MEMORANDUM & OPINION
Plаintiff Jeanette Ingrassia brings this employment discrimination action against Defendants Health'& Hospital Corporation (“HHC”), the City of New York, and Elmhurst Hospital. Plaintiff alleges that Defendants discriminated against her on the
I. BACKGROUND
A. Factual Allegations
Plaintiff worked for HHC for a total of 23 years.
One of Plaintiffs supervisors, Eric Morales, made comments that “he did not like women and that they were only good for sex,” and that he would “donat[e] the older women [employees] to a different department because he had no use for them:” (Compl. at ECF 5). -Her subsequent supervisor, Kevin Schwendemann, “continued and increased the same type of insulting behavior.” (Id.). He would comment that “she could not keep tip with the girls” and that she was “the oldest woman.” (Id.). He would question when Plaintiff planned to retire, would stand over her and ask whether he was making her nervous, and mаke other insulting, derogatory comments. (Id.). Though Plaintiff told him repeatedly that she was uncomfortable with these comments and that the comments constituted age discrimination, Schwendemann allegedly continued and even increased his comments. (Id.).
Schwendemann also engaged in sexually harassing conduct by frequently coming within a foot of Plaintiff and grabbing himself in the groin so that Plaintiff could see. (Id. at ECF 6). In addition, Schwendemann invaded Plaintiffs privacy and harassed her by reading her medical records. (Id. at ECF 7). Plaintiff, continued to receive raises and favorable performance reviews while enduring her supervisors’ harassment. (Id. at ECF 5).
Plaintiff complained to Schwendemann about his conduct and also wrote to her union representative to cоmplain about Schwendemann. When Schwendemann found out about her complaint to the union, he retaliated against her by yelling at her in front of other employees and by docking her pay when she was only a few minutes late getting to work. Schwendemann also tapped. Plaintiffs phone to listen to her conversations, and would yell at her for no apparent reason. (Id.). Schwende
Plaintiff has suffered, and continues to suffer, emotional and financial distress as a result of her supervisors’ harassment.
B. Procedural History
Plaintiff filed a - chаrge with the. U.S. Equal Employment Opportunity Commission (“EEOC”)
On September 25, 2014, Defendants moved to dismiss the Complaint under FRCP 12(b)(5) (insufficient service of process) and FRCP 12(b)(6) (failure to state a claim upon which relief can be granted). (Dkt. 24).
II. STANDARD OF REVIEW
To withstand a motion to dismiss pursuant to FRCP 12(b)(6), a complaint must plead facts sufficient “to state a claim to relief that is plausible on its face.” Bell Alt. Corp. v. Twombly,
Generally, on a motion to-dismiss, the Court is constrained to the “four corners” of the • complaint. Gorfinkel v. Vayntrub, No. 11-CV-5802,
III. DISCUSSION
A. Dismissal of Defendants Elmhurst Hospital and City of New York and Amendment of the Caption
Though the Complaint simply states that Plaintiff was employed by HHC (Compl. at ECF 8), Plaintiff also named Elmhurst Hospital and • the City of New York as defendants in this action, (see id. at ECF 1). Defendants seek the dismissal of Elmhurst Hospital and the City of New York as improper defendants.
Plaintiff concedes that the City of New York is not a proper defendant. (PL Opp. at ECF 10). The Court thus'dismisses the City of New York based on Plaintiffs concession.
As explained by Defendants, HHC is a public benefit corporation. N.Y. Unconsol. Laws §§ 7384(1), 7385(1), 7401. Elmhurst is an operating division of HHC and not a separate corporate entity subject to suit. See Igartua v. Elmhurst Hosp. D-11 Psychiatric Ward, No. 09 CV 3287,
Plaintiff seeks the amendment of the caption to replace “Health and. Hospital Corp.” with “The New York City Health and Hospital Corporation.” (PL Opp. at ECF 10). . Defendants do not oppose the request. (Def. Reply at ECF 4). The Court, therefore, directs the Clerk of-the Court to amend the caption by removing the City of New York and Elmhurst Hospital as defendants, and by replacing “Health and Hospital Corp.” with “The New York City Health and Hospital Corporation.”
B. Service of the Complaint
Defendant seeks dismissal of Plaintiffs Complaint pursuant to FRCP 12(b)(5) because Plaintiff did not serve HHC with a summons and complaint within 120 days of
Under FRCP 4(m), where a plaintiff can show good cause for the failure to timely serve the complaint, the Court must.extend the time for service. But even upon a plaintiffs failure to show good cause, the Court retains discretion to enlarge the 120-day period. See Fed.R.Civ.P. 4(m) Adv. Comm. Notes; see also Zapata v. City of New York,
Plaintiff argues that good cause exists for her counsel’s failure to serve the Complaint within the 120-day period. Plaintiffs counsel, Judith Amorski, attempted to effect timely service by serving the Complaint at Elmhurst Hospital on June 27, 2013; Plaintiff was advised, however, that service would not be accepted at that address. (Dkt. 22-2, Affidavit of Attempted Service 6/27/2013).
Defendant counters by arguing ‘ that Plaintiffs failure to timely serve the Complaint is not excused by good cause. First, Defendant argues that Ms. Amorski was on notice as eаrly as June 27, 2013 that Defendants had not been properly served, and still had .plenty of time before the expiration of the service deadline on July 15, 2013 to serve Defendants, Defendant argues that Ms. Amorski should not be excused from following up with the process server between June 27, 2013 and July 15, 2013, since there was ample time to do so. Second, Defendant points out that, contrary to Ms. Amorski’s affidavit in support of Plaintiffs opposition, Ms. Amorski indicated in her August 12, 2013 letter transmitting proof of service to the District Court of New Jersey, that she had “just returned from a vacation and the proofs were in [her] mailbox[.]” She did not mention any illness or death in her family, as she represents to the Court now. (Dkt. 25-3, Kim Declaration, Ex. 3 at ECF 1). Third, Defendant points out that Ms. Amorski does not еxplicitly state that she was caring for her ill family member when service was due in July 2013, and notes that Ms. Amorski appeared before the District of New Jersey on July 17, 2013, two days after the service deadline. (Def. Reply at ECF 5).
Based on-these contradictory facts, the Court cannot find that Plaintiff has shown
However, despite the absence of good cause, the Court will exercise its discretion to extend the time to complete service, rather than dismiss the case. In exercising its discretion in this manner, the Court balances the equities and finds that they favor Plaintiff. See Myers,
Thus, in light of the prejudice that Plaintiff'would suffer upon the Court’s dismissal of this action for failure to timely serve the Complaint, the Court exercises its discretion to extend the time for service of the Complaint on HHC to August 7, 2013, the date on which it was properly served. See Czernicki v. Lieberman, No. 01 CV 8360,
C. Plaintiffs Tifié VII and ADEA Claims
1. Defining Plaintiff’s Title VII and ADEA Claims
Though Plaintiff is represented by counsel, her Complaint is not a model of clarity. The Complaint enumerates five counts but does not specify the legal theories under which Plaintiff seeks recovery, and two counts seem. to assert overlapping theories of recovery.
2. Applicable Pleading Standard
In reviewing the allegations of Plaintiffs Complaint, the Court is mindful of the lowered standard of review applicable to discrimination complaints at the motion to dismiss stage. , EEOC v. Port Auth.,
In a pair of récent cases, the Second Circuit сlarified the pleading standard applicable to employment discrimination claims pled under Title VII. “[A]bsent direct evidence of discrimination, what must be plausibly Supported by facts alleged in the complaint is that the plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Littlejohn v. City of New York,
In contrast to_ Title VII, the ADEA requires a plaintiff .to allege that age was the “but for” cause of the employ
3. Discrimination Based on Age and Gender
Plaintiffs Opposition asserts that her causes of action “include discrimination based on gender and age[.]” (PI. Opp. at EOF 16). The Court determined above that it would construe Count One of the Complaint аs asserting such claims pursuant to the ADEA and Title VII. Defendant argues that Plaintiffs age and gender, discrimination claims must be dismissed for Plaintiffs failure to'plausibly allege that she suffered' an adverse employment action. (Def. Mem. at 'ECF 11-13). The Court agrees.
For purposes of its Motion to Dismiss, Defendant does not dispute the notion that Plaintiff is a member of a protected class under Title VII and the ADEA.
While Plaintiff need, not allege a prima facie case of age or gender discrimination, she must give fair notice of the grounds upon which her discrimination claim rests — meaning that she must allege, in a nonconclusory, fashion, that she suffered an adverse employmеnt action because of her age or gender. Here, the Court finds Plaintiffs Complaint falls short. Plaintiffs discrimination claims rest on her supervisors’ comments about her age and gender, as well as general comments about older women. Such conduct, on its own, is insufficient to establish an adverse employment action for purposes of an ADEA or Title VII claim. See Kurian v. Forest Hills Hosp.,
Plaintiff therefore fails, to allege that she suffered an adverse employment action, requiring dismissal of her age and. gender discrimination claims, even under the lowered pleading standard applicable to -employment discrimination claims. . See Patane,
4. Hostile Work Environment
Ignoring the lowered pleading standard applicable to Plaintiffs claim,
“To state a claim for a hostile work environment in viоlation of Title VII, á plaintiff must plead facts that would tend to show that the complained of conduct: (1) “is objectively severe or1 pervasive—
Similarly, to state a claim for hostile work environment in violation of the ADEA, the plaintiff must plausibly allege that the workplace is “permeated with discriminatory intimidation, ridicule and insult that is sufficiently pervasive to alter the conditions of the victim’s employment.” Kassner,
Applying these standards, -the Court finds that Plaintiff has plausibly alleged a claim for hostile work environment in violation of both. Title VII and the ADEA. Plaintiff alleges that she was subjected to repeated comments about her gender and her age from two different supervisors, and further аlleges that" one supervisor sexually harassed her by grabbing himself in the groin in Plaintiffs plain view. Plaintiff alleges that she was targeted because she was an older woman. (Compl. at ECF 6, 8). While such allegations may not necessarily rise to the. level of a prima facie case of hostile work environment, they suffice to give Defendant fair notice of Plaintiffs claim. See Kassner,
Defendant argues that the allegations in Plaintiff’s Complaint regarding Morales stating that “women [are] only good for one thing” and that he was “donating” older women to another department аmounted' to1 nothing more than stray remarks that-are not probative of discrimination. (Def. Memo at ECF 15). Defendant also argues' that Schwendemann’s remarks that plaintiff could not keep up with the other female employees and asking when she would retire- are not probative of age discrimination. (Id.). While these remarks may not be probative' of age or gender discrimination when viewed in isolation, they are sufficient to provide Defendant with fair notice of a hostile work environment claim when viewed together and alongside Plaintiffs allegations regarding Schwendemann’s sexual gestures. See Patane,
The Court thus finds that Plaintiff is entitled to proceed on her hostile work
5. Retaliation
Defendant argues that Plaintiffs claims for retaliation under Title VII and the ADEA must be dismissed for failure to establish a prima facie case of retaliation. (Def. Memo at EOF 11; Def. Reply at EOF 17-18). Defendant again ignores the lowered pleading standard applicable to employment discrimination claims at the motion to dismiss stage. The Court finds that Plaintiff has provided Dеfendant with fair notice of her retaliation claims.
Under Title VII, an employer may not discriminate against an employee in retaliation for an employee’s complaints regarding unlawful practices under Title VTI. 42 U.S.C. § 2000e-3(a). “To establish a presumption of retaliation at the initial stage of a Title VII litigation, a plaintiff must present evidence that shows ‘(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action ____ the allegations in the complaint need only give plausible support to the reduced primа facie requirements that arise under McDonnell Douglas in the initial phase of a Title VII litigation.’ ” Littlejohn,
The ADEA also prohibits an employer from discriminating against an employee in retaliation for that employee’s opposition to or complaints regarding any practice made unlawful under the ADEA. 29 U.S.C. § 623(d); see also Kassner,
With respéct to the plaintiffs engagement in a protected activity and the defendant’s knowledge thereof, both Title VII and the ADEA protect employees who make informal protests of discrimination, including cohiplaints to management. See Littlejohn,
Here, Plaintiff alleges that she complained to both Schwendemann and her union representative about Schwendemann’s allegedly discriminatory and harassing conduct. (Compl. at ECF 5-6). By alleging that she complained to her supervisor, Plaintiff has plausibly alleged that Defendant. HHC had notice of her complaint. Plaintiff further, alleges that when Schwendemann learned of her, complaint to the union, he yelled at her, docked her pay for being only a few minutes late, tapped her phone to listen to her conversations, mоved her office furniture upon her return from vacation, and threatened disciplinary' action against her if her phone etiquette “was not to his liking.” (Id. at ECF 7). Such actions “could well dissuade a reasonable worker from making or supporting a charge of discrimination,” La Grande,
6. Constructive Discharge
Defendant argues that Plaintiffs Title VII and ADEA claims for constructive discharge must be dismissed because the Complaint fails to allege “working conditions so intolerable that a reasonable person would have felt compelled to resign,” Fincher v. Depository Trust & Clearing Corp.,
“A constructive discharge occurs when the employer, rather than acting directly, ‘deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation.’ ” Pena v. Brattleboro Retreat,
Plaintiffs hostile work environment claim provides the “necessary predicate” to her constructive discharge claim. See Suders,
IV. CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss is GRANTED IN PART and DENIED IN PART. Defendants Elmhurst .Hospital and the City of New York are dismissed from the action. Count One of Plaintiffs Complaint is dismissed for failure to state a claim. Plaintiffs remaining claims for hostile work environment, retaliation, constructive discharge and respondeat superior liability shall proceed. The Court respectfully directs the Clerk of the Court to amend the caption of this case by removing the City
SO ORDERED.
. The Complaint does not allege Plaintiff's exact position, but the Court infers from the Complaint that Plaintiff worked in an administrative, role.
.Citations to "ECF” refer to the pagination generated by the Court’s electronic docketing system and not the document’s internal pagination. The Court notes that Plaintiff’s Complaint fails to comply with FRCP 10(b), which requires a party to "state its claims or defenses in numbered paragraphs[.]” Fed.R.Civ.P. 10(b).
. Plaintiff does not specify the date on which she filed her EEOC charge.
. Under N.Y. .Gen. Mun. Law § 50-h, upon the filing of a notice of claim against the City, the City has “the right to demand an examination of the claimant relative to the occurrence and extent of the injuries or damages for which claim is made[,]“
. Because only HHC remains in this action, the Court will refer only to "Defendant” or “HHC” for the remainder of this opinion.
. The Court notes that Plaintiff's attorney’s affidavit states that service was attempted in April 2013, which is plainly contradicted by the service affidavit filed in the docket. (Compare Dkt. 22-2, ■ Affidavit .of Attempted Service 6/27/2013 with Dkt. 22 — 1, Amorski Affidavit at ECF 1 (claiming attempt of service in April 2013)).
.. The Complaint generally alleges that it proceeds under ‘‘the laws of the United States.” (Compl. at ECF 9). , The Civil Cover Sheet filed with the Complaint notes that Plaintiff asserts causes of action for age discrimination and harassment (id. at ECF 1), but the Complaint itself does not otherwise specify the legal theories of recovery..
. Plaintiffs Complaint alleges, in an unenumerated section, that she was “forced to quit.” (Compl. at ECF 9).
. In setting forth her claim as to respondeat superior liability, Plaintiff alleges that the union responded to her complaint by stating “as long as your pay has not changed, you don't have a complaint.” (Compl. at ECF 9). It is not clear to the Court whether Plaintiff therefore alleges that Defendant should be liable for the union's failure to act on her complaint. Plaintiff has nót named the union in this suit; Defendant, however, has not moved to dismiss Count Five from the Complaint, except as part of its request that' the entire complaint be dismissed for untimely service.
, The Complaint does not specifically state Plaintiffs age, but implies that Plaintiff is close to retirement age, given her supervisor's alleged inquiries on when she would be retiring.
. Plaintiff argues in her Opposition that she experienced an adverse employment action when she was demoted from her position. (Pi. Opp. at ECF 20). However, that allegation does not appear in the Complaint and thus cannot supply notice to Defendant of the grounds upon which her gender and age discrimination claims rest. Moreover, as Defendant points out, Plaintiff’s Opposition alleges that the change in duties happened in 2008, which is, well outside the 300-day statutory period, rendering her claim untimely. (Def. Reply at - ECF 10); Dimitracopoulos,
. While Plaintiff's Complaint does allege that her supervisor docked her pay and that she wás constructively discharged, Plaintiff characterizes such allegations as relevant to her claims for retaliation and hostile work environment,,. (Pi. Opp. at ECF 20 (‘‘Plaintiff suffered an adverse employment action when Defendants retaliated against Plaintiff.”); Compl. at ECF 6-9). Thus, the Court will consider such allegations within the context of those claims. See Sections III.C.5, III.C.6; see also Patane,
.Though the Second Circuit recently clarified the applicable standard in Vega and Littlejohn, it decided Kassner in 2007, thus providing notice to Defendant that Plaintiff “need not plead a prima facie cаse and may withstand a motion to dismiss by meeting a lesser standard,” See Kassner,
. Plaintiff's opposition alleges that after her complaints to Schwendemann and her union representative, she was demoted from her position and her duties were changed. (PI. Opp. at ECF 20-21). In making this argument, Plaintiff relies on the transcript from her 50-h hearing, which the Court has found inappropriate to consider at this stage of the proceedings. See Section II, supra. The Complaint does not allege that Plaintiff experienced a demotion or a change in her job duties, and so the Court does not consider these allegations at this time.
. The Court notes that the Complaint also alleges that her' supervisor behaved in such a way that "made it very difficult for everyone to work, not only thе women to whom his behavior was usually directed." (Compl. at ECF 6). For this reason, the Court cannot find that Plaintiff’s Complaint has stated a prima facie case for constructive discharge, as this allegation brings into question whether Plaintiff was specifically targeted for termination because of her age or gender. Cf. Russo v. New York Presbyterian Hosp.,