The opinion of the court was delivered by: John G. Koeltl, District Judge
MEMORANDUM OPINION AND ORDER
The plaintiff, Jacquelyn White, a female corrections officer at the Lincoln Correctional Facility in New York State ("Lincoln"), brings this employment discrimination action against New York State, the New York State Department of Correctional Services (the "DOCS"), and individual defendants Joseph Williams, Nicholas Brocco, Salvatore Munafo, Ronald Haines, George Van Valkenburg, and Robert Murray, all of whom were employed by the DOCS as supervisory officers at Lincoln during the relevant time period. The individual defendants are being sued in their official and individual capacities.
The defendants move pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6) to dismiss the action in part.
On a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of proving the Court's jurisdiction by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In considering such a motion, the Court generally must accept the material factual allegations in the Complaint as true. See J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). The Court does not, however, draw all reasonable inferences in the plaintiff's favor. Id.; Graubart v. Jazz Images, Inc., No. 02 Civ. 4645, 2006 WL 1140724, at *2 (S.D.N.Y. Apr. 27, 2006). Indeed, where jurisdictional facts are disputed, the Court has the power and the obligation to consider matters outside the pleadings, such as affidavits, documents, and testimony, to determine whether jurisdiction exists. See APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003); Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998); Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). In doing so, the Court is guided by that body of decisional law that has developed under Federal Rule of Civil Procedure 56. Kamen, 791 F.2d at 1011; see also Melnitzky v. HSBC Bank USA, No. 06 Civ. 13526, 2007 WL 1159639, at *5 (S.D.N.Y. April 18, 2007).
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the Complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the Complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Twombly v. Bell Atlantic Corp., 127 S.Ct. 1955, 1974 (2007); see also Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007).
On a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the Complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); see also Kavowras v. New York Times Co., 328 F.3d 50, 57 (2d Cir. 2003); Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002); Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991).
While the Court should construe the factual allegations in the light most favorable to the plaintiff for purposes of Rule 12(b)(6), the Court is not required to accept legal conclusions asserted in the Complaint. See Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir. 2007); Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002).
For purposes of this motion, the Court accepts as true the following facts as alleged in the Complaint. At all relevant times, the plaintiff was and is a female employee of the DOCS. She began her employment in 1986 at Bedford Hills Correctional Facility as a corrections officer. In 1992 she transferred to Lincoln, where she took the position of Relief Officer for the Release Process Booth and Officer in Charge post. In August 2004, the defendants ordered the painting of an area near the Release Process Booth.*fn1 The plaintiff complained to her supervisors, including defendant Munafo, about the fumes from the paint. After the defendants refused to stop the painting, the plaintiff filed a complaint with the Occupation and Safety and Health Administration (OSHA) regarding possible health risks associated with the painting and the defendants' failure to post any warning about the fumes or potential health hazards. The defendants, after learning about the OSHA complaint and apparently worried about possible problems with OSHA, ordered the painting to cease. (Compl. ¶¶ 14, 25, 24, 26-30.)
Over a year passed, and around February 2006, the plaintiff notified her Union, the New York State Corrections Officer and Police Benevolent Association ("NYSCOPBA"), that defendants Haines, Munafo, Van Valkenburg and other supervisors were living in the basement of Lincoln with the approval of defendant Brocco and in violation of Directive 4005. The Union subsequently filed a complaint with Lincoln based on this information. (Compl. ¶ 31.)
On May 3, 2006, Lincoln posted a job for assignment at the Release Process Booth/Officer in Charge post, Tour II, Squad 8 (the "May bid position"). The job posting requested bids from male officers only, even though such positions had previously been open to both male and female officers, and female officers had been performing the duties required for the May bid position for some time. These duties included taking urine samples from, and performing strip frisks of, inmates at Lincoln. Typically, female officers requested the help of male officers in performing these duties with respect to male inmates, and male officers requested the help of female officers in performing the same duties with respect to female inmates. The plaintiff has performed all of the duties required for the May bid position and has sought the help of an available male officer when appropriate. As of May 3, 2006, no inmates or officers had complained to Lincoln about the manner in which Release Process Booth officers perform urine tests or frisks. (Compl. ¶¶ 36, 40, 32-25, 38, 37, 41.)
Despite the request for only male applicants, the plaintiff applied for the May bid position.*fn2 According to the plaintiff, she was the most senior officer who applied and therefore, pursuant to a collective bargaining agreement between the State of New York and her Union (the "CBA"), the most qualified applicant.*fn3 However, the plaintiff's application received the notations "Unsuccessful" and "Not allowed," and she was denied the position. In July 2006, the plaintiff filed a gender discrimination complaint with the New York State Division of Human Rights (the "NYSDHR") that was cross-filed with the Equal Employment Opportunity Commission (the "EEOC"). In April 2007, ...