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December 1, 2010


The opinion of the court was delivered by: Denise Cote, District Judge:


Appearances: For the plaintiff: Teofil Boata, pro se 761 New Norwalk Rd.

New Canaan, CT 06840 For the defendant: Peter C. Moskowitz Allison C. Spivak Jackson Lewis LLP

59 Maiden Lane New York, NY 10038

The defendant Pfizer, Inc. ("Pfizer") moves to dismiss all or part of four of the five claims in the plaintiff's amended complaint. The motion is granted in part.

BACKGROUND The following facts are assumed to be true for the purposes of this motion. The pro se plaintiff, Teofil Boata ("Boata"), is a sixty-two year old Caucasian man of Romanian descent. He began his employment with Wyeth*fn1 on August 15, 2005 as the Assistant Director of Statistical Programming in the company's Vaccine Division in Pearl River, New York. In the year 2005, the plaintiff received a performance appraisal of 4 out of 5, which he describes as "above target."

Starting in January 2006, Boata raised concerns that in violation of FDA regulations Wyeth improperly altered data from clinical trials for a vaccine. He then began to experience retaliation in the form of rude treatment and a bad performance review for the year 2006.*fn2 In July 2007, he was placed on a "Performance Improvement Plan" ("PIP") for ninety days, which he successfully completed. For the year 2007, Boata's was given a performance rating of "3," but he received a rating of "2" on leadership and collaboration. On January 30, 2008, Boata emailed Greg Zhou ("Zhou"), his supervisor, telling him he felt he was being discriminated against.

Meanwhile, in April 2007, Wyeth reorganized one of its divisions and dissolved five statistical programming management positions including Boata's, converting them into non-managerial technical positions. Boata describes the change as a demotion. Boata alleges that only two younger managers retained managerial positions. One of those younger managers was Zhou, to whom Boata and the others now reported.

In early 2008, Wyeth re-created the previously dissolved management positions. The jobs were not filled by the employees that previously held them. Boata was not allowed to interview for his old job, which was given to Zhou. Also in early 2008, Zhou put together a "vaccine capacity team" of programmers. Everyone on the team was Chinese or Asian, and Boata was not made a part of it. When the plaintiff asked Zhou if he was on the team, Zhou told him no and said that the members of the team were experienced programmers with in-depth skills. Because Boata was also experienced and had in-depth skills, he felt that this was disparate treatment based on race.

On March 26, 2008, Boata was placed on a "Performance Notice" for the month of April. In April and May 2008, Boata experienced further discrimination in the assignment of projects and leadership positions. The plaintiff was fired on June 26, 2008, without notice and in the middle of a presentation he was giving. The plaintiff alleges that he was replaced by younger "Asian/Chinese" employees.

On February 20, 2009, Boata filed a complaint with the New York State Division of Human Rights ("NYSDHR") alleging discrimination. On the complaint form, Boata indicated that he was alleging race discrimination. He specified his race as "American-Romanian/White, Male." He described being treated unfairly by Zhou on account of his race and that Chinese employees received preferential treatment. Boata's NYSDHR complaint was cross-filed with the United States Equal Employment Opportunity Commission ("EEOC").

On October 22, 2009, Boata amended his NYSDHR complaint to allege discrimination on the basis of age. He described the five management positions, including his own, being dissolved and then re-created, and not being allowed to interview for his old job. On December 23, 2009, Boata amended the NYSDHR complaint again to add allegations of discrimination on the basis of national origin and retaliation. The amendment describes retaliation in response to Boata's expressed concern about the safety of changing data from the clinical studies. Its allegation of discrimination is based on preferential treatment of Chinese programmers.

On March 11, 2010, the EEOC issued a Notice of Right to Sue at the plaintiff's request. On March 30, the NYSDHR dismissed plaintiff's complaint on the ground of administrative convenience. The grounds described were that Boata had elected to have the case heard in federal court.

Boata commenced this action on June 2, 2010, and filed an amended complaint on August 3. In the amended complaint, he alleges five causes of action: (1) employment discrimination on the basis of race and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and the New York States Human Rights Law, N.Y. Exec. Law § 296 ("NYSHRL"); (2) employment discrimination on the basis of age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and the NYSHRL; (3) retaliation in violation of 42 U.S.C. § 1981; (4) breach of implied contract; and (5) violations of 21 C.F.R. Part 11. On September 10, Pfizer filed a motion to ...

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