The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff Karen Cyr commenced the instant action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., claiming that she was sexually harassed and otherwise discriminated against by Defendant Berry Plastics Corporation during the course of her employment. Presently before the Court is Defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12.
The following facts are taken from Plaintiff's Pro Se Complaint and for purposes of this motion are assumed to be true.
Plaintiff began working for Defendant as a material handler in October 2001. Shortly thereafter, Plaintiff was informed that Vince Santaro, the Maintenance Team Leader, often shared sex videos and photos of women with whom he had sex with other employees. In 2003, Plaintiff was promoted to the position of fork lift driver. On December 13, 2004, Plaintiff's supervisor, Matt MacDonald, accused Plaintiff of "shorting" a truck. After being yelled and screamed at by MacDonald for forty-five minutes, Plaintiff signed a paper agreeing that she shorted the truck.
Company policy requires that fork lift drivers place products on the shelves before entering them on the computer. Men routinely entered products into the computer prior to placing them on the shelves. On February 2, 2008, Tim Higgins wrote a disciplinary note falsely stating that Plaintiff entered the products into the computer prior to placing them on the shelves. A similar scenario occurred on March 10, 2007.
On two occasions in 2007, Plaintiff complained to Dori Schaeffer, the Human Resources Supervisor, concerning harassment by Higgins. Plaintiff claims that Higgins had male employees watch Plaintiff's work and report back to him. Higgins claimed to have pictures of Plaintiff sleeping on pallets. Higgins yelled at Plaintiff and threatened to fire her. On March 10, 2007, Higgins had Plaintiff suspended from work for claimed errors in her work.
On July 16, 2009, Higgins again yelled at Plaintiff, kicked her off the fork lift and fired her. In the summer of 2009, Jessica Dempster came to work in shorts. Jody Exner, a Mold Technician, pulled down Dempster's shorts. Exner was suspended for three days. Exner and another worker reported the incident to Plaintiff. Female employees also reported to Plaintiff that Exner had "a reputation for dry humping women on the production floor."
Plaintiff also alleges that, on various occasions, male fork lift drivers were permitted to take breaks, but that she was not. After complaining, she was told she could take breaks but, when she did so, the male employees would make a mess for Plaintiff to clean up when she returned from break.
In October 2009, Ed McCarthy, a fork lift driver, took pictures of his penis on his cell phone and showed it to two co-workers, asking one of them, Marie Brown, to have sex with him. Brown reported this to Plaintiff.
The Complaint further alleges that Higgins frequently talked to Plaintiff about problem he was having with his wife. "Plaintiff felt this was inappropriate, and it made her uncomfortable, as she felt that Mr. Higgins was trying to pick her up." Compl. at ¶ 30.
In 2009, Jacob Dubbs quit his position as third shift fork lift driver. Although Plaintiff was next in line for the position by virtue of her seniority, Higgins told Plaintiff she would not get the job. In September 2009, a worker was fired for insubordination. The vacant job was going to be posted for bids. On September 16, 2009, Plaintiff's time card was taken away from her.*fn1 She did not return to work until October 6, 2009. The job was posted in this intervening period. Because Plaintiff was suspended, she was not permitted to bid on the job. In October 2009, a pallet was found to have a mistaken label. Plaintiff was disciplined for the error, including being suspended, and, therefore, not permitted to bid for an assistant material manager job. The assistant material manager job was given to Ed McCarthy.
In May 2010, Jacob Dubbs took trash barrels away from Plaintiff making her job more difficult. On June 28, 2010, Plaintiff told Schaffer that Higgins was harassing her and discriminating against her. On July 7, 2010, "Plaintiff was fired for the third time." Compl. at ¶45.
In July 2010, Plaintiff field a charge of discrimination with the New York State Division of Human Rights that was cross-filed with the Equal Employment Opportunity Commission. In the charge, Plaintiff claimed that she was discriminated against on account of her gender by Tim Higgins and Paul Palireno.*fn2 On the area of the form asking for "acts of discrimination," Plaintiff checked the boxes for "fired me," "harassed or intimidated me (other than sexual harassment)," "gave me different or worse job duties than other workers in my same title," and "gave me a disciplinary notice or negative performance evaluation." In the narrative section of the charge, Plaintiff complained that Higgins was having other employees watch Plaintiff; Jake Dubb was being "harsh" to Plaintiff and was ...