The opinion of the court was delivered by: Sifton, Senior Judge
Jayendra Parekh ("plaintiff") commenced this employment discrimination action against Swissport Cargo Services, Inc. and Swissport Cargo Services, L.P. ("defendant"), on May 16, 2008. Plaintiff alleges, in twenty separately stated causes of action, claims of unlawful termination, failure to promote, discrimination in the terms and conditions of his employment, based on his race, color, religion, and national origin, creation of a hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 41 U.S.C. § 2000e et seq. ("Title VII"); failure to promote, discrimination in the terms and conditions of his employment, and retaliation under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. ("ADEA"); unlawful termination, failure to promote, discrimination in the terms and conditions of his employment, based on his race, color, religion, and national origin, the creation of a hostile work environment, and retaliation under the New York State Human Rights Law, N.Y. Exec. L. § 296 et seq. ("NYSHRL"); unlawful termination, failure to promote, discrimination in the terms and conditions of his employment, based on his race, color, religion, and national origin, the creation of a hostile work environment, and retaliation under the New York City Human Rights Law, 22 N.Y.C. Admin. Code § 8-101 et seq. ("NYCHRL"); and breach of contract. Plaintiff seeks a declaratory judgment, reinstatement, individual and systemic injunctive relief, actual and compensatory damages, punitive damages, and attorneys' fees.
Presently before the Court is defendant's motion to dismiss plaintiff's Title VII claims for religious discrimination and retaliation for failure to state a claim, pursuant to Fed. R. Civ. Pro. 12(b)(6). Defendant also seeks to dismiss all claims against Swissport Cargo Services, Inc. For the reasons set forth below, defendant's motion is granted.
The following facts are taken from the plaintiffs' complaint and the parties' papers submitted in connection with this motion. Disputes are noted. Plaintiff is a 71 year old male of Indian origin. Joint Charge of Discrimination*fn1 and Complaint at ¶ 3 ("Compl."). He identifies himself as of South Asian race, brown color, and Hindu religion. Compl. at ¶ 3 Plaintiff commenced employment with defendant in 2003, and remained continuously employed by defendant until April 11, 2007. Id. at ¶ 12. Throughout his tenure, plaintiff held the position of Cargo Supervisor. Id. at ¶ 13. During the course of plaintiff's employment, defendant is alleged to have taken the following actions: (1) defendant failed to provide adequate resources and employees in plaintiff's work shift, leaving plaintiff's work shift undermanned; (2) defendant refused to allow plaintiff the opportunity to work the day shift and instead assigned younger and less senior employees to the day shift; (3) defendant transferred plaintiff to the warehouse and allowed junior employees to work in the office, despite the fact that plaintiff was hired to work in the office; (4) defendant imposed conditions on plaintiff's requests for vacation time, which were not required of other employees; (5) defendant provided cell phones to all supervisors except for plaintiff for a period of over one year; (6) defendant denied plaintiff's application for promotion, despite the fact that plaintiff was qualified; (7) defendant's discipline of plaintiff was unwarranted and based on non-specific complaints, and was exercised in a discriminatory manner; (8) defendant repeatedly harassed plaintiff and subjected him to a hostile work environment. Id. at ¶ 14. Plaintiff reported this misconduct and other instances of defendant's discriminatory actions to his supervisor. Id. at ¶ 15. Defendant allegedly terminated plaintiff on the pretext of failing to meet the minimum requirements for his position. Id. at ¶ 16.
Plaintiff filed a Joint Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) and the New York State Division of Human Rights on May 26, 2007 ("Joint Charge"). Id. at ¶ 19. In the section describing the basis for discrimination, plaintiff checked boxes next to "race," "color," "age," and "national origin." Plaintiff listed the instances of discrimination stated above. Lahr Declaration Ex. B. On February 19, 2008, the EEOC issued a Notice of Right to Sue to plaintiff. Id. Plaintiff timely commenced this action within 90 days of receipt of the EEOC notice.
In his opposition to defendant's motion to dismiss certain claims, plaintiff has agreed to withdraw the complaint as against Swissport Cargo Services, Inc. and to withdraw all claims of religious discrimination and retaliation under State and Federal law. Accordingly, the issues remaining relate to defendant's motion to dismiss plaintiff's Title VII hostile work environment claim.
Motion to Dismiss--Standard
In considering a motion pursuant to Rule 12(b)(6), a 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) (internal citations and quotations omitted), although "mere conclusions of law or unwarranted deductions" need not be accepted. First Nationwide Bank v. Helt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994). In a motion to dismiss, "[t]he 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). Dismissal is appropriate only when it "appears beyond a 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). This rule "is to be applied with particular strictness when the plaintiff complains of a civil rights violation." Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).
Nevertheless, to survive a 12(b)(6) motion to dismiss, the allegations in the complaint must meet the standard of "plausibility." See Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1970 (2007). Although the complaint need not provide "detailed factual allegations," id. at 1964; see also ATSI Commc'ns v. Shaar Fund, Ltd., 493 F.3d 87, 98 n.2 (2d Cir. 2007) (applying the standard of plausibility outside Twombly's anti-trust context), it must "amplify a claim with some factual allegations... to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (emphasis in original). In other words, the complaint must provide "the grounds upon which [the plaintiff's] claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'" ATSI Commc'ns, 493 F.3d at 98 (quoting Twombly, 127 S.Ct. at 1965). In addition, a complaint should be dismissed under Rule 12(b)(6) if a court finds that the plaintiff's claims are barred as a matter of law. Conopco, Inc. v. Roll Intern., 231 F.3d 82, 86 (2d Cir. 2000).
The Supreme Court has clarified the standard for dismissal as it relates to employment discrimination claims. In Swierkiewicz v. Sorema N.A., 534 U.S. 506; 122 S.Ct. 992; 152 L.Ed. 2d 1 (2002), the Court, in reviewing the Second Circuit's use of a heightened pleading standard for discrimination claims brought under Title VII and the Age Discrimination in Employment Act (ADEA), held that a plaintiff bringing an employment discrimination claim is required only to comply with the liberal rules for notice pleading set forth in Fed. R. Civ. P. 8(a)(2). See id. at 507. The plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and "[s]uch a statement must simply 'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Defendant argues that plaintiff has not exhausted his administrative remedies as to his hostile work environment claim, because the claim was not stated in the Joint Charge. The exhaustion of administrative remedies is a precondition to bringing a Title VII claim in federal court. Francis v. City of New York and Human Resources Administration, 235 F.3d 763, 768 (2d Cir. 2000). A district court may only hear Title VII claims that are included in an EEOC charge or are based on conduct which is "reasonably related" to that alleged in the EEOC charge. Butts v. City of New York Department of Housing Preservation and Development, 990 F.2d 1397, 1401 (1993) (quoting Stewart v. United States Immigration and Naturalization Service, 762 F.2d 193, 198 (2d Cir. 1985)). The conduct reasonably related to the EEOC charge need not have taken place before the charge was filed. Francis, 235 F.3d at 766. The purpose of this ...