United States District Court, S.D. New York
MEMORANDUM AND ORDER
ANDREW L. CARTER, Jr., District Judge.
Plaintiff Eric Dunn brings this action, pro se, for monetary damages and costs, against defendant URS Corp. ("URS"), as well as defendants Carol Pandone ("Pandone"), Jeff Vladkya ("Vladkya"), and Lou Tucciarone ("Tucciarone") in their individual capacities. This is a discrimination suit arising out of Dunn's previous employment at URS. The Complaint alleges violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"). Dunn, who is African-American, alleges that the defendants discriminated against him on the basis of his race when they: (1) failed to promote him, (2) paid him less than what similarly situated employees received, (3) failed to rehire him for an available position for which he was qualified while on leave, and (4) terminated his employment. This Opinion resolves the Motions to Dismiss filed by Carol Pandone and the remaining defendants.
Dunn's NYSHRL and NYCHRL claims are dismissed for lack of subject matter jurisdiction. So are his Title VII claims against the individual defendants. The plaintiff's Title VII failure to promote claim is rejected because he never actually applied for a promotion. However, Dunn's unequal pay claim against URS under Title VII survives to the extent his paychecks fall within the 300-day statute of limitations in New York State. Moreover, his Title VII claims against URS for failure to rehire and termination of employment, despite not being stated in his EEOC charge, are properly considered because they are reasonably related to the operative allegations in that complaint. For the reasons elaborated herein, Pandone's motion is GRANTED in its entirety, while the motion submitted by the remaining defendants is GRANTED in part and DENIED in part.
Dunn was employed by URS from August 2008 to approximately six months after June 1, 2012. Compl. 31, 34. In those last six months, he was on a Standby Leave of Absence ("Standby Leave"), which culminated in his termination when he was not rehired. See id. 34, 67. For most of the period from August 2008 to June 1, 2012, Dunn held the title of Office Engineer on URS' East Side Access ("ESA") Project. See id. 31. On July 1, 2010, Mark Denise, Senior Project Manager in ESA's Procurement and Logistics Department, left the Project. Id. 6. He had been Dunn's direct supervisor. Id. Six months prior to Denise's departure, Dunn's workload had increased twofold due to: the departure of another employee, Leslie Bailey; the movement of a million dollars' worth of material and equipment to a larger facility; and a "Stimulus purchase" of material valued at 19 million dollars. Id. As a result, Dunn's responsibilities and workload exceeded the job description of an Office Engineer. Id. His portfolio and level of authority caused him to serve in the capacity of a manager, in spite of his title being unchanged. Id. Indeed, Dunn was listed as a Materials Manager in the Project's organizational chart. Id. 32. Employees at the new facility regularly contacted Dunn for managerial instruction despite the fact that he was not their direct manager, and for 10 months, until the hiring of Pandone to replace Denise, Dunn singlehandedly oversaw the Procurement and Logistics Department. Id. 6-7.
On August 16, 2011, Dunn emailed Vladkya, Program Executive on the ESA Project, to request a meeting. Id. 6. Although Dunn's email did not indicate the purpose of the meeting, Vladkya's reply stated: "Just a heads up MTA will not approve $$$ increases." Id. 15. In their August 22, 2011 meeting, Dunn expressed his opinion that he deserved a salary increase based on the significant expansion of his workload and responsibilities since Denise had left the Project. Id. 7. Vladkya repeated that the MTA was not approving salary increases at the time, and added that he would monitor the situation for any changes to the MTA's policy in the remainder of the year. Id. A month-and-a-half later, Dunn discovered that numerous URS employees and subcontractors had either received pay raises or were in the process of obtaining pay raises and promotions, and that none of them were African-American. Id. Moreover, Vladkya had submitted many letters on behalf of these individuals to the MTA Chief Finance Officer assigned to the Project, in support of the salary increases and promotions. Id. Dunn provides a non-exhaustive list of 12 applicants for pay raises, along with the respective dates on which Vladkya submitted his letters of endorsement. Id.
On March 24, 2012, Dunn met with Pandone and asked her to meet with Vladkya or Pete Malvese on his behalf regarding a salary increase on the basis that, in addition to his normal workload, he had been appointed the sole individual responsible for creating thousands of material requisitions on the Amtrak side of the ESA Project. Id. 7-8. Pandone agreed to make the request on behalf of Dunn to Malvese when she determined that he was in a good mood. Id. 8. In her March 24, 2012 meeting with Dunn, Pandone made no mention of a concern about Dunn's job performance. Id. However, in a March 30, 2012 meeting, Vladkya and Tucciarone stated that Pandone had concerns regarding his job performance. Id. By that point, Dunn had worked with Pandone for over a year without any such indication from Pandone. Dunn's evaluations for the immediately preceding years of 2010 and 2011 had been good, if not excellent, id. 6, 33, and it was only a few days following Dunn's request that Pandone assist him in obtaining a salary increase that he was first made aware of her reservations, id.
In a subsequent meeting that included Pandone, Vladkya, and Tucciarone, Dunn discovered that Pandone's concerns were about minor mistakes he had made, including errors Pandone herself was prone to commit. Id. 9. During their meeting, Pandone agreed to give Dunn an overview of the materials management computer system, as well as procurement and logistics procedures, in order to address his performance deficiencies. Id. However, Pandone never followed through on her commitment in that meeting, and moreover withheld information during Dunn's ensuing evaluation period that would have helped him complete a task she had assigned him. Id. On another occasion, Pandone wrongfully accused Dunn of intercepting a fax and stated, "I know what you did Eric and I'm going to have the last laugh." Id. 9-10.
During a June 1, 2012 performance evaluation meeting attended by Malvese, Vladkya, Pandone, and Tucciarone, Dunn was told that Pandone had not seen any improvement in his work performance. Id. 11. Dunn left the Project that day. Id. Approximately one week later, the Human Resources Department of URS called Dunn and provided him with two options: self-termination, which would have allowed him to collect a severance package, or Standby Leave, which would have allowed him to remain in the URS system without pay. Id. 33-34. On Standby Leave, he would be eligible for certain health benefits that he would have to pay for out-of-pocket. Id. Moreover, Dunn would be eligible for rehire in the event his skills were sought in an available position. Id. 34. In such a case, URS would contact him. Id.
At some point while on Standby Leave, Dunn visited the URS website and saw an available Office Engineer position in the New York City metropolitan area, but he was never contacted. Id. Furthermore, Dunn's old position was listed on the URS website as Railroad Force Account Warehouse & Operations Manager. Id. Standby Leave lasts a maximum period of six months prior to an employee's automatic termination in the event the employee is not rehired. Id. 67. Dunn was never rehired. Id. 34.
STANDARD OF REVIEW
To withstand a motion to dismiss, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The complaint "need not include detailed factual allegations, but must contain sufficient factual matter... to state a claim to relief that is plausible on its face." Corona Realty Holding, LLC v. Town of N. Hempstead, 382 F.Appx. 70, 71 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotations omitted). Incantation of the elements of a cause of action, "supported by mere conclusory statements, " is not enough to show plausibility. Id. at 72. Nevertheless, "[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted) (internal quotations omitted). In particular, "the pleadings of a pro se plaintiff... should be interpreted to raise the strongest arguments that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (internal quotations omitted).
I. The NYSHRL and ...