The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge:
Linda Murdaugh ("Plaintiff" or "Murdaugh") brings this action alleging that the City of New York ("City Defendant") and Iqbal Sulehria ("Sulehria"), individually and in his official capacity as an employee of the New York City Department of Corrections ("DOC"), discriminated against her on the basis of race and gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e et seq. ("Title VII"), the New York State Human Rights Law, NY Executive Law §§ 290, et seq. ("SHRL"), and the New York City Human Rights Law, NYC Administrative Code §§ 8-101, et seq. ("CHRL"). Before the Court is City Defendant's motion to dismiss Murdaugh's claims as being time barred and for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth herein, City Defendant's motion is GRANTED in part and DENIED in part.
I.Factual and Procedural Background
Murdaugh is an African-American woman who was employed by DOC as a Correction Officer from 1998 until her retirement from DOC on March 26, 2010. (First Amended Complaint ("FAC") ¶¶ 17, 68.) Sulehria was employed by DOC as a civilian Legal Coordinator from 1995 until his resignation on July 19, 2010. (FAC ¶ 19.) Murdaugh alleges that while the two worked together at the Eric M. Taylor Center Law Library at Rikers Island ("Law Library"), Sulehria engaged in continuous discriminatory conduct and made several false allegations against Murdaugh beginning on June 29, 2004. (FAC ¶ 21.) In May 2005, Sulehria, proceeding pro se, commenced an action in this Court alleging that the City of New York and other defendants including Murdaugh subjected him to a hostile work environment. See Sulehria v. City of New York et al., 670 F. Supp. 2d 288 (S.D.N.Y. 2009).*fn1
Murdaugh alleges that Sulehria continued to make a myriad of false allegations against her and on October 29, 2005, he propositioned her for sex in exchange for dropping his lawsuits. Murdaugh reported the conduct to DOC on several occasions, and DOC reassigned Sulehria in June 2006. (FAC ¶¶ 33, 46.) DOC transferred Sulehria several times and, in November 2008, reassigned him back to the Law Library where Murdaugh was still working. (FAC ¶¶ 47, 48.) Murdaugh alleges that Sulehria continued to make false allegations against her, including that in November 2008 she defecated on his desk (FAC ¶ 52), on multiple occasions caused equipment, supplies, reports and forms to go missing (FAC ¶¶ 52, 56, 65), on January 2009 made harassing phone calls including calling him a "bastard Muslim terrorist" and to "kiss her black ass" (FAC ¶ 59), and on February 4, 2010 called him a "piece of shit" and a "fucking Muslim." (FAC ¶ 67.) These allegations caused DOC to investigate Murdaugh on more than one occasion. Murdaugh also alleges that Sulehria showed hostility toward inmates of color (FAC ¶ 57) and that on August 19, 2009 Legal Coordinator Typhanie Lynch wrote the Director of Law Libraries to inform the City that Sulehria held great animosity toward women. (FAC ¶¶ 60, 77; Exh. 16.) Additionally, she alleges that DOC repeatedly denied her request for a tour change. (FAC ¶ 52, 66, 67; Exh. 19.) Murdaugh further alleges that throughout this time, DOC had notice of Sulehria's behavior because she and others filed reports on multiple occasions about his conduct. (FAC ¶ 52, 60, 63, 66, 67, 77, 78.) On March 26, 2010 Murdaugh retired, allegedly due to the conditions brought on by Sulehria in his capacity as an employee of DOC.
On May 11, 2010 Murdaugh filed a Charge with the Equal Employment Opportunity Commission ("EEOC") and received a Right to Sue letter on or about September 16, 2010. (FAC ¶¶ 14, 15.) She filed this action on September 20, 2010. Sulehria subsequently relocated to Pakistan. (Docket No. 9.) City Defendant moved to dismiss the Complaint on November 10, 2010, and Murdaugh filed the First Amended Complaint ("FAC") on November 22, 2010. City Defendant advised the Court that it intended to proceed on its original motion, and the motion was fully briefed on December 3, 2010.
A motion to dismiss brought under Rule 12(b)(6) will be granted if there is a "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive dismissal on this ground, a claimant must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facially plausible claim is one where "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, 129 S.Ct. 1937, 1949 (2009). The court's determination of whether a complaint states a "plausible claim for relief" is a "context-specific task" that requires application of "judicial experience and common sense." Id. at 1950.
With respect to employment discrimination cases, the Supreme Court has held that a complaint need not allege specific facts that establish a prima facie case of discrimination. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 514 (2002).*fn2 Rather, an employment discrimination complaint "must include only a short and plain statement of the claim ... [that] give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. at 512 (internal quotations and citations omitted); see also Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007). Accordingly, to survive a motion to dismiss, a complaint in a Title VII case need not establish a prima facie case of employment discrimination, but the complaint must be facially plausible and provide fair notice to the defendants of the basis for the claim. Morales v. The Long Island Rail Road Company, No. 09 CV 8714 (HB), 2010 WL 1948606 at *3 (S.D.N.Y. May 14, 2010); Barbosa v. Continuum Health Partners, Inc., 09 CV 6572 (SAS), 2010 WL 768888 at *3 (S.D.N.Y. Mar. 8, 2010); see also Fowler v. Scores Holding Co., Inc., 677 F.Supp.2d 673, 678 (S.D.N.Y. 2009).
Murdaugh files this action pursuant to Title VII, SHRL and CHRL, alleging that City Defendant subjected her to a hostile work environment on the basis of her race and gender, retaliated against her and subjected her to constructive discharge. City Defendant moves this Court to dismiss the First Amended Complaint arguing that most of Sulehria's conduct that would have given rise to the claims is time barred, and that Murdaugh fails to adequately state a claim for hostile work environment or retaliation because Sulehria's relevant conduct is not sufficiently severe or pervasive and that there is insufficient evidence to show that Sulehria acted on the basis of race or gender. (Def. Mem. at 10-16.) City Defendant also argues that to the extent this Court does not dismiss Murdaugh's claims for hostile work environment, her constructive discharge claim, which requires a higher showing of severity, should be dismissed. (Def. Mem. at 16-19.) This Court will address these arguments in turn.
i.Title VII Claims City Defendant argues that Murdaugh's Title VII claims that accrued before July, 15, 2009 are time barred. Under Title VII, a plaintiff may only assert claims involving acts alleged to have occurred within 300 days of filing a discrimination complaint with a state or local agency. 42 U.S.C. § 2000e-5(e)(1); Nat'l R.R. Passenger Corp. (AMTRAK) v. Morgan, 536 U.S. 101 (2002). "[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." AMTRAK, 536 U.S. at 102. Under the continuing violation exception, "[a] charge alleging a hostile work environment claim, however, will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period." Id. at 122. To invoke the continuing violation doctrine, a plaintiff may show "specific and related instances of discrimination [that] are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Weeks v. New York State, 273 F.3d 76, 82 (quoting Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir.1998) (internal quotation marks and citations omitted). "[I]f a plaintiff 'files a timely EEOC charge about a particular discriminatory act committed in furtherance of an ongoing policy of discrimination,' the statute of limitations is extended 'for all claims of discriminatory acts committed under that policy.'" Weeks, 273 F.3d at 82 (quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir.1997). However, "[a]bsent unusual circumstances, a two-year gap is a discontinuity that defeats use of the continuing violation exception." Id. at 84 (citing Quinn, 159 F.3d at 766).
Murdaugh filed her Charge of Discrimination with the EEOC on May 11, 2010. Sulehria engaged in conduct that continued through the 300 day period prior to her filing. This Court will not consider Sulehria's conduct prior to November 2008 because DOC's transferring of Sulehria out of the Law Library between June 2006 and November 2008 is sufficient to cut off the continuing violation exception for all events prior to November 2008. See Weeks, 273 F.3d at 83.Nevertheless, Murdaugh's allegations of specific and related instances of discrimination permitted by DOC to continue unremedied from November 2008 through February 4, 2010 are sufficient at this stage for the Court to reasonably infer that the conduct amounted to a discriminatory policy or practice to invoke the continuing violation exception for that period. Murdaugh's filing of her Charge on May 11, 2010 is ...