WILFORD A. TOYE, JR., Plaintiff,
NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Defendant.
WILFORD A. TOYE, JR., Staten Island, NY, Plaintiff, Pro Se
JEB HARBEN, ESQ., Ass't Attorney General, HON. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, New York, NY, Attorney for Defendant.
KELLY L. MUNKWITZ, ESQ., Ass't Attorney General, HON. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, Albany, NY, Attorney for Defendant.
MEMORANDUM-DECISION and ORDER
DAVID N. HURD, District Judge.
Plaintiff Wilford A. Toye, Jr. ("Toye" or "plaintiff"), proceeding pro se, brings this action against defendant New York State Department of Corrections and Community Supervision ("DOCCS" or "defendant") alleging retaliation based on his race, color, and age in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act ("ADEA"), and the Americans with Disabilities Act ("ADA").
On May 30, 2013, defendant filed a motion to dismiss the Amended Complaint in its entirety pursuant to Federal Rule of Civil Procedure ("Rule ____") 12(b)(6). Plaintiff opposed. The motion was taken on its submissions without oral argument.
II. FACTUAL BACKGROUND
The following factual allegations, drawn from the Amended Complaint and plaintiff's opposition papers,  are assumed true for purposes of this motion.
Toye has been employed by DOCCS for about fifteen years. Until its closure in December 2011, plaintiff worked at the Arthur Kill Correctional Facility in Staten Island, New York. Thereafter, plaintiff was assigned to work as a Corrections Officer ("CO") at the Ulster Correctional Facility ("Ulster") in Napanoch, New York. However, he did not begin working at Ulster until February 2012 because of "an injury and the death of [his] mother[.]" Plaintiff identifies himself as "Black." Pl.'s Mem. Opp'n 20.
On May 11, 2012, at approximately 3:00 p.m., Toye was working on the D-1 housing unit when he received a phone call from fellow CO Javier Cortes ("Cortes") about the daily security assignments. Id . 2. During this phone call, Cortes referred to plaintiff as "bub." Id . Plaintiff immediately informed Cortes that his "name is Officer Toye[, ] not bub, " and Cortes hung up the phone. Id . When Cortes called back a few minutes later, plaintiff told him that "you need to call your own kind that word, " and Cortes hung up the phone again. Id.
Approximately thirty minutes after these two phone calls, another officer relieved Toye from his post on the D-1 housing unit. During this break, plaintiff left the building to retrieve his lunch pail from his car. When he re-entered the building's lobby, Cortes was nearby and began calling him "bub and various other words." Id . Plaintiff then walked to the arsenal, picked up his equipment, and headed back to work.
At approximately 10:50 p.m. that evening, Toye returned to the arsenal to drop off his equipment and end his shift. Cortes was nearby and asked plaintiff, "bub where's your ID[?]" Pl.'s Mem. Opp'n 2. Plaintiff showed Cortes his identification, and then went to the lobby desk to submit a "bid slip" for an upcoming "patrol" assignment. While plaintiff was submitting this bid slip, Cortes came over to him and yelled "what's up bub" and repeatedly called him "bubba." Id . 1, 2. Twenty-five other officers, including the chart sergeant and lieutenant, overheard these statements and were all "laughing with" Cortes at this time. Id.
After submitting his bid slip, Toye walked away from Cortes and went into the line-up room. Cortes followed him and "bumped [him] with his stomach" in a manner that plaintiff understood to mean that Cortes was "trying to get me to fight him." Id . 1. Plaintiff informed Cortes that "bub means nigger" where he is from. Id . 2. Cortes replied that he was responsible for starting the cultural diversity program at Ulster, and referred to plaintiff as "bub" several more times. Id . Plaintiff and Cortes began arguing, but the other officers eventually pulled Cortes away and everyone left the area. Id . 1. While the exact timing is unclear, plaintiff submitted a written report of this incident to his supervisor, Deputy Security Superintendent ("DSS") Morton. Pl.'s Mem. Opp'n 2. Plaintiff also verbally reported the incident to DSS Morton, who laughed it off and told him that "[i]t means nothing." Id . 1. At some point over the next few days, Cortes also filed a written report with DSS Morton. This report accused plaintiff of lifting his coat to show his weapon in a menacing gesture in response to Cortes' statements of "bub" or "bubba." Id . 23, 26.
On May 15, 2012, Toye was awarded the "patrol" assignment. Id . 4. About twenty officers "seem[ed] upset" that plaintiff had won this job bid. Id . 3. On May 17, 2012, an unnamed union steward approached plaintiff and instructed him to write a memo to DSS Morton indicating that he was "willing to keep the incident [with Cortes] within facility level [ ] with the agreement there will be no ...