The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff, Mark Hassan ("Plaintiff"), brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), 42 U.S.C. § 1981, 42, U.S.C. § 1983 and the New York State Human Rights Law, N.Y. Exec. Law § 296 ("NYSHRL"). (Docket No. 17-1.) Plaintiff alleges that the Defendants, the City of Ithaca (the "City"), the Ithaca Professional Fire Fighters Association (the "Union"), Brian H. Wilber, J. Thomas Dorman, Michael Schnurle, Roy Trask, Robert Covery and other unnamed individuals ("Individual Defendants") (collectively, "Defendants"), discriminated against him while he was employed as a fire fighter for the City.
The Defendants now move to dismiss Plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)"). (Docket No. 7-8.)*fn1 They contend, inter alia, that Plaintiff has failed to plausibly allege a claim to relief. Plaintiff opposes Defendants' motion, cross-moves for leave to amend the complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure ("Rule 15"), and has submitted a proposed amended complaint (Docket No. 17-1). Defendants contend that permitting the amendment is futile, because the proposed amended complaint does not cure the deficiencies of the original complaint. Rule 15(a)(2) states "[t]he Court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). The Court, therefore, will consider the legal sufficiency of Plaintiff's proposed amended complaint to determine whether leave to amend is warranted.
The follow facts are taken from the proposed amended complaint and are considered true for the purpose of this decision.*fn2 (Docket No. 17-1.) Plaintiff is an individual of middle eastern descent. He was a fire fighter for the City for approximately 15 years prior to his termination on April 27, 2011. According to the Plaintiff, throughout his employment he attained satisfactory work reviews.
After September 11, 2001, Plaintiff began to hear co-workers and his superiors use the following terms in relation to individuals of middle eastern descent: "sand nigger," "dune coon" and "towel head." He states that employees of the fire department made such comments at least weekly and continuously throughout the remainder of his employment.
Plaintiff alleges that he has personally been called a "towel head" and a "dune coon" both in and out of his presence. Defendant Trask "regularly" called him a "dune coon," and one of his co-workers, Peter Snell (not a named defendant), "frequently" made comments such as: "your people don't know shit" and "why don't you go back to where you came from." Defendant Colvert nicknamed Plaintiff "Hassan Chop," after a middle eastern cartoon character. Colvert told Plaintiff that Hassan Chop "would have the shit beat out of him." Also, in February 2010, Plaintiff's supervisor, Defendant Schnurle, an Assistant Fire Chief, called Plaintiff a "fuckin' towel head" after watching a news program regarding a conflict in the middle east. Plaintiff alleges that this conduct was tolerated by officials at the fire department.
Plaintiff also claims that he was treated differently with respect to disciplinary actions. On March 9, 2009, Plaintiff received a two-month suspension, a restricted shift assignment and was ineligible to serve as an Acting Lieutenant. Defendant, Brian H. Wilber, former Chief of the Ithaca Fire Department, issued these penalties, which Plaintiff states were the result of conduct that occurred more than a year prior. Plaintiff has not plead the specific facts which prompted the punishment, but he states that "the penalties imposed...were...disproportionate in comparison with the penalties imposed upon Plaintiff's co-workers for more severe misdeeds and misconduct, including several threats and acts of violence." Compl. at ¶16.
Plaintiff also alleges that on April 16, 2009, Defendant Wilber and other unknown individuals ordered Plaintiff to undergo an "Article 72 psychological exam." He claims that this is "a tactic employed by the City of Ithaca against disfavored employees." He also alleges that "upon information and belief, Defendants Schnurle, Trask, Covert and/or John and Jane Doe(s) communicated false and manufactured accusations against Plaintiff prompting said disciplinary action."
Plaintiff alleges that Defendant Schnurle complained to Defendant Dorman shortly after he called Plaintiff a "fuckin' towel head," in February or March 2010. Then, in May 2010, Plaintiff was issued a "Notice of Discipline seeking his termination" by Defendant Dorman. Plaintiff believes that this was prompted by false complaints or accusations made by Defendants Schnurle, Trask, Covert and other unknown individuals.
Pursuant to the May 2010 notice, "Plaintiff was prohibited 'from entering any City of Ithaca building, facility, property, or worksite.'" Plaintiff alleges that this type of restriction was not placed on other fire fighters who were disciplined. He alleges that all of the disciplinary actions were "approved by municipal officials with final authority over disciplinary matters in the Ithaca Fire Department."
On December 17, 2010, Plaintiff filed a charge of discrimination with the New York State Division of Human Rights ("DHR"). Plaintiff was issued a right to sue letter on April 4, 2011. Thereafter, Plaintiff's pay was suspended and he was terminated on April 27, 2011. Plaintiff alleges that his pay suspension and termination were retaliation for his DHR Complaint.
An arbitration proceeding was initiated at some point prior to Plaintiff's termination. It is not clear whether this was before or after Plaintiff filed his charge of discrimination with the DHR. Plaintiff does not allege what was the exact nature of the proceeding, but it appears that the arbitration related only to disciplinary actions against the Plaintiff. He does not allege whether any allegations of discrimination were raised in ...