The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Judge
Plaintiff, Elizabeth Stokes, a former employee of Defendant Nestle Purina Petcare Company, commenced this action in January 2012 asserting causes of action for employment discrimination based on sex in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and on age in violation of the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. §§ 621 et seq., as well as a related retaliation claim. Pending before this Court is Defendant's motion to dismiss.*fn1
For the reasons discussed below, this Court finds the matter fully briefed and oral argument unnecessary, and concludes that Defendant's motion should be granted in part and denied in part.
Plaintiff, a female over forty years of age, was employed by Defendant from 1998 to 2010 as a utility operator. (Compl. ¶¶ 9-14, 54-59, Docket No. 1). As alleged in her complaint, in May 2010, Plaintiff was written up by Erika Jacobson, Acting Department Manager, for wearing her long hair down in violation of company policy. (Compl. ¶ 15.) Plaintiff complained to Ron Bowers, the plant manager, that Jacobson was selectively enforcing this policy against Plaintiff despite other employees, including both women with long hair and men who wore ponytails, being permitted to keep their hair down. (Id. ¶ 16.) Plaintiff's immediate supervisor, Scott Hultberg, informed her of comments that Jacobson routinely made about Plaintiff's hair and nose ring. (Id. ¶ 17.) When Plaintiff complained to Bowers that "she was being harassed, he said he didn't think she was." (Id. ¶ 18.)
Shortly thereafter, Plaintiff was in a meeting to discuss a "hold order," or product being returned for bad seals, when a co-worker commented on the man Plaintiff was dating at the time. (Id. ¶¶ 19-26). At that meeting, Plaintiff asked the Department manager, Jaime Perkins, why the operators and packers were being held accountable for the loss when employees had previously complained that they "could not run the product at a certain speed but were told to do it anyway." (Id. ¶ 27.) When Plaintiff commented that the problem would not have occurred without such orders from management, Perkins told Plaintiff it was none of her business, and that she should go home for the day. (Id. ¶¶ 29-31.) Plaintiff then received a phone message that she was suspended until further notice, and she remained on suspension for five days. (Id. ¶¶ 33-34.) Plaintiff asserts this length of time was unprecedented, as suspensions usually ran three days. (Id. ¶¶ 34-35.) Further, two men had questioned management in prior meetings and were not punished.
After Plaintiff returned to work, she was informed that she could no longer take breaks outside of her work area, a change from the previous practice of allowing employees to take breaks wherever they wanted. (Id. ¶¶ 41-42, 44.) Plaintiff was specifically told that she could not go into the work area of the man she was dating, Al Grzegorzewski, and he was similarly instructed not to come to Plaintiff's department or speak with her unless it was work related. (Id. ¶¶ 45-47.) Plaintiff was told by Hultberg that Perkins instructed him to restrict all employees to take their breaks within the department because Perkins did not want Plaintiff to think she was specifically harassing Plaintiff. (Id. ¶¶ 17, 48-49.) Plaintiff alleges that, upon information and belief, Perkins knew Grzegorzewski's wife from church. (Id. ¶ 52.)
Plaintiff further alleges that on July 25, 2010, a shift operator set up the line with the wrong code. (Id. ¶ 54.) When Plaintiff arrived for work, her supervisor Hultberg told her to work another employee's line while he took a break, which Plaintiff did. (Id. ¶¶ 54.) Plaintiff did not check the code then, but when she returned to this same line a few hours later, she noticed that the line was incorrectly labeled. (Id. ¶¶ 55-57.) Quality Control Managers were called, and they decided to release the product for sale. (Id. ¶ 58.) Plaintiff was fired three days later, and she "was told she was fired as her final warning for quality control." (Id. ¶¶ 59-60.) Plaintiff alleges that "[e]mployees who are younger and male have had more violations than [she had], but have not been fired." (Id. ¶¶ 59-61.)
Plaintiff filed a charge of discrimination with the New York State Division of Human Rights ("DHR") and the Equal Employment Opportunity Commission ("EEOC") in October 2010. (Compl. ¶ 6.) DHR determined that there was no probable cause to believe that Defendant engaged in unlawful discrimination, following which Plaintiff received a right-tosue letter from the EEOC. (Compl. ¶ 7.) Plaintiff thereafter commenced the instant action in this Court alleging causes of action for sex and/or religious discrimination, age discrimination, and retaliation. Defendant now moves to dismiss the complaint for lack of subject matter jurisdiction and the failure to state a claim. See Fed. R. Civ. P. 12 (b)(1);(b)(6).
In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a court must accept all factual allegations in the complaint as true and make all reasonable inferences in a plaintiff's favor. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). In order to survive such a motion, 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, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); ATSI Commc'ns, Inc., 493 F.3d at 98. This assumption of truth applies only to factual allegations and is inapplicable to legal conclusions. Iqbal, 556 U.S. at 678. Further, although " 'a complaint in an employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrimination[,]' . . . [it must state] . . . only enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 547 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. In making its determination, a court is entitled to consider, as relevant here:
(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents 'integral' to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) . . . , and ...