Kurian v. Forest Hills Hosp. 10201 66TH RD Forest Hills

• Decision Date: 15 July 2013
• Docket Number: No. 12–CV–4539 (ADS)(GRB).,12–CV–4539 (ADS)(GRB).
• Parties: Tressa KURIAN, Plaintiff, v. FOREST HILLS HOSPITAL 10201 66th Rd Forest Hills, N.Y. 11375 and Galia Bagsadarova Nurse Manager North Shore University Hospital 10201 66th Rd Forest Hills, N.Y. 11375, Defendants.
• Court: U.S. District Court — Eastern District of New York

962 F.Supp.2d 460

Tressa KURIAN, Plaintiff,

v.FOREST HILLS HOSPITAL 10201 66th Rd Forest Hills, N.Y. 11375 and Galia Bagsadarova Nurse Manager North Shore University Hospital 10201 66th Rd Forest Hills, N.Y. 11375, Defendants.

No. 12–CV–4539 (ADS)(GRB).

United States District Court,

E.D. New York.

July 15, 2013.

Law Office of Earl Raynor, Esq., by: Earl Raynor, Esq., Of Counsel, Philadelphia, PA, for the Plaintiff.

McCarter & English, LLP, by: Michael Christopher Moon, Esq., Peter D. Stergios, Esq., of Counsel, New York, NY, for the Defendants.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On September 11, 2012 the Plaintiff Tressa Kurian (“the Plaintiff”) commenced this action against North Shore University Hospital (“North Shore”) and Galia Bagsadarova (“Bagsadarova”). In the Original Complaint, the Plaintiff brought the following three causes of action: (1) an age discrimination claim pursuant to Title VII of the Civil Rights Act of 1984 (“Title VII”) and 42 U.S.C. § 1981 (“§ 1981”); (2) a New York State claim alleging intentional infliction of emotional distress; and (3) a New York State claim alleging breach of contract and/or promissory estoppel. Thereafter, on December 19, 2012, the Plaintiff filed an Amended Complaint, which substituted Forests Hills Hospital (“Forest Hills”) as a defendant instead of North Shore and asserted an age discrimination claim under 29 U.S.C. §§ 621–34 of the Age Discrimination in Employment Act (“the ADEA”) in lieu of Title VII and § 1981.

Presently before the Court is a motion by Forest Hills and Bagsadarova (the “Defendants”) to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 12(b)(6). For the reasons that follow, the Defendants' motion is granted.

I. BACKGROUND

A. Underlying Facts

The facts relevant to this motion are set forth below and are taken from the Plaintiff's Amended Complaint, the factual allegations of which are identical to those alleged in the Original Complaint. For the purpose of deciding this Rule 12(b)(6) motion, the facts are construed in the light most favorable to the Plaintiff.

The Defendant Forest Hills is a hospital located in Forest Hills, New York. Since May 3, 1985, the Plaintiff has been employed as a registered nurse with Forest Hills. Her current position is Assistant Head Nurse of the Endoscopy Unit. In this position, the Plaintiff has consistently satisfied and/or exceeded all requirements. Bagsadarova is the Plaintiff's immediate supervisor. Bagsadarova is employed by North Shore in a supervisory capacity as a nursing manager. At the time this action was commenced, the Plaintiff was 62–years old.

The Plaintiff alleges that beginning in 2009, Bagsadarova has continuously engaged in harassing and abusive conduct towards her. In this regard, according to the Plaintiff, Bagasdarova would tell the Plaintiff, in front of the Plaintiff's co-workers, that she was “slow, losing her mind, and should retire because she is rich.” (Amend. Compl., ¶ 14.) The Plaintiff further claims that Bagsadarova excluded her from staff meetings. As a result of Bagsadarova's alleged behavior, the Plaintiff commenced the application process for early retirement. However the Plaintiff does not allege that she has ceased working for Forest Hills. Nevertheless, the Plaintiff asserts that Bagsadarova's actions amounted to a constructive discharge that violated the ADEA. As a result, she claims she will be deprived of income in the form of wages and prospective retirement income and benefits. The Plaintiff also alleges she suffered from extreme emotional distress due to Bagsadarova's conduct.

In addition, the Plaintiff asserts that the Defendant Forest Hills represented, both orally and in writing, that it would treat employees in a specific, fair and impartial manner, without regard to age. Forest Hills allegedly promulgated these policies and procedures and made these representations in such a manner as to manifest its willingness to enter into a bargain with its employees, including the Plaintiff. Further, Forest Hills provided express written statements of these policies and procedures to all employees, including the Plaintiff. According to the Plaintiff, Forest Hills failed to follow these policies and procedures in connection with her employment, and therefore, it breached its contract with her.

B. Procedural History

On April 13, 2012, the Plaintiff filed a charge of age discrimination with the New York State Department of Human Rights (“NYSDHR”). The charge was jointly filed with the Equal Employment Opportunity Commission (“EEOC”). On June 13, 2012, the Plaintiff received her statutory right-to-sue letter from the EEOC.

Thereafter, on September 11, 2012, by filing the Original Complaint, the Plaintiff commenced this action. The Original Complaint was signed by Earl Raynor, Esq. (“Raynor”). However, on the accompanying civil cover sheet, Raynor acknowledged that he was not admitted to practice in the Eastern District of New York. On September 13, 2012 and again on November 30, 2012, the Clerk's office called Raynor and left him messages in order to discuss ways in which he could become the attorney on record for the Plaintiff in this case.

On November 29, 2012, a day before the Clerk's office left the second message, the Clerk's office issued a summons to North Shore and a summons to Bagsadarova. On that same date, Raynor attempted to serve these summonses on Kaitlyn Di Lapi (“Di Lapi”) at Forest Hills, who he believed was designated to accept service of process on behalf of North Shore. However, Di Lapi informed Raynor that she could not accept service on behalf of North Shore because Forest Hills is a different hospital.

On December 20, 2012, North Shore and Bagsadarova moved to dismiss the Original Complaint. They argued that dismissal was warranted pursuant to Fed.R.Civ.P. 12(b)(4) and 12(b)(5) because (1) the Plaintiff failed to include in the summons the seal of the court or the name of the attorney upon whom a responsive pleading should be served and (2) the Plaintiff failed to perfect service upon North Shore because the Plaintiff personally attempted to serve North Shore at Forest Hills, even though Forest Hills is actually a separate entity from North Shore. It was further argued that the Complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that the Plaintiff failed to state a claim upon which relief may be granted.

However, on December 19, 2012, 20 days after attempting to serve the Original Complaint and one day prior to the filing of North Shore and Bagsadarova's motion to dismiss, the Plaintiff filed the Amended Complaint. As stated above, the Amended Complaint substituted Forest Hills as a defendant instead of North Shore and asserted an age discrimination claim under the ADEA rather than under Title VII and § 1981. The Amended Complaint was entered into the court's Electronic Case Filing system on December 21, 2012, and was thus received by North Shore and Bagsadarova on that date.

On January 4, 2013, the Defendants' filed a motion to dismiss the Amended Complaint pursuant to Rule 12(b)(6). Thus, because a plaintiff may, pursuant to the provisions of Fed.R.Civ.P. 15(a)(1), amend her complaint once as a matter of course within 21 days after serving it and in light of the fact that the Defendants filed a motion to dismiss the Amended Complaint, the Court finds that the motion to dismiss the Original Complaint is moot.

In their motion to dismiss the Amended Complaint, the Defendants contend that (1) negative comments and exclusion from staff meetings are not an adverse employment action; (2) the Plaintiff cannot assert that she was constructively discharged because she has not alleged the cessation of her employment; (3) the Plaintiff failed to plausibly allege intolerable working conditions; (4) the Plaintiff's vague allegations of harassment are insufficient to establish a causal nexus; and (5) as to the Defendant Bagsadarova, there is no individual liability under the ADEA. The Defendants also argue that the Court should decline to exercise supplemental jurisdiction over the Plaintiff's remaining state law claims and that, in any event, even if the Court did exercise supplemental jurisdiction, the state law claims should be dismissed because the Plaintiff has not asserted sufficient factual allegations to state a plausible claim for relief.

On January 19, 2013, the Plaintiff, pro se, opposed the Defendant's motion to dismiss the Amended Complaint, to which the Defendants replied on January 28, 2013. In their reply, the Defendants claim that the Plaintiff's pro se status should not be considered because the Amended Complaint was based upon the Original Complaint, which was prepared and signed by Raynor, her counsel. In addition, the Defendants assert that the Plaintiff's opposition to the Defendants' motion to dismiss was also probably prepared by Raynor, as he served it on the Defendants.

After the motion to dismiss was fully briefed, on February 8, 2013, the Plaintiff moved for the first time to permit Raynor to appear pro hac vice in this action. On February 11, 2013, United States Magistrate Judge Gary R. Brown granted the Plaintiff's motion. Thereafter, on February 21, 2013, on behalf of the Plaintiff, Raynor filed an opposition to the Defendant's motion to dismiss the Amended Complaint. The Court notes that Raynor's opposition was substantially similar to the opposition that the Plaintiff filed pro se on January 19, 2013. On February 25, 2013, the Defendants moved to quash and strike the opposition filed on February 21, 2013, which motion the Court granted on March 12, 2013.

II. DISCUSSION

A. Legal Standard on a Fed.R.Civ.P. 12(b)(6) Motion to Dismiss

It is well established that a complaint should be dismissed under Fed.R.Civ.P. 12(b)(6) only if it does not contain enough allegations of fact to state a claim for relief that is “plausible on its...