United States District Court, E.D. New York
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For Plaintiff: Gregory R. Preston, Esq., Preston & Wilkins, PLLC, Levittown, NY.
For Defendant: Matthew Aaron Siebel, Esq., Long Island University, Greenvale, NY.
MEMORANDUM & ORDER
Joanna Seybert, United States District Judge.
Plaintiff Tremaine Johnson (" Plaintiff" ) commenced this action against his current employer, defendant Long Island University (" LIU" ), alleging disparate treatment and hostile work environment on account of his race and gender in violation of: (1) Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e et seq.; (2) 42 U.S.C. § 1981; and (3) the New York State Human Rights Law (" NYSHRL" ), N.Y. EXEC. LAW § 290 et seq. Currently pending before the Court is LIU's motion to dismiss the Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket Entry 5.) For the following reasons, LIU's motion to dismiss is GRANTED IN PART and DENIED IN PART.
I. Factual Background
Plaintiff is an African-American male currently employed by LIU, a private university in Greenvale, New York. (Compl. ¶ ¶ 3-4.) In 2012, Plaintiff applied for the positions of Assistant Director of Residence Life and Resident Hall Director. (Compl. ¶ 9.) LIU hired Plaintiff for the Hall Director position. (Compl. ¶ 10.) However, Plaintiff claims that LIU did not interview him for the Assistant Director position even though he was qualified for that position and instead gave the position to a less-qualified individual, Sean Lazarus (" Lazarus" ). (Compl. ¶ ¶ 11-12.) The Complaint does not identify Lazarus' race but it does allege that Shana Eustacy was only one other African American " staff member" at LIU besides Plaintiff. (Compl. ¶ 20.)
The Complaint then alleges several incidents during the course of Plaintiff's employment that Plaintiff claims constitute disparate treatment and/or created a hostile work environment on account of his race and gender. In June 2011, Jennifer Fuoco (" Fuoco" ), LIU's Associate Director of Residence Life, allegedly told Plaintiff that he could not wear shorts, jeans, or sneakers while working. (Compl. ¶ 15.) However, " days later," Plaintiff observed Fuoco wearing capris. (Compl. ¶ 16.) When Plaintiff " asked if that meant he could at least wear Khaki shorts," Fuoco said " no" because, according to Fuoco, " dressing in cool temperature attire was a women thing." (Compl. ¶ 16.) Plaintiff also alleges that he later observed Yuri Gulzman " [come] to a mandatory Resident Assistant training session to teach a course in shorts and sneakers, while others like [Plaintiff] was [sic] dressed in business casual attire." (Compl. ¶ 17.) He similarly claims that Dan Ugenti (" Ugenti" ) " wore shorts and sneakers during his scheduled office hours when it was communicated to [Plaintiff] that the dress code even during the summer was the standard attire of slacks, collared shirt, and dress shoes." (Compl. ¶ 18.)
In September 2011, Plaintiff asked Fuoco " about working with the athletic department." (Compl. ¶ 19.) Fuoco advised Plaintiff that he was not allowed to work with athletic teams during " the scheduled work hours" of 9:00 a.m. to 5:00 p.m. and that he also could not receive compensation for working with other departments on campus. (Compl. ¶ 19.) However, Plaintiff claims that " [s]imilarly situated employees who are not in a protected class . . . were not also restricted." (Compl. ¶ 19.) As an example, during the 2012 spring semester, Kelly Carpino " interned for a non-student affair related organization" two to three times per week, which required her to leave work at 1:00 p.m. (Compl. ¶ 19.) Additionally, during the 2012 fall semester, Lazarus and Ugenti allegedly taught " College 101" courses during the day for compensation. (Compl. ¶ 20.)
Plaintiff also complains that LIU denied his requests " for special projects and trainings" but provided such training to other, unidentified " similarly situated employees." (Compl. ¶ 13.) Similarly, during the 2012 fall semester, Plaintiff spoke to two officials in LIU's athletic department about volunteering for the department but " neither [official] would return his emails or phone calls." (Compl. ¶ 35.)
In the Spring of 2012, Plaintiff was injured during a student-staff basketball game and was out of work for five months
on workers compensation. (Compl. ¶ 22.) When he returned to work in September 2012, LIU required him to make up the time he missed. (Compl. ¶ ¶ 21, 24.) This required Plaintiff " to take seven (7) weeks of duty during the fall semester" while " no other Residence Hall Directors had to take more than 2 weeks." (Compl. ¶ 23.) When Plaintiff complained that he was experiencing pain due to the increased duty schedule, Fuoco " stated that she had spoken with a Human Resources representative . . . and was told if [Plaintiff] was unable to do duty, then he could not keep his position." (Compl. ¶ ¶ 26-27.)
Plaintiff also received a performance review upon his return in September 2012. (Compl. ¶ 31.) According to Plaintiff, he was told that " he needed improvement" " in the area of student life involvement." (Compl. ¶ 31.) Additionally, Fuoco " referred to [Plaintiff] as a schmoozer because he interacted with the other departments on a regular basis," and he " was told that he needed to focus more on administrative duties than schmoozing with other departments." (Compl. ¶ 31.) He " was given an average for professional etiquette," which was the same score given to Ugenti. (Compl. ¶ 32.)
Plaintiff additionally alleges that on November 4, 2012, he " wanted to leave after work and go vote in Brooklyn," but he " was unable to vote in fear of losing his job." (Compl. ¶ 33.) Thus, Plaintiff " left campus at 2 pm to make an attempt to vote and was required to take a half day of work." (Compl. ¶ 34.) However, his co-workers, Scott Towers and Dan Caccavale, left the campus at 12:00 p.m., did not return until after 5:00 p.m., and were not " required to take a half day." (Compl. ¶ 34.)
The Complaint is not entirely clear but Plaintiff also appears to allege that he was not able to take pain medication while he was on duty because it would make him drowsy and therefore unable to respond to potential emergency phone calls during the night. (Compl. ¶ ¶ 29-30.) He claims that an unidentified individual " expressed to all Residence Hall Directors that if they [could not] be reached on duty their job would be in jeopardy," and that on November 1, 2012, Fuoco allegedly did not respond to a call while she was on duty because she took medication that caused her to fall into a " deep sleep." (Compl. ¶ 30)
Finally, in the Fall of 2011, Fuoco accused Plaintiff of having knowledge concerning an " inappropriate" relationship between a fellow hall director and a student and told him that " he may be disciplined for not being forth coming [sic] with information." (Compl. ¶ 39.) Fuoco advised him that hall directors were not " allowed to have personal relationships with students." (Compl. ¶ 40.) Plaintiff claims that another hall director has a " known relationship" with a current student. (Compl. ¶ 41.)
II. Procedural Background
Plaintiff filed an administrative complaint with the Equal Employment Opportunity Commission (" EEOC" ) alleging discrimination on account of race and disability. (Siebel Decl., Docket Entry 6, Ex. D.) On or about January 29, 2013, Plaintiff received a " Notice of Right to Sue" from the EEOC. (Compl. ¶ 7.) On April 23, 2013, Plaintiff filed the Complaint in this action, which includes claims for disparate treatment and hostile work environment based on ...