The opinion of the court was delivered by: Hurley, Senior District Judge
By Memorandum & Order dated March 31, 2006, the Court granted plaintiff's motion to amend his complaint to add a race discrimination claim pursuant to 42 U.S.C.§ 1981 claim but denied the motion to the extent he sought to add claims for §§ 1982 to 1988 and the "New York State and Federal Wage Hours Laws." Thereafter, Plaintiff filed an amended complaint which exceeds the scope of amendment permitted by the aforementioned Memorandum & Order.
Presently before the Court is Plaintiff's motion to amend his complaint and Defendants' motion to strike the amended complaint to the extent it does not comply with the Court's March 31, 2006 Order. For the reasons set forth below, Plaintiff's motion is granted in part and denied in part and Defendants' motion is granted in part and denied in part.
The following facts are taken from this Court's Memorandum and Order dated March 31, 2006. Plaintiff was an employee of Defendant beginning on August 6, 2001. He was a Direct Care Counselor. Defendant is a not-for-profit agency that offers a wide variety of services for persons with mental illnesses and developmental disabilities.. Plaintiff alleges that "[t]hroughout my employment, I was subjected to a severe and racially hostile environment on a continuous basis. I was denied equal terms and conditions as my white counterparts because of my gender and race." Plaintiff further alleges that during his tenure with Defendant, he "was paid a lower salary than my white co-workers and discriminated against by management because of my gender and race."
The conflict apparently began in the period before January 2002, when Plaintiff "was falsely accused by Defendant for allegedly making 'inappropriate sexual remarks' to several white female[s]." As a result of these accusations, Plaintiff's employment was terminated. He was reinstated a month later, however, "[a]s a result of me disputing my termination." According to Plaintiff, "Defendant rehired me because the Defendant realized that my termination was unlawful." Plaintiff alleges that his termination, the terms of his re-hiring, and the suggestion that he had made "inappropriate sexual remarks" were racially-motivated. Plaintiff alleges that after he was rehired, "I was routinely suspended when I complained about unpaid wages due to me and missing vacation and sick time."
After his rehiring, Plaintiff alleges that a current of gender discrimination emerged as well. Plaintiff claims that he took a weekend shift, but was not paid at a rate equivalent to his female predecessor on that shift. His predecessor, Jessica Kelly, "had the same job duties, responsibilities, hours, work location and job title," yet she was paid $4.21 more per hour. Defendant allegedly explained to Plaintiff that they were "waiting for [his] paperwork to be approved." Plaintiff claims that "Defendant knew they were not going to approve me to work the weekend shift . . . yet they led me on to keep me working that shift at a reduced rate of pay . . . ." Defendant then allegedly "officially denied" Plaintiff the opportunity of working that weekend shift because "they claim to discourage male counselors from working at the . . . facility." (See Ex. M ("In addition to this guideline, Family Residences discourages male direct care counselors from working alone when there are females residing in the program.").) This is the primary example of gender discrimination provided by Plaintiff.
As a result of these allegedly discriminatory acts, Plaintiff filed a charge of discrimination with the New York State Division of Human Rights on January 15, 2003. Thereafter, Plaintiff filed his original pro se complaint on December 4, 2003. Defendant answered on February 24, 2004. On March 9, 2005, Plaintiff made his first motion to amend his complaint seeking to add claims of "race discrimination pursuant to section 1981 through 1988 of Title 42 of the United States Code" and "disparate treatment under New York State and Federal Wage and Hours Laws" Defendant opposed the motion. By Order dated March 31, 2006, the Court granted the motion to add his § 1981 claim but denied the motion as to the §§ 1982 to 1988 claims and the unspecified "New York State and Federal Wage and Hours Laws."
Plaintiff now moves to amend his complaint so that it asserts claims for gender discrimination, disparate treatment, retaliation, violations of the Equal Pay Act and race discrimination. (See Plaintiff's Motion to Amend Complaint, Docket No. 68-1 at p. 22.) According to Plaintiff's motion, these are the only claims he intends to pursue. (Id. at p. 7.) Defendant oppose the motion on the grounds the proposed amendments do not comply with this Court's March 31, 2006 Order and because they are futile.
Rule 15(a), provides that leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). "[A] pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that he has a valid claim." Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (citation and quotations marks omitted).
A motion to amend should be denied, however, "if there is an 'apparent or declared reason -- such as  undue delay,  bad faith or dilatory motive . . . ,  repeated failure to cure deficiencies by amendments previously allowed,  undue prejudice to the opposing party by virtue of the allowance of the amendment, [or (5)] futility of amendment.'" Dluhos v. Floating & Abandoned Vessel, Known as N.Y., 162 F.3d 63, 69 (2d Cir. 1998) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Although the decision of whether to allow a party to amend his complaint is left to the sound discretion of the district court, there must be good reason to deny the motion. See Acito v. IMCERA Group, Inc., 47 F.3d 47, 55 (2d Cir. 1995); see also S.S. Silberblatt, Inc. v. E. Harlem Pilot Block-Bldg. 1 Hous. Dev. Fund Co., 608 F.2d 28, 42 (2d Cir.1979). Here, there is no contention of undue delay, bad faith, repeated failures to cure deficiencies or undue prejudice. Accordingly, the Court shall limit its discussion to futility.
Rule 8 pleading is extremely permissive. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13 (2002). As the Supreme Court noted in Swierkiewicz, Rule 8(a)(2) provides (a) that a complaint must include only "a short and plain statement of the claim showing that the pleader is entitled to relief," and (b) that such a statement simply "'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Id. at 512 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Wynder v. McMahon, 360 F.3d 73, 77 (2d Cir. 2004). The Court therefore held that "an employment discrimination plaintiff ...