The opinion of the court was delivered by: P. Kevin Castel, District Judge
Plaintiff Joyce F. Holland, proceeding pro se, brings this employment discrimination action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991 ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 721 et seq. ("ADEA"), the Americans with Disabilities Act, 42 U.S.C. § 12112 et seq. ("ADA"), the New York State Human Rights Law, N.Y. Exec. L. § 290 et seq. ("NYSHRL"), the New York City Human Rights Law, N.Y. City Admin. Code § 8-101 et seq. ("NYCHRL"), and 42 U.S.C. §§ 1981 and 1983. Plaintiff alleges that her former employer, the New York City Department of Information Technology and Telecommunications ("DoITT"), unlawfully terminated her on the basis of race, gender, age, and disability. Plaintiff also alleges that Local 1549 of District Council 37, American Federation of State, County, and Municipal Employees, AFL-CIO ("Local 1549")-the union that represented plaintiff- breached its duty of fair representation by failing to fully investigate her discrimination claims against DoITT.
In her Amended Complaint ("AC"), plaintiff names as defendants the City of New York, DoITT, and Local 1549. (AC at 1--2.) The City, representing itself and the DoITT, and Local 1549 have each moved for judgment on the pleadings under Rule 12(c), FED. R. CIV. P. For the reasons set forth below, the defendants' motion is granted in part and denied in part.
Plaintiff is an African-American female born in 1956 and blind in her left eye. (AC at 3, 7.) Plaintiff began working for the City of New York as a call center operator for the DoITT on October 5, 2005. (Id. at 5.) Plaintiff worked eight-hour shifts beginning at midnight. As one of many operators in the call center, plaintiff received incoming customer service calls. Plaintiff's two immediate managers, Lorrie Yard-Smith and Keith Heerey, are both Caucasian. The immediate managers report to two supervisors, who are female and of Latin descent. (Id.)
Plaintiff alleges that she was terminated as a call center operator on February 7, 2007. (Id.) In general, plaintiff describes the call center as feeling "very much like a plantation." (Id. at 6.) In detail, plaintiff alleges that approximately 80% of the operators at the DoITT's 311 call center were African-American women, the managers "primarily Caucasian," and the supervisors "primarily Latino." (Id.) Plaintiff further alleges that one of her managers, Ms. Yard-Smith, "openly disgraced" the mostly African-American operators on numerous occasions by "kicking open desk drawers" and labeling as insubordinate any African-American operators who objected. (Id.)
In support of her claim of gender discrimination, plaintiff alleges that the male call center employees "were sort of 'given a pass' and [were] treated differently" than the female employees. (Id.) Plaintiff contends that the DoITT had a practice of favoring male employees in granting overtime. Plaintiff describes an incident in which her request for overtime was denied, whereas the requests of two of her co-workers-a white male and an African-American male- were granted. (Id.)
In support of her claim of age discrimination, plaintiff alleges that on multiple occasions, younger employees "were given a pass" for arriving late to work and that in two specific instances, she observed "two young women . . . [who were] given a pass on being late." (Id.) Plaintiff attests that "on a number of occasions," DoITT management "disrespected" and "openly and clearly" disgraced older African-American female employees by criticizing their skills as "inadequate." (Id.) Lastly, plaintiff describes a specific instance in which a younger African-American male employee received a promotion and then, in a supervisory role, would stand over older African-American female employees "with a clear intent to discredit them." (Id. at 7.)
Plaintiff also alleges that the DoITT discriminated against her on the basis of her disability, blindness in her left eye. (Id.) According to plaintiff, Ms. Yard-Smith frequently called plaintiff into her office to discuss plaintiff's infractions wherein Yard-Smith would inquire about the condition of plaintiff's disability. Plaintiff further alleges that she was denied all requests for "copies [of] these write-ups" and that they were absent from her personnel folder. (Id.)
Plaintiff worked at the DoITT until February 7, 2007 when, after missing "approximately 4 to 5 days" or "about a week" of work due to surgery on her left eye, plaintiff states she was "given a letter stating that [she] was terminated." (Id.) According to plaintiff, the DoITT terminated her because of her "medical absence" and that the City therefore "failed to accommodate [her] disability." (Id.)
In her Amended Complaint, plaintiff admits to never having discussed her objections to any of the aforementioned discriminatory practices with anyone at DoITT because she "felt [they] would fall on deaf ears" and for "fear that [she] would be terminated like so many of the other older black women." (Id. at 6, 7.) Instead, plaintiff consulted her local union representative, Eddie Douglas. According to plaintiff, Mr. Douglas "never looked into" her discrimination claims and merely advised her to "never be late." (Id. at 6.)
Plaintiff commenced the present suit in February 2010, alleging discrimination against the City of New York and the DoITT ("City Defendants"), and her union, Local 1549. In an Order dated March 22, 2010, Chief Judge Preska granted plaintiff's request to proceed in forma pauperis and directed plaintiff to file an amended complaint "detailing whether she exhausted her claims with the U.S. Equal Employment Opportunity Commission ("EEOC") prior to commencing her action. (Docket #3.) On May 21, 2010, plaintiff filed an Amended Complaint with this Court alleging the discrimination claims described above. (Docket #4.)
All defendants have moved for judgment on the pleadings pursuant to Rule 12(c), FED. R. CIV. P. A motion for judgment on the pleadings under Rule 12(c) is reviewed under "the same standard as that applicable to a motion under Rule 12(b)(6)." King v. Am. Airlines, Inc., 284 F.3d 352, 356 (2d Cir. 2002) (quoting Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999)). To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "'Labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do,'" rather, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 555). In considering a Rule 12(b)(6) motion to dismiss, all nonconclusory factual allegations are accepted as true, see id. at 1949--50, and all reasonable inferences are drawn in plaintiff's favor. See In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (per curiam).
For complaints alleging discrimination, the Iqbal plausibility standard applies in conjunction with the pleading standards set forth in Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002). See Twombly, 550 U.S. at 547 ("This analysis does not run counter to Swierkiewicz . . . . Here, the Court is not requiring heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face."); Arista Records LLC v. Doe, 604 F.3d 110, 119--21 (2d Cir. 2010) (finding Swierkiewicz, Twombly, and Iqbal in agreement). Indeed, Swierkiewicz "applies with equal force to any claim . . . that the McDonnell Douglas framework covers" and retains its "vitality" in the wake of the Court's decisions in Twombly and Iqbal. See Boykin v. KeyCorp, 521 F.3d 202, 213--14 (2d Cir. 2008)).
At the pleading stage, Swierkiewicz teaches that a plaintiff is not required to come forth with allegations sufficient to make a prima facie case of employment discrimination or to satisfy the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007). Rather, "a complaint must include . . . a 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." Swierkiewicz, 534 U.S. at 512 (internal quotations omitted). Accordingly, to overcome a motion to dismiss in an employment discrimination action, a complaint must give fair notice of the basis of plaintiff's claims and the claims themselves must be facially plausible.
In this action, plaintiff proceeds pro se. Courts are to review pro se complaints under a more lenient standard than that applied to "formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Accordingly, the Court construes plaintiff's submissions liberally and interprets them "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 471 (2d Cir. 2006) (emphasis in original) (internal quotations omitted). Although this applies with particular force when a plaintiff alleges civil rights violations, McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), the Court ...