The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff commenced this action with the filing of a complaint on March 11, 2008. Item 1. It is brought pursuant to Title VII of the Civil Rights Law of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and the New York State Human Rights Law, N. Y. Executive Law § 296 ("NYSHRL"). Plaintiff sets out four causes of action--race discrimination, hostile work environment, and retaliation under Title VII, and race discrimination under the NYSHRL. Defendant has moved for an order dismissing plaintiff's hostile work environment cause of action pursuant to Fed. R. Civ. P. 12(b)(6) and striking paragraphs 19 and 20 of the complaint as irrelevant and prejudicial pursuant to Rule 12(f).
In his complaint, plaintiff alleges that he is an African-American man who was employed by defendant beginning in June 2002. He alleges that during the course of his employment, he was referred to as "Magilla the Gorilla" by his co-workers. Item 1, ¶ 17. This occurred even in the presence of supervisory personnel. Id. Plaintiff alleges that he "repeatedly notified management" of the harassment, but no action was taken. Id. Plaintiff also alleges that his supervisor, Michael Halloran, used the term "nigger work" to describe undesirable work that had been assigned to Halloran. Item 1, ¶ 18.
Paragraphs 19 and 20 of the complaint read as follows:
19. During this period, between March 1996 and April of 2002, Plaintiff Myles actively sought employment with CATCO Construction Co., another local Western New York contracting firm, by filling out formal applications and submitting his resume to CATCO. In spite of these numerous attempts to gain employment with CATCO, Plaintiff Myles was never hired. During this period, CATCO experienced enormous growth in its business, including hiring operating engineers on an ongoing basis. These operating engineers were White/Caucasian.
20. On or about April 22, 2002, Plaintiff Myles filed a charge of Discrimination with the New York State Division of Human Rights and the EEOC, alleging that CATCO Construction Co. discriminated against Myles on the basis of his race in failing to hire him. . . . The Charge was processed by the EEOC and, ultimately, the EEOC commenced litigation in the Western District of New York against CATCO Construction Co. by filing a Complaint in Civil Action No. 03-CV-0670A(F) (W.D.N.Y.) on September 10, 2003. . . .
On May 6, 2004, Plaintiff Myles intervened in Case No. 03-CV-0607A(F) by filing a Summons and Complaint against CATCO Construction Co. Item 1, ¶¶ 19-20. Plaintiff goes on to allege that following the filing of the complaint in the CATCO litigation, he was laid off from his employment with defendant. Id., ¶ 21. He alleges "CATCO engaged in a campaign to ostracize Mr. Myles in the local construction industry." Id., ¶ 29. Plaintiff alleges that his layoff by defendant was in retaliation for his involvement in the CATCO litigation. Id., ¶ 30.
The court first turns to defendant's motion, under Rule 12(f), to strike paragraphs 19 and 20 of the complaint. Fed. R. Civ. P. 12(f) provides that the court may strike from a pleading any matter that is "redundant, immaterial, impertinent, or scandalous . . . ."
Here, defendant argues that paragraphs 19 and 20 are improper, as they are solely included "to introduce an inference that Plaintiff has suffered discrimination on more than one occasion." Item 4, p. 3. While these paragraphs introduce allegations of past discrimination, they are included to explain plaintiff's cause of action for retaliation. Plaintiff states that he filed a formal charge of discrimination with the EEOC which resulted in an action brought by the EEOC against CATCO in which plaintiff intervened. Plaintiff alleges that he was laid off by defendant in retaliation for his involvement in the CATCO litigation. The court expresses no opinion on the ultimate merits of this claim, but finds that paragraphs 19 and 20 are material to the retaliation cause of action and are neither scandalous, impertinent, or prejudicial. Accordingly, that aspect of the motion is denied.
Defendant also argues that plaintiff's claim of a hostile work environment should be dismissed as he has failed to set forth facts which meet the legal standard required to establish such a claim.
To survive a motion to dismiss pursuant to Rule 12(b)(6), "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, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Legal conclusions must be supported by factual allegations. Iqbal, 129 S.Ct. at 1949. Pleadings that are "no more than conclusions are not entitled to the assumption of truth." Id. at 1950.
The Supreme Court in Iqbal set out a "two-pronged" approach for courts considering a motion to dismiss. Id. at 1950. First, the court accepts plaintiff's factual allegations as true and draws all reasonable inferences in his favor. See Iqbal 129 S.Ct. at 1950; see also Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008), cert. denied, 129 S.Ct. 1524 (2009). The court considers only the factual allegations in the complaint and "any documents that are either incorporated into the complaint by reference or attached to the complaint as exhibits." Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). Second, the court determines whether the "well-pleaded factual allegations . . . plausibly give rise to an entitlement to relief." Iqbal, 129 S.Ct. at 1950. "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. at 1949 (citing Twombly, 550 U.S. at 556). "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. (citing Twombly, 550 U.S. at 557).
Additionally, and particularly relevant to this motion, "the Federal Rules do not contain a heightened pleading standard for employment discrimination suits." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002). Instead, Rule 8 requires only that a complaint "contain . . . a short and plain statement of the claim ...