The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. On January 5, 2010, pro se plaintiff Yvonne Bailey-Lynch filed a Complaint in the Western District of New York claiming violations by Defendant Mid Town Promotions, Inc. ("Mid Town") of the Americans with Disabilities Act ("ADA"), 42 U.S.C §§ 12112-12117, the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2000e-17, and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290-297. Plaintiff alleges Defendant committed multiple acts of discrimination against her on the basis of age, race, color, and sex including termination of employment, failure to provide reasonable accommodations, sexual harassment, and retaliatory conduct. Presently before this Court is Defendant's Motion to Dismiss. For the following reasons, Defendant's Motion to Dismiss is granted in part and denied in part.
2. On March 10, 2010, Defendant filed a Motion to Dismiss Plaintiff's Complaint in its entirety, pursuant to Rule 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure. (Docket No. 5.) Along with its motion, Defendant filed a Memorandum of Law (Docket No. 6), as well as the Affidavit of Mark N. Reinharz, Esq. (Docket No. 7). Plaintiff responded by filing a Motion to Appoint Counsel (Docket No. 11) and a Response to Defendant's motion (Docket No. 12) on May 27, 2010. This Court denied Plaintiff's Motion to Appoint Counsel (Docket No. 13) on June 8, 2010 and Defendant filed a Reply Memorandum (Docket No. 14) on June 15, 2010.
3. For purposes of adjudicating the present motion, this Court assumes the truth of the following factual allegations contained in Plaintiff's Complaint. See Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008); Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir. 1997). Plaintiff began working for Defendant on March 16, 2005. (Complaint ("Comp."), Docket No. 1, ¶ 4.) In June 2008, Plaintiff experienced the first allegedly discriminatory act, with other acts occurring in October 2008, and the last discriminatory act occurring on January 2, 2010. (Id. ¶¶ 5, 6, 7.) The nature of these incidents may be summarized as follows: Defendant fired Plaintiff after she refused to forge a paycheck, and after Plaintiff caught the Defendant stealing Plaintiff's sales. (Id. ¶¶ 13, 19.) Defendant also failed to promote Plaintiff the same as males and other white females. (Id. ¶ 19.) Finally, on January 2, 2010 Defendant refused to send her certain tax papers, despite having sent them the previous two years. (Id. ¶ 7.)
4. Plaintiff commenced an action before the Equal Employment Opportunity Commission ("EEOC") in November 2008. (Id. ¶ 10.) On October 9, 2009, the EEOC concluded that Plaintiff was an independent contractor and that therefore the EEOC did not have jurisdiction over Plaintiff's claim. (See id. ¶ 18.) Plaintiff commenced the present action on January 5, 2010.
5. Defendant argues that Plaintiff's complaint should be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). Dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) is proper where a district court lacks the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Plaintiff bears the burden of establishing that the district court has federal jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed.2d 351 (1992). In resolving a motion to dismiss for lack of subject matter jurisdiction, a court may consider affidavits and other evidence outside the pleadings, but it may not rely on conclusory or hearsay statements in such affidavits. J.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004), cert denied, 544 U.S. 968, 125 S. Ct. 1727, 161 L. Ed.2d 616 (2005).
6. Defendant argues that this Court cannot hear Plaintiff's Title VII, ADEA, or ADA claims because Plaintiff was an independent contractor, rather than Defendant's employee. Plaintiff responds that it received unemployment insurance from Defendant, was reimbursed for various expenses, and did not otherwise have the freedom and independence of an independent contractor.
7. By its terms, Title VII protects only "employees," which the statute defines as "an individual employed by an employer." 42 U.S.C. § 2000e(f). Similarly, the ADEA does not cover independent contractors. Frankel v. Bally, Inc., 987 F.2d 86, 89-90 (2d Cir. 1993). To determine whether an individual is an "employee" courts apply a fact-specific test involving thirteen factors. These include:
(1) The hiring party's right to control the manner and means by which the product is accomplished; (2) the skill required; (3) the source of the instrumentalities and tools; (4) the location of the work; (5) the duration of the relationship between the parties; (6) whether the hiring party has the right to assign additional projects to the hired party; (7) the extent of the hired party's discretion over when and how long to work; (8) the method of payment; (9) the hired party's role in hiring and paying assistants; (10) whether the work is part of the regular business of the hiring party; (11) whether the hiring party is in business; (12) the provision of employee benefits; and (13) the tax treatment of the hired party.
Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 227 (2d Cir. 2008) (internal alterations omitted).
8. Here, although Plaintiff signed an independent contractor agreement, there remains a merit-based dispute concerning Plaintiff's employment status. Plaintiff contends that she was employed by the Defendant, (Comp. ¶ 4), provided Plaintiff with unemployment insurance (Comp. ¶ 7), was reimbursed for various expenses (Affidavit / Affirmation in Opposition of Motion ("Pl.'s Opp'n"), Docket No. 12, 14), did not have the ability to hire anyone she wished, (Id. at 15), and received W-2 forms, (Id. at 17.) In light of Plaintiff's assertions, dismissal would be premature because Plaintiff's status will turn on a highly fact-dependent inquiry involving multiple factors. Accordingly, this Court will not, at this time, dismiss Plaintiff's complaint for lack of subject matter jurisdiction.
9. Defendant also argues that dismissal is proper pursuant to Rule 12(b)(6). Rule 12(b)(6) allows dismissal of a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12 (b)(6). Federal pleading standards are generally not stringent: Rule 8 requires only a short and plain statement of the claim. Fed. R. Civ. P. 8(a)(2). But the plain statement must "possess enough heft to show that the pleader is entitled to relief." Bell Atlantic Corp. v. Twombly, 550 U.S. 544,127 S. Ct. 1955, 1966, 167 L. Ed. 2d 929 (2007). When determining whether a complaint states a claim, the court must construe it liberally, accept all factual allegations as true, and draw all reasonable inferences in the plaintiff's favor. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007); Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008). Legal conclusions, however, are not afforded the same presumption of truthfulness. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.") "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. at 1945 (quoting Twombly, 550 U.S. at 570). Labels, conclusions, or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Facial plausibility is present when the factual content of the complaint allows for a reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 129 S. Ct. at 1949. The plausibility standard is not, however, a probability requirement; the pleading must show, not merely allege, that the pleader is entitled to relief. Id. at 1950; Fed. R. Civ. P. 8(a)(2). Well-pleaded allegations in the complaint must nudge the claim "across the line from conceivable to plausible." Twombly, 550 U.S. at 570. Furthermore, this Court is aware of the distinct disadvantage at which pro se litigants are placed, and recognizes that federal courts routinely read submissions by pro se litigants liberally, interpreting them to raise the strongest arguments they suggest. See Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
10. Defendant argues that Plaintiff fails to satisfy Rule 8(a)(2)'s pleading standards. Specifically, Defendant argues that none of Plaintiff's allegations show that Defendant's actions were motivated by a discriminatory intent. Plaintiff responds with a lengthy opposition, consisting largely of a handwritten line-by-line commentary of various documents that are not before this Court, including a letter from Ms. Maureen Kielt and Plaintiff's EEOC charge of discrimination.
11. To establish a prima facie case of discrimination under the ADEA and Title VII, a plaintiff must show that (1) she belonged to a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003). A claim for retaliation also requires a plaintiff to show that "a retaliatory motive play[ed] a part in [the] adverse employment actions toward ...