The opinion of the court was delivered by: Denise Cote, District Judge
The defendants Metropolitan Transit Authority ("MTA"), New York City Transit Authority ("NYCTA") and Manhattan and Bronx Surface Transit Operating Authority ("MABSTOA") have moved to dismiss this employment discrimination action brought by former MTA bus driver Marty Morrow, a 62-year-old African American.
For the following reasons, the claims of age discrimination and retaliation are dismissed. Morrow is given leave to replead a single claim of race discrimination.
Morrow began employment with the MTA in 1982. On May 11, 2007, a wheelchair-bound passenger fell and hit her head on the sidewalk when the wheelchair lift on Morrow's bus malfunctioned and the wheelchair flipped backwards. Morrow's lawsuit complains of the investigation that followed and that he was subjected to increased supervision. Morrow was eventually placed on restrictive duty, not permitted to drive a bus for six months, and disciplined. On November 16, 2007, Morrow left the MTA, and asserts that the MTA constructively discharged him.
Morrow wrote to the President of the MTA twice after the May 2007 accident. In a May 15, 2007 letter he complained that the investigator who arrived at the scene of the accident on May 11 compromised the integrity of the evidence. A June 4, 2007 letter asserted that union representatives were getting special treatment and that he was being retaliated against because of a complaint he had made in 2004 about workplace violence. It asked that he not be harassed for minor infractions.
On August 14, 2007, Morrow contacted the United States Equal Employment Opportunity Commission (the "EEOC") and two days later the EEOC sent him a letter and questionnaire to complete. The letter explained that it appeared, based on the information he had provided, that his situation "may be covered by the laws we enforce." It added that to begin the charge-filing process he had to complete the entire questionnaire immediately since any charge of discrimination had to be filed within 180 days of the date of harm. It advised him that the charge filing process itself can take up to two hours to complete and that information about those procedures was available on the EEOC web site. Finally, it cautioned that submission of the questionnaire may not meet all requirements for filing a charge, but it would allow the EEOC to determine whether it could assist him.
The questionnaire is titled "Intake Questionnaire." It again advised that a charge of discrimination must be filed within 180 days, or in some places, within 300 days of the alleged discrimination, and that the questionnaire would be reviewed to determine EEOC coverage. Fine print at the end of the questionnaire advised that "[w]hen this form constitutes the only timely written statement of allegations of employment discrimination, the Commission will . . . consider it to be a sufficient charge of discrimination." It added, however, that the information on the form would be used "to determine the existence of facts relevant to a decision as to whether the Commission has jurisdiction over allegations of employment discrimination and to provide such charge filing counseling as is appropriate." Finally, it explained that while providing the requested information was not mandatory, the failure to answer the question might hamper "the Commission's investigation of a charge of discrimination."
In his completed questionnaire, which is dated September 6, 2007, Morrow described various disciplinary actions that had been taken against him following the May 15 accident, and checked off boxes for race, age, national origin, and retaliation in response to a question regarding the basis for his claim of discrimination. In a short one-paragraph statement which he attached to the questionnaire, Morrow complained of a leadership style that punishes workers through a punitive discipline system. It states, [t]he basis for my claim of employment discrimination is the long standing style of leadershipe that punishes workers with a excessive and punitive discipline system. Being a educated black man with 25 years behind the wheel of a NYCT bus, I cant help feeling that this bad treatment is because of my race. I dont see the fire dept. or the police dept. going out of there way to give a worker a violation or dismissal for a minor infraction of company rules. the president of my union [compares] MTA NYCT managers . . . to overseers on colonial plantations. Its the unlawful events that occurred on the job by my employer, my association with the union president, the increased surveillance of me behind the wheel, and unjustified negative evaluations from my boss that have lead to this application of employment discrimination.*fn1
After leaving his job, Morrow filed a formal charge of discrimination with the EEOC. The letter of instructions reminded him "to show a definite connection with, or relationship between the EEO basis you use [e.g., race] and the events you allege are discriminatory." It indicated that documents attached to the intake questionnaire would be used as "background material." In completing a February 8, 2008 Charge of Discrimination form, Morrow checked a box that identified "retaliation" as the basis of the discrimination, and identified the relevant dates as between May 11 and November 16, 2007. This time Morrow did not check the other boxes, which included boxes for race, color and age. Morrow's one-page narrative complaint explained that he believed that he had been disciplined and harassed because he had written the MTA's President. Morrow attached copies of the two letters he had written to the President. Morrow did not mention his race or age in the narrative paragraph or in the two letters.
On April 8, 2008, the EEOC notified Morrow that it was closing its file and issuing a notice of his right to sue. According to the EEOC, Morrow had failed to identify any protected activity in which he had engaged to support his claim of retaliation.
On July 3, 2008, Morrow filed this action, alleging claims based on race, national origin, and age discrimination and retaliation. In an amended complaint dated October 2, Morrow reasserted the race, age and retaliation claims pursuant to 42 U.S.C. §§ 2000e et seq. ("Title VII"), 29 U.S.C. §§ 621 et seq. ("ADEA") and 42 U.S.C. § 1981 ("§ 1981"). Following an initial pretrial conference on December 19, the defendants moved on February 3, 2009 to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1), (6), and 12(c).*fn2 The motion was fully submitted on February 27, 2009.
The defendants contend that there is no subject matter jurisdiction over the Title VII and ADEA race and age discrimination claims because Morrow failed to exhaust his administrative remedies for those claims. They assert that the retaliation claim fails to state a claim since the plaintiff has not alleged that he engaged in protected activity before his constructive discharge. Finally, they move to dismiss the § 1981 claim on the ground that he has failed to plead that any race discrimination that he experienced was pursuant to an official policy or custom.*fn3
Despite defendants' characterization of their motion as motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim, the entire motion is properly addressed as one seeking dismissal for failure to state a claim only. "[D]ismissal for failure to exhaust is more properly considered as a dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6)," not dismissal for lack of subject-matter jurisdiction. McInerney v. Rensselaer Polytechnic Institute, 505 F.3d 135, 138 (2d Cir. 2007). "[F]ailure to exhaust [EEOC] administrative remedies is not a jurisdictional defect." Fernandez v. Chertoff, 471 F.3d 45, 58 (2d Cir. 2006).
A trial court considering a Rule 12(b)(6) motion must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." Vietnam Ass'n for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104 (2d Cir. 2008) (citation omitted). At the same time, "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss." Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (citation omitted). A court may also consider "any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference ... and documents possessed by or ...