The opinion of the court was delivered by: William M. Skretny United States District Judge
On December 23, 2004, Plaintiff John E. Hudson commenced this employment discrimination action by filing a Complaint in the United States District Court for the Western District of New York. Therein, Plaintiff alleges seven causes of action related to hostile work environment, race discrimination, and retaliation claims brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Civil Rights Act of 1870, as amended, 42 U.S.C. § 1981 ("§ 1981"), and § 290 of the New York Human Rights Law ("NY HRL").
Presently before this Court is Defendants' Motion to Dismiss Plaintiff's Complaint.*fn1 For the reasons discussed below, Defendants' motion is granted in part and denied in part, and Plaintiff is granted leave to file an Amended Complaint consistent with this Decision and Order.
In adjudicating Defendants' Motion to Dismiss, this Court assumes the truth of the following factual allegations contained in the Complaint. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740, 96 S.Ct. 1848, 1850, 48 L.Ed.2d 338 (1976); see also Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir. 1997).
Plaintiff is an African-American male who resides in the City of Buffalo. (Complaint, ¶ 3.) He began working for Defendants as a bus driver on or about June 20, 1975. (Complaint, ¶ 13.) During his employment with Defendants, Plaintiff was bypassed for work assignments, referred to in racially derogatory terms and was harassed and mistreated while out on medical leave. (Complaint, ¶ 15.)
In the early 1980s, Plaintiff was bypassed for work assignments and was referred to by Defendants' employees as "liar," "con," and "nigger." (Complaint, ¶ 16.) In September of 1989, Plaintiff filed a grievance with his Union regarding the mistreatment to which he had been subjected. (Complaint, ¶ 17.) An investigation was conducted and a manager employed by Defendants was terminated. (Id.) Thereafter, Defendants retaliated against Plaintiff for filing this grievance by denying him work assignments, refusing to assign him to charters when he was requested by the customer, and assigning him undesirable work. (Complaint, ¶ 18.)
On or about January 19, 1990, Plaintiff was injured on the job and placed on medical leave. (Complaint, ¶ 19.) In July of 1993, Defendants advised Plaintiff that his employment would be terminated if he did not return to work. (Id.) Plaintiff thereafter returned to work and further injured his left shoulder. (Id.) In September of 1993, Defendants' doctor determined that Plaintiff was unable to return to work due to his work-related shoulder injury. (Id.)
On December 3, 1993, while Plaintiff was out on disability, Defendants terminated his employment. (Complaint, ¶ 20.) Plaintiff's employment was reinstated, however, after Plaintiff retained counsel and initiated a lawsuit. (Id.) Although reinstated, Plaintiff remained medically unable to return to work. (Id.)
On April 29, 1996, Plaintiff underwent unsuccessful surgery and remained out of work. (Complaint, ¶ 21.) In 1997, David Umbaugh, Defendants' Buffalo Terminal Manager, required Plaintiff to get a work physical. (Complaint, ¶ 22.) Plaintiff indicated on the medical forms that he was agreeing to take the physical "under protest" because he was still on medical leave. (Id.) Based on this representation, the physical was cancelled and Plaintiff was advised to report back to Mr. Umbaugh. (Id.)
When Plaintiff met with Mr. Umbaugh, he explained that he would submit to the physical "under protest." (Complaint, ¶ 23.) Mr. Umbaugh reported that he would advise Defendants that Plaintiff refused to submit to the physical and he instructed Plaintiff to leave. (Id.) Plaintiff complained to his union and Defendants about Mr. Umbaugh's conduct. (Complaint, ¶ 24.) Mr. Umbaugh was thereafter promoted and transferred. (Id.)
On or about December 7, 2000, Plaintiff underwent a second surgery, which this time was successful. (Complaint, ¶ 27.) Plaintiff was released to return to work for full duty as of November 13, 2001. (Id.) To prepare for his return to work, Plaintiff met with John Comstock, who was now the Buffalo Terminal Manager. (Complaint, ¶ 28.) Plaintiff provided Mr. Comstock with his medical clearance papers from his doctor, at which time Mr. Comstock advised Plaintiff that he would Schedule the necessary appointments for him to be able to return to work (e.g., physical, drug screening, safety refresher course). (Id.)
Between November 13, 2001, and March of 2002, Plaintiff made numerous attempts to contact Mr. Comstock. (Complaint, ¶¶ 29, 30.) Moreover, in February of 2002, Plaintiff called Defendants' offices in New York City to complain that he was not being scheduled back to work. (Complaint, ¶ 31.) Plaintiff was advised that he should wait for his physical to be scheduled. (Id.)
During the first week in March of 2002, Plaintiff called Defendants' human resources office to inquire as to his employment status. (Complaint, ¶ 32.) He was advised that his employment with Defendants had been terminated. (Id.) Plaintiff then went to Defendants' local office in Buffalo to review his personnel file in the presence of Mr. Comstock. (Complaint, ¶ 33.) Upon review of his file, Plaintiff discovered that he had been written up for insubordination in 1998. (Id.) When Plaintiff asked Mr. Comstock how he could have been written up when he was out on work-related disability at that time, Mr. Comstock refused to allow him to further review his file. (Id.)
Plaintiff contends that other similarly situated Caucasian drivers who were on medical leave and brought medical clearance papers back to Defendants were scheduled for physicals in compliance with Defendants' policies. (Complaint, ¶ 35.) He further alleges that Defendants' failure to schedule his physical and their subsequent actions in terminating him were the result of continued discrimination, harassment and retaliation against him ...