OPINION AND ORDER
This employment discrimination case stems from pro se Plaintiff Omar Chukwueze’s employment as an Assistant Retirement Benefits Manager at the New York City Employees’ Retirement System (“NYCERS”) from September 18, 2006, until his termination on January 21, 2009. (Compl. at 5, 8).
BACKGROUND
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Holmes v. Grubman,
Chukwueze, an evangelical Christian of West Indian descent, worked at NYCERS as a provisional employee with the title of Assistant Retirement Benefits Examiner from September 18, 2006, until January 21, 2009. (Compl. at 5, 8). Chukwueze alleges that he first faced religious discrimination in 2007, when he requested to take leave on December 26th for religious observance of St. Stephen’s Day. (Id. at 9, 11). His supervisor, Michelle Gaddy, told him that December 26th was not a religious holiday and, although she did not prohibit him from taking the day off, she made him change the reason for leave stated on his leave request from “annual leave for religious observance” to “annual leave for vacation.” (Id. at 5, 9). Several months later, when Chukwueze requested a vacation day to observe Good Friday, Gaddy got very upset and made several comments to Chukwueze, such as “You are giving me this form because you think I can’t deny it” (id. at 9), and “You think I have to give you this day off!!!” (Id. at 14). Despite Gaddy’s initial reaction, Chukwueze was ultimately given permission to take the day off. (Id. at 8).
In early December 2008, Chukwueze requested annual leave for religious observance of St. Stephen’s day once again. When he made the request, Gaddy confronted him “in a hostile manner,” and stated “in a loud and audacious voice, ‘that is not a religious holiday and I do not have to give you that day off.’” (Id. at 9). Chukwueze alleges that Gaddy behaved with “continued public belligerence and aggressiveness,” which led him to request to speak with the division director in a private location. (Id.). The following day, Gaddy refused Chukwueze’s request to
In mid-January 2009, Gaddy discovered that Plaintiff had begun keeping a record of her actions that he thought were unjust. Gaddy responded: “That is not going to save you!!!” (Id. at 12; Pl.’s Opp’n at 6). Chukwueze was terminated the following day on January 21, 2009. (PL’s Opp’n at 6). The Human Resources director refused to tell Chukwueze why he had been fired. (Id.). Following Chukwueze’s termination, however, Gaddy told members of Chukwueze’s unit that he was terminated because he was too opinionated and that he could not complain while he was a provisional employee. (Compl. at 5). Defendant asserts that Plaintiff was terminated for cause for lying to his manager regarding his overtime usage. (Def.’s Mem. of Law at 2). Plaintiff contends, however, that he initiated all conversations with his managers about overtime usage and did not lie to them. (Compl. at 16).
On March 13, 2009, Chukwueze filed a charge of discrimination with the Equal Employment Opportunities Commission (“EEOC”) alleging religious discrimination and retaliation; his charge said nothing about discrimination on the basis of national origin. (Id. at 8). For example, he checked boxes on the form for religious discrimination and retaliation, but did not check the box labeled “national origin.” (Id.). And, although Chukwueze identified himself as “a Christian of West Indian descent,” his allegations were limited to his religious practices and his requests to take days off for religious observance in 2007 and 2008. (Id.). The charge concluded with the following statement: “I believe that I have been discriminated against because of my religion and retaliated against for protesting such discrimination. ...” (Id.).
In July 2009, Chukwueze testified as a witness in a discrimination case brought by one of his former coworkers before the New York State Division of Human Rights. (Id. at 18-19). In January 2010, Chukwueze discovered that his name had been removed from the list of people eligible for civil service positions as assistant retirement benefits examiners. (Id. at 18). Chukwueze was told that he was removed from the list because of his failure to report for a job interview with NYCERS. (Id.). The EEOC issued its Notice of Right to Sue Letter on July 27, 2010. (Id. at 7). Chukwueze filed this action on October 26, 2010. (Docket No. 1).
DISCUSSION
A. Rule 12(b)(6) Standards
To survive a Rule 12(b)(6) motion, a plaintiff must generally plead sufficient facts “to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
Twombly and Iqbal notwithstanding, the Supreme Court has held that, to survive a motion to dismiss, “a complaint in an employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrimination under the framework set forth in McDonnell Douglas Corp. v. Green,
Even under the heightened pleading standards set by Iqbal and Twombly, a court is “obligated to construe a pro se complaint liberally.” Harris v. Mills,
B. Analysis
As noted above, Defendant moves to dismiss on three grounds: (1) that some of Plaintiffs allegations of discriminatory treatment are time barred; (2) that Plaintiff failed to exhaust his allegations of discrimination on the basis of national origin before the EEOC; and (3) for the remaining claims, that Plaintiff fails to state a claim on which relief can be granted. The Court will address each argument in turn.
Under Title VII, a plaintiff in New York State must file a charge with the EEOC within 300 days of the allegedly unlawful practice to bring suit. See 42 U.S.C. § 2000e-5(e)(l). Although there is an exception for discriminatory acts that were part of a continuing policy and practice of prohibited discrimination, this “continuing violation” exception applies only to “cases involving specific discriminatory policies or mechanisms.” Lambert v. Genesee Hosp.,
In this case, Plaintiff filed his charge of discrimination with the EEOC on March 13, 2009, so any allegations of unlawful employment practices prior to May 17, 2008, are time barred unless they fall within the “continuing violation” exception. Plaintiff does invoke that exception (Pl.’s Opp’n at 13), but there is no merit to his argument with respect to the claims that Defendant discriminated against him in connection with his requests for leave in December 2007 and on Good Friday in 2008. Those allegations of discrimination are plainly “discrete” acts and therefore not subject to the “continuing violation” exception. See Elmenayer,
2. Exhaustion
Under Title VII, a plaintiff is required to file a charge of discrimination with the EEOC before filing suit in federal court. See 42 U.S.C. § 2000e-5(f); see also Francis v. City of New York,
In this case, there is no dispute that Chukwueze’s filing with the EEOC did not allege discrimination on the basis of national origin. Among other things, he checked the boxes for religious discrimination and retaliation, but left the box labeled “national origin” blank; the allegations were limited to his religious practices and his requests to take days off for religious observance; and the charge concluded with a statement that Chukwueze was “discriminated against because of [his] religion and retaliated against for protesting such discrimination.” (Compl. at 8). Nor can it be said that the claim of national origin discrimination is “reasonably related” to the claims alleged in the EEOC charge. After all, “[a]n investigation of charges of discriminatory action based upon creed and retaliation would not naturally result in an investigation into discrimination based on the ... national origin ... of an employee.” Jiggetts v. Diaz, 02 Civ. 8959(LTS)(JCF),
The fact that Chukwueze identified himself in the EEOC charge as “a Christian of West Indian descent” and referred to a statement by Gaddy that December 26th may be a holiday in Trinidad, but not in New York, does not change the analysis or conclusion. These two indirect references to national origin were insufficient to “alert” the EEOC or provide “adequate notice” that Chukwueze was suffering discrimination on the basis of his national origin, especially in light of Chukwueze’s failure to check the national origin box on the EEOC charge form, his explicit statement that he was discriminated against on the basis of religion, and the otherwise exclusive focus of the charge on religious discrimination. See Jiggetts,
Finally, in his memorandum of law opposing the motion to dismiss, Chukwueze alleges that he filed other materials with the EEOC that indicated discrimination on the basis of national origin, which were misplaced by the agency, and that he was told (presumably by an EEOC employee) when he initially filed his charge that “both categories would be examined because in his case they had a connection.” (Pl.’s Opp’n at 14). Putting aside the question of whether these allegations can or should be considered by the Court, they do not excuse Chukwueze’s failure to exhaust. First, EEOC regulations allow additional written statements only to “ ‘clarify and amplify allegations made’ in the original charge or ‘alleg[e] additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge,’ ” but not to allege new claims. Holtz,
Accordingly, Chukwueze’s claim for discrimination on the basis of national origin must be, and is, dismissed.
3. Failure to State a Claim
Plaintiffs remaining claims are for disparate treatment at the time of his leave request in December 2008; for hostile work environment; for wrongful and discriminatory termination on January 21, 2009; and for retaliation, both in the form of his firing and in his removal from the civil service eligibility list. Defendant argues that these claims should be dismissed for failure to state a claim upon which relief can be granted. (Def.’s Mem. of Law at 5).
a. Disparate Treatment Claims
First, Plaintiff alleges two distinct types of discriminatory treatment— failure to accommodate his religious observance and a standard disparate treatment claim based on Gaddy’s reactions to his requests for accommodations. To make out a prima facie case of religious discrimination, plaintiffs must prove that “(1) they held a bona fide religious belief conflicting with an employment requirement; (2) they informed their employers of this belief; and (3) they were disciplined for failure to comply with the conflicting employment requirement.” Baker v. The Home Depot,
In light of these elements, Chukwueze’s complaint fails to state a claim of religious discrimination upon which relief could be granted. Chukwueze argues first that he was denied a reasonable accommodation with respect to his December 2008 leave request because he was initially denied leave and because his requests were met “with hostility and severe opposition.” (Compl. at 13; Pl.’s Opp’n at 10). By his own admission, however, he was ultimately allowed his requested accommodation, namely to be allowed to use his annual leave to take the day off. (Compl. at 9). Thus, even assuming that Chukwueze could establish a prima facie case of dis
Chukwueze’s second claim of disparate treatment — that “other employees of other faiths were granted their religious days without being chastised in the presence of their entire unit on many occasions for making such requests] for religious accommodation” (Compl. at 10; see also id. at 13) — also fails. As noted above, to support a claim of disparate treatment, a plaintiff must identify an “adverse employment action.” See O’Neill,
b. Hostile Work Environment Claim
Chukwueze also claims that “Gaddy created a [h]ostile work environment when she continually berated [him] in the presence of the entire unit regarding [his] desire to take certain days off as religious observance.” (Compl. at 14). To prove a prima facie case of a hostile work environment, a plaintiff must demonstrate that (1) his or her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of the work environment and (2) a specific basis exists for imputing the conduct that created the hostile environment to the defendant. See, e.g., Petrosino v. Bell Atl.,
c. Termination Claim
Chukwueze’s termination claim, however, is sufficient to survive Defendant’s motion to dismiss. To ultimately succeed on this claim, Chukwueze would have to prove that he “(1) is a member of a protected class; (2) was performing his duties satisfactorily; (3) was discharged; and that (4) his discharge occurred under circumstances giving rise to an inference of discrimination on the basis of his membership in the protected class.” Graham v. Long Island R.R.,
In evaluating the fourth prong, courts must remain cognizant that “[e]mployers are rarely so cooperative as to include a notation in the personnel file that their actions are motivated by factors expressly forbidden by law.” Chambers v. TRM Copy Centers Corp.,
the employer’s continuing, after discharging the plaintiff, to seek applicants from persons of the plaintiffs qualifications to fill that position, or the employer’s criticism of the plaintiffs performance in ethnically degrading terms, or its invidious comments about others in the employee’s protected group, or the more favorable treatment of employees not in the protected group, or the sequence of events leading to the plaintiffs discharge.
Id. (citations omitted).
In the present case, Chukwueze alleges that he made three separate requests for
d. Retaliation Claims
Finally, Chukwueze raises two distinct claims of retaliation: first, that he was fired in retaliation for his complaints about religious discrimination by Gaddy; and second, that he was removed from the civil service eligibility list in retaliation for testifying at a coworker’s discrimination hearing. To establish a prima facie case of retaliation, “an employee must show that (1) [he] was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.” Lore v. City of Syracuse,
Measured against these standards, Chukwueze’s first retaliation claim — relating to his firing — is sufficient to survive Defendant’s motion to dismiss. His allegations are plainly sufficient to satisfy the first three elements of a prima facie case given that he was fired after complaining to Gaddy and the unit supervisor and after informing Gaddy that he was recording her unjust actions. (Compl. at 12; Pl.’s Opp’n at 8). As for the final element, Plaintiff has alleged sufficient facts to establish a plausible causal connection between the protected activity and that adverse action. Most relevant for present purposes, he claims that Gaddy discovered him recording evidence of her actions and that he informed her that he planned to report her abusive behavior, causing her to respond “That is not going to save you!!!” (Compl. at 12); that he was fired the day after this confrontation with Gaddy (Pl.’s Opp’n at 8); and that Gaddy later told members of his unit that he was fired because of his complaints while he was still a provisional employee. (Compl. at 12; Pl.’s Opp’n at 8). In combi
The same cannot be said for Chukwueze’s other retaliation claim, relating to his removal from the civil service eligibility list. (Compl. at 18).
First, the mere presence of NYCERS employees at the hearing does nothing to establish a causal connection. In fact, among other things, given that the hearing concerned NYCERS, it would have been surprising if it were unrepresented. Second, the temporal proximity between Chukwueze’s testimony and the alleged adverse employment action — somewhere between three and six months — is insufficient, standing alone, to establish a causal connection. See, e.g., Sank v. City Univ. of New York, 10 Civ. 4975(RWS),
In short, Chukwueze has not alleged facts that “nudge[ ]” his claim of retaliation based upon his testimony in July 2009 “across the line from conceivable to plausible,” so it “must be dismissed.” Twombly,
CONCLUSION
For the reasons stated above, Defendant’s motion to dismiss is GRANTED with respect to (1) Plaintiffs claims of disparate treatment unrelated to his termination; (2) his hostile work environment claim; and (3) his retaliation claim based upon his post-termination testimony, and those claims are hereby dismissed. Defendant’s motion to dismiss is DENIED, however, with respect to Plaintiffs discriminatory and retaliatory termination claims.
The Clerk of Court is directed to mail a copy of this Opinion and Order to Plaintiff. The Clerk of Court shall also terminate the motion (Docket No. 13).
SO ORDERED.
Notes
. For ease of reference, citations to the complaint are to the amended complaint as numbered in Exhibit A to Defendant's Memorandum of Law in Support of its Motion to Dismiss.
. The Court received a letter from Plaintiff, dated July 21, 2012, which, liberally construed, seeks to amend the complaint to add claims under other employment discrimination statutes and an employment law claim under the Fair Labor Standards Act. There is no accompanying affidavit or proof of service, so the Court will not accept this letter for filing. If the Plaintiff wishes to amend his complaint, he must file a motion to do so.
. Whether Swierkiewicz remains good law in light of Twombly and Iqbal is "somewhat of an open question” in this circuit. Hedges v. Town of Madison,
. Although Chukwueze's earlier disparate treatment claims are, as discussed above, time barred, it is well established that a plaintiff may use the facts underlying a time-barred claim "as background evidence in support of a timely claim." Morgan,
. Notably, Defendant's memorandum of law barely addresses these allegations. Instead, without citing any case law to support its points, it misconstrues Plaintiff's retaliation claim to be based solely on his requests for accommodation and inexplicably argues that the absence of past retaliation disproves the Plaintiff's present retaliation claim. In its reply memorandum of law, Defendant does not address Chukwueze’s retaliatory firing claim at all.
. Defendant contends that Plaintiff's claim regarding removal from the civil service eligibility list should be dismissed because the removal was effected by the New York City Department of Citywide Administrative Services ("DCAS”), not NYCERS. (Def.’s Mem. of Law at 8). Plaintiff, however, alleges that his removal was a result of NYCERS reporting to DCAS that Plaintiff had not appeared for a scheduled job interview. (Compl. at 18). Liberally construed, therefore, Plaintiff’s complaint alleges that NYCERS caused DCAS to effect his removal. Nevertheless, as discussed below, the claim fails for other reasons.
. Plaintiff's opposition to the motion to dismiss is styled in part as a motion for summary judgment "on the grounds that the defendant failed to adequately refute the assertions established in any of the prima facie cases" and because "the defendant's given reason for the Plaintiffs termination is not worthy of credence and lacks credibility.” (PL's Opp'n at 4). The Court, however, did not give notice that it might convert the motion to dismiss into one for summary judgment, see Fed. R. Civ. P. 12(d), and neither party has had an opportunity to submit evidence. For those reasons and others, summary judgment is inappropriate at this time. Accordingly, Plaintiffs motion for summary judgment is denied without prejudice to refiling at a later date.