Louissaint-Tasco v Brookdale Univ. Hosp. & Med. Ctr.

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Louissaint-Tasco v Brookdale Univ. Hosp. & Med. Ctr. 2017 NY Slip Op 30768(U) April 17, 2017 Supreme Court, Kings County Docket Number: 510807/16 Judge: Debra Silber Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: KINGS COUNTY CLERK 04/17/2017 02:16 PM 1] NYSCEF DOC. NO. 19 INDEX NO. 510807/2016 RECEIVED NYSCEF: 04/17/2017 At an IAS Term, Part 9 of the Supreme Court of the State of New York. held in and for the County of Kings, at the Courthouse. at Civic Center, Brooklyn. New York , on the 17'h day of April , 20 17. PR ESENT: HON . DEBRA SILBER, Justice . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X G INA L OU ISSAINT-TASCO Plainti ff. DECISION I ORDER - against BROOKDALE U1 I VERSrTY HOSPI TAL M EDICAL CENTE R Index No. 510807/ 16 Mot. Seq.# I & Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X The fo llowing papers numbered I to 6 read herein: Noti ce of Motio n/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed._ _ _ __ _ _ __ Opposing Affidavits (Affirmations)_ _ _ _ _ _ _ __ Papers N umbered 1-2 3 Re ply A ffidavits (Affim1ations)._ _ __ __ __ __ _ _ __ _ Affidavit (Affim1atio11)._ _ __ _ _ _ _ Other Papers Memoranda of Law 4.5 6 Upon the foregoing papers, the defendant, The Brookdale Hospital Medical Center (incorrect ly named in thi s acti on as "Brookdale Univers ity Hospital and Medical Center ') (Brookdale) moves for an order. pursuant to CPLR 32 11 (a) (5) and (a) (7). dismissing several o f the causes of action asserted in pl ainti ff G ina Louissaint-Tasco · s complaint. Facts and Procedural Background Plaintiff, a 52-year-old, African-American female, was employed by Brookdale since 1990 as a hospital administrator. In earl y 20 11 , Dr. Sunil A bro I was appoi nted as Chair of the Department of Surgery. Plaintiff c la ims that Dr. Abrol routi nely made disparaging and 1 of 17 [*FILED: KINGS COUNTY CLERK 04/17/2017 02:16 PM 2] NYSCEF DOC. NO. 19 INDEX NO. 510807/2016 RECEIVED NYSCEF: 04/17/2017 discriminatory comments to her based on her gender, race and age, making clear his bias and hostility toward her. Specifically, plaintiffs comp laint alleges that Dr. Abrol told her to "remove the wax between [her] black ears," and that he "need[s] to get rid of the old people in the department." In add ition, she c laims that Dr. Abrol would inappropriately assign her many tasks and functions that were well outside her job description, thereby compelling her to work an extraordinary number of hours without being compensated for the additional work. Plaintiff spoke to her superv isor, Vito Buccellato, regarding Dr. Abrol's actions and comments, but she asserts that no corrective action was taken in response. On or about November 17, 20 I I , plaintiff was serious ly injured in a motor vehicle accident, which resulted in her absence from work for approximately five months. Plaintiff returned to work at Brookda le on May 14, 20 12 and needed to utilize a cane for over a year th ereafter. Plaintiff maintains that when she returned to work , Dr. Abrol's hostility toward her intensified, as he repeatedly interrogated her about her medical condition. She claims he made disparaging com ments concerning her disability an d her need to use the cane, and complained that she walked too slowly. Shortly thereafter. plaintiff was directed to report to someone named Chuck Salvo. Plaintiff claims that Salvo, along with his ass istant Garry Morrison. also subj ected her to discriminatory treatment and created a hosti le work environment, targeted at plaintiff, an o lder woman of color with some post-accident phys ical cha ll enges. She asserts that they insulted her and publicly berated her during meetin gs and b latant ly ignored her at other times. Further, she contends th at Salvo made discriminatory comments based on her age and medical condition, s uch as telling her that she was "old school ," that "Brookdale needs to e lim inate the people wh o have been here too long," and that ''Brookdale needs people who are not hobbling to meetings" referring to he r use of a cane. Moreover, p laintiff claims that Salvo would often state that Brookdale "needs to change the face of the institution" because the 2 2 of 17 [*FILED: KINGS COUNTY CLERK 04/17/2017 02:16 PM 3] NYSCEF DOC. NO. 19 INDEX NO. 510807/2016 RECEIVED NYSCEF: 04/17/2017 current staff "resembles the face of this community," referring to the fact that Brookdale is located in a predominantly African-American neighborhood. Plaintiff claims that when she returned to Brookdale following her accident, her compensation was decreased, which resu lted in her salary being lower than that of all of the other Brookdale administrators, despite the fact that she was the most senior. She submitted a written complaint regarding this disparate treatment, but Brookdale failed to address her concerns. Plain ti ff states that she made several verbal and written complaints to her immedi ate supervisor, Suzanne Pennacchio, R.N., about the discriminatory treatment she received and requested a transfer, specifically citing the relentless, rude and discriminatory behavior which she was subjected to. She was transferred in February 20 13, but was sti ll required to report to Salvo, so she claims that the adverse actions against her continued unabated. On two occasions in 2013, plaintiff met with Barbara Piascik, Brookdale' s Chief Compliance Officer, to discuss the ongoing discriminatory and harassing behavior that she was subjected to by Salvo. She claims that Piascik acknow ledged that there were several other complaints against Salvo, but infonned plaintiff that there was nothing that could be done, as Salvo was "not to be touched." given his hi gh status at Brookdale. Plaintiff alleges that another female employee over the age of fifty was summarily terminated as a result of her complaints against Salvo. On August 14, 20 14, plaintiff came to work during her vacation to run a seminar and discovered that a flood had caused significant water damage to her office. Jn the days immediately fo llowing this flooding incident. she began to experience debilitating medical symptoms. She clai ms that when she returned from vacati on approx imately two weeks later, Brookdale had not taken any meaningful steps to decontaminate her office fo llowing the flood. and she was still experiencing the same medical problems. Plaintiff sought medical treatment in September 20 14 and visited the emergency room in October 2014 related to her symptoms. She claims that her physicians informed her that her serious sy mptomatology was caused by 3 3 of 17 [*FILED: KINGS COUNTY CLERK 04/17/2017 02:16 PM 4] NYSCEF DOC. NO. 19 INDEX NO. 510807/2016 RECEIVED NYSCEF: 04/17/2017 the flood , which had exposed her to poisonous chemical waste from an overflowing drain in the radi o logy department, which was located on the floor directly above her office. Plaintiff further maintains that she had previously lodged several fonnal complaints as a result of illnesses that she had suffered from exposure to mold spores and mildew while working in her prev ious workspace, which she had occupied for more than 15 years. She further c laims that there was airborne asbestos which was a contributing fac tor to her various medical problems in the previous workspace. On October 22, 20 14, plaintiff suffered a stroke and experienced chronic hypertension, neurological deficits and inexplicable pu lmonary problems. Followi ng her stroke, plaintiff was on disability leave for approximately six months. She claims that upon her return to Brookdale on April 20, 20 15, she once again began experiencing symptoms associated with her illness, causing her to visit Brookda le ' s emergency room that very day. She maintains that her health continued to deteriorate. As a result, on April 30, 2015, plaintiff req uested additional time to recuperate as a reasonable accommodation for her ongo ing medical challenges. Plaintiff cla ims that Brookdale rejected her accommodation request and instead, in a May 2015 letter, characterized her illness and di sab ility leave as unauthorized and unpaid, and directed her to immediately submit another doctor's note and request. She asserts that she complied with thi s direction by facsimile in June 20 15. Plaintiff maintains that Brookdale failed to engage in any kind ofrequired interactive process with her to consider the appropriate accommodation for her medical condition. On or about May 25, 2015 , plaintiff submitted a letter to the Brookda le Senior VP of Human Resources, Margaret Brubaker, in which she forma lly complained of illegal discrimi natory and retaliatory treatment. Plainti ff met with Brubaker on July 1, 20 15 and provided documentation demonstrating all of the accrued vacation and sick time that Brookdale had precluded her from utilizing. She contends that she 4 4 of 17 [*FILED: KINGS COUNTY CLERK 04/17/2017 02:16 PM 5] NYSCEF DOC. NO. 19 INDEX NO. 510807/2016 RECEIVED NYSCEF: 04/17/2017 also provided medical documentation concerning her disability to Benefits Manager Melanie Caraballo on this date. During this meeting, plaintiff advised Brubaker that her physician indicated that she should be able to return to work in September or October of 2015 . Plaintiff also requested to be assigned to a new office, due to her recurring medical issues resulting from the chemical spill, and she further discussed her need for a reasonable accommodation in the form of being permitted to use a cane. Plaintiff then scheduled a meeting for the week of August I 0, 2015 with Labor Relations Manager Alejandra Rosales , to di scuss her discrimination complaints. Finally, plaintiff claims that while she was out due to her medical condition, she nonetheless communicated regularly with her immediate supervisor, Chairwoman Kusum Viswanathan, M.D., concerning a project she was scheduled to begin upon her return and states that she had actually started working on the project from home. Plaintiff received a letter oftennination dated August 7, 2015 , signed by Ms. Rosales, informing her that Brookdale cons idered herto have voluntarily resigned from her employment effecti ve June 30. 2015, which was actually the day before her July 1, 2015 meeting with Brubaker. Plaintiff claims that her health insurance was also cancelled as of that date, retroactively. On or about December 14, 2015, plaintiff filed a complaint with the United States Equal Emp loyment Opportuni ty Commiss ion (EEOC). On or about June 24, 2016, she commenced the instant action by filin g a summons and complaint seeking damages related to Brookdale' s un lawfu l discriminatory conduct in violation of the New York City Human Rights Law (NYCHRL) and Administrative Code of th e City of New York § 8-107. Plaintiff asserted claims of discrimination based on her gender, race, color, age, disability and/or perceived disability, and retaliation. On October 6, 2016, the EEOC issued a di smissal and notice of suit rights terminating its processing of plaintiffs claims on the ground that she had filed this action in state court on the same issues which were before the EEOC. 5 5 of 17 [*FILED: KINGS COUNTY CLERK 04/17/2017 02:16 PM 6] NYSCEF DOC. NO. 19 INDEX NO. 510807/2016 RECEIVED NYSCEF: 04/17/2017 Brookdale's Motion Brookdale moves for an order. pursuant to CPLR 3211 (a) (5) and (a) (7). dismissing several of the causes of action asserted in plain ti ff s comp laint on the grounds that the statute of limitations has expired and/or that her complaint fails to state a cause of action. CPLR (a) (7) ..On a motion to dismiss a complaint pursuant to CPLR 32 11 (a) (7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit ofevery possib le favorable inference, and determine only whether the facts as a lleged fit within any cognizable legal theory" (fngvarsdottir v Gaines, Gruner, Ponzini & Novick, LLP, 144 AD3d 1099, 110 I [2016]). A motion to dismi ss merely addresses the adequacy of the pleading. and does not reach the substantive merits of a party's cause of action. "Therefore, whether the pleading wi ll later survive a motion for summary judgment, or whether the party wi ll ultimately prevail on the claims, is not relevant on a pre-discovery motion to dismiss" (Kaplan v New York City Dept. ofHealth & Mental Hygiene, 142 AD3d I 050, 1051 [201 6] quoting Lieberman v Green, 139 AD3d 815. 8 16 [2016]; see Tooma v Grossbarth, 121 AD3d 1093, 1095-1096 [20 14];Endless Ocean, LLCv Twomey, Latham, Shea, Kelley, Dubin & Quartararo. 113 AD3d 587, 589 [20 l4] ;Shaya B. Pacific, LLCv Wilson, Elser, Moskowitz, Edelman & Dicker, LLP. 38 AD3d 34, 38 [2006]). "ll]n addition to the standards generally applicable to a motion to di smiss for fa ilure to state a cause of action, stated above, 'employment discriminati on cases are themselves genera lly reviewed under notice pleading standards.' such that a plaintiff alleging employment discrim ination need not plead specific facts establishing a prima facie case of discrim ination, but need only give fair notice of the nature of the claim and its grounds'" (Baldwin v Bank of America. NA., 42 Misc 3d 1203 [A]. 20 13 NY Sli p Op 52194, *7 [Sup Ct, Kings County 6 6 of 17 [*FILED: KINGS COUNTY CLERK 04/17/2017 02:16 PM 7] NYSCEF DOC. NO. 19 INDEX NO. 510807/2016 RECEIVED NYSCEF: 04/17/2017 2013], quoting Vig v New York Hairspray Co., l.P. , 67 AD3d 140, 145 (2009] [internal quotation marks, brackets, and citations omitted]). '"To establish a gender discrimination claim under the NYCHRL, the plaintiff need only demonstrate ' by a preponderance o f the ev idence that she has been treated Jess well than other employees because of her gender"' (Mihalik v Credit Agricole Cheuvreux North America, Inc., 715 F3d 102, 110 (2d Cir 20 13] quoting Williams v New York City Haus. A uth. , 61 AD3d 62, 78 [2009], Iv denied 13 NY3d 702 [2009]). H ere, pla intiff has not alleged any specific di scriminatory comments or treatment based upon her gender. Accordingly, plainti frs fifth cause of action alleging discrimination based upon gender is dismissed. Conversely, the court find s that pla intiff has suffici ently pied a cause of action alleging a violation of the NYCHRL based upon discrimination related to her age, race, color and disability, as well as a cause of action sounding in retaliation. Accordingly, those claims are not dismissed for failure to state a cause of action. CPLR 3211 (a) (5) The court now turns to that branch of Brookdale's moti on which seeks to dismiss plaintiffs claims on the ground that such claims are barred by the statute of limitations. "In moving to dism iss a cause of action pursuant to CPLR 32 11 (a) (5) as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima fac ie, that the time within which to commence the action has expired. The burden then shifts to the plaintiff to raise an iss ue of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether it actually commenced the action within the applicable limitations period" (Matteawan On Main, Inc. v City of Beacon, 109 AD3d 590, 590 [2013] [internal citations om itted]; Plain v Vassar Bros. Hosp., 11 5 AD3d 922, 923 [2014]). The statute of limitations under the State and City Human Rights Laws is three years (see CPLR 214[2] ; Administrative Code § 8-502 [d] ; Santiago-Mendez v City of New York, 136 AD3d 428, 428 [2016]). Plaintiff filed her complaint in this action on June 24, 2016, 7 7 of 17 [*FILED: KINGS COUNTY CLERK 04/17/2017 02:16 PM 8] NYSCEF DOC. NO. 19 INDEX NO. 510807/2016 RECEIVED NYSCEF: 04/17/2017 alleging discrimination based upon her age. race, color, disability, gender and retaliation in violation of NYCHRL. Thus, Brookdale argues that any allegedly discriminatory acts committed before June 24, 2013 are facially untimely (see Jeudy v City of New York, 142 AD3d 821 , 822 [2016]; Stembridge v New York City Dept. ofEduc., 88 AD3d 611. 611 [2011]. Iv denied J9 NY3d 802 [2012], rearg denied 19NY3d993 [2012]). Specifically, Brookdale contends that p lainti ffs first, second, third and fifth causes of action. which assert claims of age, race. color and gender discrimination, respectively, contain no factual allegation of incidents occurring on, or after June 24. 2013, and are thus untimely. Brookdale maintains that plaintiff alleges instances of di scrimination based upon her age, race and color beginning in "early 2011 ," but makes no fu11her a llegations that such instances continued beyond February 20 13 . Specifically, Brookdale maintains that plaintiffs time-barred claims include allegations based upon the following events: ( I) Dr. Abrol's alleged discriminatory comments based on her age, race/co lor and age in early 20 11 ; (2) the alleged discriminatory assignment of work by Dr. Abrol; (3) the alleged discriminatory treatment she received on the bas is of her race and color by Messrs. Salvo and Morrison in 2012; (4) Mr. Salvo's alleged di scrim inatory comments based on her age, race and color; (5) the alleged reduction in her compensation; and (6) any further alleged conduct by Mr. Salvo in February 2013. Brookdale maintains that plaintiff's complaint is devoid of any all egations regarding age. race, co lor and/ or gender discrimination , or any allegations to support a hostile work environment cla im. at any time after February 2013 . Brookdale further con tends that none of the allegations which took place after April 20 15 relate to discrimination based on age, race/color or gender. Thus, Brookdale argues that plaintiff cannot maintain a hosti le work environment c laim based upon a continuous violation theory and each of these causes of action should be dismissed as untimely. 8 8 of 17 [*FILED: KINGS COUNTY CLERK 04/17/2017 02:16 PM 9] NYSCEF DOC. NO. 19 INDEX NO. 510807/2016 RECEIVED NYSCEF: 04/17/2017 With regard to plain ti tTs fourth and sixth causes of action sounding in disability discrimination and retaliation, Brookdale argues that the court must dismiss any claims that accrued on or before June 24. 2013 , including her claims o[ disability discrimination and retaliation based on the following events: (I) plaintiffs complaints to Mr. Buccellato about Dr. Abrol's alleged discriminatory treatment on the basis of her age, race/color and age in early 2011; (2) the alleged discriminatory treatment by Dr. Abrol on the basis of her disability; (3) the alleged discriminatory treatment she received on the basis of her disability by Messrs. Salvo and Morrison in 20 12; (4) Mr. Salvo's alleged discriminatory comments based on her disability; (5) the alleged reduction in her compensation (6) plaintiffs complaints to Ms. Pennacchio; (7) any further alleged conduct by Mr. Salvo in February 2013 ; and (8) plaintiff's complaint to Ms. Piascik on t\ o occasions in 2013. Plaintifjs Opposition Plaintiff opposes Brookdale's motion and argues that while it is true that claims under the NYCHRL have a three-year statute of limitations, here, this three-year period is legally extended by approximately six-and-one-half months. representing the time plaintiffs charges were pending at the EEOC prior to the filing of the instant case. Moreover, since she has alleged a continuous violation of the law during her employment, she contends that the statute of limitations is tolled for each alleged violation up to and including the final adverse employment action, her termination. Plaintiff points out that, on December 14, 2015, she filed a complaint with the EEOC in relation to her claims of discrimination and retaliation. Thus, she notes that her EEOC claims were pending for six-and-one-half months prior to her filing the instant complaint, thus tolling the statute of limitations on her NYCHRL claims. In support of th is position. plaintiff points to several judicial decisions. Specifically. she contends that the Southern District of New York recently addressed this issue in Johnson v DCM Erectors, Inc .. 2016 WL 407293, *2, 2016 US Dist LEXIS 11930. *6 [SD NY Feb. 2. 9 9 of 17 [*FILED: KINGS COUNTY CLERK 04/17/2017 02:16 PM 10] NYSCEF DOC. NO. 19 INDEX NO. 510807/2016 RECEIVED NYSCEF: 04/17/2017 2016. No. 15-CV-5415 (PKC)] which involved a plaintiff who had fil ed a charge with the EEOC on August 2, 2012 that had not been acted upon at the time p laintiff filed his complaint. The Johnson court held that s ince plain ti ff had " yet to receive a response from the EEOC, the three-year statute of limitations may have been tolled from August 2, 20 l 2 to the present. On that basis, this Court cannot say at this stage of the litigation that p la inti ff's NYSHRL and NYCHRL claims are, as a matter oflaw, barred by the statute limitations." The Johnson court cited to numerous other courts in its circuit that have held that "the three-year statute of I imitations applicable to claims under NYSHRL and NYCHRL 'is tolled during the period in which a complaint is fil ed ... with the EEOC'" (Esposito v Deutsche Bank AG. 2008 WL 5233590, *5, 2008 US Dist LEXIS 10 1460, * 15 (SD NY, Dec. 16, 2008, No. 07-Civ-6722 [RJS]) quoting Lee v Overseas Shipping Corp .• 200 I WL 849747. *8, 200 l US Dist LEXIS I 0622, **27, 28 (SD NY, July 30, 2001 , No. OO-Civ-9682 [DLC]); see also Russo v New York Presbyterian Hosp., 972 F Supp 2d 429, 445 (ED N Y 20 13); DeNigris v New York City Health & Hasps. Corp., 861 F Supp 2d 185, 192 (S D NY 2012); Butler v New York Health & Racquet Club, 768 F Supp 2d 516, 536 (SD NY 2011 ). Plaintiff also points to Leavy v New York City Tr. Auth. ( 11 Misc 3d 1052[AJ, 2006 NY Slip Op 50177 [U], *5) [Sup Ct, Kings County 2006]), a case involving a New York State Human Ri ghts Law claim in w hich the court held that " [i]t is wel l-settled that the three-year Statute of Limitations for a c la im under Executive Law§ 296 is tolled during the pendency of a compla int filed with th e EEOC ... " Plaintiff points out that she filed a compla int wi th the EEOC on December 14, 20 15 concerning her claims of discrimination and retali ation, wh ich were not tenninated by that agency until October 6, 2016, which was after the June 24, 2016 fi ling of her complaint herein. Therefore. she argues that the three-year statute of lim itations on her NYCHRL claims is extended for the six-month-and-ten-day period from her EEOC filing on December 14, 2015 to her Kings County filing on June 24, 20 16 . As such, plaintiff argues that the cutoff-date fo r 10 10 of 17 [*FILED: KINGS COUNTY CLERK 04/17/2017 02:16 PM 11] NYSCEF DOC. NO. 19 INDEX NO. 510807/2016 RECEIVED NYSCEF: 04/17/2017 viable claims is extended for all acts that occurred in the three years before the December 14, 2015 date, which would be December 14, 2012, and not June 24, 2013 , the date cited by Brookdale. In addition, plaintiff argues that her complaint alleges both hostile work environment claims and a series of independent illegal acts of disparate treatment, which constitute a continuing violation which commenced prior to December 20 12 and continued through her entire tenure at Brookdale. Thus, she avers that she has all eged a series of continuing discriminatory acts that constituted a hostile work environment. which began more than three years be fore filing hercomplaintherein. She further maintains that the claims in her complaint that occurred more than three years before she filed this action should not be dismissed as they form the predicate factual basis for claims that fall within the limitations period. Brookdale's Reply In reply, Brookdale argues that the plain language of the NYCHRL § 8-502 ( d) does not permit tol ling for the filing of an EEOC charge of discrimination. Section 8-502 ( d) of the NYCHRL provides that: A civi l action commenced under this section must be commenced within three years after the alleged unlawful discriminatory practice or act of discriminatory harassment or violence as set forth in chapter six of this title occurred. Upon the filing of a complaint with the city commission on human rights or the state divi s ion of human rights and during the pendency of such complaint and any court proceeding for review of the dismi ssal of such complaint, such three year limitations period shall be tolled. Brookdale notes that pursuant to this section. the statute of lim itations is tolled only when administrative complaints are filed with either the New York State Division of Human Rights or the New York City Commission on Human Rights. Brookdale points out that another section of the statute, § 8-502 (a), which concerns the election of remedies, makes specific reference to the filing of a complaint with the EEOC. Thus, Brookdale argues that when the New York City Council enacted the NYCHRL and explicitly referenced filing with 11 11 of 17 [*FILED: KINGS COUNTY CLERK 04/17/2017 02:16 PM 12] NYSCEF DOC. NO. 19 INDEX NO. 510807/2016 RECEIVED NYSCEF: 04/17/2017 a "federal agency" (i.e.. the EEOC) in § 8-502 (a). but omitted any reference to filing with a federal agency/EEOC in the tolling provision of§ 8-502 ( d), it is clear that such omission was intentional. In support, Brookdale points to a basic principle of statutory constructi on that it claims applies here: expression unius est exclusio alteriuis, wh ich is interpreted to mean that when one or more items are expressly included in a statute, others in the same class that are not mentioned are properly deemed excluded. Therefore, Brookdale argues that the New York City Council did not intend for the tolling provision to apply to charges of discrimination filed with the EEOC as it only included state and city administrative filings, and specifically did not include federal fi lings, in this tolling provision. In addition, Brookdale argues that plaintiff cannot rescue her time-barred claims by relying on the continuing violation doctrin e. Brookdale notes that plaintifrs complaint pleads only that her third, fourth and fifth causes of action, based upon her co lor, disability and gender, concern an alleged pattern of discrimination. Thus, Brookdale argues that she cannot take advantage of the continuing violation doctrine on her first, second and sixth causes of action. which are based upon her age, race and reta liation. Further, Brookdale claims that plaintiff has fa iled to demonstrate a pattern of discrimination sufficient to take advantage of the continuing violation doctrine. Brookdale maintains that plaintiff has not alleged any instance of age, race, color or gender discrimin ation after February 2013 when she was transferred to a different depa1tment. Moreover, Brookdale contends that her opposition papers fail to address the two-year gap between her February 2013 transfer and April 2015. when she alleges Brookdale fai led to reasonably accommodate her disab ility. Finally, Brookdale maintains that plaintiffs fourth and sixth causes of action, which sound in disabili ty discrimination and retaliation which occurred prior to June 24, 2013, cannot be rescued by the continuing violation doctrine because plaintiff fai ls to connect the indi viduals she claims 12 12 of 17 [*FILED: KINGS COUNTY CLERK 04/17/2017 02:16 PM 13] NYSCEF DOC. NO. 19 INDEX NO. 510807/2016 RECEIVED NYSCEF: 04/17/2017 subjected her to disability discrimination and retaliation prior to June 23, 20 13 to the alleged denial of a reasonable accommodation and her ultimate tem1ination in 20 15. Initially, the court notes that the cases cited by plain ti ff in her opposition papers refer to the State and the City Human Rights Laws, collectively, when discussing the tolling provisions relating to employment discrimination claims, and fai l to distinguish between the tolling provisions which are contained in each of the two statutes. Moreover, the plain ti ff in the Leavy case only asserted claims under the NYSHRL and thus, that case did not even involve claims under NYCHRL § 8-502 (d), the sole statute implicated in the instant case. " [tis fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature" (Pines v State of New York, 115 AD3d 80, 9 1 [20 14], appeal dismissed23 NY3d 892 [2014] quoting Patrolmen's Benevolent Assn. ofCity ofNY v City of New York, 41 NY2d 205, 208 [ 1976]; see State of New York v Patricia JJ.. 6 NY3d 160. 162 [2006]). "Since 'the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof"' (Matter ofT-Mobi/e Northeast, LLC v DeBe/Lis, 143 AD3d 992, 994[20 16] quoting Maller of Shannon, 25 NY3d 345, 35 1 [2015] ; Majewski v Broadalbin-Perth Cent. School Dist., 9 1 NY2d 577, 583 [ 1998]; see Consedine v Portville Cent. School Dist., 12 NY3d 286. 290 [2009]). The cou11 finds that, based upon the plain language of§ 8-507 (d), the statute of limitati ons was not tolled by plaintiffs filing of charges with the EEOC, a federa l agency. Accordingly, any claims based upon actions that occurred prior to June 23. 2013 are barred under the statute of limitations. However, plaintiff correctly points out that her complaint alleges a hostile work environment as wel l as a series of separate acts of disparate treatment. which purportedly constitute a continuing vio lation of the NYCHRL. 13 13 of 17 [*FILED: KINGS COUNTY CLERK 04/17/2017 02:16 PM 14] NYSCEF DOC. NO. 19 INDEX NO. 510807/2016 RECEIVED NYSCEF: 04/17/2017 While it is true that claims filed under NYCHRL § 8507 (d) must be filed with in three years of the prohib ited conduct, where, however, there is "a continuous practice and policy of discrimination . . . the commencement of the statute oflimitations period may be delayed until the last discriminatory act in furtherance of it" (Cornwell v Robinson, 23 F3d 694, 703-704 [2d C ir 1994]). A continuous practice and po licy of discrim ination may be shown by "proof of specific ongoing discriminatory po licies or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice" (id. at 704; see also Williams v New York City Hous. A uth.. 61 AD3d 62, 80-8 1 [2009]: Clark v State of New York. 302 AD2d 942, 945 [ 2003]). Plaintiff's Second and Third Causes ofAction Alleging Discrimination Based Upon Race and Color As discussed in detail above, plaintiffs complaint alleges the fo llowing with regard to her claims of discriminatory conduct based upon race and co lor: in early 2011 , Dr. Abrol told plaintiff to "remove the wax between [her] black ears." At some point in 2012- early 2013, Salvo told plaintiff that Brookdale "needs to change the face of the institution" because the current staff "resembles the face of this community," referring to the fact that Brookdale is located in a predominantly African-American neighborhood. There are no other specific allegation s in plain ti ff s complaint regarding race or color. Plaintiff's First Cause ofAction A llegillg Discrimination Based Upon Age In regard to plaintiff s claims of discrimination based upon her age, her complaint alleges: that in early 2011 Dr. Abrol stated that Brookdale "need[s] to get rid of the old people in the department" and that in 20 12-early 20 13 , Salvo made discriminatory comments based on plaintifrs age, such as telling her that she was "old school," and that "Brookdale needs to eliminate the people who have been here too long." Plaintiffs complaint does not contain any 14 14 of 17 [*FILED: KINGS COUNTY CLERK 04/17/2017 02:16 PM 15] NYSCEF DOC. NO. 19 INDEX NO. 510807/2016 RECEIVED NYSCEF: 04/17/2017 specific allegations of discriminatory comments or conduct based upon her age after February 2013. The court finds that, prior to the limitations period. the record does refl ect discriminatory remarks and actions by Dr. Abrol and Messrs. Salvo and Morrison based upon her race, color and her age. However, these pre-limitations peri od comments were not joined to actionable conduct within th e limitations period; thus, the continuing violation doctrine does not render her clai ms based upon age, race or color as timely made (see National R.R. Passenger Corp. v Morgan, 536 US l 0 I, I 05, 117 (2002] [requiring "that an act contributing to the claim occurs within the filing period"]; Williams, 61 AD3d at 80-81 ; Walsh v Covenant House, 244 AD2d 214, 215 [ 1997]). Accordingly, the court finds that plaintiff has failed to allege in factual detail a series of acti ons based on race, color. or age that was joined to actionable conduct within the limitations period that could be considered the basis of a continuing policy that was discriminatory or that constituted a hostile work environment. Accordingly, plaintiffs first, second, and third causes of action are time-barred under the statute of limitations. Plaintiff's Fourth Cause ofAction A lleging Discrimination Based Upon Her Disability With regard to plaintiffs claims of discriminatory conduct based upon her disability, she alleges in her complaint that: when she returned to work on May 14, 2012 following a car accident, Dr. Abrol repeatedly interrogated her about her medical condition and made disparaging comments concerning her disability and need for a cane as a reasonable accommodati on, and that he complained that she walked too slowly; in 20 I 2-early 20 13 Salvo made discriminatory comments based on plaintiffs medical condition including "Brookdale needs people who are not hobbling to meetings'': ' hich she claims he uttered in response to her use of a cane. Plaintiff further alleges that her request for additional medica l leave following her stroke was denied in May 20 15, and she was infonned that her illness and 15 15 of 17 [*FILED: KINGS COUNTY CLERK 04/17/2017 02:16 PM 16] NYSCEF DOC. NO. 19 INDEX NO. 510807/2016 RECEIVED NYSCEF: 04/17/2017 disability leave were unauthorized and unpaid and she was instructed to submit a doctor's note, which she claims she did in June 2015. She claims Brookdale failed to engage in any interactive process with her to consider the appropriate accommodation of her medical challenges. Plaintiff's Sixth Cause ofAction Alleging Retaliatio11 With regards to plaintiffs claims that she was retaliated against based upon the complaints she made regarding the discriminatory treatment she received she alleges that: her salary was decreased, and when she complained she was told that she should just be "happy to have ajob. 111 She alleges that her salary was lower than a ll the other administrators. due to the disparate treatment she received at Brookdale. ln addition, plaintiff claims she was retaliated aga inst by being made to continue reporting to Salvo despite her complaints about him. She met with Chief Compliance Officer Piascik on two occasions in 2013 to discuss the ongoing discriminatory harassment that she was suffering, and claims she was told there was nothing that could be done, as Salvo was "not to be touched," given his high status at Brookdale. Plaintiff alleges that she had a meeting scheduled for the week of August l 0, 2015 with Labor Relations Manager Alejandra Rosales to discuss her discrimination complaints. Instead, plaintiff claims that Brookdale retaliated against her by terminating her emp loyment. cancelling her health insurance and refusing to acknowledge that she had accrued vacation days. The court finds that the fourth cause of action in plaintiffs complaint alleging discrimination based upon her disability and the sixth cause of action therein containing her retaliation claim are not barred by the statute oflimitations as plaintiff has alleged a continuing pattern of discrimination by Brookdale employees based upon her disability and has alleged retaliatory actions taken by Brookdale against her. Here, plaintift1 s complaint alleges 'The complaint fails to indicate who said this to plaintiff. 16 16 of 17 [*FILED: KINGS COUNTY CLERK 04/17/2017 02:16 PM 17] INDEX NO. 510807/2016 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 04/17/2017 discriminatory conduct and retaliation within the lim itations period that is sufficientl y similar to the alleged conduct without the limitations period to justify the conclusion that both were part of a continuing discriminatory practice, and thus plaintiffs claim of discrimination based upon her disability and her retaliation claim are timely in their entirety under the continuing violation doctrine (see Williams, 61 AD3d at 80-81; Clark. 302 AD2d at 945; Walsh , 244 AD2d at 2 15). Accordingly, that branch of Brookdale's motion seeking to di smiss the allegedly untimely allegations and claims sounding in discrimination based upon disabi lity and retaliation is denied. Conclusion That branch of Brookdale's motion, pursuant to CPLR 3211 (a) (5), which seeks to dismiss plaintifrs complaint is granted to the extent that the court finds that plaintiffs first, second and third causes of action are time-barred and are therefore di smissed. In addition, plaintiff has failed to state a cause ofaction alleging gender-based di scrimination ~ thus her fifth cause of action is also dismi ssed, without prejudice. Plain ti ff is granted leave to amend her complaint with regard to these claims (regarding gender-based discriminati on) within 30 days after service of thi s order with notice of entry. As Brookdale has not as yet answered the complaint, Brookdale is directed to submit an answer w ithin 60 days ofreceipt of any amended complaint, or if none, within 60 days of service of thi s order with notice of entry. The parties are directed to appear for a preliminary conference in the Intake Courtroom at 9:30 a.m. on August 14, 2017. All other requested relief not specifically granted herein is denied. The foregoing constitutes the decision and order of this court. ENTER, Hon. Debra Silber, J.S.C. Hon. Debra Silber 17 17 of 17 Justice Supreme Court

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