The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. On December 9, 2011, pro se plaintiff Yvonne Bailey-Lynch filed an amended complaint in response to this Court's Decision and Order, filed November 2, 2011. In accordance with that Decision, Plaintiff's amended complaint restricts her claims to those arising under 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 continues to allege that Defendant committed multiple acts of discrimination against her on the basis of race, color, and sex. Defendant has brought a second motion to dismiss, which is presently before this Court. For the following reasons, Defendant's motion to dismiss is granted.
2. This Court assumes the parties' familiarity with the facts and procedural history of this case, contained in the Court's previous Decision. Relevant to the present motion, this Court filed a Decision and Order on November 2, 2011, granting in part and denying in part Defendant's motion to dismiss, but granting Plaintiff leave to file an amended complaint. (Docket No. 15.) Plaintiff filed her amended complaint on December 9, 2011. (Docket No. 16.) Defendant subsequently filed a second motion to dismiss on December 28, 2011. (Docket No. 17.) This Court issued a scheduling notice, and briefing on Defendant's motion concluded on February 17, 2012, at which time this Court took Defendant's motion under advisement without oral argument.
3. Plaintiff's amended complaint is broadly similar to her original pleading. Certain clarifications have, however, been made. For example, Plaintiff now claims that she was first employed by Defendant on March 13 instead of March 16, 2005. The first discriminatory act is now alleged to have occurred in June 2007, rather than June of 2008. The dates of the alleged discriminatory acts have also been pled with greater specificity, now falling on July 2007, December 5, 2008, October 2008, April 2009 (curiously identified as the last date of discriminatory conduct), and January 2, 2010.
Some claims have also been added. Together with accusing Defendant of terminating her employment, failing to promote her, failing to provide reasonable accommodations, sexual harassment, retaliation for complaining about discrimination or harassment directed at herself and others, Plaintiff now also accuses Defendant of failing to employ her, harassment on the basis of unequal terms and conditions of employment, failing to pay her for services rendered, stealing sales, and "putting [Plaintiff's] fine reputation of a honest sales person jepordy [sic]." (Am. Comp. ¶ 13, Docket No. 16.) Plaintiff also lists a number of related claims and the exhibits in which these may be found.
4. The facts alleged in support of these claims also largely mirror those in her previous complaint. Plaintiff, after being hired on March 13, 2005, was promoted from customer service sales representative to account executive in June of 2008. (Id. ¶ 19.) She was also informed that she was in the running for a manager position, though she was ultimately "looked over" for the position of sales manager, a position accompanied by an annual salary of $100,000. (Id.) Another manager, Austin Franz, stole sales from her, denied her travel, denied her access to the 9:30 a.m. staff meetings, and tried to get her to forge a check. (Id.) Franz also fired her. (Id.) Defendant further failed to pay Plaintiff for three weeks worth of project work, and, in January of 2010, refused to send her tax information despite having done so in past years. (Id.) As with her original complaint, this Court assumes the truth of these factual allegations. 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). Cognizant of the distinct disadvantage that pro se litigants face, this Court has also read Plaintiff's submissions carefully and liberally, and has interpreted them to raise the strongest arguments they suggest. See Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
5. 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 a 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 Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1966, 167 L. Ed. 2d 929 (2007).
6. 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). Legal conclusions, however, are not afforded the same presumption of truthfulness. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) ("The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.").
7. "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 exists when the facts alleged allow for a reasonable inference that the defendant is liable for the misconduct charged. 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 must nudge the claim "across the line from conceivable to plausible." Twombly, 550 U.S. at 570.
8. Title VII makes it unlawful to "fail or refuse to hire or to discharge any individual, or to otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Accordingly, the "sine qua non of a . . . discriminatory action claim under Title VII is that the discrimination must be because" of the employee's protected characteristic. Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007).
9. Although at the motion to dismiss stage, a plaintiff is not required to plead specific facts showing a prima facie case of discrimination, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-12, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002), a complaint "fail[ing] to allege even the basic elements of a discriminatory action claim," is subject to dismissal, Patane, 508 F.3d at 112 n.3. This proved fatal to Plaintiff's original complaint. This Court previously noted that Plaintiff had pled no facts indicating that Defendant's actions were motivated by a discriminatory intent, and had failed to show that she was denied a promotion in favor of colleagues of a different race or sex. This Court also scrutinized her denial of travel claim, but found that the facts alleged again lacked any hint of discriminatory intent.
10. Plaintiff's amended complaint does nothing to correct these problems. Instead, Plaintiff again lists a series of alleged wrongdoings by Franz, her manager, and Defendant, without tying those acts to a discriminatory motive.
It is well-settled that an inference of discriminatory intent may be derived from a variety of circumstances, including, but not limited to: the employer's continuing, after discharging the plaintiff, to seek applicants from persons of the plaintiff's qualifications to fill that position; or the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge.
Leibowitz v. Cornell Univ.. 584 F.3d 487, 502 (2d Cir. 2009) (quotation and citation omitted); see also Elias v. City of New York, No. 10-CV-5495 (SLT)(LB), 2010 ...