The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Catherine A. Zucco ("Plaintiff"), brings this action against her employer, defendant Auto Zone, Inc. alleging sexual harassment and discrimination based on sex. Defendants have moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, the motion is granted and the plaintiff's complaint is dismissed.
Plaintiff first alleges that in August of 2007, Commercial Parts Manager David Chessis ("Chessis") threw a pair of heavy car rotors into the aisle and told her to pick them up. Afterwards, plaintiff avers that a meeting was held regarding the "outburst" and that her "hours seemed to vary greatly not long after."
Plaintiff next alleges that, starting in March of 2009, Store Manager Robert Cummings ("Cummings") began using the woman's bathroom. She alleges that she asked him to keep the bathroom clean and that he did not comply. Furthermore, in April, plaintiff alleges Cummings left a tabloid entitled "Pussy Whipped" across from the toilet in the women's bathroom.
In June of 2009, plaintiff alleges that when she gave Cummings a copy of her vacation day requests for the following three months, he stated that to obtain August 7th off in particular, she would have to supply him with documentation of airline or hotel reservations as proof. Plaintiff allegedly informed him that she did not think this was appropriate.
On August 5, 2009, plaintiff alleges that she returned a truck with half to a quarter tank of gas and informed Commercial Manager Damien Bryant ("Bryant") who "told [her] not to worry" about it. At the end of the day, however, driver Tom Marriott ("Marriott") allegedly went to take the truck out and then came back into the store to complain about the low gas level to plaintiff in front of several other co-workers. Bryant then allegedly told plaintiff to "go put away parts and make [herself] useful or just punch out and go home" because she was "on [his] time now."
Also in August of 2009, plaintiff alleges that Cummings reproached her on a couple of occasions in front of other co-workers stating "if you have time to lean, you have time to clean," telling her that if he saw her cell phone he would fire her, and bringing her a dust pan and broom stating, "Cathy, I just got you some new friends."
Furthermore, plaintiff also alleges that on Auto Zone stores' "What it Takes to do the Job Right" evaluations she received consistently high scores for assisting customers, "being helpful and doing [her] job."
I. Motion to Dismiss Standard
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the party's claim for relief. See Patane v. Clark, 508 F.3d 106, 111--12 (2d Cir. 2007). In considering whether a pleading is legally sufficient, the court must accept all well-pleaded facts as true and draw all reasonable inferences in the pleader's favor. See Bell Atlantic v. Twombly, 550 U.S. 544, 578 (2007). However, this presumption of truth does not extend to legal conclusions. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949--50 (2009). The standard for motions to dismiss requires the plaintiff's pleading to set forth sufficient facts to establish the claim's legal plausibilityon its face. See Twombly, 550 U.S. at 570. Ultimately, where a plaintiff has not "nudged their claim across the line from conceivable to plausible, their complaint must be dismissed." See id.
"[T]his plausibility standard governs claims brought even by pro se litigants." Robles v. Bleau, No. 9:07-CV-0464, 2008 WL 4693153 at *5 (N.D.N.Y. Oct. 22, 2008) (citing Jacobs v. Mostow, 271 Fed. Appx. 85, 87 (2d Cir. 2008). At the same time, however, the Court is mindful that even after Twombly, a "document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008). Nevertheless, all pleadings, pro se or otherwise, must contain enough factual allegations to "give the defendant fair ...