BERNARD V. IDLISAN, Plaintiff,
SUNY UPSTATE MEDICAL UNIVERSITY, Defendant.
BERNARD B. IDLISAN, Brooklyn, New, Plaintiff, pro se.
HEATHER R. RUBINSTEIN, ESQ., Assistant Attorney General, OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, Albany, New York, Attorneys for Defndant.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
Plaintiff commenced this action on December 5, 2012, alleging employment discrimination, intentional infliction of emotional distress, and bribery resulting from Defendant's refusal to hire him. See Dkt. No. 1. Following Plaintiff's application to proceed in forma pauperis, Magistrate Judge Dancks undertook an initial review of the complaint. Magistrate Dancks issued a Report-Recommendation recommending that the Court dismiss certain claims without leave to amend, dismiss other claims with leave to amend, and allow Plaintiff's claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") to proceed against Defendant SUNY Upstate Medical University ("SUNY Upstate"). See Dkt. No. 3. By Order dated February 7, 2013, the Court adopted Magistrate Judge Dancks' Report-Recommendation. Dkt. No. 4.
Plaintiff thereafter timely requested leave to amend his complaint, see Dkt. No. 5, which request was granted, see Dkt. No. 8. In his amended complaint, Plaintiff did not replead any of the claims that were dismissed without prejudice. See Dkt. No. 15. Accordingly, the only remaining claim in this action is Plaintiff's Title VII claim against Defendant SUNY Upstate.
Currently before the Court is Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12. See Dkt. No. 19-1. Defendant asserts that Plaintiff's amended complaint fails to state a plausible Title VII claim. See id. at 7.
Plaintiff's nation of origin is the Philippines, and he is Asian by race. See Dkt. No. 15 at 3. Plaintiff has prior work experience in clerical positions, see id., and has received scores of ninety and eighty percent on Civil Service examinations for the positions of Hospital Patient Services Clerk and Nursing Station Clerk I, respectively, see id. at 6.
Plaintiff applied for a total of thirty-four clerk positions at SUNY Upstate during the period from February 2011 through January 2012. At least twenty-two of the positions were filled by others. None of the positions were offered to Plaintiff. See id.
On March 5, 2012, Plaintiff filed a formal discrimination complaint with the New York State Division of Human Rights ("NYSDHR") alleging discrimination based upon his national origin and race. The NYSDHR found no probable cause that SUNY Upstate had engaged in discriminatory conduct. Plaintiff thereafter sent the Equal Opportunity Employment Commission ("EEOC") a request for review of NYSDHR's final determination, and on October 26, 2012, EEOC issued Plaintiff a right to sue letter. See id.
A. Standard of Review
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief and pleadings without considering the substantive merits of the case. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007); Global Network Commc'ns v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006). In considering the legal sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation ...