The opinion of the court was delivered by: Seybert, District Judge
Plaintiff Ben A. Argeropoulos commenced this action against Exide Technologies and Ray Abrams (collectively, "Defendants") on September 16, 2008. On December 12, 2008, Plaintiff filed an Amended Complaint. Plaintiff's Amended Complaint alleges causes of action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, et seq. ("Title VII"), and state law claims for violations of the New York Human Rights Law (the "Human Rights Law"), N.Y. Exec. Law § 296 et seq.
Pending before this Court is: (1) Defendant Exide's Rule 12(b)(6) motion to dismiss counts one, two, four and five of the Amended Complaint, except for the harassment claim based on perceived sexual orientation under the New York Human Rights Law in count one; (2) Defendant Abrams's Rule 12(b)(6) motion to dismiss counts one through three of the Amended Complaint; and (3) Defendant Abrams' Rule 12(b)(1) motion to dismiss counts four and five for lack of subject matter jurisdiction. For the reasons stated herein, Defendants' motions to dismiss are GRANTED. Moreover, the Court sua sponte dismisses Plaintiff's third cause of action against Exide Technologies. Thus, Plaintiff's Amended Complaint is DISMISSED IN ITS ENTIRETY.
The following facts are alleged by Plaintiff and regarded as true for the purpose of this motion. Plaintiff Ben Argeropoulos, a New York resident and U.S. citizen of Greek origin, started working for Exide Technologies as a warehouse worker and an occasional deliveryman in October 2006. Am. Compl. ¶¶ 19, 23, 31. He alleges that he was subjected to discrimination and harassment because of his national origin and perceived sexual orientation. He also alleges that this discrimination and harassment "occurred on a continual, on-going basis" and that the following are just some examples. Id. ¶ 25. According to Plaintiff, this type of behavior took place on a "daily" basis, in a "continuous and pervasive manner." Id. ¶ 44.
On or around February 20, 2007, co-worker Mike Mileto said "When Ben sees a woman's pussy, he keeps his hands tightly over his eyes, but when he sees a man's cock, he separates his fingers." Id. ¶ 26. On or around February 21, 2007, the Plaintiff alleges the following events transpired: (1) the warehouse manager, Defendant Ray Abrams, smacked Plaintiff in the buttocks with a rolled up component sheet while Plaintiff was bending over to pick something up; (2) Mileto said to the Plaintiff "the manager wants to see your dick" and Abrams followed with "Yeah, whip it out"; (3) Mileto asked Plaintiff "Is it true what they say about Greek people? Do they really like it from behind?"; and (4) later that day, Mileto again asked Plaintiff "Do Greek people really like it from behind?" Id. ¶¶ 26-30.
In addition, on several occasions for which the Plaintiff does not provide a date, the following events transpired: (1) while Plaintiff was driving a forklift to the loading dock to unload a truck, Mileto stated to the truck driver that a co-worker had been fired because "they caught him and [Plaintiff] in the truck together"; and (2) Mileto asked the Plaintiff numerous times "If you have to pick one woman in the office to fuck, who would it be, Sue or Bernadette?" Id. ¶¶ 32, 33.
Around June 2007, Plaintiff spoke with Tony Cioffi, an Exide regional manager, and discussed the ongoing harassment by Mileto and Abrams. Plaintiff explained to Cioffi that he skipped work for two days to avoid the harassment and Cioffi stated that he would speak to Sue Watson, a supervisor, to re-instate Plaintiff's days. Id. ¶ 35. Shortly thereafter, Cioffi and Watson called Plaintiff into the office and Plaintiff again expressed his concerns about the ongoing harassment. Both Watson and Cioffi said they were aware of the problem, but could not do anything about it because "they had to go through 'the process.'" Id. ¶ 37. Plaintiff alleges that the Defendants failed to take appropriate action in response to the complaint and the harassment worsened "[w]hile 'the process' was going on." Id. Additionally, Plaintiff alleges that on numerous occassions he complained to his manager, Joe Leoni, as well as to Watson and Cioffi, but no steps were taken and the discrimination, retaliation and harassment continued. Id. ¶¶ 38-39.
On November 26, 2007, Plaintiff started an injury-related leave of absence from work. Id. ¶ 42. Plaintiff represents that he has no plans to return to work because of the "unbearable [sic] hostile work environment and discriminatory practices of the defendants." Id. ¶ 42. Plaintiff also alleges that, as a result of the discrimination and harassment, he has experienced severe emotional and physical distress and "the loss of income, salary, bonuses, benefits and other compensation which such employment entails and has suffered future pecuniary losses, emotional pain, suffering, inconvenience, loss of enjoyment of life and other non-pecuniary losses." Id. ¶ 60.
On May 27, 2008, Plaintiff filed a charge of discrimination with the Equal Employment Opportunities Commission. Id. at ¶ 20.
I. Standard of Review Under Rule 12(b)(6)
To withstand a motion to dismiss under Rule 12(b)(6), a complaint must plead facts sufficient "to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 127 S.Ct. 1955, 1974, 167 L.Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949, __ L.Ed. 2d. __ (2009) (reversing the Second Circuit's decision in Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007)). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Thus, "[w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal citations and quotations omitted). Examining whether a complaint states a plausible claim for relief is "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," a complaint fails to state a claim. Id. The plaintiff's factual allegations, in short, must show that the plaintiff's claim is "plausible," not merely "conceivable." Id. at 1951.
In applying the plausibility standard set forth in Twombly and Iqbal, a court "assume[s] the veracity" only of "well-pleaded factual allegations," and draws all reasonable inferences from such allegations in the plaintiff's favor. Id. at 1950. Pleadings that "are no more than ...