The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
Plaintiff, Gloria Moultrie, filed this suit alleging several claims of discrimination against her employer, VIP Health Care Services ("VIP"), a manager at VIP, Cindy Rosen, her employment union, Stationary Engineers Local 670 of the AFL-CIO ("Local 670"), and the president of Local 670, Dallas Lucas. Defendants VIP and Rosen, in lieu of filing an answer, moved to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, plaintiff's claims against VIP and Rosen are dismissed in their entirety.
In 1990, plaintiff, Gloria Moultrie, began working for defendant, VIP Health Care Services, as a home health-aide. (Compl. at 3.) Plaintiff alleges that, beginning sometime in 1995, her manager at VIP Health Care, Michael Pinnock, began a course of discrimination based on her race, national origin, physical disability and age.*fn1 (Id. at 3-4.) Due to some or all of these issues, plaintiff filed a complaint with the New York State Human Rights Division.*fn2 (Id. at 3.) The Human Rights Division dismissed this complaint. (Id.)
In August 2005, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") for disability discrimination and retaliation in violation of the American with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. ("ADA"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e) et seq. (Pl.'s EEOC Filing.) In describing the particulars of the discrimination, however, plaintiff only claimed that she was harassed because of her physical disabilities. Id. Plaintiff did not allege or describe any discrimination based of her age, national origin or race. On December 14, 2007, the EEOC issued a Notice of Right to Sue. Subsequently, plaintiff timely filed this complaint on February 1, 2008. (Compl. at 1.)
With respect to all defendants, plaintiff brings three claims: (1) race and national origin discrimination in violation of 42 U.S.C. § 2000(e) ("Title VII"); (2) age discrimination in violation of 29 U.S.C. § 621 ("AEDA"); (3) disability discrimination in violation of 42 U.S.C. § 12111 ("ADA"); and (4) intentional infliction of emotional distress under New York state law. (Compl. at 5.) With respect to Rosen and Lucas individually, plaintiff claims race discrimination in violation of 42 U.S.C. § 1981. (Id. at 6.) Finally, with respect to Local 670 and Lucas, plaintiff claims age, disability, race and national origin discrimination based on a failure to represent plaintiff fairly in her dispute with VIP. (Id.)
In support of her complaint, plaintiff alleges that she was: (1) removed from her position as an aid to a specific VIP client and replaced by someone who had the same national origin as her manager, Pinnock; (2) paid a reduced salary for work performed on weekends; and (3) required to wash floors and clean laundry. (Id. at 3-4.)
Local 670 and Lucas filed their answer on March 7, 2008. Rather than answer, VIP and Rosen moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure Rule 12(b)(6) for failure to state a claim upon which relief may be granted, arguing that, with respect to all or some of plaintiff's claims: (1) there is no individual liability; (2) plaintiff has failed to exhaust her administrative remedies; and (3) plaintiff has missed the applicable statute of limitations.
Rule 12(b)(6) of the Federal Rules of Civil Procedure states that a defendant may move, in lieu of an answer, for dismissal of a complaint for "failure to state a claim upon which relief can be granted." On a motion to dismiss, the court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor. See Dangler v. New York City Off-Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999). In Bell Atlantic Corp. v. Twombly, the Supreme Court modified the standard set forth half a century ago in Conley v. Gibson, that a complaint should not be dismissed "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," in favor of the requirement that plaintiff plead enough facts to "state a claim to relief that is plausible on its face." Bell Atlantic, 550 U.S. 544, 561 (2007) (quoting Conley, 355 U.S. 41, 45-46 (1957)). To be facially plausible, a complaint cannot make merely "a formulaic recitation of the elements of a cause of action," but must allege facts that "raise a right of relief above the speculative level on the assumption that all allegations in the complaint are true (even if doubtful in fact)." Id. at 555 (citations omitted). The Second Circuit interpreted Bell Atlantic to "requir[e] a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible," rather than to mandate a "universal standard of heightened fact pleading." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007).
When material outside a complaint is "presented to and not excluded by the court, the motion must be treated as one for summary judgment . . . and all parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d). For the purposes of this rule, the complaint is deemed to include writings and documents attached to it, referenced in it, or integral to it. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); Fed. R. Civ. P. 10(c). A document is "integral" to the complaint if "the complaint relies heavily upon its terms and effects." Chambers, 282 F.3d at 153 (internal citations and quotation marks omitted). "[A] plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough." Id. (emphasis in original).
Plaintiffs are harmed when material outside a complaint is considered on a motion to dismiss as they lack notice that such consideration is occurring. Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006). Rule 12(d)'s conversion requirement remedies this problem by "deter[ring] trial courts from engaging in factfinding [sic] when ruling on a motion to dismiss and ensur[ing] that when a trial judge considers evidence dehors the complaint, a plaintiff will have an opportunity to contest defendant's relied-upon evidence by submitting material that controverts it." Id. Accordingly, when there is actual notice by the opposing party of all the information in the movant's papers, the necessity to convert a motion to dismiss to one for summary judgment "is largely dissipated." Chambers, 282 F.3d at 153 (internal citations and quotation marks omitted).
In this case, the court declines to convert defendants' motion to dismiss into a motion for summary judgment. Though defendants rely upon plaintiff's EEOC filing in support of their motion, the document is integral to plaintiff's complaint. Furthermore, as plaintiff completed and executed her EEOC filing, there is no potential harm due to a lack of notice.
A. Plaintiff's Title VII Discrimination Claims
Plaintiff has made several Title VII claims of race and national origin discrimination against all of the named defendants. For the following reasons, plaintiff's Title VII claims ...