     16-839
     Offor v. Mercy Medical Center, et. al.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 20th day of January, two thousand seventeen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROSEMARY S. POOLER,
 8                PETER W. HALL,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       DR. CHINWE OFFOR,
13                Plaintiff-Appellant,
14
15                    -v.-                                               16-839
16
17       MERCY MEDICAL CENTER, ROCKVILLE CENTRE
18       DIVISION, CATHOLIC HEALTH SERVICES OF
19       LONG ISLAND, DR. SWARNA DEVARAJAN, DR.
20       JOHN REILLY,
21                Defendants-Appellees.
22
23       - - - - - - - - - - - - - - - - - - - -X
24
25       FOR APPELLANT:                        IKE AGWUEGBO, New York, New
26                                             York.
27


                                                  1
 1   FOR APPELLEES:              CHRISTOPHER G. GEGWICH, Nixon
 2                               Peabody LLP, Jericho, New York.
 3
 4       Appeal from judgment of the United States District

 5   Court for the Eastern District of New York (Spatt, J.).

 6       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

 7   AND DECREED that the judgment of the district court be

 8   AFFIRMED in part, VACATED in part, and REMANDED in part.

 9       Dr. Chinwe Offor appeals from the judgment of the

10   United States District Court for the Eastern District of New

11   York (Spatt, J.)1 which: 1) dismisses her claim of race and

12   national origin discrimination, her retaliation claim, and

13   claims alleging violation of the Family Medical Leave Act

14   and state law; 2) denies her motion to amend the complaint

15   to plead hostile work environment and violation of the

16   Health Care Quality Improvement Act; 3) grants defendants’

17   motion to seal; and 4) sua sponte strikes portions of her

18   complaint.   We assume the parties’ familiarity with the

19   underlying facts, the procedural history, and the issues

20   presented for review.   For the reasons set out below, we

21   affirm the district court’s judgment on all counts except

22   for the dismissal of the FMLA retaliation and state law

23   claims, which we vacate.

         1
           Contrary to Offor’s assertions, United States
     District Judge Arthur D. Spatt is indeed the author of the
     decision from which she appeals.
                                   2
 1       Offor is an African-American of Nigerian descent who

 2   worked as a neonatologist at Mercy Medical Center.

 3   According to the Second Amended Complaint, she suffered a

 4   series of negative actions–-foremost among them denial of

 5   vacation and of “moonlighting” hours–-which led her to hire

 6   an attorney in November 2012.       A month later, Mercy Medical

 7   put her on a type of probation called Focused Practitioner

 8   Performance Review (“FPPR”).    She alleges that the negative

 9   actions continued, that she filed an EEOC complaint on

10   February 22, 2014, and that Mercy Medical terminated her on

11   August 21, 2014.

12       Offor filed a complaint against Mercy Medical, its

13   affiliates, and her supervisors after being terminated.       The

14   complaint alleged discrimination, retaliation, violation of

15   the FMLA, and various state law violations.       It also

16   included several pages of allegations about the quality of

17   care at Mercy Medical, and attached documents containing

18   information protected from disclosure by the Health

19   Insurance Portability and Accountability Act of 1996

20   (“HIPAA”) and Federal Rule of Civil Procedure 5.2.       Offor

21   amended her complaint to add allegations, but no new claims

22   (creating the “First Amended Complaint”).      Defendants moved

23   to dismiss all claims and to seal the First Amended

24   Complaint to protect information covered by HIPAA.       While

                                     3
 1   that motion was pending, Offor moved to amend her complaint

 2   a second time to add hostile work environment and Health

 3   Care Quality Improvement Act claims.

 4       The district court dismissed all the federal claims in

 5   the First Amended Complaint and declined to exercise

 6   jurisdiction over the state law claims.    It denied the

 7   motion to amend as futile because it determined that the new

 8   claims could also be dismissed under Rule 12(b)(6).    It also

 9   granted the motion to seal, and sua sponte struck portions

10   of the First Amended Complaint related to “quality of care

11   issues” at Mercy Medical as irrelevant and prejudicial.

12       Offor attached hundreds of pages of documents to her

13   various complaints.   Many of those pages contain information

14   which should have been filed under seal pursuant to HIPAA

15   and Federal Rule of Civil Procedure 5.2.   The district court

16   ordered those documents sealed, and Offor does not appeal

17   that decision.   We may consider documents attached to the

18   complaint in deciding a motion to dismiss.   DiFolco v. MSNBC

19   Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).

20       1.   Offor’s Title VII claim alleges discrimination

21   based upon race (African-American) and national origin

22   (Nigerian).   For the claim to survive a motion to dismiss,

23   she must plausibly allege that her race or national origin

24   “was a motivating factor in the employment decision.”      Vega

                                   4
 1   v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir.

 2   2015).   As to most of the acts alleged in the complaint,

 3   Offor alleges no facts to show that they were driven by

 4   discriminatory animus.   Her bare allegations that her

 5   mistreatment was due to race are not enough to survive

 6   dismissal.   Albert v. Carovano, 851 F.2d 561, 572 (2d Cir.

 7   1988).   As to two of the alleged acts of discrimination–-

 8   denial of vacation time and of moonlighting hours–-Offor

 9   claims that similarly situated employees who were not

10   African-American or Nigerian were better treated.    A

11   plaintiff may create a plausible inference of discrimination

12   through this kind of disparate treatment analysis so long as

13   the employees she is comparing herself to are “similarly

14   situated in all material respects.”    Graham v. Long Island

15   R.R., 230 F.3d 34, 39 (2d Cir. 2000) (internal quotation

16   marks omitted).   The other employees Offor points to are not

17   “similarly situated.”    The doctor who allegedly received

18   better vacation treatment is Offor’s own supervisor, and the

19   doctors who received moonlighting hours were “external

20   moonlighters,” not full-time employees like Offor.    Her

21   claim was therefore properly dismissed.

22       2.    Offor claims that Mercy Medical refused to grant

23   her leave due under the Family Medical Leave Act.    FMLA

24   claims are generally subject to a two-year statute of

                                    5
 1   limitations, but that limitations period extends to three

 2   years when the violation is “willful.”    Porter v. N.Y. Univ.

 3   Sch. of Law, 392 F.3d 530, 531 (2d Cir. 2004) (per curiam).

 4   A violation is “willful” when the employer, “knew or showed

 5   reckless disregard for the matter of whether its conduct was

 6   prohibited.”   Id. (internal quotation marks omitted).

 7       Offor brought her FMLA claim between two and three

 8   years after the alleged violation, so timeliness depends on

 9   whether she has plausibly alleged a “willful” violation.

10   She has not.   Her complaint concedes that she was eventually

11   allowed to take the vacation time she requested, and the

12   emails attached to her complaint contain reasonable

13   justifications for why Mercy Medical initially denied her

14   vacation time.    Neither the complaint nor her briefing

15   explain why any alleged violation of the FMLA would have

16   been “willful.”   Offor’s FMLA claim therefore does not

17   plausibly allege a willful violation, is subject to a two-

18   year statute of limitations, and was properly dismissed.

19       3.   In the complaint, one of Offor’s claims is called

20   “Title VII Retaliation,” but she does not argue on appeal

21   (or allege in the complaint) that she was retaliated against

22   for filing an EEOC charge in 2014.

23       Instead, she argues that Mercy Medical retaliated

24   against her for hiring an attorney and exercising her FMLA

                                    6
 1   rights in late 2012.   For an FMLA retaliation claim, Offor

 2   must establish that: “1) [s]he exercised rights protected

 3   under the FMLA; 2) [s]he was qualified for [her] position;

 4   3) [s]he suffered an adverse employment action; and 4) the

 5   adverse employment action occurred under circumstances

 6   giving rise to an inference of retaliatory intent.”      Potenza

 7   v. City of N.Y., 365 F.3d 165, 168 (2d Cir. 2004) (per

 8   curiam).   She has plausibly alleged that she attempted to

 9   exercise FMLA rights, that she was qualified for her

10   position, and that she suffered an adverse employment action

11   when she was put on FPPR probation.   Mercy Medical put her

12   on the FPPR probation only one month after she retained an

13   attorney, and that temporal proximity is enough at this

14   stage to give rise to an inference of retaliatory intent.2

15   See Hicks v. Baines, 593 F.3d 159, 170 (2d Cir. 2010).      We

16   therefore vacate the district court’s dismissal of Offor’s

17   FMLA retaliation claim.

18       4.     Offor claims a violation of the Health Care

19   Quality Improvement Act (“HCQIA”).    42 U.S.C. §§ 11101-

20   11152.   The district court cited multiple decisions for the



         2
           The district court held that the FMLA retaliation
     claim did not allege a “willful” violation and that the two-
     year statute of limitations applied. However, retaliating
     against an employee for exercising FMLA rights is almost by
     definition a “willful” violation.
                                    7
 1   proposition that the HCQIA does not afford a private right

 2   of action, and Offor does not contest that proposition on

 3   appeal.   We therefore do not consider the question and

 4   affirm the district court’s dismissal.

 5       5.    Offor’s hostile work environment claim was

 6   dismissed due to her failure to allege conduct which was

 7   sufficiently severe and pervasive.       Offor did not challenge

 8   that ruling in her opening brief and therefore waived any

 9   right to contest the issue.   See Lore v. City of Syracuse,

10   670 F.3d 127, 149 (2d Cir. 2012).

11       6.    Offor challenges the district court’s decision to

12   dismiss her claims with prejudice.       We review that decision

13   for abuse of discretion.    Cruz v. FXDirectDealer, LLC, 720

14   F.3d 115, 125 (2d Cir. 2013).       Offor amended her original

15   complaint once, and moved to amend the complaint again after

16   defendants had filed a motion to dismiss.      The district

17   court did not abuse its discretion in dismissing the

18   complaint with prejudice and denying her a fourth attempt.

19       7.    Offor challenges the district court’s decision to

20   strike portions of her complaint.       We hold that the district

21   court acted within its authority to do so under Federal Rule

22   of Civil Procedure 12(f).




                                     8
 1       8.   Having dismissed Offor’s federal claims, the

 2   district court declined to exercise supplemental

 3   jurisdiction over her state law claims.   Our decision to

 4   revive the FMLA retaliation claim also reinstates

 5   jurisdiction over the previously dismissed state law claims.

 6   Spinelli v. City of N.Y., 579 F.3d 160, 175 (2d Cir. 2009).

 7       For the foregoing reasons, and finding no merit in the

 8   parties’ other arguments, we hereby AFFIRM the judgment of

 9   the district court in part, VACATE it in part, and REMAND it

10   for further proceedings.   The Second Amended Complaint, as

11   struck and as sealed by the district court’s opinion and as

12   modified by this summary order, shall be the operative

13   complaint in this case going forward.

14
15
16
17                               FOR THE COURT:
18                               CATHERINE O’HAGAN WOLFE, CLERK
19
20




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