The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Clifford Briggs("Plaintiff" or "Briggs") brings this action pro se against defendants Rochester Aluminum Smelting (hereinafter "Defendant" or "RAS") and "Human Rights of Rochester*fn1 ", claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000(e) to (e)-17 ("Title VII"). Specifically, Plaintiff alleges that RAS discriminated against him on the basis of his race by falsely blaming him for missing inventory, removing him from a position as "plate manager," and failing to give him increases in pay and/or benefits during the 16 years he worked for the Defendant and also claims he worked many years in unsafe conditions.
Defendant moves to dismiss Plaintiff's Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. RAS contends that Plaintiff's allegations fail to state a claim for relief, and that Plaintiff failed to exhaust his administrative remedies with respect to his purported Title VII claims. Plaintiff has not opposed Defendant's motion, but has filed a motion for the appointment of counsel on his behalf. See Docket No. 7. For the reasons set forth below, Defendant's motion to dismiss is granted in-part and denied in-part. Plaintiff's request for the appointment of counsel is granted.
Plaintiff Clifford Briggs essentially alleges in his Complaint that he worked for RAS for 16 years without benefits and in unsafe conditions. (See Complaint, p. 4). Plaintiff further alleges that his position as "plate manager*fn2 " was "moved" and given to another employee with "company benefits." (Id.). Briggs also alleges that the basis for his claims are "discrimination and job harassment." In identifying the specific conduct that gives rise to his claims, Plaintiff states that, "Jerry Golden blamed me for inventory lost, and no benefits, and discrimination, and work in unsafe conditions. Sandy Eveland with job harassment." (Id.).
The Court noted in its Decision and Order dated April 22, 2010, which allowed Plaintiff to proceed in forma pauperis, that Plaintiff "appears to be [asserting] an employment discrimination action under Title VII because [he] attached a 'right to sue' letter from the Equal Employment Opportunity Commission (EEOC)." (Docket No. 4, pg. 2). The Complaint also attaches a Decision from the Unemployment Insurance Appeals Board in connection with Plaintiff's application for and subsequent denial of unemployment insurance benefits. (See Docket No. 1). Although not attached to the Complaint, the Defendant has submitted to the Court a Determination and Order After Investigation, and a Final Investigation Report and Basis of Determination, issued by the New York State Division of Human Rights ("NYSDOH") in connection with Briggs' administrative complaint of employment discrimination against RAS. The NYSDOH found no probable cause for Plaintiff's complaint. (See Docket No. 10).
I. Motion to Dismiss Standard
Defendant moves to dismiss Plaintiff's Complaint under both Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant contends that the Court lacks subject matter jurisdiction to the extent the Court construes Plaintiff's Complaint to include claims for discrimination based upon grounds other than race because Plaintiff failed to timely exhaust his administrative remedies prior to filing a Title VII action.
Further, even if the Court has subject matter jurisdiction, Defendant argues that the Complaint must be dismissed because it does not state any plausible claim upon which relief may be granted.
"A case is properly dismissed for lack of subject-matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Horton v. Williams, 2010 WL 3338920, *3 (N.D.N.Y. 2010) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "In resolving a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), a district court... may refer to evidence outside the pleadings." Id. (citation omitted). "A plaintiff asserting subject-matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Id. (citation omitted).
It is well settled that in deciding a motion to dismiss under Rule 12(b)(6), the court must "accept... all factual allegations in the complaint [as true] and draw... all reasonable inferences in the plaintiff's favor." See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (internal quotation marks omitted). In order to withstand dismissal, therefore, a "complaint must contain sufficient factual matter, , to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Supreme Court explained that the complaint "must be enough to raise a right to relief above the speculative level." See id. at 1950. That is, there is no requirement for "heightened fact pleading of specifics, but only enough facts to state a claim for relief that is plausible on its face." See id.
The Second Circuit addressed the application of Ashcroft v. Iqbal, 129 S.Ct. 1937, to pro se pleadings and noted that, even after Bell Atlantic Corp. v. Twombly, 550 U.S. 544, a court is obligated to liberally construe pro se complaints. See DiPetto v. U.S., 2010 WL 2724463, *1 (2d Cir. 2010) (citing Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009)). Thus, while pro se complaints must contain sufficient factual allegations to meet the plausibility standard, the Court should read pro se complaints with "special solicitude" and interpret them to raise the "strongest ...