The opinion of the court was delivered by: Arthur D. Spatt, United States District Judge
MEMORANDUM OF DECISION AND ORDER
The pro se plaintiff Semone Forbes ("Forbes" or the "plaintiff") alleges that the defendant the State University of New York at Stony Brook ("SUNY" or the "defendant"), her former employer, discriminated against her on the basis of race, color, gender and marital status in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 and the New York Executive Law § 291. Presently before the Court is a motion by the defendant to dismiss the amended complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) or, in the alternative, for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
A. The Procedural History
On July 20, 1992, the plaintiff filed a complaint with the New York State Division of Human Rights (the "NYSDHR") alleging that the defendant held her to a higher standard than other building coordinators and discriminated against her on the basis of sex, race and color in violation of the New York State Human Rights Law. On July 30, 2001, the NYSDHR issued a determination and order finding that there was no probable cause to support the plaintiff's complaint.
On August 17, 2001, the United States Equal Employment Opportunity Commission (the "EEOC") issued a "dismissal and notice of rights" (the "Notice") adopting the NYSDHR's finding. On that date, the EEOC mailed the Notice to the plaintiff. The Notice advised the plaintiff that she must file an action in federal or state court within 90 days of her receipt of the Notice or her action would be barred. The plaintiff claims that she received the Notice on September 8, 2001.
On December 3, 2001, the plaintiff filed a complaint against the defendant in the Eastern District of New York. The complaint, a three page form, alleged that: on or about January 1991, the defendant harassed the plaintiff an African American female and discriminated against her when she was employed at SUNY; the defendant created a hostile work environment for her; the defendant routinely discriminated against all women, especially African American; and the defendant retaliated against her after she complained to an unidentified individual that SUNY discriminated against all women. On December 6, 2002, the Court dismissed the complaint on various grounds but afforded the plaintiff an opportunity to file an amended complaint. Forbes v. Suny, No. 01-8148, slip op. (E.D.N.Y. Dec. 6, 2002). On January 3, 2003, the plaintiff filed an amended complaint.
The facts are taken from the amended complaint. In the fall 1990 school year, the plaintiff began her studies in the Graduate School of Social Work at SUNY. From August 20, 1990 to June 1992, the plaintiff worked part-time as a building coordinator for the SUNY Division of Campus Residences. During that time, the defendant allegedly treated the plaintiff differently than other non-African American male building coordinators. In that regard, she alleges the following:
1. The defendant paid other non-African American male
building coordinators the same pay despite having up
to 28% less resident capacity and 30% less apartment
2. The defendant put the plaintiff on probation from
July 1991 to June 1992 after she complained to her
superiors that she and other female students were
being treated unequally because of their race,
ethnicity, gender and marital status;
3. Her supervisor complained of incidents in her
building, such as failure to clean up debris, that he
did not complain of in the buildings of non-African
American males when those incidents occurred;
4. Her supervisor required her to attend functions
with her residents but did not require non-African
American male building coordinators to attend
functions with their residents;
5. Her supervisor charged her with failure to timely
submit monthly health and safety inspections but
allowed non-African American male building
coordinators to submit their inspections late;
6. Her supervisor required her to produce more
programs and attend more committees than non-African
American male building coordinators;
7. Her supervisor kept her on probation weeks
following the end of her probationary period but did
not treat any non-African American male building
coordinators in this fashion.
The amended complaint alleges that the defendant constructively discharged the plaintiff in June 1992. A liberal reading of the amended complaint reveals the following causes of action under Title VII: (1) hostile work environment; (2) retaliation; (3) race/ethnicity discrimination; (4) gender discrimination; and (5) marital status discrimination. It also reveals the following causes of action under the New York Executive Law § 291: (a) race/ethnicity discrimination; (b) gender discrimination; and (c) marital status discrimination.
The defendant now moves to dismiss the amended complaint. First, the defendant argues that the amended complaint is time barred because the plaintiff did not file her federal complaint within 90 days of her receipt of the right to sue letter. Second, the defendant argues that the Court does not have subject matter jurisdiction over the discrimination claims based on ethnicity and marital status because these claims were not included in the NYSDHR complaint. Third, the amended complaint fails to state a claim upon which relief can be granted.
In a Rule 12(b)(1) motion, the Court may consider affidavits and other material beyond the pleadings to resolve the jurisdictional question. Robinson v. Gov't of Malaysia, 269 F.3d 133, 141 n. 6 (2d Cir. 2001); Antares Aircraft, L.P. v. Fed. Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991), vacated on other grounds, 505 U.S. 1215 (1992); Exch. Nat'l Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1130 (2d Cir. 1976). Under Rule 12(b)(1), the Court must accept as true all material factual allegations in the complaint but will not draw inferences favorable to the party asserting jurisdiction. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998); Atl. Mut. Ins. Co. v. Balfour Maclaine ...