The opinion of the court was delivered by: Brieant, J.
Before the Court in this employment discrimination case, is a motion filed April 11, 2006 (Doc. No. 3) to dismiss the claims of the case under Federal Rule of Civil Procedure ("FRCP") Rule 12(b)(6) and for failure to exhaust administrative remedies. Opposition papers were filed on April 19, 2006, and reply papers were filed April 26, 2006. The parties appeared for oral argument on the motion before this Court on May 19, 2006.
The following facts are assumed true for purposes of this motion only. Plaintiff was employed by Defendant in 1993 and was a manager at a Friendly's restaurant for approximately four years before she was fired on March 28, 2005. In December 2004, Plaintiff was diagnosed as suffering from Chronic Obstructive Pulmonary Disorder ("COPD" or "pulmonary disorder) which she claims affects one or more of her life activities of breathing, walking and running. Despite her pulmonary disorder, Plaintiff was able to perform the essential functions of her job, including managing, inventory, ordering, attending meetings and creating reports, but was unable to spend long periods of time in the walk-in refrigeration unit in the restaurant where she worked. Plaintiff accordingly asked another employee to conduct inventories in the refrigeration unit when necessary.
In the Spring of 2004, Steven Swartz replaced Gina Belmonte as the district manager to whom Plaintiff directly reported. Plaintiff claims that several months passed without any significant contact with Swartz, but that some months later, despite her excellent work record, Swartz began to criticize her unfairly, accuse her of misconduct and incompetence and that he "bypassed her in favor of a male assistant manager." Compl. at ¶14. Plaintiff also claims that Swartz refused to accommodate her disability or permit her to have another employee take inventory in the refrigeration unit, which, she claims, affected the terms and conditions of her employment. Plaintiff also claims that Swartz selectively applied Defendant's policies to her and commenced disciplinary action against her.
On March 17, 2005, Plaintiff filed a pro se charge of gender discrimination by her supervisor Swartz, with the New York State Division of Human Rights ("NYSDHR" or the "Division"), and claims that she subsequently advised Swartz of her complaint. Plaintiff was placed on medical leave as a result of stress and anxiety over the job circumstances. On March 28, 2005, Defendant fired Plaintiff, which, she claims, resulted in lost wages, benefits, and physical and emotional injury. On March 29, 2005, an EEOC notice of charge for a violation of Title VII was directed to Defendant, with Plaintiff's March 17, 2005, discrimination charge attached. On April 1, 2005, Plaintiff filed an amended charge with the NYSDHR, which added a claim of disability discrimination to her March 17, complaint, specifically claiming that Swartz discriminated against her based on a disability by calling her physician and demanding confidential medical information about her. Both complaints were investigated by the NYSDHR.
Plaintiff retained counsel in May of 2005. In June of 2005, in response to the NYSDHR's request for additional information, Plaintiff stated: that she was diagnosed in November or December 2004 with Chronic Obstructive Pulmonary Disease and her exposure to cold environments was strictly prohibited by her treating physician; that the new supervisor Swartz refused to accommodate her disability by allowing another employee to spend longer periods of time in the freezers; and that the general manager denied her the ability to have another employee perform the inventory in the freezer areas. As further discussed infra, Defendant denies that the June statement is a part of the administrative complaint and also claims no notice of the pulmonary disorder discussed therein because there is no proof of Defendant's receipt of this statement.
Plaintiff claims that Defendant knowingly and willfully violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000 et seq., the Americans with Disabilities Act, 42 U.S.C. §12101, and the New York Human Rights Law §296, by discriminating against her on the basis of her gender and disability, and by then retaliating against her for making a lawful complaint of gender discrimination.
Defendant argues that Plaintiff failed to exhaust administrative remedies for her disability discrimination claim based on the pulmonary disorder, of which claim Defendant argues it had no notice prior to this federal case. Defendant argues also that Plaintiff failed to allege a set of facts that would entitle her to relief for gender discrimination. In its reply papers, Defendant also adds an argument that Plaintiff's retaliation claim should also be dismissed, because she did not exhaust her administrative remedies by alleging retaliation, nor allege in her Complaint facts connecting her termination to any protected activity in this Complaint.
In considering a motion to dismiss under Rule 12(b)(6), the Court is obliged to accept the well-pleaded assertions of fact in the complaint as true and to draw all reasonable inferences and resolve doubts in favor of the non-moving party. The focus of the Court's inquiry is not whether plaintiffs will ultimately prevail, but whether the claimants are entitled to an opportunity to offer evidence in support of their claims. Therefore a motion to dismiss must be denied unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Our Court of Appeals has held:
A plaintiff may bring an employment discrimination action under Title VII or the ADEA only after filing a timely charge with the EEOC or with "a State or local agency with authority to grant or seek relief from such practice." 42 U.S.C. § 2000e-5 (e) (Title VII); see 29 U.S.C. §§ 626 (d), 633(b) (ADEA). Exhaustion of remedies is a precondition to suit, and a plaintiff typically may raise in a district court complaint only those claims that either were included in or are "reasonably related to" the allegations contained in her EEOC charge.
A claim raised for the first time in the district court is "reasonably related" to allegations in an EEOC charge "where the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. We have described this as "essentially an allowance of loose pleading." n6 We have recognized two other types of "reasonably related" claims: those alleging "retaliation by an employer against an employee for filing an EEOC ...