The opinion of the court was delivered by: Korman, J.
Plaintiff Thomas J. Triola, a former United States customs agent, applied for a job with the United States Attorney's Office for the Eastern District of New York as a Financial Investigator in 2006. After he was turned down, he brought suit against ASRC Management Services ("ASRC")-which provided human-resources-related services to the United States- and Timothy Geithner, the Treasury Secretary, pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., and New York State Executive Law §§ 296 and 297, alleging that ASRC and Geithner had discriminated against him based on his prior protected activities. ASRC moves to dismiss the complaint on the grounds that it fails to state an actionable claim and that it is time barred.
Triola retired from his former position as a Special Agent with the United States Customs Service in 2001. (Compl. ¶ 22.) Previously, in 1998, Triola filed several complaints of age discrimination and retaliation with the Customs Service related to his exclusion from certain promotion lists. (Id. ¶ 23.) Those complaints were not resolved to Triola's satisfaction by the Customs Service, so he filed suit in this Court in March 2001. (Id.) The case eventually proceeded to trial before Judge Irizarry, where Triola lost, but the result was reversed on appeal. Currently, the case is still pending. (See Triola v. Snow, 01-cv-1603 (E.D.N.Y. 2001).)
In early March 2006, Triola received a notice announcing an open position entitled "Financial Investigator (Intelligence Analyst II)" advertised by ASRC pursuant to a contract between ASRC and the Internal Revenue Service ("IRS"). (Compl. ¶ 24.) The position was located in the Financial Crimes/Forfeiture Unit of the U.S. Attorney's Office for the Eastern District of New York. (Id.) Triola applied for the position several days later, and a project manager at ASRC contacted him to set up an interview on March 20, 2006. (Id. ¶¶ 25-26.) During the interview, according to Triola, the project manager, LeQuan Bowens, informed him that she was "very impressed with him, his resume, and his experience." (Id. ¶ 27.) Subsequently, on April 3, 2006, Triola was interviewed at the U.S. Attorney's Office by Assistant United States Attorney ("AUSA") Elaine Banar, the Chief of the Financial Crimes/Forfeiture Unit. (Id. ¶ 29.) According to Triola, "[t]he interview was very detailed and covered much professional ground, [Triola's] experience and accomplishments, and other information contained in his cover letter and resume." (Id.)
Triola attended a second interview with AUSA Banar on April 10, 2006. (Id. ¶ 30.) Subsequently, Triola received an offer for employment on April 13, 2006, which was contingent on Triola's completion of a "pre-employment drug screen, a pre-employment background investigation, and a favorable customer conducted background investigation, as required by [ASRC's contract with the] IRS." (Id. ¶¶ 32, 34.) Two days later, Triola accepted the contingent offer of employment in writing, and provided a number of documents to ASRC. (Id. ¶ 35.) On July 6, 2006, however, Triola received a telephone call from ASRC indicating that "there appeared to be a conflict of interest in his being employed in this position and that ASRC might have to rescind the offer of employment." (Id. ¶ 41.) According to Triola, ASRC "alluded to some pending litigation." (Id. (emphasis in original).) Triola explained that he had previously filed complaints against the Customs Service, and that an AUSA in the Central Islip office of the United States Attorney's Office for the Eastern District of New York was handling the case for the Department of the Treasury. (Id.) Later, on July 9, 2006, ASCR called Triola and informed him that they were rescinding his offer of employment and accused him of "not informing [them] of the 'conflict of interest' during his interview." (Id. ¶ 44.) After some back and forth between Triola and ASRC, on September 5, 2006, ASRC sent Triola an email indicating that they had "decided to go with another candidate" to fill the position. (Id. ¶ 47.)
Two years later, in March 2008, Triola prepared a SF-86 government form, which he was required to file every five years in order to keep his Top Secret Clearance status. (Id. ¶ 54.) Triola alleges that in order to accurately complete the form, he needed to determine the reason why he had been denied employment by ASRC. (Id. ¶ 55.) Accordingly, he filed a FOIA request with the IRS "regarding his selection and subsequent rescission of his employment offer." (Id.) The IRS indicated that it "could not help him without the contract number and referred him to ASRC." (Id.) After Triola contacted ASRC, it responded that "[y]ou were informed at the time that your employment offer was rescinded in July 2006 that the job for which you had applied was one for which you were barred by a conflict of interest." (Id. ¶ 57.) ASRC also indicated that the conflict was not disclosed by Triola and that it was "discovered when ASRC's Federal agency customer received the paperwork for the mandatory background investigation to which you consented in writing." (Id.) Triola alleges that this was the first occasion that he was informed that he was "barred" and that the conflict was discovered by the IRS as part of Triola's background check. (Id. ¶ 58.)
Over the next several months, Triola sent several letters to the IRS requesting information regarding his background check in 2006. (Id. ¶ 61.) In October 2008, Triola received some documents, which he alleges gave him "grounds to reasonably suspect that the reason for rescinding the employment offer was pretextual." (Id. ¶ 62-63.) Triola alleges that there is no mention "of anything remotely corroborating any of the comments [ASRC] made" with respect to his alleged conflict of interest. (Id. ¶ 63.) Consequently, he alleges, "ASRC's explanations to him were false, and obviously were a pretext to cover the real reason for not hiring him, which was the fact that he had engaged in protected activity." (Id. ¶ 67.)
In March 2009, Triola applied for another position with ASRC. (Id. ¶ 68.) In August 2009, Triola "received a very pro forma response indicating that the position was filled." (Id. ¶ 69.) On August 13, 2009, Triola filed a written Charge of Discrimination/Retaliation against ASRC with the Equal Employment Opportunity Commission ("EEOC"). (Id. ¶ 12.) The charge alleged that ASRC retaliated against Triola "as a direct result of [his] protected activity." (Wolin Decl. Exs. 1, 2.) The EEOC issued a right to sue letter to Triola on November 13, 2009. (Compl. ¶ 14.)
In order to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must allege "enough facts to state a claim of relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In conducting this analysis, the Supreme Court has suggested a two-pronged approach:
[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). The Iqbal Court continued: "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. This plausibility determination is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Factual allegations do not "plausibly give rise to an entitlement of relief" where those factual allegations, taken as true, are "'merely consistent with' a defendant's liability," id. at 1949-50, but are also "not only compatible with, but indeed... more likely explained by, lawful... behavior," id. at 1950. Thus, where there is an "obvious alternative explanation" that is more likely, the plaintiff's cause of action is not plausible and must be dismissed. Id. at 1951.