United States District Court, W.D. New York
MICHAEL A. TELESCA, District Judge.
Plaintiff Bruce Elliott ("plaintiff") brings this action pursuant to Title 42 U.S.C. § 1983, 42 U.S.C. § 1982, 42 U.S.C. § 1981, New York Executive Law § 296, the New York Human Rights Law ("NYHRL"), and New York Labor Law § 740, alleging racial discrimination, racially hostile work environment, racially disparate treatment, retaliation, and violation of the New York State whistleblower's statute arising out of his employment with defendants SNORAC, LLC ("SNORAC") and Enterprise Holdings ("Enterprise") (collectively "defendants") under Title VII of the Civil Rights Act of 1964 ("Title VII"). Now before the Court are defendants' motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and plaintiff's response in opposition and cross-motion for leave to amend the complaint.
The following facts are taken from the complaint and documents filed in support of the parties' motions. Plaintiff, an African American individual, began his employment with defendants on August 6, 2004. The complaint and proposed amended complaint contain a number of general allegations of discrimination that defendants knowingly maintained policies and practices that "discriminate against persons because of their race or ethnicity."
Plaintiff specifically alleges that defendants and their employees: openly mocked "the alleged dialect of African Americans"; assigned menial tasks to African American employees; instructed employees to rent "less desirable" and "less safe" vehicles to African American customers, including vehicles with low tire thread and engine-related warnings; used racially-offensive phrases, including referring to African American employees as slaves; repeatedly promoted less qualified Caucasian employees over plaintiff; and terminated plaintiff from his position at some point after he complained about the discriminatory practices. Each count in the complaint and the proposed amended complaint relies on the above allegations.
I. Standard for Motion to Dismiss
When evaluating a Rule 12(b)(6) motion to dismiss the complaint, a court must ascertain, after presuming all factual allegations in the pleading to be true and viewing them in the light most favorable to the plaintiff, whether or not the plaintiff has stated any valid ground for which relief can be granted. See Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir.2008) ; Ferran v. Town of Nassau, 11 F.3rd 21, 22 (2d Cir.1993), cert. denied, 513 U.S. 1014 (1994). The complaint must plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, the pleadings "require[ ] more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986).
II. Hostile work environment
To establish a hostile work environment claim, a plaintiff must plausibly "show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of [his] employment were thereby altered." Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712, 723-724 (2d Cir.2010) (internal quotation marks omitted); see also Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The incidents of harassment must be either be pervasive in their regularity or consisting of "a single incident that is extraordinarily severe'" ( Fincher, 604 F.3d at 724, quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 [2d Cir.2000]), and plaintiff must "show a specific basis for imputing the conduct that created the hostile work environment to [his] employer." McCullough v. Xerox Corp., 942 F.Supp.2d 380, 385 (W.D.N.Y. 2013).
Here, plaintiff alleges that at some point during his employment with SNORAC, unidentified employees mocked the dialect of African Americans people, made racially offensive comments, assigned menial tasks to African American employees, and instructed them to rent less safe and less desirable vehicles to African American customers. The complaint and the proposed amended complaint does not provide allegations of when, where, by whom, or to whom these comments were made or how often these incidents occurred. Although conclusory words and phrases such as "discrimination, " "discriminatory practices" and "racially hostile" are liberally scattered throughout the complaint and the proposed amended complaint, the conduct described by plaintiff falls short, as a matter of law, of pleading discriminatory conduct that is so severe or pervasive as to render plaintiff's hostile work environment claims plausible. There is, moreover, no allegation that these incidents occurred frequently or even regularly. Consequently, this claim must be dismissed.
III. Disparate treatment
To establish a disparate treatment discrimination claim, plaintiff must show that he: (1) is a member of a protected group; (2) was qualified to perform the duties required by his position; (3) was subjected to an adverse employment action; and (4) the adverse employment action occurred in circumstances that gave rise to an inference of discrimination. See Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir.2003). The burden then shifts to the defendant to provide "a legitimate, non-discriminatory reason for its employment decision.'" Lopez v. Flight Services & Systems, Inc., 881 F.Supp.2d 431, 439 (W.D.N.Y. 2012), quoting Butts v. NYC Dept. of Housing Preservation and Dev., 307 Fed.Appx. 596, 598-99 (2d Cir.2009). If defendants are able to articulate neutral reason for their action, "the burden shifts back to the plaintiff to ...