leave of absence, which Smith denied. ²⁰ On November 20, 2008, defendants terminated Barbosa effective December 1, 2008, and replaced her with Clarissa Cassanetta. ²¹

In addition, defendants “refused to allow [Barbosa] and other Hispanics to speak Spanish during working hours.” ²²

B. Procedural Background

On or about November 28, 2008, Barbosa filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission (“EEOC”). ²³ After conducting an investigation, the EEOC issued Barbosa a Notice of Right to Sue (a “right-to-sue letter”) dated April 21, 2009. ²⁴ Barbosa declares that she was away from home from April 16, 2009 through April 27, 2009, and that she discovered the right-to-sue letter upon her return on April 27, 2009. ²⁵ Barbosa filed this lawsuit on July 24, 2009.

III. LEGAL STANDARD

The Supreme Court's recent landmark decisions in Bell Atlantic Corporation v. Twombly ²⁶ and Ashcroft v. Iqbal ²⁷ arguably shifted pleading standards from “simple notice pleading” to a “more heightened form of pleading,” ²⁸ requiring that allegations in a complaint meet a standard of “plausibility” to survive a motion to dismiss. ²⁹ A claim satisfies the plausibility standard “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” ³⁰ While plausibility “is not akin to a probability requirement,” plausibility requires “more than a sheer possibility that a defendant has acted unlawfully.” ³¹ Pleading facts that are “merely consistent with a defendant's liability” ³² fails to “nudge[ ] [the plaintiff's] claims across the line from the conceivable to plausible.” ³³ In reviewing a motion to dismiss, the court must “accept as true all of the factual allegations contained in the complaint” ³⁴ and “draw all reasonable inferences in the plaintiff's favor.” ³⁵ However, the court need not accord “[l]egal conclusions, deductions or opinions couched as factual allegations ... a presumption of truthfulness.” ³⁶

With respect to employment discrimination cases, in Swierkiewicz v. Sorema N.A., ³⁷ which preceded Twombly and Iqbal, the Supreme Court rejected a heightened factual pleading requirement. Specifically, the Court held that an employment discrimination complaint need not allege specific facts establishing a prima facie case of discrimination. ³⁸ Rather, “the ordinary [pre- Twombly ] rules for assessing the sufficiency of a complaint apply.” ³⁹

The Twombly court held that Swierkiewicz remains good law. ⁴⁰ However, some courts and commentators have concluded that Twombly and Iqbal repudiated Swierkiewicz, at least to the extent that Swierkiewicz relied upon pre- Twombly pleading standards. ⁴¹ Reconciling Swierkiewicz, Twombly, and Iqbal, a complaint need not establish a prima facie case of employment discrimination to survive a motion to dismiss; however, “the claim must be facially plausible and must give fair notice to the defendants of the basis for the claim.” ⁴²

IV. APPLICABLE LAWA. Timeliness: Title VII and ADEA

In order for Title VII and ADEA claims to be timely, they must be filed within ninety days of the claimant's receipt of the EEOC's right-to-sue letter. ⁴³ In assessing timeliness, a court may assume that a right-to-sue letter was mailed on the date shown on the document. ⁴⁴ A court may also assume that a mailed document was received three days after mailing. ⁴⁵ However, these presumptions are not irrebuttable. ⁴⁶ “If a claimant presents sworn testimony or other admissible evidence from which it could reasonably be inferred either that the notice was mailed later than its type-written date or that it took longer than three days to reach her by mail, the initial presumption is not dispositive.” ⁴⁷

While the ninety-day filing requirement is akin to a statute of limitations ⁴⁸ and is “not to be disregarded by courts out of a vague sympathy for particular litigants,” ⁴⁹ it is subject to the doctrine of equitable tolling. ⁵⁰ However, “federal courts have typically extended equitable relief only sparingly,” and “have been much less forgiving where the claimant failed to exercise due diligence in preserving [her] legal rights.” ⁵¹ As one district court noted, the ninety-day filing requirement can only be tolled for reasons such as “(1) the claimant received inadequate notice, (2) there is a pending motion for appointment of counsel, (3) the Court misled the plaintiff and as a result the plaintiff believed he had done everything required of him, or (4) the defendant engaged in affirmative misconduct, encouraging the plaintiff to take no action.” ⁵² “[I]n the absence of a recognized equitable consideration, the court cannot extend the limitations period by even one day.” ⁵³

B. Barbosa's Employer: Section 1981, the NYSHRL, and the NYCHRL

Several doctrines have been developed to allow a plaintiff to assert employer liability in the employment discrimination context against entities that are not her formal, direct employer. These doctrines...