The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:
I. PRELIM INARY STATEM ENT MEMORANDUM AND ORDER
Presently before the Court is Plaintiff's motion for leave to file an Amended Complaint pursuant to Fed. R. Civ. P. 15. See DE 36. Leon Hunter (hereafter "Plaintiff" or "Hunter"), appearing pro se at the time, initiated this action by filing a Complaint on December 16, 2009, alleging that he was discriminated against by his employer Kaufman Enterprises, Inc. d/b/a McDonald's (hereafter "McDonald's") based on his race and color and that the Defendant retaliated against him by terminating his employment. See DE 1. In the proposed Amended Complaint, Plaintiff, now with the benefit of counsel, advances additional factual information and asserts the following two causes of action: (1) retaliatory termination of employment after allegations of racial discrimination; and (2) breach of implied employment contract.*fn1 The Defendant, although not objecting to the previously pled retaliation claim, argues that Plaintiff's attempt to amend to add a claim for breach of implied employment contract would be futile.
Based upon my review of the arguments advanced by both parties as well as the applicable case law, the Plaintiff's motion to amend to add a claim for breach of an implied employment contract is DENIED. However, Plaintiff is permitted to file an Amended Complaint solely for the purpose of clarifying the retaliatory termination claim.
II. FACTUAL BACKGROUND*fn2
Plaintiff Leon Hunter worked for McDonald's for approximately 22 years, starting at the age of 16 and working his way up to the position of Second Assistant Manager. Am. Compl. ¶ 11. After being transferred from a McDonald's in Amityville to one located in Levittown, the Plaintiff experienced friction with co-manager Jackie Buckley ("Buckley"). Id. ¶ 15. During a "sit down" between the Plaintiff, Buckley and Ed Miller, the General Manager of the Levittown store, the Plaintiff expressed his belief that he was being discriminated against by Buckley based upon the color of his skin. Id. ¶ 22. According to the Plaintiff, Buckley terminated the meeting abruptly. Id. ¶ 23.
The Plaintiff states that approximately one week after this failed meeting, he was accused, for the first time, of sexual harassment.*fn3 Id. ¶ 25. Hunter met with Miller regarding the accusation. According to the Plaintiff, Miller did not conduct an inquiry into this un-substantiated and false claim. Id. ¶¶ 25-26. In fact, Plaintiff maintains that he asked Miller to review the videotape surveillance of the store but that Miller did not do so. Id. ¶ 30. The Plaintiff subsequently met with McDonald's Chief Executive Officer, Josh Kaufman, and McDonald's Area Supervisor, Denis Stickleman, at which time he was informed that he was terminated. Id. ¶ 32. The Plaintiff asserts that neither Kaufman nor Stickleman conducted any serious inquiry into the events surrounding either his allegation of racial discrimination or the sexual harassment allegation made against him. Id. ¶ 35. According to the Plaintiff, he was terminated based upon the sexual harassment allegation. Id. ¶¶ 28, 36.
Rule 15(a) of the Federal Rules of Civil Procedure provides that in cases where a party cannot amend as a matter of course, "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a); see also Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). A court "should freely give leave when justice so requires" and such leave is in the court's discretion. Fed. R. Civ. P. 15(a); Grace v. Rosenstock, 228 F.3d 40, 56 (2d Cir. 2000). Notwithstanding the foregoing principle, leave to amend may be denied where there is "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Rachman Bag Co. v. Liberty Mut. Ins. Co., 46 F.3d 230, 234 (2d Cir. 1995) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); SCS Commc'n, Inc. v. Herrick Co., 360 F.3d 329, 345 (2d Cir. 2004) (stating that under Rule 15(a), "leave to amend a pleading may only be given when factors such as undue delay or undue prejudice to the opposing party are absent.")(emphasis in original).
A proposed amendment is futile when it fails to state a claim upon which relief can be granted. See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990). A determination of futility on the merits is governed by the same standards as a motion to dismiss under Rule 12(b)(6). See Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 604 (2d Cir. 2005); Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). Under Rule 12(b)(6), the court must accept as true the factual allegations set forth in the complaint and draw all reasonable inferences in favor of the plaintiff. Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, 421 F.3d 96, 100 (2d Cir. 2005). Moreover, the review is limited to "the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
A complaint should not be dismissed unless it fails to set forth "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) (to withstand a motion to amend, a complaint must "raise a right to relief above the speculative level"). "A complaint is inadequately pled 'if it tenders naked assertion[s]' devoid of 'further factual enhancement.'" Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods Corp., No. 09-CV-8285, 2010 WL 3910590, at *4 (S.D.N.Y. Sept. 29, 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). The opposing party bears the burden of establishing that an amendment would be futile. See Blaskiewicz v. City of Suffolk, 29 F. Supp. 2d 134, 137-38 (E.D.N.Y. 1998) (citing Harrison v. NBD Inc., 990 F. Supp. 179, 185 (E.D.N.Y. 1998)).
In light of the fact that Plaintiff now has counsel, the Court agrees that amending the Complaint to allow for counsel to further describe Plaintiff's contentions would be beneficial to all parties. However, any additional claims that appear in the proposed pleading must not be a futile endeavor. Although Plaintiff's counsel claims that the Amended Complaint does not substantially deviate from the allegations and assertions set forth in the original Complaint, the Court finds otherwise. The proposed Amended Complaint seeks to add a new state law claim for breach of implied contract. This new claim is the only portion of the Amended Complaint to which the Defendant objects.
According to Plaintiff, the Defendant breached an implied contract based upon covenants of good faith and fair dealing, which are exceptions read into at-will employment. See Mem. in Supp. of Pl.'s Mot. for Leave to File Am. Compl. ("Pl.'s Mem.") at 5. The Plaintiff maintains that the case law "is not abundantly clear" relative to his unique fact pattern. The Plaintiff also argues that the Defendant, through its actions, took the case "out of the 'at will' universe" because Defendant terminated the Plaintiff on the unfounded grounds that he had sexually harassed another person whom the Defendant would not identify. Therefore, the Plaintiff contends that the Defendant owed the Plaintiff an affirmative duty of due diligence to properly investigate, authenticate and produce records of the eventssurrounding the sexual harassment allegation against the Plaintiff. Lastly, the Plaintiff asserts that as a matter of public policy, if a company creates policies and protocols to deal with issues of sexual harassment and racial discrimination in the workplace, then that company subjects itself to the due diligence required to enforce the same. Id. at 5-6.
The Defendant's opposition is simply that the Plaintiff's attempt to create a new public policy exception to at-will employment in New York by reading in a duty of good faith and fair dealing ignores long-standing law and has been rejected by numerous courts in New York. See Mem. of Law of Def. Kaufman Enters., Inc. in Partial Opp. to Pl.'s Mot. for Leave to Serve an Am. Compl. ("Def.'s Mem.") at 2-8. Therefore, the ...