The opinion of the court was delivered by: Neal P. McCURN, Senior U.S. District Court Judge
MEMORANDUM - DECISION AND ORDER
Pro se plaintiff Melanie Ann Holmes ("plaintiff") brings this action against BJ's Wholesale Club ("defendant") pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), codified at 29 U.S.C. §§ 621-634(b), as amended, for alleged unequal terms and conditions of employment based on age. The court has jurisdiction over this case pursuant to 28 U.S.C. § 1391.
Currently before the court is defendant's motion to dismiss (Doc. No. 11) pursuant to Federal Rules of Civil Procedure Rule 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons set forth below, defendant's motion will be granted.
In filing her complaint before this court, plaintiff utilizes the standard complaint form (FORM E(1)(c).1) for an action pursuant to the ADEA. Plaintiff complains that during her employment with the defendant, she was subjected to unequal terms and conditions of employment. Plaintiff states her date of birth as May 27, 1963, and states that her age at the time of the alleged discriminatory act was 43. Plaintiff asserts that she filed a Notice of Intent with the Equal Employment Opportunity Commission ("EEOC") on or about October 17, 2007. Plaintiff received a "right to sue" letter from the EEOC dated December 11, 2007.
The crux of plaintiff's complaint as set forth in the "facts surrounding [plaintiff's] claim of discrimination" portion of the form is that two younger employees were treated differently than plaintiff. Plaintiff states that as a prerequisite to work in the jewelry department at BJ's Wholesale Club, on November 29, 2006 she completed an online Jewelry Training Program Assessment ("JTPA"), which became part of plaintiff's personnel file. Doc. No. 1 at p. 4. During the month of December in 2006, defendant allowed two younger females to work in the jewelry department, neither of whom completed a JTPA. Plaintiff alleges that she observed inappropriate "Member Service practice" by one of the younger employees in violation of question 19*fn1 of the JTPA, when the employee "unlocked jewelry cases, removed jewelry without customers present and personally tried different pieces of jewelry on." Plaintiff states that "[m]anagement failed to reprimand or take any kind of action with these employees yet scrutinized [plaintiff's] actions on a continual daily basis." Id.
Plaintiff does not assert that she was terminated or that she suffered from any other adverse employment. However, in her handwritten prayer for relief, plaintiff requests that plaintiff be "rehired by BJ's Wholesale Club as a 30 hour per week part time jewelry department team member at an hourly wage of $14.92. Family medical and dental insurance. Any lost sick time, personal time, or vacation time reinstated. Reinstate seniority. Company matching contribution to 401(k). Compensation for lost wages." Id. at p. 7. Plaintiff proffers no information to the court surrounding her apparent separation from defendant's employ.
Defendant moves to dismiss plaintiff's complaint on the basis that plaintiff fails to state a claim upon which relief can be granted. Further, defendant argues that plaintiff's complaint to the EEOC asserted claims under the Americans with Disabilities Act ("ADA"), without a single allegation of age discrimination under the ADEA. Doc. NO. 11-2 at p. 1. Consequently, defendant asserts, plaintiff's ADEA claim is subject to immediate dismissal as a matter of law on the ground that plaintiff "did not timely (or ever) present an age discrimination claim before the EEOC or any other state or local agency, as she was statutorily required to do before commencing the instant federal action." Id. at pp. 1-2.
A. Rule 12(b)(6) Motion to Dismiss
The function of a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). When deciding a motion to dismiss, the court must accept as true the well pleaded allegations of the complaint. Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807 (1994). In addition, the allegations of the complaint should be construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct 1683 (1973). "[W]hen a complaint adequately states a claim, it may not be dismissed based on a district court's assessment that the plaintiff will fail to find evidentiary support for his allegations or prove his claim to the satisfaction of the factfinder." Bell Atlantic Corp. V. Twombly, 127 S.Ct. 1955, 1969 n.8 (May 21, 2007). To meet the standard of adequacy, the complaint should contain "enough facts to state a claim to relief that is plausible on its face." Id. at 1974. "In assessing the legal sufficiency of a claim, the court may consider those facts alleged in the complaint, as well as 'documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit.'" Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (quoting Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000)).
"Dismissal is not appropriate unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se." Cruz v. Gomez, 202 F3d 593, 597 (2d Cir. 2000) (internal quotations and citations omitted). However, although courts must construe pro se submissions liberally, courts cannot read into pro se submissions claims that are not consistent with the pro se litigant's allegations. Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006).
B. Age Discrimination in Employment Act of 1967
Plaintiff argues that she was a victim of age discrimination during her employment with the defendant. To prove a claim of age discrimination under the ...