The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff commenced the instant action pursuant to the Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., claiming that she was discriminated against on account of her race and ethnicity. Presently before the Court is Defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12.
According to the Complaint, Plaintiff is a fifty-one year old, married, black woman from Haiti. At all times relevant hereto, Plaintiff was an employee of the Willow Point Nursing Home, an entity operated by the County of Broome. On January 28, 2008, a member of Broome County Security went to Plaintiff's house and demanded that she return the $5.00 gift certificate that she was alleged to have stolen from a Willow Point resident. Plaintiff signed a statement denying the allegations.
Plaintiff contacted the nursing director at Willow Point to inquire about the investigation. Plaintiff was advised that everyone was investigated and that she should "come do [her] job." Plaintiff also spoke with Defendants' Scheduler, Charge Nurse, and EEO Compliance Officer, all of whom told Plaintiff that "[e]verything is fine. You have your job."
Plaintiff worked for two more days and then discontinued going to work. Plaintiff stopped going to work because she "could not work under [a] . . . cloud of suspicion." Plaintiff contends that "[i]n the past, white co-workers and nurses had discriminated against [her] similarly by making so many false statements that [she] was forced to complain to nursing coordinators, requesting to be reassigned." According to Plaintiff, she asked that Willow Point investigate who made the "anonymous and false allegations against [her]." Thereafter, Plaintiff's employment was terminated, purportedly for violating the "no call, no show" policy.
Plaintiff insists that she repeatedly called to explain her difficulty in working "in what [she] experienced was a psychologically intolerable environment." Plaintiff alleges that "Defendants, County of Broome and Willow Point Nursing Home, conspired against [her] wrongfully terminating [her] employment to avoid confronting its racially and ethnically biased disciplinary practices."
After filing a charge of discrimination with the EEOC, Plaintiff commenced the instant action against the County of Broome, Willow Point, Broome County Executive Barbara Fiala, and Willow Point Nursing Home Administrator Steven Reagan. By Decision and Order dated October 30, 2009, the Court dismissed the Complaint against the individual Defendants. Presently before the Court is Defendants Willow Point Nursing Home and County of Broome's motion to dismiss the Complaint pursuant to Fed. R. Civ. P. 12.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, ---U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009) (internal quotations and citation omitted). "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." Id. "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. "Where 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. at 1949-50 (internal quotations and citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief." Id. at 1950 (internal citations and quotation omitted).
Defendant moves to dismiss the Complaint pursuant to Fed. R. Civ. P. 12 on the ground that it fails to state a claim upon which relief may be granted. To assert a prima facie case of discrimination, Plaintiff must allege "1) [she] belonged to a protected class; 2) [she] was qualified for the position; 3) [she] suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Terry v. Ashcroft, 336 F.3d 128, 138, 141 (2d Cir. 2003).
Upon review of the Complaint and drawing all reasonable inferences in favor of Plaintiff, the Court finds that the Complaint fails to state a claim that Defendant was discriminated against on account of her ethnicity or race. According to the Complaint, the investigation concerning the gift card was purported to be based on an eyewitness complaint. There is no allegation in the Complaint that the eyewitness had a discriminatory motive*fn1 or that, even if such a motivation was present, Defendant was aware of any such motivation. There also is insufficient allegation that Defendant acted with any discriminatory motive in investigating the allegation concerning the gift card or in denying Plaintiff's demand that they further investigate the accuser. Any suggestion that the accusation or investigation was because of a discriminatory motive, or that Defendants otherwise acted on account of Plaintiff race or ethnicity, is conclusory, speculative and not a plausible inference from the factual allegations in the Complaint.
Moreover, there is insufficient indication that Defendant undertook adverse action against Plaintiff on account of her race or ethnicity. "A plaintiff sustains an adverse employment action if he or she endures a 'materially adverse change' in the terms and conditions of employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). "An 'adverse employment action' is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities." Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (internal quotations and citation omitted). "Examples of materially adverse changes include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation." Id. (internal quotations, alterations, and citation omitted). Here, the investigation does not constitute a material alteration of the terms and conditions of ...