23-7947 Ikedilo v. Statter, 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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of The United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of April, two thousand twenty-five .
PRESENT: REENA RAGGI, GERARD E. LYNCH, BETH ROBINSON, Circuit Judges. _________________________________________
OJINIKA IKEDILO, M.D.,
Plaintiff-Appellant,
v. No. 23-7947
MINDY STATTER, M.D., JODY KABAN, M.D., SCOTT MELVIN, M.D., MONTEFIORE MEDICAL CENTER,
Defendants-Appellees.* _________________________________________
*The Clerk of the Court is respectfully directed to amend the official case caption as set forth above. FOR PLAINTIFF-APPELLANT: ANTHONY OFODILE, Ofodile & Associates, P.C., Brooklyn, NY.
FOR DEFENDANT-APPELLEE: JOSEPH ERIC FIELD, Littler Mendelson, P.C., New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Abrams, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on November 6, 2023,
is AFFIRMED.
Plaintiff-Appellant Ojinika Ikedilo, M.D., sued Defendants-Appellees
Mindy Statter, M.D., Jody Kaban, M.D., Scott Melvin, M.D., and Montefiore
Medical Center (“Montefiore”) under federal, state, and local law for alleged
unlawful treatment in, and termination from, Montefiore’s general surgery
residency program. She now appeals the dismissal of some of her claims, and a
grant of summary judgment on others. We assume the parties’ familiarity with
the underlying facts, procedural history, and arguments on appeal, to which we
refer only as necessary to explain our decision.
I. Claims Dismissed Pursuant to Fed. R. Civ. P. 12(b)(6)
We review a district court’s grant of a motion to dismiss under Rule 12(b)(6)
without deference to the district court’s reasoning. City of Pontiac Gen. Employees’
2 Retirement System v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir. 2011). If, accepting all
factual allegations in the complaint as true and drawing all reasonable inferences
in favor of the plaintiff, the complaint fails to plausibly state a claim, then dismissal
under Rule 12(b)(6) is warranted. See Littlejohn v. City of New York, 795 F.3d 297,
306–07, 310–11 (2d Cir. 2015); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A. Statute of Limitations
On October 28, 2019, Ikedilo, a Black woman, sued Montefiore, Statter, and
two other Montefiore physicians for discrimination, hostile work environment,
and retaliation based on her race, Nigerian national origin, and/or her pregnancy
pursuant to 42 U.S.C. § 1981, Title VI of the Civil Rights Act of 1964 (“Title VI”),
Title IX of the Education Amendment of 1972 (“Title IX”), § 504 of the
Rehabilitation Act (“§ 504”), the New York State Human Rights Law (“NYSHRL”),
and the New York City Human Rights Law (“NYCHRL”). She also sued for failure
to accommodate her alleged disability and pregnancy under Title IX, § 504, the
NYSHRL, and NYCHRL. Finally, she brought several state law contract claims.
The district court dismissed the bulk of Ikedilo’s claims as time barred.
Ikedilo v. Montefiore Medical Center, No. 19-cv-9967, 2021 WL 3887717, at *6
(S.D.N.Y. Aug. 31, 2021). The parties do not dispute the applicable statute
3 limitations: Ikedilo’s Title IX, Title VI, § 504, NYSHRL, and NYCHRL claims are
subject to a three-year statute of limitations and her § 1981 claims are subject to a
four-year statute of limitations. See Curto v. Edmundson, 392 F.3d 502, 503–04 (2d
Cir. 2004) (applying a three-year statute of limitations to Title IX claims in New
York); Morse v. University of Vermont, 973 F.2d 122, 125–27 (2d Cir. 1992) (holding
that § 504 claims are governed by the relevant state’s statute of limitations for
personal injury actions and suggesting the same of Title VI claims); 1 Banks v.
General Motors, LLC, 81 F.4th 242, 260 (2d Cir. 2023) (stating that the statute of
limitations for NYSHRL cases is three years, and citing Jones v. R.R. Donnelley &
Sons Co., 541 U.S. 369 (2004), to conclude that the applicable statute of limitations
for § 1981 claims is four years). Because Ikedilo filed her initial complaint on
October 28, 2019, all Title IX, Title VI, § 504, NYSHRL, NYCHRL claims that
accrued before October 28, 2016, are time-barred, and all § 1981 claims that accrued
before October 28, 2015, are time barred.
1 New York’s statute of limitations for most personal injury actions is three years. See N.Y. C.P.L.R. § 214(5).
4 At issue is the accrual date for Ikedilo’s claims based on her termination from
the program. 2 Ikedilo argues that the district court erred in concluding that those
claims accrued in April 2016 when Statter first told her that her residency would
terminate on June 30, 2016. Because a reviewing panel had the authority to accept,
reject, or modify the decision, Ikedilo argues that her claim did not accrue until
November 2016 when the panel resolved her appeal.
We agree with the district court. In Delaware State College v. Ricks, the
Supreme Court held in relevant part that the plaintiff’s § 1981 claims ripened on
the date the decision to deny him tenure “was made and communicated,” not the
date on which the Board of Trustees denied the plaintiff’s grievance arising from
the tenure decision. 449 U.S. 250, 258–62 (1980). 3 The Supreme Court emphasized
that “the proper focus” for the purposes of the statute of limitations “is upon the
time of the discriminatory acts,” at issue. Id. at 258. It recognized that “employment
termination result[ing] from discrimination can present widely varying
circumstances,” and that determination of the accrual date for a claim challenging
2 Ikedilo does not challenge the dismissal on statute of limitations grounds of her state and local hostile work environment claims (Counts 8 and 11), or her federal and state retaliation claims for failing to provide her a recommendation in March 2015 (part of Counts 4 and 5).
3 In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, footnotes, and citations, and accepts all alterations, unless otherwise noted.
5 a termination “necessarily must be made on a case-by-case basis.” Id. at 258 n.9.
The Court concluded that the availability of a grievance procedure to appeal the
tenure denial did “not suggest that the earlier decision was in any respect
tentative,” and reiterated that “the pendency of a grievance, or some other method
of collateral review of an employment decision, does not toll the running of the
limitations periods.” Id. at 261.
So too here. Ikedilo’s Complaint pleads no facts suggesting that the
termination decision conveyed to her in April 2016 was merely tentative under
Montefiore’s rules or by-laws. Rather, her Complaint suggests that, as in Ricks, the
grievance procedure here offered a “remedy for a prior decision, not an opportunity
to influence that decision before it is made.” Id.
Pauk v. Board of Trustees of City University of New York, 654 F.2d 856 (2d Cir.
1981), cited by Ikedilo, warrants no different conclusion. As in Ricks, the Pauk
Court assessed the accrual date of a denial of tenure claim by evaluating applicable
rules as reflected in a New York statute governing faculty appointments and a
collective bargaining agreement between the New York Board of Higher
Education and the faculty union. Id. at 860. Because those rules did not require
independent Board review of all tenure denial decisions, we held that the
6 plaintiff’s challenge to the tenure denial accrued when he was first notified of the
denial decision. Id. at 860–61. The same applies to the appeals process here. See
also Miller v. International Telephone and Telegraph Corp., 755 F.2d 20, 24 (2d Cir. 1985)
(“[T]he mere possibility that the decision might be reversed was not enough to
label it advisory or ineffective for time-bar purposes.”); Pinder v. City of New York,
49 A.D.3d 280, 281 (N.Y. App. Div. 1st Dep’t 2008) (“Contrary to plaintiff’s
argument[,] . . . an employment discrimination claim accrues on the date that an
adverse employment determination is made and communicated to [the] plaintiff,
and the possibility that the determination may be reversed is insufficient to toll the
limitations period.”).
Accordingly, the district court correctly dismissed Ikedilo’s discrimination
claims under New York state and local law arising from her termination (Counts
6, 7, 9, 10). 4
B. Count 2: Failure to Timely Send Summary Evaluation
Ikedilo challenges the dismissal of her § 1981 discrimination claim relating
to Statter’s failure to timely send her summary evaluation to Westchester Medical
4 Because her § 1981 claim is subject to a four-year statute of limitations, that federal claim arising from her termination (Count 1) survived Defendants’ motion to dismiss. Ikedilo’s Complaint does not assert a claim under Title VI arising from her termination.
7 Center (“WMC”). 5 The Complaint does not specify the duration of this delay, but
it appears to have lasted more than one week, and less than than four.
To survive a motion to dismiss, a plaintiff must plead that “but for race, [the
plaintiff] would not have suffered the loss of a legally protected right.” Comcast Corp.
v. National Association of African American-Owned Media, 589 U.S. 327, 341 (2020)
(emphasis added). Ikedilo failed to plead such injury here. 6
Insofar as Ikedilo argued that salary and health insurance were suspended
due to Statter’s delay in sending the summary evaluation to WMC, a careful
reading belies that argument. The Complaint alleges that her compensation and
health insurance were set to terminate at the end of July 2016. But it also alleges
that “on July 27, 2016, Dr. Statter called [Ikedilo] to advise [her] that [she] would
be paid her July salary, that her benefit[s] would be reinstated and that [Statter]
would send [Ikedilo’s] summary of evaluation to WMC.” App’x at 113 ¶ 140.
5 Because Ikedilo’s appellate briefing does not mention the dismissal of her § 1981 retaliation claim related to the same conduct (Count 3), we deem any challenge to the dismissal of that count waived. See Olivieri v. Stifel, Nicolaus & Co., Inc., 112 F.4th 74, 92 n.10 (2d Cir. 2024) (holding arguments not made in appellant’s opening brief are waived).
6 Because we affirm the district court’s dismissal of Count 2 on this independent basis, we need not address the district court’s alternate conclusion that Ikedilo failed to plausibly allege a connection between her race and Statter’s delay in forwarding the summary evaluation.
8 Notably, the Complaint does not allege that her health insurance was
actually suspended or terminated prior to the anticipated end-of-July date, that
she received her salary for July later than expected, or that any delay otherwise
impacted her pay or benefits. It just alleges that she “successfully completed her
fellowship” with WMC. App’x at 118 ¶ 160.
Accordingly, the district court correctly dismissed Ikedilo’s § 1981
discrimination claim arising from the alleged delay in Statter’s sending her
summary evaluation to WMC (Count 2).
C. Count 16: Failure to Accommodate
On November 6, 2016, Montefiore informed Ikedilo that she could be
reinstated to the general surgery program on July 1, 2017, provided that she scored
in at least the 30th percentile on the January 2017 ABSITE exam and passed the
USMLE Step 3 exam by the end of March 2017. That same day, Ikedilo gave birth
to her second child and was diagnosed with a possibly cancerous thyroid
condition. After Ikedilo failed to achieve the required score, her request that she
be allowed to retake the exam was denied. Ikedilo asserts that Montefiore’s refusal
was “discriminatory [o]n [its] face,” Appellant’s Br. at 21, and constituted a failure
to reasonably accommodate her pregnancy, pregnancy-related disability, and
9 other health problems which had prevented her from adequately preparing for the
January 2017 exam.
Federal law requires that individuals be offered a reasonable
accommodation. It does not require an educational institution “to make
substantial modifications,” Southeastern Community College v. Davis, 442 U.S. 397,
405 (1979), or offer accommodations that “would impose an undue hardship,”
Dean v. University at Buffalo School of Medicine and Biomedical Sciences, 804 F.3d 178,
186–87 (2d Cir. 2015). The ABSITE is offered only once per year, 7 and Ikedilo’s
requested accommodation would require Montefiore to allow her to operate as a
fifth-year resident for over six months without satisfying its reinstatement
condition that she score above the 30th percentile. The Complaint itself
acknowledges that Ikedilo (1) had a history of poor performance on the previous
exams; (2) had received negative clinical reviews based on operating room
performance, including from a supervising physician who stated that “he would
feel skeptical taking [her] judgment if she was the Chief Resident,” App’x at 111
¶ 129; and (3) had already been required to repeat a program year based on poor
7 The district court took judicial notice of this fact when ruling defendants’ motion to dismiss Ikedilo’s original complaint. See Ikedilo, 2020 WL 5849049, at *11, *3 n.1. Neither party has disputed this fact at any point during the litigation or on appeal.
10 performance, a decision upheld by a reviewing panel. On this record, we agree
with the district court that Ikedilo’s requested accommodation was unreasonable
and conclude that her failure-to-accommodate claims under state and federal law
were correctly dismissed (Count 16). 8
Moreover, the Complaint cannot support a plausible disability
discrimination claim based on Ikedilo’s thyroid condition because Montefiore
imposed the challenged reinstatement requirements before Defendants, or even
Ikedilo, knew about it.
II. Claims Resolved at Summary Judgment
We turn to the claims that survived the motion to dismiss—Ikedilo’s § 1981
discriminatory termination claim, her § 1981 claim of retaliation in connection with
Statter’s evaluations of her performance, and her state law contract claims. We
review the district court’s grant of summary judgment without deference to the
8 Ikedilo argues that the NYSHL and NYCHL impose a different causation standard—a plaintiff is not required to show but-for causation, but only that discrimination played some role in an adverse employment action. Her arguments are beside the point because causation is not relevant to the issue of whether the accommodation is reasonable. She does not make any arguments relating to the burden of proof with respect to the reasonableness of an accommodation, so we do not reach that question. See Jacobson v. New York City Health & Hosps. Corp., 988 N.Y.S.2d 86, 835 (2014) (“[U]nlike the [NYSHRL], the [NYCHRL] places the burden on the employer to show the unavailability of any safe and reasonable accommodation and to show that any proposed accommodation would place an undue hardship on its business.”).
11 district court. Byrne v. Rutledge, 623 F.3d 46, 52 (2d Cir. 2010). Summary judgment
is proper if, construing the evidence in the light most favorable to the nonmoving
party, there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law. Id.
A. Count 1: Failure to Promote in 2016
Ikedilo bore the initial burden to adduce evidence showing that an “adverse
employment action occurred under circumstances giving rise to an inference of
discriminatory intent.” See Tolbert v. Smith, 790 F.3d 427, 435 (2d Cir. 2015). On
appeal, Ikedilo argues that she produced evidence that she was treated differently
from residents who were not Black who received low ABSITE scores but were
promoted. We disagree.
While disparate treatment can support an inference of discriminatory intent,
see Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000), a plaintiff must show
that she was “similarly situated in all material respects to the individuals with
whom she seeks to compare herself,” id. at 39. This does not demand identicality,
but there must be “a reasonably close resemblance of the facts and circumstances
of [the] plaintiff’s and comparator’s cases.” Id. at 40.
12 Ikedilo identified other residents who received low ABSITE scores but were
not required to remediate. But that is the only shared metric that she identified. 9
It is undisputed that the decision to terminate Ikedilo’s residency was informed
by concerns about her patient care during surgery, technical skills, medical
knowledge, and leadership skills, in addition to her low test scores. And it is
undisputed that, in addition to low ABSITE scores, Ikedilo received several
negative evaluations from supervising physicians and her mentors.
In sum, because Ikedilo has neither produced any direct evidence of
discrimination nor identified a single other resident who was similarly situated in
all material respects, summary judgment for the defendants on Ikedilo’s § 1981
discriminatory termination claim (Count 1) was warranted.
B. Count 4: Retaliation Premised on Statter’s Milestone Review
The district court also granted summary judgment for the defendants on
Ikedilo’s § 1981 retaliation claim because it concluded that she failed to offer
evidence that she had engaged in any activity protected by § 1981. A protected
activity is “opposition to an unlawful employment practice.” Reed v. A.W.
9 Insofar as Ikedilo suggested at oral argument that she could not identify other metrics for comparators because she had not received their evaluations in discovery, counsel acknowledged that no such discovery issue was ever raised in the district court. See Fed. R. Civ. P. 56(d)(2).
13 Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996). And not just any
employment practice, the plaintiff must oppose an employment practice that
§ 1981 makes unlawful. Cf. Kelly v. Howard I. Shapiro & Associates Consulting
Engineers, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (describing protected activity in
context of Title VII); see also Littlejohn, 795 F.3d at 315 (stating that § 1981 retaliation
claims are analytically identical to Title VII retaliation claims). A plaintiff fails to
make out a prima facie case if their “objections at the time neither point[] out
discrimination against particular individuals nor discriminatory practices by the
employer.” Kelly, 716 F.3d at 15.
It is undisputed that Ikedilo did not complain of racial discrimination either
formally or informally at any point during her residency at Montefiore. She told
Montefiore’s Chief Operating Officer and Vice President only that she felt “singled
out,” but did not claim that was because of her race. App’x at 177 ¶ 161. It is also
undisputed that Ikedilo did not complain of racial discrimination in either of her
internal appeals. Because Ikedilo has not produced any evidence that she engaged
in a protected activity, the district court correctly awarded summary judgment to
Defendants on Ikedilo’s § 1981 retaliation claim (Count 4).
14 C. Counts 12 to 15: Breach of Contract
Ikedilo’s breach of contract claims are based on Montefiore’s decision to
require her to obtain a particular ABSITE score to be promoted to the next year. In
her view, the imposition of this requirement as a condition of her advancement to
PGY-5—both in 2015 and again as a condition of her reinstatement in 2017—is
either a direct breach of her contract with Montefiore or a violation of the implied
duty of good faith and fair dealing.
Ikedilo is correct that under New York law there is an implied covenant of
good faith and fair dealing, meaning that neither party to a contract can “do
anything which has the effect of destroying or injuring the right of the other party
to receive the fruits of the contract.” M/A-Com Sec. Corp. v. Galesi, 904 F.2d 134, 136
(2d Cir. 1990). However, “the implied covenant does not extend so far as to
undermine a party’s general right to act on its own interests in a way that may
incidentally lessen the other party’s anticipated fruits from the contract.” Id.
Each year Montefiore and its residents execute a contract, the “House
Officer Agreement,” which, among other things, specifies that “[r]eappointment
and/or promotion shall be at the sole discretion of the Chairman of the Department
and is contingent upon several factors including but not limited to: full compliance
15 with the terms of this Agreement, satisfactory performance, the availability of a
position, closure or reduction in the size of the Program and furtherance of the
Medical Center’s objectives.” App’x at 1785 (emphases added). There can be no
dispute that ensuring that residents are qualified to care for patients before they
graduate is a legitimate Montefiore objective. It is also undisputed that Ikedilo
failed to satisfy program benchmarks and received consistent negative feedback
from several supervising physicians about her surgical performances. On this
record, no factfinder could conclude that Montefiore’s decision to require Ikedilo
to obtain an ABSITE score in at least the 30th percentile amounts to bad faith or a
breach of Montefiore’s promises, rather than Montefiore acting in its own interest
to ensure that its residents are qualified to care for patients.
* * *
We have considered Ikedilo’s remaining arguments and conclude that they
are without merit. For the reasons stated herein, the district court’s November 6,
2023, judgment is AFFIRMED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court