The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.
Plaintiff, proceeding pro se, brings this action against her former employer, defendant Courier Network, Inc., alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 ("ADEA") and the Equal Pay Act of 1963, 29 U.S.C. § 206(d) ("EPA").*fn1 Plaintiff alleges various acts of discrimination and retaliation arising out of her employment with and eventual termination by defendant. Presently before the Court is defendant's motion to dismiss the Title VII and ADEA claims pursuant to Rules 12(b)(6) and 12(d) of the Federal Rules of Civil Procedure. For the reasons below, defendant's motion is GRANTED and plaintiff's Title VII and ADEA claims are DISMISSED, unless, within 30 days of the date of this Memorandum and Order, plaintiff can demonstrate by sufficient showing, as described herein, grounds for equitable tolling of these claims. Plaintiff's EPA claims are not subject to this motion.
I.Alleged Discrimination and Retaliation
Plaintiff, Dayniece Lugo-Young, a 40 year old who self-identifies as a "black" woman, was employed by defendant, Courier Network, Inc., an international courier service, as its bookkeeper from February 19, 2007 until her termination on May 1, 2009. (EEOC Charge (Doc. No. 1) at 8; Pl. Opp'n (Doc. No. 24) at 2.)*fn3 Plaintiff's submissions chronicle defendant's alleged conduct during and immediately subsequent to her tenure, which she alleges forms the basis for Title VII, ADEA and EPA claims. Plaintiff's chief complaint is that she was discriminatorily underpaid and fired. Plaintiff's initial probationary salary was $35,000, which was $15,000 less than her male predecessor and below the lowest salary advertised for the position, despite her 18 years of experience and degree in accounting. (EEOC Charge at 10; Pl. Opp'n at 8.) Though plaintiff requested and received a raise in August of 2007 to $42,500, she never matched the salary level of her male predecessor, despite repeated requests for further raises throughout 2008 and 2009. (EEOC Charge at 10; Pl. Opp'n at 7-8.) Instead, in August of 2008, she was offered a one-time $1,000 bonus, which she refused. (EEOC Charge at 10.) Defendant generally cited poor finances as a justification for refusing to increase plaintiff's salary. (EEOC Charge at 10; Pl. Opp'n at 6-7.)
Plaintiff describes a variety of activity during the relevant period, which she alleges was inconsistent with defendant's professed financial distress and demonstrates defendant's favoritism of male or white employees. For example: (1) two of plaintiff's male co-workers received pay increases in 2008; (2) a white male sales manager received a variety of personal benefits - - a laptop, a company car and reimbursement of certain expenses; and (3) company funds were used to pay for personal expenses of defendant's owner. (EEOC Charge at 8, 10; Pl. Opp'n at 6-7.)
Plaintiff also describes instances that she alleges demonstrate that male or white workers were favored generally by defendant over females or minorities. For example: (1) defendant failed to pay a black female billing manager overtime despite doing so for male employees; (2) defendant failed to provide that same black female manager equal health care benefits as paid to a white male manager; (3) defendant generally paid its male workers more than its female workers; and (4) layoffs in early 2009 resulted in the termination of four minority employees, including the only other women employed by defendant, yet, a few months later, defendant hired a male employee. (EEOC Charge at 8-10; Pl. Opp'n at 6.)
On May 1, 2009, plaintiff was terminated. (EEOC Charge at 8.) Although, defendant informed plaintiff that she was being let go for economic reasons, defendant had hired a male "Operation Agent" eight days prior and hired a white female in her mid-thirties to replace plaintiff shortly after. (EEOC Charge 9-10; Pl. Opp'n at 5.) Plaintiff discovered that she had been replaced on May 16, 2009. (Pl. Opp'n at 5.) Plaintiff alleges that she was terminated because of discrimination based on her gender, race and age, as well as in retaliation for questioning defendant about the aforementioned allegedly discriminatory conduct. (EEOC Charge at 8.)
II.EEOC Filings and Procedural History
On or about May 27, 2009, plaintiff sent an intake questionnaire to the EEOC alleging race, sex, national origin, and color discrimination. (EEOC Intake Questionnaire ("EEOC Questionnaire") (Doc. No. 17) at 1; Pl. Opp'n at 4.) Plaintiff checked a box on the questionnaire indicating that she "want[ed] to talk to an EEOC employee before deciding whether to file a charge of discrimination" and that she understood "that by checking this box, [she had] not filed a charge with the EEOC." (EEOC Questionnaire at 8.) A formal EEOC charge was subsequently filed on March 12, 2010. (EEOC Charge at 8.)
On June 29, 2010, the EEOC closed plaintiff's file and issued a right to sue letter, stating that defendant was not covered by Title VII or the ADEA because defendant did not employ the statutory minimum number of employees. (EEOC Dismissal and Notice of Rights (Doc. No. 1) at 6.) On July 13, 2010, the EEOC reopened its investigation with regard only to the EPA claim, but on December 7, 2010, the EEOC issued a dismissal and notice of rights for plaintiff's EPA claim. (Declaration of Jamie S. Felsen (Doc. No. 22), Exs. D-E, dated January 10, 2011.)
On July 12, 2010, plaintiff commenced this action alleging
discrimination based on her race and gender in violation of Title VII
and discrimination based on her age in violation of the ADEA. (Compl.
10-CV-3197 (Doc. No. 1).) On February 17, 2011, plaintiff commenced a
related action alleging unequal pay in violation of the EPA. (Compl.
11-CV-859 (Doc. No. 1).) By Order on March 16, 2011, the Court
consolidated the two cases and deemed the complaint in 10-CV-3197 to
be amended to include the EPA claim raised in 11-CV-859. (Order, March
16, 2011.) On April 4, 2011, defendant filed a fully briefed motion
seeking dismissal, pursuant to
Federal Rules of Civil Procedure 12(b)(6) and 12(d), of plaintiff's
claims under Title VII and the ADEA. (Doc. Nos. 18-27.)*fn4
The EPA claim is not subject to the present motion and is
currently in discovery.
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) requires the court to examine the legal, rather than factual, sufficiency of a complaint. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). As required by Rule 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is ...