United States District Court, S.D. New York
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge.
On March 11, 2013, Plaintiff Michael Carter, proceeding pro se and in forma pauperis, filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 to 634 (the "ADEA"), the New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297 (the "NYSHRL"), and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 to 131 (the "NYCHRL"). Construing his allegations in the strongest manner possible, Plaintiff alleges employment discrimination (in both disparate treatment and hostile work environment forms) and retaliation based on his gender and his age. Defendants, Verizon and several of its employees, have moved to dismiss Plaintiff's Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6); Plaintiff has submitted no opposition. For the reasons set forth in the remainder of this Opinion, Defendants' motion is granted in part and denied in part, and Plaintiff is given leave to amend certain of his retaliation claims.
A. Factual Background
Plaintiff began working at Verizon on June 26, 1997, in the "Manhattan Business Office." (SAC 4, 9). In early 2011, when Plaintiff was 48 years old, the management team at the Manhattan Business Office changed; Defendant Julane Lowe became "office manager, " and Defendant Ti-shawn A. Kinsey became "team leader" of the team on which Plaintiff worked. (Id. at 4). Both women functioned as Plaintiff's supervisors. Plaintiff complains that, starting at the time of this transition in management, he was subjected to discrimination, harassment, and retaliation based on his age and gender. (Id. at 4-6).
Specifically, Plaintiff complains that on or about December 10, 2011, Defendant Lowe "made a snide comment about the fact that she didn't like the way [his] clothes fit." (SAC 4). Plaintiff also claims that, unlike all of the other employees, Lowe did not say "Good morning" to Plaintiff when she arrived at work each morning, even though Plaintiff's work station was located near the entrance to the office. (Id. ). Plaintiff further alleges that he was not selected for "a new retention team [that] was formed" because of "[f]avoritism" and because Lowe, the supervisor of the team, said that she "wanted new blood.'" (Id. at 5).
With regards to Defendant Kinsey, Plaintiff claims he was "observed constantly" by her, either "side-by-side or remote." (SAC 4). According to Plaintiff, the side-by-side observations "began to take on a bizarre twist" when Kinsey "would place her hands on [Plaintiff's] shoulders and press her breasts against [him]." (Id. ). Co-workers joked about the "attention" Plaintiff received from Kinsey. (Id. ). "[A]t times, " claims Plaintiff, Kinsey also "would walk by [his] desk, touch [his] shoulders and ask, Do you have some money for me?, '" although Plaintiff effectively concedes that the "money" to which Kinsey was referring pertained to Plaintiff's sales to Verizon customers. (Id. at 4-5).
Because of some or all of these incidents, at some point between December 2011 and August 2012, Plaintiff filed an internal complaint against Kinsey, and perhaps others, for alleged Title VII violations. (SAC 5). Plaintiff asserts that "they" (presumably Verizon management) informed Defendants Lowe and Kinsey of his grievance. (Id. ). Plaintiff claims that after he filed this complaint, observations of his work performance "increased exponentially, " and "[o]ther managers" also began observing him. (Id. ). This increased observation of his work performance, Plaintiff admits, caused him to "forget the call flow." (Id. ). "Soon thereafter, " Plaintiff claims, he was placed on Verizon's disciplinary track, in "Step 2 (reprimand)" of the "performance plan." (Id. ).
Plaintiff also claims that, at some point, he was placed on the less desirable "Billing pin" telephone duty, rather than the more desirable "Order pin" duty. (SAC 5 (noting that "Billing pin" involved resolution of "intense billing issues" with "irate" Verizon customers, while "Order pin" involved customers who were "only looking to purchase something")). Plaintiff asserts that this was because Kinsey would give "Order pin" duty to her friends or others whom she favored in the office. (Id. ). Plaintiff also admitted "a problem reading the scripted call flow." (Id. ). Because he did not "mesh well" with his supervisor Kinsey, Plaintiff sought the assistance of other team leaders. (Id. ). Those managers, however, referred him back to Kinsey, which Plaintiff claims "made it clear there was some sort of retaliation in effect." (Id. ).
In August 2012, Plaintiff was placed on "Step 3" of Verizon's disciplinary plan "for not following the call flow." (SAC 5). While Plaintiff was given some additional training and a new template at this point, he still had difficulty with "the volume of irate Verizon users" and the existence of "serious billing problems." (Id. ). Plaintiff claimed that the "high rate of absenteeism" of his coworkers increased his workflow, and meant his job included "not only billing resolution but collections and repair calls." (Id. at 6). Verizon also implemented a "new system" at that time, on which Plaintiff needed to be trained. (Id. ). Plaintiff was overwhelmed with what he called "the hostile work environment, intimidation, and added responsibilities, " and he apparently could not get enough help for "issues [he] could not solve." (Id. ). On September 10, 2012, Plaintiff "went out sick with stress disability, " from which he did not return until December 10, 2012. (Id. ).
By that time, Hurricane Sandy had flooded Verizon's Manhattan office, and at least some employees in the Business Office, including Plaintiff, were transferred to an office in Brooklyn. (SAC 6). At this new location, Plaintiff had a new supervisor, Defendant Christopher Shea. (Id. ). Plaintiff advanced numerous complaints while working at the Brooklyn office, including that the computer systems did not function properly, the office was kept too hot, he was asked to perform his job with only limited training on the new computer system, and he did not have his template for calls. (Id. ). When he complained to Shea that he was "uncomfortable taking calls without [his] template, " Shea explained that no one had been able to retrieve their belongings from the flooded Manhattan business office, as unfortunate as that was. (Id. ). Plaintiff claims that this, too, was evidence that the "hostile work environment was being implemented by all the managerial staff." (Id. ). On February 28, 2013, Plaintiff was fired by Defendants Shea and Kinsey. (Id. ).
B. Procedural Background
On or about April 26, 2013, Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission (the "EEOC") on the basis of race, sex, and age discrimination, as well as retaliation. (Wexler Decl. Ex. D). Plaintiff received a Dismissal and Notice of Rights letter from the EEOC on July 31, 2013. (SAC 7-8). Plaintiff filed this suit on October 24, 2013. (Dkt. #1). All Defendants were served by February 27, 2014 (Dkt. #8-10, 15-16), and all promptly sought leave to move to dismiss Plaintiff's complaint in a pre-motion letter ( see Dkt. #13).
In light of Plaintiff's pro se status, and after two conferences before the Court on Defendants' proposed motion (Dkt. #17, 22), the Court permitted Plaintiff to file an Amended Complaint (Dkt. #19), and then a Second Amended Complaint (Dkt. #24), the latter of which was filed on June 10, 2014. The Court made clear to Plaintiff during the course of his requests to amend that the last-filed complaint would be the operative pleading document. (May 28, 2014 Tr. 2-4).
Plaintiff's Second Amended Complaint alleges age and gender discrimination and retaliation under Title VII, the ADEA, the NYSHRL, and the NYCHRL against Verizon and individuals Lowe, Kinsey, Shea, and Paul Donovan (the latter of whom is described by Plaintiff as the "Director of the Manhattan Business Office"). (Dkt. #24). Before the Court is Defendants' motion, filed July 23, 2014, to dismiss the Second Amended Complaint. (Dkt. #27). Plaintiff submitted no opposition to Defendants' motion.
A. Motions to Dismiss Under Fed.R.Civ.P. 12(b)(6)
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court should "draw all reasonable inferences in Plaintiff['s] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief." Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." (internal quotation marks omitted)). A plaintiff is entitled to relief if he alleges "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) ("While Twombly does not require heightened fact pleading of specifics, it does require enough facts to nudge plaintiff's claims across the line from conceivable to plausible." (internal quotation marks omitted) (citing Twombly, 550 U.S. at 570)).
"[C]ourts must construe pro se pleadings broadly, and interpret them to raise the strongest arguments that they suggest." Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (internal quotation marks omitted) (citing Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)). "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) (per curiam) (internal citation and quotation marks omitted); cf. Fed.R.Civ.P. 8(e) ("Pleadings must be construed as to do justice."). To survive a Rule 12(b)(6) motion to dismiss, however, a pro se plaintiff's factual allegations must be at least "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.
A court is not bound to accept "conclusory allegations or legal conclusions masquerading as factual conclusions." Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008) (internal quotation marks omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) ("[A]lthough a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." (internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 678)). Moreover, "[w]here a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
B. The Court Dismisses Plaintiff's Claims of Disparate Treatment Based on Age and Gender
1. Applicable Law
Title VII makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of discrimination, a plaintiff must demonstrate (i) membership in a protected class; (ii) qualifications for the position; (iii) an adverse employment action; and (iv) circumstances surrounding that action giving rise to an inference of discrimination. Ruiz v. County of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010).
Plaintiff's claims under the ADEA and the NYSHRL are analyzed similarly, see Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913 (2d Cir. 1997), but not his claims under the NYCHRL. For many years, courts construed the NYCHRL to be coextensive with federal and state antidiscrimination laws. See generally Mihalik v. Credit Agricole Cheuveux N. Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013). In 2005, however, the New York City Council amended, and thereby expanded the reach of, the NYCHRL. Id. at 109; see Local Civil Rights Restoration Act of 2005, N.Y.C. Local L. No. 85. "Pursuant to these revisions, courts must analyze NYCHRL claims separately and independently from any federal and ...