The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff Donovan McKenzie ("plaintiff" or "McKenzie") brought the above-captioned action against his employer, defendant R. James Nicholson, Secretary of the Department of Veteran Affairs ("defendant" or "VA"), alleging defendant retaliated against him for protected activity in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Specifically, plaintiff alleges that defendant failed to promote him twice to positions for which he was duly qualified in retaliation for an informal Equal Employment Opportunity ("EEO") complaint plaintiff lodged with the VA regarding the institution of a dress code for wage-earning employees. Plaintiff seeks: (1) a declaratory judgment specifying defendant's violation of Title VII; (2) an order directing defendant to promote plaintiff to the position which he first sought with accompanying backpay; (3) an award of the difference of wages between the position he held and that which he sought from August of 2004 through March 27, 2007; (4) an award of compensatory damages; and (5) attorney's fees.
Defendant now moves for an order dismissing plaintiff's complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth herein, defendant's motion is denied.
The following facts are taken from the Amended Complaint ("Amended Compl."), as well as the documents attached to the initial Complaint ("Compl."),*fn1 and are not findings of fact by the Court, but rather are assumed to be true for the purpose of deciding this motion and are construed in a light most favorable to plaintiff, the non-moving party.
Since 2000, plaintiff has been employed by defendant at the Northport VA Medical Center in Northport, New York as an Electrical Equipment Worker (WG-5) within the VA's Engineering Services. (Amended Compl. ¶¶ 1-2, 7.) On June 25, 2002, defendant, through Chief of Engineering Services David Gould, issued a directive informing all engineering employees that "on or about July 15, 2002 all WG Engineering employees will be in uniform" and "[e]mployees will be required to be in uniform once they are provided." (Compl. at 12.) By unsigned letter dated June 27, 2003 and directed "to whom it may concern," plaintiff stated:
I feel it is unjust to implement a work policy (uniforms) that target only Wage Grade workers . . . . If a uniform mandate is to be imposed, it should be implemented to all in order to be fair and just. Forcing only the Wage Grade workers to wear uniforms when it is not warranted is unfair and unjust. This violates the Equal Employment Workers Agreement. By doing so creates an added structure other than management and workers. Leading to a class structure where one is privilege [sic] and one is imposed to additional rules and Regulation. Again this is unjust . . . . (Id. at 11.) In or about August 2003, plaintiff filed an EEO complaint alleging that his supervisor, John Bagatais, discriminated against him by instituting the uniform requirement. (Amended Compl. ¶ 12.) On August 18, 2003, Frank Cullen, EEO counselor at the VA, issued a letter addressed to plaintiff referencing a telephone call that plaintiff made on August 13, 2003 to the Office of Resolution Management within the VA regarding the uniform policy. (Compl. at 10.) Prior to filing the complaint, plaintiff spoke with Bagatais on several occasions, expressing his opposition to the uniform rule as well as his intention to file a formal EEO complaint in the event that the issue could not be resolved, to which Bagatais responded by saying "tough" and "that's the rule." (Amended Compl. ¶ 14.)
After plaintiff filed his complaint, he encountered Sally Helsel, the EEO Manager for the Northport VA, who informed him that she was aware of the complaint and had discussed it with David Gould. (Id. ¶ 15.) Plaintiff also informed Bagatais of the complaint, who said nothing in response and walked away from plaintiff. (Id. ¶ 16.) On September 2, 2003, the VA's Office of Resolution Management issued a letter to the Northport VA with notice that plaintiff had filed a claim of discrimination regarding the uniform policy with the basis of discrimination as yet "undetermined." (Compl. at 18-19.)
At an unspecified time, plaintiff applied for two positions, that of Bio-Medical Engineering Technician, a GS-9 position, and that of Electrical Equipment Worker, a WG-7 position. (Amended Compl. ¶ 8.) By letters dated September 9 and 17, 2004, respectively, plaintiff was informed that he was not qualified for the first position and not selected for the second. (Id. ¶¶ 9-10.) Plaintiff was denied the first position because he purportedly had no experience in medical equipment repairs, when allegedly he had substantial experience in that field, as evidenced by a later reclassification of his position to Medical Equipment Repair Worker WG-8, in 2007. (Id. ¶ 23.) According to the Amended Complaint, David Gould appointed individuals other than plaintiff to the two open positions, (id. ¶ 17), despite the fact that plaintiff met all qualifications for both positions and was more qualified for the position of the Electrical Equipment Worker than the successful candidate. (Id. ¶ 18.) In August of 2004, at the time candidates for both positions were being considered and after he filed the 2003 EEO complaint, plaintiff received his first negative work appraisal from Bagatais. (Id. ¶¶ 19-20.)
On or about December 30, 2004, after not receiving the promotions he sought, plaintiff requested a review of his job duties. (Id. ¶ 21.) The review concluded, upon its completion on or about March 27, 2007, that plaintiff was working at a higher level of skilled employment and thus his position was reclassified to Medical Equipment Repair Worker WG-8. (Id. ¶ 22.) By letter dated October 26, 2004, the VA's Office of Resolution Management issued a notice to the Northport VA that plaintiff had requested EEO counseling regarding his claim that defendant had failed to promote him in retaliation for prior activity. (Compl. at 13-15.)
On February 25, 2008, plaintiff filed the instant action. He amended his complaint on July 8, 2008. Defendant moved to dismiss on August 13, 2008. Plaintiff filed his opposition on September 15, 2008. Defendant replied on September 29, 2008. The motion is fully ...