Ziccarelli v. NYU Hosps. Ctr.

• Decision Date: 29 March 2017
• Docket Number: 15 Civ. 9307 (DAB)
• Citation: 247 F.Supp.3d 438
• Parties: Jeffry ZICCARELLI, Plaintiff, v. NYU HOSPITALS CENTER, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

247 F.Supp.3d 438

Jeffry ZICCARELLI, Plaintiff,

v.NYU HOSPITALS CENTER, et al., Defendants.

15 Civ. 9307 (DAB)

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

Signed March 29, 2017

Mark H. Bierman, Bierman & Associates, New York, NY, for Plaintiff.

Ola Akache Nunez, Steven Gerber, Gerber & Partners LLP, New York, NY, for Defendants.

MEMORANDUM & ORDER

DEBORAH BATTS, United States District Judge.

On August 24, 2015, Plaintiff Jeffry Ziccarelli filed suit against Defendants NYU Hospitals Center a/k/a NYU Langone Medical Center ("NYU") and Cheryl Long, Sheryl Bushman, Nader Mherabi, and Nancy Beale (collectively the "Individual Defendants") for alleged interference with Plaintiff's rights under the Family and Medical Leave Act ("FMLA") (Count I), 29 U.S.C. §§ 2601 – 54, FMLA retaliation (Count II), improper disclosure of medical information (Count III), and violation of the New York City Human Rights Law (Count VII), N.Y.C. Admin. Code §§ 8–101–1104. Plaintiff also brings charges against NYU for negligence (Count IV), gross negligence (Count V), and violation of the Americans with Disabilities Act ("ADA") (Count VI), 42 U.S.C. § 12112(d)(4)(A).¹ On November 25, 2015, NYU, Mherabi, and Beale removed the case to this Court. NYU, Mherabi, and Beale then moved to dismiss the FMLA counts (Counts I and II) as against Mherabi and Beale, the improper disclosure of medical information (Count III) as against NYU, Mherabi, and Beale, and negligence (Count IV), gross negligence (Count V), and ADA (Count VI) charges as against NYU. Bushman and Long subsequently filed a Motion to Dismiss the FMLA counts (Counts I and II) as against Bushman and the improper disclosure of medical information charge (Count III) as against Bushman and Long. In opposing both Motions to Dismiss, Plaintiff filed a cross Motion for Leave to Amend his Complaint, attaching a Proposed Amended Complaint (ECF No. 21; Pl.'s 2d Opp. Ex. B ("PAC").) For the following reasons, Defendants' Motions to Dismiss Counts I, II, and III as against Mherabi, Beale, and Bushman. Defendants' Motions to Dismiss Count III as against NYU and Long and Counts IV and V as against NYU are DENIED. Plaintiff's Motion for Leave to Amend is DENIED because the specific proposed amendments would be futile as to Counts I and II as against Mherabi, Beale, and Bushman and Count III as against all Defendants, but Plaintiff is GRANTED leave to amend to include additional facts that could sustain the charges discussed contained in Counts I and II against Mherabi, Beale, and Bushman and Count III against all Defendants.

I. BACKGROUND

For the purpose of the Motions to Dismiss, the Court assumes as true the factual allegations in Plaintiff's Complaint and Proposed Amended Complaint.

This suit arises from Plaintiff's employment at NYU and his treatment as a patient at NYU. Plaintiff was employed by NYU for almost thirty years until his resignation on June 20, 2014. (Compl. ¶¶ 8, 84.) Plaintiff was promoted to Application Lead on the Epic Lab team in June 2012. (Id. ¶ 9.) Allegedly, Plaintiff received consistent praise and positive reviews at NYU through the summer of 2013. (Id. ¶¶ 11–14.)

Plaintiff provides scant information in the Complaint about Individual Defendants' roles at NYU but specifies that he began reporting to Long, the Director of the Orders Team, while on FMLA leave. (Id. ¶ 18.)

A. Plaintiff's FMLA Leave

On April 13, 2013, Plaintiff was injured and applied for FMLA leave so that he could have surgery to repair a proximal humerus fracture and a rotator cuff tear and do subsequent physical therapy. (Compl. ¶ 15.) Plaintiff's request for leave was granted, and he began his leave on April 23, 2013. (Id. ¶ 16.)

While Plaintiff was on FMLA leave, the structure of his team changed, and he began reporting directly to Long. (Id. ¶ 18.) Despite the fact that Plaintiff was on leave, Long allegedly began to require him to work remotely in July 2013, including sending him work-related emails and forcing him to participate in work-related phone calls. (Id. ¶¶ 19–23.) She also began to pressure him to return to work, even though he was allegedly still undergoing therapy, taking medication that affected his ability to work, and had not been medically cleared to return to work. (Id. ¶ 20.) Long told Plaintiff that she would limit his hours if he returned to work before the end of his leave. (Id. ¶ 25.) Because of the pressure, Plaintiff returned to work early, on July 1, 2013, despite the fact that he was not fully recovered. (Id. ¶ 27.) Shortly thereafter, Long began to force Plaintiff to work long hours and on weekends. (Id. ¶ 28.)

Plaintiff was concerned with the impact his early return to work and the long hours were having on his recovery. (Compl. ¶¶ 29–31.) Although he expressed these concerns to Long, she was allegedly completely dismissive of his concerns. (Id. ¶¶ 32–33.) Because of his medical condition and the effect his work had on his recovery, Plaintiff had to take a second FMLA leave from late August to early October 2013. (Id. ¶ 36.)

B. Improper Access to and Disclosure of Plaintiff's Medical Information

In connection with his injury and subsequent surgery, Plaintiff underwent medical treatment at NYU beginning on April 13, 2013. (Id. ¶ 43.) These services were allegedly unrelated to his employment at NYU and were available to the public. (Id. ¶ 38.) His medical records were part of NYU's electronic database. (Id. ¶ 40.) These records are allegedly accessible to hundreds of NYU employees, including Individual Defendants. (Id. ¶ 46.)

According to the Complaint, NYU management had previously been informed that employees had viewed patient records—the confidential medical records were accessible by employees without authority, permission, or consent to view those records. (Id. ¶ 48.) Despite knowing this, NYU allegedly failed to modify the system so that it would have a record of which employees had viewed particular records. (Id. ¶ 49.)

Even though Plaintiff's doctor submitted reports directly to NYU in connection with his FMLA leave, Long allegedly accessed and reviewed Plaintiff's confidential medical records to try to find evidence that he was capable of returning from his leave and/or to undermine or challenge his FMLA rights and benefits. (Id. ¶¶ 37, 52–54.) In late May 2013, Long called Plaintiff at home, initiating a conversation about his leave and recovery and making statements that indicated knowledge that Plaintiff had begun physical therapy, despite the fact that Plaintiff had not disclosed this information to Long. (Id. ¶ 50.)

C. FMLA Retaliation

After Plaintiff's return from both FMLA leaves, Long allegedly began to treat him harshly and unfairly, give him a greater workload than he had had prior to leave, and berate him. (Id. ¶ 34.) Bushman also allegedly began to harass Plaintiff, because she was friends with Long and because Plaintiff witnessed her sexually harassing another employee.² (Id. ¶¶ 56–59.) Plaintiff began to discuss these working conditions and Long's treatment of him with Human Resources in August 2013. (Id. ¶¶ 35, 63.) Plaintiff also sent a letter to Human Resources in October 2013 about the alleged retaliation and hostile work environment, requesting mediation between him, Long, and Bushman, but NYU did nothing to respond to the letter nor to stop Long and Bushman's conduct. (Id. ¶¶ 63–64.)

In October 2013, Long gave Plaintiff a negative performance review, allegedly in retaliation for his complaints and his exercise of his FMLA rights, rather than based on his actual work performance. (Id. ¶¶ 66–74.) Plaintiff alleges that Beale and Mherabi aided and abetted Long and Bushman's conduct and that Beale conspired with Long to fabricate the negative work assessment. (Id. ¶¶ 75–76.) Because of the negative performance evaluation, Plaintiff was denied promotional opportunities. (Id. ¶ 77.)

On January 27, 2014, NYU sent Plaintiff a letter saying that Plaintiff was being laid off because his position was being eliminated. (Id. ¶ 78.) The other employee who held the same position, however, was retained. (Id. ¶ 79.) Plaintiff then met with Human Resources, who told him that he could either accept a limited severance package or accept a demotion to Senior Clinical Analyst 1. (Id. ¶ 80.) Plaintiff chose to accept the demotion. (Id. ¶ 81.) Even after he was demoted, Long continued to harass him. (Id. ¶ 82.) According to Plaintiff, he was constructively terminated as a result of the constant harassment and threats to his job security when he resigned on June 20, 2014. (Id. ¶ 84.)

II. MOTION TO DISMISS

A. Legal Standard for Motion to Dismiss Pursuant to Rule 12(b)(6)

For a complaint to survive a motion brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the plaintiff must have pleaded "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Supreme Court explained,

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. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief."

Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 556–57, 127 S.Ct. 1955 ). "[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." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (internal quotation marks and citation omitted). "Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ...