MEMORANDUM-DECISION AND ORDER*fn1
Patricia Catone ("Plaintiff"), brought suit against Clark Brink ("Brink"), Megamacs VI of Glens Falls, LLC ("Megamacs"), C.B. Enterprises of Saratoga, Inc ("C.B."), and Jason Mathis ("Mathis") (collectively, "Defendants"), alleging, as to Brink, Megamacs, and C.B., sexual harassment and, and as to all Defendants, retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sections 2000e, et seq., Plaintiff also alleges Brink, Megamacs, and C.B. violated New York Executive Law Section 296, by failing to protect her from sexual harassment, that all Defendants created a hostile work environment and engaged in retaliation. Currently pending before the Court is Defendants' Motion to dismiss. (Dkt. No. 5). Upon consideration of the arguments made in support of, and opposition to, the Motion, the Court makes the following determinations.
Defendants Brink, Megamacs, and C.B. are owners, operators, franchisees, managers and supervisors of a McDonald's restaurant in Queensbury, New York. Complaint (Dkt. No. 1) at 2. Defendant Jason Mathis and Plaintiff were employed at the Queensbury McDonald's operated by Defendants Brink, Megamacs, and C.B. Id. at 3.
Plaintiff alleges that from April 6, 2004 through May 31, 2004, she was continuously harassed by Defendant Mathis. Complaint (Dkt. No. 1) at 3. This conduct allegedly included blowing kisses to Plaintiff and touching Plaintiff's breasts and buttocks against her will. Id. Plaintiff further alleges that she told Defendant Mathis that his behavior was unwelcome, and asked him to stop. Id. According to Plaintiff, the behavior created an abusive and hostile work environment. Id.
Plaintiff further alleges that Brink, Megamacs, and C.B. were made aware of Mathis's ongoing behavior, and that they failed to make any attempt to remedy the hostile environment or to protect her. Id. Additionally, Plaintiff asserts that as a result of her complaints, Defendants retaliated against her. Complaint (Dkt. No. 1) at 6. For example, Plaintiff's hours were cut, she was called a "trouble maker," she was assigned to positions where she and Mathis would be alone together, and she was scheduled to the same work hours as Mathis. Id. The date of the most recent or continuing alleged discrimination is May 31, 2004. Complaint (Dkt. No. 1, Attach. 1, Ex. A) at 14. Plaintiff was a minor at all times during her employment. Complaint (Dkt. No. 1) at 3. Plaintiff alleges that, as a result of Defendants' conduct, she left her employment at McDonald's, suffered loss of income, loss of self-esteem, and severe mental and emotional distress. Id. at 4.
Plaintiff turned 18 on August 19, 2004. Complaint (Dkt. No. 1, Attach. 1, Ex. A) at 14. On April 11, 2005, 236 days later, and 315 days after the last alleged date of harassment, Plaintiff filed charges with the New York State Division of Human Rights and the Equal Employment Opportunity Commission ("EEOC") regarding Defendants' actions. Complaint (Dkt. No. 1) at 5. Plaintiff filed her Complaint with this Court on January 24, 2006.Id. at 1.
A. Rule 12(b)(6) Motion to Dismiss
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure may not be granted "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." Thomas v. Ashcroft, 470 F.3d 491, 495 (2d Cir. 2006) (quoting Greco v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360, 363 (2d Cir. 2005)). When reviewing a Rule 12(b)(6) motion, the Court must accept the allegations of facts in Plaintiff's complaint as true, drawing all reasonable inferences in her favor, and construe the Complaint liberally. Gregory v. Daly, 243 F. 3d 687, 691 (2d Cir. 2001). Where the dates in a complaint show that the action is time barred, a defendant may properly file a Rule 12(b)(6) motion to dismiss for the failure to state a claim for which relief can be granted. Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989).
Plaintiff does not dispute the fact that her Complaint was filed after the statute of limitations had passed. Plaintiff does, however, argue that her claim should survive because the statute of limitations should be equitably tolled due to her infancy at the time of the alleged conduct.
1. Time for Filing Charges with the EEOC
Title VII requires claimants to file a complaint with the EEOC within 180 days after the alleged unlawful conduct occurred. 42 U.S.C. § 2000e-5(e)(1). If a claimant has initially instituted proceedings with a state or local agency possessing authority to grant relief, then the complaint must be filed with the EEOC within 300 days after the alleged unlawful conduct occurred. 42 U.S.C. § 2000e-5(e)(1). In states, such as New York, that have an agency possessing authority to address Title VII claims, the appropriate time period for filing with the EEOC is 300 days, if the aggrieved party has initially instituted proceedings with the state agency. Butts v. New York Dep't of Hous. Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993); Mohasco Corp. v. Silver, 447 U.S. 807, 815 (1980). A plaintiff who fails to file a charge with the EEOC within the 300-day period is generally barred from bringing a suit in federal court. Butts, 990 F.2d at 1401. Failure to file a timely complaint, however, is not a jurisdictional prerequisite to bringing a suit in federal court. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Rather, the timely filing requirement is to be viewed as a "statute of limitations" subject to waiver, estoppel, and equitable tolling. Id. Here, it is undisputed that Plaintiff failed to file a charge with the EEOC within the required 300-day period. The record ...