The opinion of the court was delivered by: Jesse M. Furman, United States District Judge:
This employment discrimination case stems from pro se Plaintiff Omar Chukwueze's employment as an Assistant Retirement Benefits Manager at the New York City Employees' Retirement System ("NYCERS") from September 18, 2006, until his termination on January 21, 2009. (Compl. at 5, 8).*fn1 Invoking Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq., Chukwueze alleges that he was the victim of discrimination on the basis of religion and national origin, that he was wrongfully terminated, and that he was retaliated against for requesting religious accommodation and for complaining and testifying about the discrimination that he and others faced. (Compl. at 3).*fn2 Defendant has moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the grounds that several of Chukwueze's claims are barred as untimely or for failure to exhaust administrative remedies, and that Chukwueze has failed to state a claim upon which relief could be granted. For the reasons discussed below, Defendant's motion to dismiss is granted in part and denied in part.
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). Although a court generally may not look outside the pleadings when reviewing a 12(b)(6) motion to dismiss, because a pro se plaintiff's allegations must be construed liberally it is appropriate for a court to consider factual allegations made in a pro se plaintiff's opposition memorandum, as long as the allegations are consistent with the complaint. See, e.g., Braxton v. Nichols, No. 08 Civ. 08568 (PGG), 2010 WL 1010001, at *1 (S.D.N.Y. Mar. 18, 2010); cf. Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering a pro se plaintiff's affidavit in opposition to a motion to dismiss in addition to those in the complaint). Accordingly, the following facts are drawn from Chukwueze's amended complaint and his opposition to the motion to dismiss (to the extent it is consistent with the complaint), and are accepted as true for the purposes of this motion.
Chukwueze, an evangelical Christian of West Indian descent, worked at NYCERS as a provisional employee with the title of Assistant Retirement Benefits Examiner from September 18, 2006, until January 21, 2009. (Compl. at 5, 8). Chukwueze alleges that he first faced religious discrimination in 2007, when he requested to take leave on December 26th for religious observance of St. Stephen's Day. (Id. at 9, 11). His supervisor, Michelle Gaddy, told him that December 26th was not a religious holiday and, although she did not prohibit him from taking the day off, she made him change the reason for leave stated on his leave request from "annual leave for religious observance" to "annual leave for vacation." (Id. at 5, 9). Several months later, when Chukwueze requested a vacation day to observe Good Friday, Gaddy got very upset and made several comments to Chukwueze, such as "You are giving me this form because you think I can't deny it" (id. at 9), and "You think I have to give you this day off!!!" (Id. at 14). Despite Gaddy's initial reaction, Chukwueze was ultimately given permission to take the day off. (Id. at 8).
In early December 2008, Chukwueze requested annual leave for religious observance of St. Stephen's day once again. When he made the request, Gaddy confronted him "in a hostile manner," and stated "in a loud and audacious voice, 'that is not a religious holiday and I do not have to give you that day off.'" (Id. at 9). Chukwueze alleges that Gaddy behaved with "continued public belligerence and aggressiveness," which led him to request to speak with the division director in a private location. (Id.). The following day, Gaddy refused Chukwueze's request to speak to the division director, and instead had his unit supervisor join them for another conversation. (Id.). Chukwueze described this as a "horrendous conversation which lasted for more than hour," during which he was "interrogated and chastised about [his] decision" to take time off. (Id.). He accuses Gaddy of saying that she felt that she had been ignorant when she signed the slip for an earlier leave request in 2006, but this year "SHE WAS READY FOR [HIM]!!" (Id. at 9). "After [Chukwueze's] continued explanation and beseeching," during which time Gaddy allegedly attempted to coerce him into taking different days off, Chukwueze was given permission to take the day off. (Id. at 9, 11).
In mid-January 2009, Gaddy discovered that Plaintiff had begun keeping a record of her actions that he thought were unjust. Gaddy responded: "That is not going to save you!!!" (Id. at 12; Pl.'s Opp'n at 6). Chukwueze was terminated the following day on January 21, 2009. (Pl.'s Opp'n at 6). The Human Resources director refused to tell Chukwueze why he had been fired.
(Id.). Following Chukwueze's termination, however, Gaddy told members of Chukwueze's unit that he was terminated because he was too opinionated and that he could not complain while he was a provisional employee. (Compl. at 5). Defendant asserts that Plaintiff was terminated for cause for lying to his manager regarding his overtime usage. (Def.'s Mem. of Law at 2). Plaintiff contends, however, that he initiated all conversations with his managers about overtime usage and did not lie to them. (Compl. at 16).
On March 13, 2009, Chukwueze filed a charge of discrimination with the Equal Employment Opportunities Commission ("EEOC") alleging religious discrimination and retaliation; his charge said nothing about discrimination on the basis of national origin. (Id. at 8). For example, he checked boxes on the form for religious discrimination and retaliation, but did not check the box labeled "national origin." (Id.). And, although Chukwueze identified himself as "a Christian of West Indian descent," his allegations were limited to his religious practices and his requests to take days off for religious observance in 2007 and 2008. (Id.). The charge concluded with the following statement: "I believe that I have been discriminated against because of my religion and retaliated against for protesting such discrimination . . . ." (Id.).
In July 2009, Chukwueze testified as a witness in a discrimination case brought by one of his former co-workers before the New York State Division of Human Rights. (Id. at 18-19). In January 2010, Chukwueze discovered that his name had been removed from the list of people eligible for civil service positions as assistant retirement benefits examiners. (Id. at 18). Chukwueze was told that he was removed from the list because of his failure to report for a job interview with NYCERS. (Id.). The EEOC issued its Notice of Right to Sue Letter on July 27, 2010. (Id. at 7). Chukwueze filed this action on October 26, 2010. (Docket No. 1).
A.Rule 12(b)(6) Standards
To survive a Rule 12(b)(6) motion, a plaintiff must generally plead sufficient facts "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). More specifically, the plaintiff must allege sufficient facts to show "more than a sheer possibility that a defendant acted unlawfully." Id. A complaint that offers only "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Further, if the plaintiff has not "nudged [his or her] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Id. at 570.
Twombly and Iqbal notwithstanding, the Supreme Court has held that, to survive a motion to dismiss, "a complaint in an employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrimination under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Id. at 569 (quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 (2002)).*fn3 Nevertheless, the elements of a prima facie case "provide an outline of what is necessary to render [a plaintiff's employment discrimination] claims for relief plausible." Sommersett v. City of New York, No. 09 Civ. 5916 (LTS) (KNF), 2011 WL 2565301, at *5 (S.D.N.Y. June 28, 2011). Accordingly, "courts consider these elements in determining whether there is sufficient factual matter in the complaint which, ...