The opinion of the court was delivered by: Trager, J.
Plaintiff Elisa Wilson ("Wilson" or "plaintiff") brings this action against defendant Family Dollar Stores of New York, Inc. ("Family Dollar" or "defendant"), improperly pled as Family Dollar Stores, for discrimination in employment pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act of 1967, as amended 29 U.S.C. § 621 et seq. ("ADEA") and the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112 et seq. ("ADA"). In lieu of an answer, Family Dollar moved to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the foregoing reasons, defendant's motion to dismiss is granted in part and denied in part.
On February 1, 2006, plaintiff filed a complaint, alleging the following causes of action: (1) Title VII race, color, gender and religious discrimination claims; (2) an ADEA age discrimination claim; and 3) an ADA disability claim. Plaintiff also alleges that defendant subjected her to a hostile work environment and retaliated against her for filing a complaint with the Family Dollar Human Resources Department.
Instead of filing an answer, on June 16, 2006, defendant moved to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted, arguing that: (1) plaintiff's race, color and religious discrimination claims are barred because she failed to exhaust her administrative remedies; (2) plaintiff's retaliation claim should be dismissed as it differs from the allegations set forth in her administrative charge; and (3) plaintiff's disability, age and gender discrimination claims are insufficient as a matter of law.
(1) Wilson's Employment at the Family Dollar Store
Wilson, a 54-year old black female, was hired by an unidentified hiring manager of Family Dollar on August 21, 2004 to help set up a new store located at 884 East New York Avenue in Brooklyn, New York. See Compl. at 4. Wilson initially reported to Mr. Marcus Thomas ("Thomas"), an employee from the North Carolina corporate office assigned to open the new Brooklyn store, and eventually to Mr. George Davis ("Davis"), the new store's manager. See id. Wilson claims that she informed both the hiring manager and Thomas of her purported disability, a spinal injury, to which Thomas said "he would work with [her]." Id.
Wilson's allegations of discriminatory treatment are primarily predicated on Davis's conduct. See id. Wilson first alleges that Davis embarrassed her in front of fellow Family Dollar employees. See id. Plaintiff references one particular incident where she was asked to break down boxes and place them in a dumpster outside, but found the dumpster to be full. See id. at 4-5. Upon the advice of other employees, Wilson left the boxes on the floor in a storage area. See id. at 5. Davis saw the boxes and asked who had left them in the storage area. When Wilson responded that she was told to leave the boxes there, Davis "loud talk[ed] [her], calling [her] a liar, saying that he knew no one told her to leave boxes there when he said to take them out and put them in the large dumpster." Id. Wilson asserts that one of her co-workers informed Davis that another co-worker had advised Wilson to leave the boxes in the storage area, but Davis said he knew none of the other employees would say such a thing. See id. Wilson was upset about being called a liar in front of her peers and asserts that she "didn't believe [Davis] needed to talk to [her] this way." Id.
Wilson reported Davis's conduct to Thomas immediately following the confrontation and threatened to quit, explaining that she was never told she would be responsible for unloading trucks and "u-boats" and that she felt Davis was harassing her. See id. at 5. Thomas asked her not to quit and assured her that he would monitor Davis's behavior. See id. at 5-6. When she rejoined the other employees that afternoon, Wilson claims that Davis maintained an "angry expression," making her "feel uncomfortable." Id. at 6.
Despite Thomas's assurances, Wilson still feared Davis would fire her once Thomas returned to North Carolina. See id. Thomas again assured her that her job was safe and told her to call the Family Dollar Human Resources Department should any problems arise after he left. See id.
On September 30, 2004, approximately one month after she was hired, Wilson verbally provided Davis with two-weeks notice of resignation in the presence of two assistant managers, Mr. Desmond ("Desmond") and Ms. Vickie. See id. Wilson claims that her resignation stemmed from her spinal injury, "the stress that was agitating it" and delayed payments for work already completed. Id. at 9.
On the morning of October 1, 2004, Wilson called Davis before reporting to work, seeking the Human Resources' phone number to discuss her paycheck.*fn1 See id. Wilson alleges that Davis responded by shouting, "there's nothing wrong with your paycheck, I told you that back hours will be added to your next check." Id.
Shortly after arriving to work on the afternoon of October 1, 2004, Wilson claims that Davis terminated her employment at Family Dollar by shouting, "get off my clock, you are fired." See id. at 10. She reminded him that she had given her two-weeks notice and planned to complete the remaining term of her employment. Id. Wilson claims that when she attempted to clock-out in order to go home, Davis "slammed" her into a counter with his body and then pulled her by the arm, injuring her torso, hand and foot. Id.
(2) Wilson's Administrative Complaint
On November 22, 2004, Wilson filed an administrative complaint with the New York State Division of Human Rights ("NYSDHR"), claiming discrimination by Family Dollar on the basis of disability, sex, age and retaliation. See Plaintiff's Affidavit in Substitution of Opposition of Motion to Dismiss in Lieu to Answer Incorrect Version Submitted in Error ("Wilson Aff.") at 24. On this date, the NYSDHR forwarded Wilson's administrative complaint to the Equal Employment Opportunity Commission ("EEOC") for dual-filing purposes. See Defendant's Memorandum of Law in Support of Motion to Dismiss In Lieu of Answer ("Def.'s Mem."), Ex. A at 1. In her administrative complaint, Wilson alleges that the heavy lifting she performed at Family Dollar exacerbated her spinal disability and that she requested reasonable accommodations to no avail. See id. at 23. Moreover, Wilson claims that, on an unspecified date in August 2004, she complained to Family Dollar's Equal Employment Opportunity office ("EEO" office)*fn2 that a "Mr. George"*fn3 had given her heavier assignments and more duties specifically because she was a 54-year-old female. See id. at 24. In addition, Wilson avers that because of her complaint to Family Dollar's EEO Office, "Mr. George" created a "hostile work environment by giving [her] heavier assignments," causing her to resign. See id.
On September 23, 2005, after investigating Wilson's charges, the NYSDHR rendered a determination and order, finding that there was no probable cause to believe that Family Dollar had been engaged in unlawful discriminatory practices.*fn4 See Wilson Aff. at 35. The EEOC adopted the NYSDHR findings and issued a right-to-sue letter on January 19, 2006. See Compl. at 12. Thereafter, this action was filed.*fn5
(1) Motion to Dismiss ...