The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
In his complaint, Plaintiff alleges that Defendants discriminated against him because of his gender and retaliated against him for complaining about the discrimination in violation of Title VII, New York Human Rights Law, and 42 U.S.C. § 1983.
Currently before the Court is Defendants' motion to dismiss the complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Plaintiff, at all relevant times, was an employee of Defendant New York State Department of Transportation, holding the position of Grade 10 Lead Worker. Defendant Thomas Madison, Jr. was the acting Commissioner of Defendant New York State Department of Transportation. Defendant Wayne Shutts was Plaintiff's supervisor at Defendant New York State Department of Transportation's Martindale facility located in Craryville, New York. Defendant Myles McDonald was also Plaintiff's supervisor at the same facility.
Plaintiff contends that on two occasions one of his co-workers Don Coombs sexually harassed him by attempting to expose Plaintiff by tugging on the bottom of his shirt and trying to pull it over Plaintiff's head. Plaintiff further asserts that he believes that Defendant New York State Department of Transportation had previously investigated Mr. Coombs for sexual harassment when he exposed his genitalia on a lunchroom table directed at a co-worker in the presence of others. Plaintiff complained to his supervisors about the harassment on several occasions, including June 18, 2003, January 2004, April 9, 2004, and April 23, 2004; and, as a result of his complaints, his supervisors, Defendants Shutts and McDonald, among others, retaliated against him.
Specifically, Plaintiff alleges that, on January 22, 2004, Supervisor Lee Haywood escorted him to the shop floor and publicly advised him that he was demoted from his position of Lead Worker and that his duties were reassigned to an individual two grades his junior. On January 26, 2004, Defendant Shutts also criticized Plaintiff for making his complaints.
In addition, Plaintiff asserts that he was placed in the way of serious harm on December 14 and 15, 2004, when Defendant McDonald directed him to perform miles of semi-stationary road work on the Taconic State Parkway without the necessary safety equipment on the dark, serpentine, two-lane road without shoulders. Plaintiff requested a "back-up" truck, which was typically provided, to perform the function of a physical barrier to oncoming traffic to protect the workers. Defendant McDonald refused his request, and Plaintiff complained to Senior Safety Officers. After this incident his supervisor, Fran Pizza, berated him and told him to leave. He was disciplined for failing to follow a chain of command and for not leaving the Supervisor's office when he was directed to do so.
On December 22, 2004, Defendant Shutts stated to Plaintiff, "Don't worry, you (Plaintiff) won't be continuing with the State," while insulting and physically shoving Plaintiff. Defendant Shutts also made several public statements in 2004 and 2005 to Plaintiff's co-workers to be careful because Plaintiff could sue them for sexual harassment. In addition, Plaintiff contends that Defendant Shutts criticized him because he did not ask Defendant Shutts about the particular tool used to check fluid levels on a particular vehicle on January 20, 2005.
Plaintiff was also disciplined on September 20, 2005, allegedly for requesting mechanical advice when a pre-operative inspection revealed excessively low hydraulic fluid on a backhoe that Plaintiff was required to load on a trailer and transport by truck. Furthermore, Plaintiff was disciplined when a pre-operative inspection revealed excessively low fluids on a truck. He was criticized, questioned, without required union representation, and disciplined when it was falsely claimed that he refused a direct order to drive.
On October 5, 2005, three superiors, including Defendants Shutts and McDonald, cornered Plaintiff and criticized him for performing work "by the book" and for failing to take short cuts in conducting the mandated pre-operation safety checks of the large highway vehicles that Plaintiff operates. This attack caused Plaintiff to suffer heart palpitations, chest pain and high blood pressure requiring treatment at an emergency room. Finally, Plaintiff states that, despite his repeated requests, he has not been restored to his supervisory role as "Lead Worker," which continues to be assigned to junior and less experienced colleagues.
Plaintiff asserts that all of these incidents demonstrate that Defendants are engaged in a coordinated policy and practice of systematic retaliation against him for having raised complaints of discrimination and retaliation and that the intent of their policy is to compel his wrongful termination despite his more than twenty years of at least satisfactory performance. Plaintiff claims, further, that, although he complained about the discrimination and retaliation to his superiors and to Human Resources personnel, Defendant New York State Department of Transportation neither conducted a good faith investigation nor took any corrective action and that the retaliation continues. Finally, Plaintiff states that, as a result of Defendants' retaliation, he has suffered and continues to suffer emotional distress, including physical manifestations, high blood pressure, chest pains, anxiety, loss of sleep, and effects upon his professional and personal relationships.
Based upon these factual allegations, Plaintiff asserts the following five causes of action:*fn3
(1) against Defendant*fn4 for violations of 42 U.S.C. § 2000-e et seq. ("Title VII") for "discriminatory, reckless, wrongful, willful and malicious sexual harassment of the Plaintiff by managers, agents, servants and/or employees of the Defendant NYSDOT [which] were discriminatory"
(2) Against Defendant New York State Department of Transportation for violations of 42 U.S.C. § 2000-e et seq. ("Title VII") for retaliation against Plaintiff
(3) Against Defendants New York State Department of Transportation, Shutts and McDonald for discrimination in violation of New York Executive Law § 291 et seq. ("New York Human Rights Law")
(4) Against Defendants New York State Department of Transportation, Shutts and McDonald for retaliation in violation of New York Executive Law § 291 et seq.
(5) Against Defendants New York State Department of Transportation, Shutts and McDonald for violation of 42 U.S.C. § 1983 for "wrongful, willful and malicious discrimination and/or retaliation" against Plaintiff See, generally, Complaint.
As relief, Plaintiff seeks "wages, other compensation and lost benefits through the time of judgment, for compensatory damages, for emotional distress, for the reasonable attorney's fees incurred in the prosecution of this action, ...