The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action alleging employment discrimination and retaliation, pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII), as amended, 42 U.S.C. § 2000e et seq., the New York Human Rights Law ("NYHRL"), Executive Law § 290 et seq., and 42 U.S.C. § 1981, claims for unpaid wages, pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. and the New York Labor Law, and state common-law claims for fraud, breach of contract, breach of implied covenants of good faith, tortious interference with contract, and unjust enrichment. Now before the Court is Defendants' motion [#13] to dismiss portions of Plaintiffs' First Amended Complaint [#10] pursuant to Federal Rules of Civil Procedure ("FRCP") 12(b)(6) and 9(b). For the reasons that follow, the application is granted in part and denied in part.
The following facts, taken from the First Amended Complaint, are accepted as true for purposes of this motion. Plaintiffs Jose Lopez ("Lopez") and Richard Colon ("Colon") are "Puerto Rican," and Plaintiff James Cromer ("Cromer") is "African American." Defendant Flight Services & Systems, Inc. ("FSS") is a company which, at all relevant times, provided "flight services" to U.S. Airways at the Rochester International Airport, which services included "directing landed aircraft to the proper gate for discharge of passengers and takeoff, cleaning . . . the aircraft, and . . . loading and unloading . . . luggage." (First Amended Complaint at ¶ 43). At all relevant times, Plaintiffs worked for FSS as "Ramp Agents," in which capacity they were hourly, non-exempt employees. Defendant Todd Dunmyer ("Dunmyer") was also employed by FSS and had supervisory authority over Plaintiffs.
Lopez and Colon worked for FSS between April 2005 and August 2005, while Cromer was employed there between April 2005 and October 2005. During their employment, Plaintiffs were required by FSS to work during portions of their meal breaks, or to work without meal breaks, and were not compensated for such work. Additionally, Plaintiffs worked more than 40 hours per week, and were not paid time-and-a-half for their overtime. In that regard, Plaintiffs allege that Dunmyer altered their time cards, to inaccurately reduce the number of hours worked, without their knowledge, and mis-represented to them that their payroll statements were accurate.
Also during Plaintiff's employment, FSS allegedly instituted an "English-only/No-Spanish" language rule. (First Amended Complaint ¶ 45). Pursuant to that rule, Lopez and Colon were told that they could not speak Spanish at work. Subsequently, Dunmyer heard Lopez speaking Spanish at work, and told him to stop. Dunmyer also told Cromer that he was going to terminate Lopez for speaking Spanish. Cromer replied that such conduct would be discriminatory. Subsequently, Lopez complained about the "English-only" rule to FSS's Human Resources Office, and his employment was terminated the following day. Upon terminating Lopez's employment, Dunmyer allegedly told Lopez "to go home and sit on his Puerto Rican bum." (Id. at ¶ 58).
Colon and Lopez also allege that they were required to work alone during their shifts, and to remain at work after their shifts had ended, while "white" employees were allowed to work in groups and to leave work as soon as their shifts ended. (Id. at ¶ ¶ 69- 70). After Colon complained to FSS management about these practices, FSS terminated his employment.
Additionally, Cromer alleges that he was denied promotion during his employment, while less-qualified, white employees were promoted instead. Subsequently, Cromer told Dunmyer that he was going to file a discrimination complaint, and Dunmyer terminated his employment. Lopez and Colon also believe that FSS failed to consider them for promotion for discriminatory reasons.
After FSS terminated their employment, Plaintiffs filed discrimination complaints with the New York State Division of Human Rights. In Lopez's administrative complaint, he alleged that he was discriminated against because of his "national origin," which he described as "Puerto Rican," and because he spoke Spanish. Lopez further indicated that he was denied pay raises, while "white employees" with less experience were given raises. Additionally, Lopez stated that after Dunmyer prohibited him from speaking Spanish, he complained to FSS's human resources office, and that Dunmyer terminated his employment the following day. As for Colon, he stated in his administrative complaint that he was discriminated against because he is "hispanic," and that he was treated differently than "white employees." Additionally, Colon stated that he had complained to his manager about the fact that "Black and Hispanic" employees were forced to work by themselves, unlike their "white" counterparts. Finally, Cromer, in his administrative complaint, alleged that FSS had discriminated against him, based on his "race and color," by denying him promotions and by unfairly disciplining him. Cromer also alleged that Dunmyer terminated his employment shortly after Dunmyer learned that he had threatened to file a discrimination claim.
On April 10, 2007, Plaintiffs commenced the instant action. The First Amended Complaint purports to assert the following claims, on behalf of all Plaintiffs: 1) Title VII disparate treatment discrimination; 2) Title VII retaliation; 3) § 1981 race/color disparate treatment discrimination; 4) § 1981 retaliation; 5) NYHRL disparate treatment discrimination; 6) NYHRL retaliation; 7) FLSA unpaid wages; 8) NY Labor Law unpaid wages; 9) fraud; 10) breach of contract; 11) breach of implied covenants of good faith; 12) tortious interference with contract; and 13) unjust enrichment.*fn1
On September 14, 2007, Defendants filed the subject motion to dismiss some, but not all, of Plaintiffs' claims. For purposes of clarity, the Court will break the motion down in terms of specific claims.
Claim 1: Title VII Discrimination
Defendants seek to dismiss portions of the first claim, as unexhausted. Specifically, Defendants contend that Lopez and Colon cannot pursue claims based on race or color, since their administrative complaints referred only to discrimination based on national origin. Similarly, they contend that Cromer cannot pursue a claim based on national origin, since ...