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March 27, 1998


The opinion of the court was delivered by: LARIMER



 Plaintiff, Raleigh L. Harris ("Harris"), filed the instant complaint against defendant American Protective Services of New York, Inc. ("APS") alleging claims under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000 et al. ("Title VII") and the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"). Harris alleges that APS discriminated against him on the basis of race, sex and disability. Harris also alleges retaliation, sexual harassment, and defamation.

 APS filed a motion to dismiss Harris' complaint on April 18, 1997. Thereafter, Harris filed several motions including a motion to amend his complaint to add causes of action for wrongful termination and perjury, a motion to have the arbitrator's decision vacated, and a motion for a preliminary injunction. *fn1" For the reasons discussed, infra, Harris' motions are denied, and APS' motion is granted, in part, and denied, in part.


 At the time of the incidents in question, Harris was employed by APS as a security guard and was stationed at the Bausch and Lomb corporate office building in Rochester, New York. On January 24, 1996, Harris filed an incident report against Virgen Martinez ("Martinez"), a female employee of APS, relating to an incident that occurred between them while both were on duty on January 24, 1996. Harris claims that Martinez entered the console where Harris was posted as a security guard, reached over his body, bumping him, and grabbed a set of keys to a "lock box." *fn2" Harris states that he informed Martinez that it was his duty as console officer to escort her to the lock box and to have her sign a log indicating that she had returned the keys. According to Harris, Martinez responded by telling Harris "whatever" and "kiss my ass."

 At about the same time as the incident described by Harris, Martinez complained to her manager about inappropriate sexual comments that Harris made to her. *fn3" An investigation into Martinez' complaint was made, during which time Harris was placed on "administrative hold" status pending resolution of the complaint. Although Harris was told not to report to work, he did receive full pay and benefits during this period. APS ultimately determined that it was unable to substantiate Martinez' allegations of sexual harassment.

 Harris claims that when he was called back to work in March 1996 after he was "cleared" of the sexual harassment charge, he was informed that he would not be permitted to return to the Bausch and Lomb site but would be used as a "floater." According to Harris, the several different site options APS offered him were inferior to the Bausch and Lomb site in that they were more physically demanding. Harris claims that, due a pre-existing knee injury, he was unable to accept work at the sites offered.

 On March 26, 1996, Harris filed a charge with the New York State Division of Human Rights, alleging that he was treated differently than Martinez based on gender. In particular, Harris claimed that: Martinez' allegations of sexual harassment were investigated and his were not; Martinez was not put on hold during the investigation and he was; Martinez remained in the same position while he was reassigned. His complaint was dismissed by the Division of Human Rights and by the EEOC after the parties had agreed to submit the claims to arbitration.

 Following a hearing, the arbitrator found that APS did not unlawfully discriminate against Harris on the basis of gender and that Martinez did not sexually harass Harris.


 I. APS' Motion to Dismiss

 A. Standards on Motion to Dismiss

 As an initial matter, APS has mischaracterized that part of its motion concerning Harris' failure to file an administrative charge as a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). "It is well established . . . that filing a timely charge with the EEOC is not a jurisdictional prerequisite to a suit in federal court--rather it is a condition precedent and 'like a statute of limitations, is subject to waiver, estoppel and equitable tolling.'" Angotti v. Kenyon & Kenyon, 929 F. Supp. 651, 653 (S.D.N.Y. 1996), quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982). Therefore, I will treat APS' entire motion as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).

 Harris initially brought this action pro se.4 Generally, pro se complaints are held "'to less stringent standards than formal pleadings drafted by lawyers.'" Ortiz v. Cornetta, 867 F.2d 146, 148 (2d Cir. 1989), quoting Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). In addition, when considering a defendant's motion to dismiss, a court must accept the plaintiff's allegations as true and resolve competing inferences in his favor. Cruz v. Beto, 405 U.S. 319, 322, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972).

 The burden on the defendant in a motion to dismiss is onerous. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer ...

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