The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff, Patricia Colquitt ("plaintiff"), filed this action on August 1, 2005*fn1 , alleging that her employer, Xerox Corporation ("defendant" and/or "Xerox"), improperly discriminated against her because of her race and gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq. ("Title VII"). Specifically, plaintiff alleges that she has been the victim of sexual and racial epithets by Caucasian male employees, has not been afforded the same privileges as other employees (i.e. phone privileges), and was denied a promotion because of her race and gender.
Xerox moves to dismiss plaintiff's complaint for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)") or pursuant to Rule 12 (c) of the Federal Rules, contending that the plaintiff's allegations, if true fail to state a claim upon which relief can be granted. For the reasons set forth below, the defendant's motion to dismiss is granted in part and denied in part.
The following facts are taken from the plaintiff's complaint, including documents and attachments incorporated by reference or upon which plaintiff relied in drafting the complaint, and are not findings of fact by the Court, but rather assumed to be true for the purposes of deciding this motion and are construed in the light most favorable to the plaintiff, the non-moving party. Plaintiff has been employed by Xerox since 1987 and claims that she has been the victim of racial and gender discrimination since 1993. See Complaint ("Compl.") ¶¶4-7. Plaintiff states that due to her race and/or gender, she was denied a promotion, yelled at, and subjected to various racial and gender epithets in the presence of management, and was denied the privilege to use the phone, although other employees were allowed. See Compl. ¶19. Plaintiff's complaint also alleges that although management was on notice of this mistreatment, they failed to respond to her complaints or such complaints were "laughed off." Id. Additionally, plaintiff contends that management has always responded to the complaints of Caucasian employees and that when a Caucasian female reported being mistreated by a male employee, the male employee was disciplined. Id., New York State Division of Human Rights("NYSDHR")and Equal Employment Opportunity Commission ("EEOC") Charge of Discrimination ("EEOC Charge") ¶3*fn2 .
In addition to the general allegations of mistreatment in the complaint, plaintiff also specifically states in the EEOC Charge that on February 5, 2004, a Caucasian male co-worker called her a "fat fucking nigger" and that later that day the same co-worker "cursed" at her. EEOC Charge ¶2. A manager was present for the first incident and a foreman was present for the second. Id. Plaintiff also claims that approximately six to eight weeks later, a different Caucasian male co-worker put his finger in her face and said, "I just want to use the phone, bitch." Id. In the EEOC Charge plaintiff states that Xerox did not investigate or respond to these incidents. Id.
On October 6, 2004, plaintiff filed a formal complaint with the NYSDHR and the EEOC alleging that she was the victim of a hostile work environment because of her race and gender in violation of Title VII. The EEOC issued a dismissal of the administrative charge and notice of right to sue letter on January 25, 2005. Plaintiff then filed this action on August 1, 2005.*fn3
The defendant responded by filing the instant motion to dismiss.
I. Standard of Review Under Rule 12(b)(6)
To withstand a motion to dismiss under Rule 12(b)(6), the 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 (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 (2009). "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). "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." Id.
Determining whether a complaint meets the plausibility standard is "context-specific" and requires that the court "draw on its judicial experience and common sense." Id. at 1950. Additionally, the Second Circuit has emphasized that "when [a] plaintiff proceeds pro se,... a court is obliged to construe his pleading liberally....This obligation entails, at the very least, a permissive application of the rules governing the form of pleadings....This is particularly so when the pro se plaintiff alleges that her civil rights have been violated. Accordingly, the dismissal of a pro se claim as insufficiently pleaded is appropriated only in the most unsustainable of cases." See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citations and quotation marks omitted); see also Weixel v. Bd. of Educ. Of the City of N.Y., 287 F.3d 138, 146 (2d Cir. 2002 (holding that when a plaintiff is appearing pro se, the Court shall "'construe [the complaint] broadly, and interpret [it] to raise the strongest arguments that [it] ...