Opinion
21-CV-09596 (AT)(SN)
12-13-2022
SATYANARAYAN HEGDE, Plaintiff, v. MONTEFIORE MEDICAL CENTER, et al., Defendants.
REPORT AND RECOMMENDATION
SARAH NETBURN, United States Magistrate Judge.
TO THE HONORABLE ANALISA TORRES:
Satyanarayan Hegde, proceeding pro se, sues (1) Montefiore Medical Center, (2) the Albert Einstein College of Medicine, (3) Montefiore Health System, Inc., and (4) Dr. Raanan Arens.
Plaintiff, a physician, alleges that Defendants discriminated against him by refusing to hire him for any of the multiple advertised positions to which he applied. The Court has liberally construed Plaintiff's First Amended Complaintto assert ten causes of action under state and federal law. Plaintiff alleges that Defendants violated 42 U.S.C. § 2000e-2, 42 U.S.C. § 1981, 29 U.S.C. § 623, 29 U.S.C. § 794, 42 U.S.C. § 12112, N.Y. Executive Law § 296, and N.Y.C. Admin. Code § 8-107 (Counts One through Seven, respectively). Plaintiff's eighth cause of action asserts claims for retaliation under 42 U.S.C. § 2000e-3, 42 U.S.C. § 12203, and common law. Plaintiff also alleges that Defendants violated N.Y. GBL §§ 349-50 and 15 U.S.C. § 1 (Counts Nine and Ten, respectively).
Plaintiff's First Amended Complaint is erroneously captioned as a Second Amended Complaint.
Defendants have moved to dismiss Counts Six, Seven, Nine, and Ten. I recommend that the Court grant Defendants' partial motion to dismiss.
PLAINTIFF'S ALLEGATIONS
As set out in Plaintiff's First Amended Complaint, Plaintiff applied for multiple vacant physician positions advertised by Defendant Montefiore Medical Center between May 2020 and March 2022. After his application failed to advance, Plaintiff filed an internal complaint with Defendants' human resources department. On May 13, 2021, Plaintiff filed a discrimination complaint against Defendants with both the New York State Division of Human Rights (“NYSDHR”) and the Equal Employment Opportunity Commission (“EEOC”). On September 10, 2021, the NYSDHR issued a negative determination, finding no probable cause to believe that Defendants engaged in unlawful discrimination. See ECF No. 18-1 at 26. On November 22, 2021, the EEOC issued a Dismissal and Notice of Rights form adopting the NYSDHR's findings. See ECF No. 18-1 at 32.
It is uncontested that following receipt of Plaintiff's application, Defendant Arens called a friend of his who worked at the University of Chicago Medical Center (“UCMC”), Plaintiff's former employer. Defendants represent that this friend did not recommend hiring Plaintiff.
DISCUSSION
I. Dismissal under Rule 12(b)(6) and Construction of Pro Se Submissions
To survive a Rule 12(b)(6) motion to dismiss, a complaint “must allege sufficient facts . . . to state a plausible claim for relief.” Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In reviewing such a motion, courts “accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007).
The “submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (cleaned up); see also Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). The Court must, however, examine a pro se plaintiff's complaint “for factual allegations sufficient to meet the plausibility requirement.” Hill, 657 F.3d at 122; see Twombly, 550 U.S. at 570 (a complaint must allege “enough facts to state a claim for relief that is plausible on its face”). Courts “are obligated to draw the most favorable inferences that [a pro se] complaint supports,” but “cannot invent factual allegations that [the plaintiff] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). “[The] leniency accorded pro se plaintiffs when attempting to understand the claims raised in often inartfully worded complaints does not create a predisposition toward such plaintiffs in the substantive determination of whether their claims are frivolous.” Anderson v. Coughlin, 700 F.2d 37, 43-44 (2d Cir. 1983). The Court will not assume the truth of legal conclusions or conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 67879 (2009).
II. Counts Six and Seven
Count Six alleges that Defendants engaged in unlawful discriminatory practices in violation of N.Y. Executive Law § 296. Section 297(9) creates a civil cause of action for victims of such violations “unless such person had filed a complaint hereunder or with any local commission on human rights.”
Count Seven alleges that Defendants' actions also constitute a violation of N.Y.C. Admin. Code § 8-107. Section 8-502(a) creates a civil cause of action for victims of such violations “unless such person has filed a complaint with the city commission on human rights or with the state division of human rights with respect to such alleged unlawful discriminatory practice ....”
“The resolution of the meaning of § 297(9) is an issue of state law for whose resolution we look to the interpretive rulings of New York courts.” Moodie v. Fed. Reserve Bank of N.Y., 58 F.3d 879, 884 (2d Cir. 1995) (finding that both the statutory language and its subsequent interpretation by state courts posed “an insuperable jurisdictional bar” to a plaintiff's state law claims, where that plaintiff had already brought his claim before the NYSDHR). “The filing of a complaint with the [NYSDHR] precludes the commencement of an action in court based on the same incident, or based on the same discriminatory grievance, and which seeks the same relief as that sought in the complaint.” Reyes v. Westchester Cnty. Health Care Corp., No. 21-0410, 2021 WL 4944285, at *2 (2d Cir. Oct. 25, 2021) (quoting James v. Coughlin, 508 N.Y.S.2d 231, 232 (N.Y. A.D.2d Dep't 1986)). “It is clear that § 8-502(a) exists to provide complainants with an election of remedies - they may either file an NYCHRL claim in court, or they may file a complaint with the relevant city or state agency.” Shojae v. Harlem Hosp. Ctr., No. 15-cv-05248 (KPF), 2020 WL 1862293, at *3 (S.D.N.Y. Apr. 14, 2020).
“Where there is a ‘sufficient identity of issue' between the [NYSDHR] complaint and the court action, the subsequent litigation is barred.” Borum v. Vill. of Hempstead, 590 F.Supp.2d 376, 383 (E.D.N.Y. 2008) (quoting Spoon v. American Agriculturalist, Inc., 478 N.Y.S.2d 174, 175 (N.Y. A.D.3d Dep't 1984)). “Put simply, ‘a litigant cannot split claims and assert some in court and others before an agency if they all arise out of the same course of conduct.'” Id. (quoting Benjamin v. New York City Dep't of Health, No. 102211/06, 2007 WL 3226958, at *5 (N.Y. Sup. Ct. Oct. 23, 2007)).
Plaintiff concedes that he is jurisdictionally barred from raising claims “arising on or prior to May 13, 2021” (the date he filed his complaint with NYSDHR). To the extent that Plaintiff's memorandum in opposition may be construed to argue that Defendants' continued refusal to hire him after that date somehow constitutes a distinct course of conduct for which he “did not choose administrative remedies under NYSHRL,” such argument is unavailing. Plaintiff refers to a second internal complaint he filed with Defendants on September 30, 2021, but has identified no distinction in reasoning or change in circumstance that would divide Defendants' actions into multiple courses of conduct. Thus, there is abundant “identity of issue” in Defendants' continuous refusal to hire Plaintiff before and after May 13, 2021.
Because Plaintiff brought claims identical to those in Counts Six and Seven before the NYSDHR, N.Y. Executive Law § 297(9) and N.Y.C. Admin. Code § 8-502(a) preclude him from litigating those claims here.
III. Count Nine
Count Nine arises from the alleged violation of N.Y. GBL §§ 349 and 350. The former makes unlawful “[d]eceptive acts or practices in the conduct of any business, trade or commerce ....” N.Y. GBL § 349(a). The latter similarly prohibits “[f]alse advertising in the conduct of any business, trade or commerce ....” N.Y. GBL § 350. “To state a claim for a § 349 violation, ‘a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.'” Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 124 (2d Cir. 2017) (quoting City of New York v. Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 621 (2009)). “The standard for recovery under General Business Law § 350, while specific to false advertising, is otherwise identical to Section 349.” Consumer Fin. Prot. Bureau v. RD Legal Funding, LLC, 332 F.Supp.3d 729, 783 (S.D.N.Y. 2018) (quoting Austin v. Albany Law School of Union Univ., 957 N.Y.S.2d 833, 843 (N.Y. Sup. Ct. 2013)).
Plaintiff has failed to allege sufficient facts to state a plausible claim for relief under either N.Y. GBL § 349 or § 350. Count Nine identifies “qualified physicians” as the consumers toward which Defendants' actions were directed, and claims, in essence, that Defendants' various recruitment efforts were materially misleading because Defendants “had no intention of hiring anyone.”
Defendants argue, convincingly, that this conduct is not “consumer-oriented.” But a more fundamental issue is that even if Plaintiff were a consumer within the meaning of § 349, accepting all allegations in the complaint as true, Plaintiff has failed to plead any facts demonstrating that Defendants' recruiting efforts were in any way misleading. Plaintiff claims that the position for which he applied has yet to be filled, but he alleges no facts demonstrating that Defendants have not attempted to fill that position or supporting his bald assertion that they have “no intention of hiring anyone.” See Ashcroft, 556 U.S. at 678-79 (“Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”). Plaintiff's false advertising claim fails for the same reason.
Plaintiff's brief in opposition attempts to reframe his claim entirely, casting “children with lung disease and their financial guarantors” as the “ultimate consumers” harmed by Defendants' conduct. Plaintiff goes on to allege a broader conspiracy in which Defendants create artificial scarcity by refusing to hire “physician consumers,” thereby driving up the cost of their services. Nevertheless, a liberal reading of Plaintiff's Amended Complaint and Brief in Opposition (as well as the 24 pages of “Additional Facts” annexed to that brief) still fails to reveal facts sufficient to demonstrate that Defendants' actions were in any way misleading. See Oswego Laborers' Loc. 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25 (1995) (“A prima facie case requires . . . an act or practice that is deceptive or misleading in a material way . . . .”); see also DM Rsch., Inc. v. Coll. of Am. Pathologists, 170 F.3d 53, 56 (1st Cir. 1999) (“[T]he discovery process is not available where, at the complaint stage, a plaintiff has nothing more than unlikely speculations.”).
IV. Count Ten
Count Ten arises from the alleged violation of the Sherman Antitrust Act, which prohibits “conspiracy[] in restraint of trade or commerce among the several States ....” 15 U.S.C. § 1. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, 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 544, 555 (2007) (cleaned up).
[W]e hold that stating [a §1] claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made [A]n allegation of parallel conduct and a bare assertion of conspiracy will not suffice. Without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality. Hence, when allegations of parallel conduct are set out in order to make a § 1 claim, they must be placed in a context that raises a suggestion of preceding agreement, not merely parallel conduct that could just as well be independent action.Id. at 556-57.
Plaintiff's complaint-liberally construed and read in conjunction with his brief in opposition and “Additional Facts”-fails to meet this threshold standard. His claim, in essence, is that Defendants conspired with their recruiters as well as the unnamed doctor at UCMC to not hire him, and in so doing caused illegal restraint of trade. But the facts pled, even when taken as true, establish only that Defendant Arens spoke to a professional colleague before deciding not to hire Plaintiff. One individual providing a negative reference does not rise to the level of “parallel conduct,” let alone a “preceding agreement” necessary for Plaintiff to state a § 1 claim. See New Phone Co. v. New York City Dep't of Info. Tech. & Telecommunications, No. 03-cv-03978 (JG)(KAM), 2006 WL 6908254, at *28 (E.D.N.Y. Aug. 25, 2006), affirmed, 355 Fed.Appx. 503 (2d. Cir. 2009) (“Because plaintiff's allegation that an illegal conspiracy existed between [defendants] is no more than unlikely speculation, plaintiff has failed to state a claim under section 1.” (internal quotation marks omitted)).
The extended conjecture contained in Plaintiff's brief in opposition and “Additional Facts” regarding “Provider Cartels” is precisely the sort of “conclusory allegation of agreement” deemed insufficient by Twombly. 550 U.S. at 557 (“[Labeling something a conspiracy may] be sufficient in conjunction with a more specific allegation-for example, identifying a written agreement or even a basis for inferring a tacit agreement, . . . but a court is not required to accept such terms as a sufficient basis for a complaint” (cleaned up) (quoting DM Rsch., Inc., 170 F.3d at 56)).
LEAVE TO AMEND
Rule 15(a)(2) requires that leave to amend be freely given when justice so requires. Fed.R.Civ.P. 15(a)(2). “However, in determining whether leave to amend should be granted, the district court has discretion to consider, inter alia, the apparent futility of amendment.” Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir. 2000) (internal citations and quotation marks omitted); Cancel v. New York City Hum. Res. Admin./Dep't of Soc. Servs., 527 Fed.Appx. 42, 44 (2d Cir. 2013) (“While district courts should generally not dismiss pro se claims without affording leave to amend, it need not do so when amendment would be futile.”). Leave to amend may properly be denied for “repeated failure to cure deficiencies by amendments previously allowed ....” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008).
Plaintiff has already amended his complaint, introduced additional allegations in his briefing, and supplemented that briefing with 24 pages of “Additional Facts.” It is unclear what further facts Plaintiff could plead that would revive Counts Six, Seven, Nine, and Ten. Therefore, I recommend Plaintiff not be afforded leave to amend the complaint a second time.
CONCLUSION
Counts Six and Seven of Plaintiff's First Amended Complaint are barred by the choice of remedy provisions in their respective statutes. Plaintiff has failed to state a plausible claim sufficient to satisfy Rule 12(b)(6) for Counts Nine and Ten. Accordingly, I recommend that the Court grant Defendants' partial motion to dismiss in its entirety.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Torres. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).