The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Bond Schoeneck & King PLLC 350 Linden Oaks, Suite 310 Rochester, NY 14625 INTRODUCTION Siragusa, J. This employment discrimination case is before the Court on Defendant's motion to dismiss and Plaintiff's cross-motion for appointment of counsel. For the reasons stated below, Defendant's motion is granted and Plaintiff's motion is denied.
Plaintiff alleges that on September 14, 2007, his supervisor at defendant, Sentry Group, accused him of leaving his work site at 2:00 p.m. and asked Plaintiff to sign a written warning. Plaintiff states he refused to do so, and was thereafter targeted by his supervisor until he was eventually fired on June 20, 2008. (Compl. ¶ 6.) Plaintiff alleges in his complaint in this case that he filed a complaint with the New York State Division of Human Rights in July, 2008 (Comp. ¶ 8). However, attached to Defendant's papers is a complaint form for the New York State Division of Human Rights, signed by Plaintiff and notarized on June 5, 2009, with a stamp showing it was received by the Region 6 Rochester Regional Office on June 5, 2009 (Holahan Aff. Ex. B). The Court will consider the Human Rights complaint, since it is specifically referenced in the complaint before the Court. Rothman v. Gregor, 220 F.3d 81, 88--89 (2d Cir. 2000) ("For purposes of a motion to dismiss, we have deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.and documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit . . ..").
In his complaint filed before the New York State Division of Human Rights, Plaintiff alleged the following facts (following a question and answer format):
5. Description of Discrimination:
Please answer the following questions concerning the discrimination about which you are complaining. Please try to be as specific as possible with respect to acts, dates, and names. Please write or print legibly or attach a typed description.
A. Why do you believe that you were/are being discriminated against?
It was because of my age and race. The reason why I feel that I was being discriminated is because I was employed at Sentry Safe for 18 years; I was never given the opportunity to cross-train on new job assignments, nor was I given the opportunity to advance within the company even though I had more seniority I was not allowed to do so. Every time I was up for my annual appraisal I would receive a poor and unfair review, after I refuse[d] to sign one of my annual review[s] that I did not agree with and I wasn't given a fair raise. After 18 years of being a committed loyal employee I became labeled another disgruntle[d] black worker who was too old and too slow and incompetent to perform my job assignments[.]
On a daily basis I would be singled out about my age, race and my ability to comprehend simple working instructions. I would be ridiculed as the eldest employee in the department, and when it was my turn for cross-training on new job assignments' [sic], I was told that someone younger was needed because they would be more suitable to comprehend and catch on quicker, and I would be the next in line for cross-training, except it never happen[ed].
B. What did/does discrimination consist of?
Discrimination consist[s] of limitations that prohibits a class of person(s) denial of employment opportunities based on or related to the protected characteristic of person(s).
C. Do you have any comparative data (such as names of other individuals who were in the same situation as you, but treated more favorably) or other information to support your charge of discrimination? If so, describe below. I am not aware of any employee that was discriminated against and the decision was turned in their favor.
D. Do you have any other information or evidence relevant to your claim of discrimination?
The only other comments I have to say is, after eighteen years of honest, loyal, committed, and dedicated, service to Sentry Group, and because I refuse to sign my annual review, I was black balled and their decision was given for my termination. Also, I was ignored by Human Resources who refused to hear any of my claims, so after numerous tries of seeking help from the Human Resources department this became my ...