The opinion of the court was delivered by: John T. Curtin United States District Judge
This is an action for sex discrimination in employment brought under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law. Plaintiff alleges that she was subjected to a hostile work environment and then terminated from her employment in a discriminatory fashion and in retaliation for protected activity. Defendant has filed a motion to dismiss the federal causes of action. It argues that plaintiff's hostile work environment claim is time-barred, and that her allegations with regard to her termination do not state a cause of action. The court heard oral argument on December 27, 2007. For the reasons that follow, the defendants' motion is granted in part and denied in part.
In her complaint, plaintiff alleges that she became employed at AMI Leasing Fleet Management as an operations manager in June 2004. AMI became part of Penske Logistics in August 2004. Item 1, ¶ 8. In July 2004, plaintiff was sent to Hagerstown, Maryland for one week of training, and in December 2004, she was sent to Reading, Pennsylvania for further training. Id., ¶ 9. During 2004 and 2005, plaintiff was given increased responsibility and was sent to Valley Forge, Pennsylvania and Hagerstown, Maryland to assist in AMI's transition to Penske. Id., ¶ 10.
Plaintiff alleges that she was subjected to a sexually harassing hostile environment, particularly at the Hagerstown facility. Her immediate supervisor, David Hess, encouraged her to take a lesser position in the company, and told her that their boss said that women should not occupy management positions in the trucking industry. Item 1, ¶¶ 14-16, 24. Hess also commented to plaintiff that he would like to see female employees wrestle each other in green jello. Id., ¶ 17. Another worker made a comment that women were only useful for sex. This comment was not made to plaintiff, but was reported to her. Id., ¶ 19. Plaintiff also alleges that other workers at the Hagerstown facility made inappropriate comments about her. These comments were not made to plaintiff, but were reported to her by others. Id., ¶¶ 20, 21, 26.
Plaintiff alleges that one of her bosses, Dennis Evans, used her computer and visited a pornographic website. Item 1, ¶ 25. Plaintiff also states that in March 2005, Hess added $40,000.00 in costs from his facility to plaintiff's facility in order to depict plaintiff as careless and unsuccessful. Id., ¶ 23.
In December 2004, plaintiff informed Hess and Evans about the inappropriate comments being made about her. She was told to stop being so sensitive. Item 1, ¶ 31. In January 2005, plaintiff complained to another Penske employee about Hess's behavior, which including yelling at her and treating her in a demeaning manner. Id., ¶ 34. Plaintiff complained to Hess's supervisor and to Human Resources ("HR") in February 2005. Plaintiff also alleges that she complained again to HR "a few weeks later," but nothing was done. Id., ¶ 37. On May 31, 2005, plaintiff submitted a letter of resignation, but was asked to reconsider. She decided to continue her employment. Id., ¶ 38. On June 10, 2005, plaintiff was at a work site when a male employee, Chris Walsh, arrived. Walsh was not scheduled to work and had no business at the facility. Plaintiff became uncomfortable and asked Walsh to leave. He refused, and she went into the ladies restroom. Walsh then "began aggressively pounding on the bathroom door." Id., ¶ 40. There were no other employees in the vicinity, and plaintiff feared for her safety. Walsh turned the bathroom door handle to enter, and plaintiff hit him in the chest and kicked him "in an effort to dissuade his advance." Id. Immediately following the incident, plaintiff reported it to the Director of Staffing. On June 21, 2005, plaintiff was asked for her resignation and was subsequently terminated. Id., ¶ 41. Walsh was suspended for his role in the incident but not terminated. Id., ¶ 42.
Defendant makes three arguments in support of its motion to dismiss. First, it argues that plaintiff's federal hostile work environment claim is time-barred, as all allegations of a hostile work environment occurred more than 300 days prior to plaintiff's filing of a charge with the Equal Employment Opportunity Commission ("EEOC"). Second, defendant argues that plaintiff's claim of disparate treatment in her termination must be dismissed because the male comparator, Walsh, was not similarly situated. Finally, defendant argues that plaintiff's retaliation claim must be dismissed as implausible, given the fact that defendant went out of its way to retain plaintiff only a few weeks before she was terminated.
In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court should construe the complaint liberally, "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citing Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)). "'The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims . . . .'" Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995), cert. denied, 519 U.S. 808 (1996) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Dismissal is only appropriate when "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him or her to relief." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000).
2. Hostile Work Environment
Defendant contends that plaintiff's Title VII hostile work environment claim is time-barred. It is undisputed that an aggrieved employee wishing to bring a Title VII claim must first file an administrative complaint with the EEOC within 300 days of the alleged discriminatory act. Petrosino v. Bell Atlantic, 385 F.3d 210 (2d Cir 2004). Here, plaintiff filed her EEOC charge on April 10, 2006. In the Second Circuit, "a hostile work environment claim is timely if an EEOC charge is filed within 300 days of any act that is part of the hostile work environment." Elmenayer v. ABF Freight System, Inc., 318 F.3d 130, 134 (2d Cir. 2003) (internal citations omitted); see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002).
In her complaint, plaintiff alleged that the harassment primarily occurred in November and December 2004 at the Hagerstown facility. Item 1, ¶¶ 15-18, 20 -21. In February 2005, "a driver indicated that Hagerstown employees were saying inappropriate things about Plaintiff." Id., ¶ 20. Plaintiff also alleged that "[c]oworkers and/or managers referred to Plaintiff by these inappropriate names on a continuing basis, including in the presence of other employees." Id., ¶ 22. Plaintiff alleged that Hess added the $40,000.00 in costs to her facility and encouraged her to take a lower position in March 2005, and that Evans used her computer to access a pornographic website, but she does not state the date of this conduct. Id., ¶¶ 23 -25. Plaintiff alleged that in a June 1, 2005 conversation with another employee, Hess referred to plaintiff as a "bitch" and said ...