The opinion of the court was delivered by: DEBORAH BATTS, District Judge
Plaintiff Sipra Mitra brings suit against Defendants the State
Bank of India ("SBI"), T.S. Vaidyanathan and S. Iyenger*fn1
for allegedly discriminating against her with respect to the
terms, conditions and privileges of her employment based on her
sex and age in violation of the New York State and New York City
Human Rights Laws, N.Y. Exec. Law. § 296 et seq.; N.Y.C. Admin.
Code § 8-107 et seq., and for administering voluntary
retirement severance packages for employees in violation of the
Employee Retirement Income Security Act of 1974 ("ERISA"),
29 U.S.C. Section 1001 et seq. Presently before the Court is
Defendants Vaidyanathan and Iyenger's (collectively "Individual
Defendants") motion to dismiss the action for failure to state a
claim upon which relief can be granted under Federal Rule of Civil Procedure
12(b)(6), and for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1). For the reasons stated
below, Defendants' motion is GRANTED IN PART AND DENIED IN PART.
Plaintiff, an American citizen of Indian national origin, was
employed in SBI's New York office from 1971 until her termination
in 2003. She began her employment with SBI as a Customer Support
Representative. (1st Am. Compl. ¶ 2).*fn2 In 1979, as a
result of her excellent job performance, Plaintiff was promoted
to the position of Deputy Manager. (Id. ¶ 16). In 1985,
Plaintiff began working as the Deputy Manager in SBI's Foreign
Exchange and Money Operations Department. (Id.). In 1988, an
unposted managerial position became available in SBI's letters of
credit department. Upon learning of this information, Plaintiff,
as the only female deputy manager and the most senior deputy
manager in SBI, applied for the position to SBI's Vice President
of Operations. However, despite her level of experience and credentials, the position was given to a male employee with less
professional experience and seniority. (Id. ¶¶ 19, 22).
In 1990 SBI began a policy of sending its managerial employees
to India for specialized training. (Id. ¶ 21). However, rather
than provide Plaintiff with such an opportunity, SBI instead sent
only male employees with less seniority and/or professional
experience. (Id. ¶ 23). As a result, on or about January, 2001,
Plaintiff repeated her request to participate in said training
program. Again, Plaintiff was denied the training opportunity,
and two male deputy managers were instead selected to attend the
program. (Id. ¶ 26).
Similarly, beginning in 1992 and continuing until her
termination in 2003, SBI consistently denied Plaintiff salary
increases. (Id. ¶ 25). Moreover, she was allegedly told that
there had been a salary cap imposed on her managerial title
and/or position, while other employees with similar supervisory
duties continued to receive salary increases. (Id.).
In or about February 2002, it became well-known within SBI that
certain Indian bank officials, including Indian employees with
the same title or position and/or responsibilities and/or duties
as Plaintiff, were offered a voluntary retirement severance
package ("VRS"). (Id. ¶ 28). The VRS package was offered to bank officials who were above 65 years of age or who
had served SBI for at least 15 years. The VRS paid an eligible
employee three weeks of compensation for every year of service
with defendant SBI, and 18 months of medical coverage. (Id. ¶
33). However, while the SBI policy manual provides for the
payment of appropriate severance pay, SBI did not issue a written
severance policy specifically concerning the VRS package. (Id.
¶¶ 29, 30). Instead, by providing and administering the VRS to
the Indian bank officials, SBI has an established pattern and
practice of making severance payment to its employees. (Id. ¶
31). All the while, SBI maintained a welfare benefit plan for
providing severance benefits for employees within the meaning of
ERISA. (Id. ¶ 32).
In the fall of 2002, Plaintiff and four other New York-based
deputy managers of SBI spoke to the Individual Defendants
concerning the VRS package. (Id. ¶ 36). Both promised that
eligible New York-based managers would be offered the same VRS
package as that which would be administered to Indian Bank
officials. (Id. ¶ 34). Subsequently, Plaintiff again applied
for a promotion to a managerial position, but a younger male
employee with less experience was promoted instead. (Id. ¶¶
35-36). On May 27, 2003, Plaintiff was terminated after 32 years of
service and replaced by a male employee. (Id. ¶¶ 37, 41).
Following her termination, Plaintiff contacted the bank
headquarters in India and was assured by the officials that she
would be offered the same VRS package offered to the Indian
officials of the bank. (Id. ¶ 38). Nevertheless, she was not
offered the VRS package as promised, but instead was given a
maximum of 20 weeks of severance pay for her service to the bank.
(Id. ¶ 40).
On July 23, 2003, Plaintiff filed suit in New York State
Supreme Court, New York County against SBI and Vaidyanathan,
alleging employment discrimination on the basis of sex and age in
violation of the New York State and New York City Human Rights
Laws, N.Y. Exec. Law § 296, et seq.; N.Y.C. Admin. Code §
8-107, et seq. On August 21, 2003, SBI and Vaidyanathan filed a
Notice of Removal with this Court pursuant to 28 U.S.C. § 1441(d)
on grounds that, because SBI is an agent of a foreign government,
Plaintiff's lawsuit constitutes a civil action against a foreign
state as defined by the Foreign Sovereign Immunities Act,
28 U.S.C. § 1603(a). (See Notice of Removal, dated August 21,
2003, ¶¶ 3-4). Thereafter, on September 23, 2003, Plaintiff filed
an Amended Complaint, adding Iyenger as a defendant and an additional cause of action against all three Defendants alleging
that they had violated ERISA by denying her the same severance
package they were offering and administering to Indian SBI
officials of similar rank . (1st Am. Compl. ¶¶ 57-58).
The Individual Defendants now move to dismiss*fn3 all
claims against them pursuant to Rule 12(b)(6) for failure to
state a claim upon which relief can be granted and/or Rule
12(b)(1) for lack of subject matter jurisdiction.
A. Rule 12(b)(1) Dismissal
While Individual Defendants' Notice of Motion mentions Rule
12(b)(1) as a ground for dismissal, nowhere in their moving or
reply papers do they set forth any basis for dismissal for lack
of subject matter jurisdiction. Moreover, Defendant Vaidyanathan,
in his Notice of Removal, acknowledged that the Court has
diversity jurisdiction over this case. (Notice of Removal ¶¶ 3-5). ...