MEMORANDUM AND ORDER
Plaintiff Raymond Donahue filed this action against defendants Asia TV USA Ltd. (“Asia TV”), ZEE Entertainment Enterprises, Ltd. (“ZEEL”), Subhash Chandra (“Chandra”), and Suresh Bala Iyer (“Bala”) alleging employment discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), the New York State Human Rights Law, N.Y. Exec. Law § 290, et seq. (“NYSHRL”), the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 (“NYCHRL”), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (the “ADEA”), the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (the “ADA”), and the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”). Presently before the Court are Asia TV’s motion to dismiss the complaint in part and motion to strike, ZEEL’s motion to dismiss the complaint or, in the alternative, dismiss in part and strike, and Chandra’s joinder to ZEEL’s motion. For the reasons stated below, Asia TV’s motion is granted in part and denied in part and ZEEL’s motion is granted in part and denied in part.
BACKGROUND
Donahue is a 58-year-old male American citizen who suffers from clinical depression and insomnia. He worked as Head of Program Sales for Veria Living (now known as Z Living), a health and wellness network owned by Asia TV, from September 10, 2010 until January 9, 2015. In this role, Donahue “(a) [led] and developed] sales and marketing strategies; (b) forecasted] and projected] revenue streams; and (c) coordinated] and directed] a global staff of international sales representatives and commissioned agents in reaching sales goals.” Compl. ¶ 32.
Defendant Chandra, the Chairman of ZEEL’s Board of Directors, played an active role in Asia TV. He owned an apartment in New York and visited Asia TV’s New York offices at least twice a month.
According to Donahue, Chandra and Bala, the Chief Executive Officer of Asia TV, told him more than once that “Americans were lazy, took too much time off, came in [to] work late, left work early, and were litigious.” Id. ¶ 35. In addition, Chandra allegedly told another Asia TV employee that she was “too Americanized” and “think[s] too much like an American,” id. ¶ 67, and told other co-workers that Americans were “overweight and unhealthy,” id. ¶64, that “the family ethos [does] not exist in America,” that “Americans [do] not appropriately discipline their children,” id. ¶ 71, and that Americans get divorced more frequently than Indians. Bala allegedly told a co-worker that “Americans think that a budget is a license to spend money” and that “Americans do not know how to negotiate.” Id. ¶66. In addition, when an employee questioned the wisdom of holding a social gathering on a Friday, when employees may have already made plans at home, Bala allegedly threw an object across the room and shouted, “What is wrong with you people?! You Americans spend too much time with your wives and not enough time with your co-workers.” Id. ¶ 73. Indian managers allegedly told coworkers that Americans were “fat, lazy, dying, watched too much TV, and had too many divorces,” id. ¶ 64, and one Indian manager asked a co-worker, “[w]hy do all you Caucasians think alike?” id. ¶ 79. Finally, American co-workers allegedly perceived the environment as hostile, and stated that Chandra was “distrustful of American employees, and was particularly harsh with American senior executives,” “who were constantly undermined by [Chandra] and other Asian executives,” id. ¶ 74; that he “viewed Americans as divorced, angry, and unhappy, which formed the basis of his belief that Americans needed a ‘companion’ network to fill a void of loneliness,” id. ¶ 75, and “built the Veria Living network because he believed that Americans were fat, lazy, and needed help” and “harbored a derogatory sentiment toward Americans,” id. ¶ 77; and that “an atmosphere of favoritism toward Indian employees at Veria Living” existed alongside “an ‘us vs. them’ mentality among the Indian and American employees,” id. ¶ 76.
On June 25, 2014, Donahue spoke by telephone to Chandra, who told him that Asia TV “needed someone younger” and “that Donahue should start looking for a replacement because he was ‘tired,’ ” Compl. ¶ 45, and suggested as a replacement Vivek Prabhu, a younger, Indian employee. Chandra also told Donahue that he would have a new boss, Sunita Uchil, who was not familiar with sales, Donahue’s particular expertise.
On July 17, 2014, while Chandra was visiting Asia TV’s office in New York, Donahue was placed on 30 days’ notice. Donahue began to experience stress and anxiety, causing him to suffer from chest pains and high blood pressure. As a result, he took medical leave beginning on July 21, 2014. While Donahue was on leave, Asia TV changed its marketing materials and replaced Donahue’s contact information with Prabhu’s.
DISCUSSION
I. Asia TV
Asia TV now moves to dismiss Counts Seven, Eight, Nine, Ten, Fifteen, Eighteen, and Nineteen and to strike the paragraphs in the complaint alleging that Chandra sexually harassed a co-worker, that the EEOC found reasonable cause to believe that Asia TV discriminated against Donahue, and that other co-workers experienced discrimination. We address each argument in turn.
A. Motion to Dismiss
On a motion to dismiss under Rule 12(b)(6), the Court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiffs favor. ATSI Commc’ns, Inc, v. Shaar Fund, Ltd.,
1. FMLA
Asia TV seeks dismissal of Count 18, which alleges that Asia TV, ZEEL, and Chandra retaliated against Donahue for taking leave protected by the FMLA, on two grounds. First, Asia TV contends that Donahue has failed to properly allege eligibility for FMLA leave. Second, Asia TV argues that Donahue has failed to plead that the defendants possessed retaliatory animus.
An employee is eligible for FMLA leave if he or she has worked “at least 1,250 hours of service ... during the previous 12-month period.” 29 U.S.C. § 2611(2)(A)(ii). Here, Donahue argues that it is reasonable to infer from his full-time employment that he worked at least 1,250 hours. However, “[a] simple allegation that the employee was ‘employed full-time’ by the employer is not enough to satisfy the 1,250 hours prong of the test.” Simmons v. New York City Transit Auth., No. CIV.A.CV96-3414 (DGT),
Asia TV contends that even if Donahue was eligible for FMLA leave, he has not pleaded sufficient facts to make his claim plausible, because no facts support an inference of retaliatory animus. In or
Donahue argues that he has pleaded facts that give rise to an inference of retaliatory intent, because the complaint alleges that “[a]fter Donahue went on medical leave, Asia TV removed his name from marketing materials and replaced it with Prabhu’s,” Compl. ¶ 50, and that after terminating Donahue, “Asia TV continued to employ Prabhu, who took over Donahue’s responsibilities when he went on medical leave,” id. ¶ 56. According to Donahue, these facts show that Asia TV decided to fire him when he took FMLA leave, though only actually terminated him almost three months after the expiration of the twelve weeks provided for by the FMLA. An FMLA retaliation claim cannot be premised on such allegations. It is simply unremarkable that Asia TV assigned another employee to perform Donahue’s executive duties and provided contact information for third parties. Nor should it be forgotten that Donahue was placed on 30 days’ notice before he took FMLA leave and that his FMLA leave had well expired by the time he was terminated. Therefore, Count Eighteen is dismissed.
2. Disability Discrimination
Asia TV seeks dismissal of Count 15, which alleges that Donahue was discriminated against on the basis of his disability pursuant to the ADA, on the ground that Donahue failed to exhaust his administrative remedies. A plaintiff alleging a violation of the ADA must first file a charge of discrimination with the EEOC or the equivalent state agency. See Williams v. New York City Hous. Auth.,
In his charge of discrimination filed with the EEOC and the New York State Division of Human Rights, Donahue did not
3. Hostile Work Environment
Asia TV seeks dismissal of Counts Seven through Ten, which allege a hostile work environment based on national origin and age under Title VII, the ADEA, NYSHRL, and NYCHRL. Counts Seven, Eight, and Ten are dismissed.
a) Legal Standard
Under Title VII, the ADEA, and NYSHRL, “[a] hostile work environment claim requires a showing [1] that the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, and [2] that a specific basis exists for imputing the objectionable conduct to the employer.” Alfano v. Costello,
“NYCHRL claims must be analyzed separately and independently from federal and state discrimination claims,” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.,
b) Application
Donahue alleges that he experienced a hostile work environment animated by national origin and age discrimination. According to the complaint, Chandra and Bala told him that “Americans were lazy, took too much time off, came in [to] work late, left work early, and were litigious,” Compl. ¶ 35, and Chandra told him that Asia TV “needed someone younger,” that Donahue should find a replacement for himself because he was “tired,” and suggested Prahbu, a younger man of Indian origin, iff ¶¶ 45-46. Even taking into account that “one type of hostility can exacerbate the [ejffect of another,” Terry v. Ashcroft,
Donahue also alleges numerous examples of other American co-workers’ experiencing disparaging comments from Indian management regarding their national origin. In particular, Chandra, Bala, and other managers of Indian national origin allegedly made frequent disparaging comments about Americans’ health (that Americans are lazy and fat), family (that Americans lack family ethos and get divorced too frequently), and business skills (that Americans are poor negotiators and cannot properly handle a budget). However, Donahue also alleges that he learned about all of these comments, at the very earliest, sometime after he went on medical leave, from which he never returned to work. See Compl. ¶¶ 49 (medical leave begins on July 21, 2014), 53 (Donahue files his Charge of Discrimination on August 14, 2014), 55 (Donahue is fired on January 9, 2015 while still on leave), 63 (alleging that “a number of Asia TV employees have come forward to corroborate instances of discrimination within the company”).
While there is no question that “the crucial inquiry focuses on the nature of the workplace environment as a whole,” and therefore “a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim,” Cruz v. Coach Stores, Inc.,
The instant case is closer to Leibovitz than to Cruz. In Cruz, the Second Circuit held that Cruz had raised a triable issue at the summary judgment stage where plaintiff introduced evidence that her supervisor would “make ‘loud racial eomment[s]’—including use of the word ‘nigger’—during [plaintiff’s] daily trips to the mailroom,” daily made “repeated remarks to the effect that women should be barefoot and pregnant,” and, when he spoke with women, would do so in a sexually
On the other hand, Donahue’s claims under the NYCHRL survive because he has pleaded that Asia TV treated him “less well” than other employees based on his national origin and age. The federal “severe or pervasive” standard does not apply to NYCHRL claims. Miha-lik,
4. NYLL
Count 19 of the complaint is dismissed. Asia TV notes that Donahue agreed to withdraw his NYLL claim during the exchange of pre-motion letters that led to the filing of these motions, and at oral argument counsel for Donahue confirmed that Donahue is withdrawing this claim.
B. Motion to Strike
Pursuant to Federal Rule of Civil Procedure 12(f), “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “[T]he courts should not tamper with the pleadings unless there is a strong reason for so doing.” Lipsky v. Commonwealth United Corp.,
1.Sexual Harassment
Asia TV’s motion to strike is granted with respect to the paragraphs in the complaint alleging that Chandra sexually harassed a co-worker of Donahue’s. Donahue’s claims regarding the sexual harassment of a co-worker are not relevant to any cause of action he has brought. While it is true, as Donahue argues, that different forms of harassment may exacerbate each other, Cruz,
2.EEOC Determination
Asia TV’s motion to strike is denied with respect to the EEOC determination. We agree that evidence of the EEOC’s determination should not be presented to the jury, if this case results in a jury trial, see Giannone v. Deutsche Bank Sec., Inc., No. 03 CIV. 9665 (WHP),
3.Pattern/Practice Claims
Finally, Asia TV’s motion to strike is denied with respect to Donahue’s allegations regarding disparaging statements relating to co-workers’ American national origin. As “one of the critical inquiries with respect to a hostile environment claim is the nature of the environment itself, evidence of the general work atmosphere is relevant,” Perry,
A. Single Employer Liability
ZEEL seeks dismissal of the claims against it on the basis that ZEEL never employed Donahue. In response, Donahue argues that ZEEL and Asia TV function as a joint employer or, alternatively, a single employer.
“Joint” employers are separate legal entities that “have merely chosen to handle certain aspects of their employer-employee relationships jointly.” Clinton’s Ditch Co-op. Co. v. NLRB,
By contrast, “[a] single employer situation exists where two nominally separate entities are actually part of a single integrated enterprise so that, for all purposes, there is in fact only a single employer.” Clinton’s Ditch,
According to ZEEL, Donahue has failed to plead that Asia TV and ZEEL constitute a single employer or a joint employer. ZEEL contends that “the best [Donahue] can do” is allege that Chandra, a board member of ZEEL, was “somehow involved with Asia TV.” ZEEL Reply Br. at 2. Donahue, however, has pleaded far more than some unspecified involvement: Chandra, according the complaint, visited Asia TV’s offices twice a month; met with employees, including Donahue, to review their performance evaluations; approved departmental budgets and expenses above $1,000; sought to determine when employees arrived in the morning and left at night through access to their electronic swipe cards; reviewed employee responses to a survey with employees individually; established particular policies at Asia TV governing employee duties; and “met with several high-ranking Asia TV employees in ZEEL’s offices in India ... to discuss business strategy,” Compl. ¶ 31. Additionally, Chandra allegedly recommended a replacement for Donahue after telling him he should retire, and that person ultimately did replace Donahue.
These allegations also support a single employer theory, particularly because Donahue alleges that Asia TV is a subsidiary of ZEEL, Compl. ¶ 4, and the allegations regarding Chandra suggest “centralized control of labor relations,” the “most important” factor for a single employer relationship. Brown,
B. Exhaustion
ZEEL argues that Donahue has not exhausted his administrative remedies with respect to it, because ZEEL was not named in Donahue’s EEOC charge. Exhaustion of administrative remedies is “a precondition to bringing [Title VII and ADEA] claims in federal court.” Legnani v. Alitalia Linee Aeree Italiane, S.P.A,
Neither of ZEEL’s arguments is availing. Donahue has pled that he received a right to sue letter and filed this action within 90 days, and we trust that
CONCLUSION
For the foregoing reasons, Asia TV’s motion is granted in part and denied in part and ZEEL’s motion is granted in part and denied in part. The following Counts are dismissed: Seven, Eight, Ten, Fifteen, Eighteen, and Nineteen. Paragraphs 37 through 39 of the complaint are to be stricken. Plaintiff should file an amended complaint consistent with this Memorandum and Order within two weeks. This Memorandum and Order terminates docket nos. 28, 29, and 35.
SO ORDERED.
Notes
. Count Eighteen is styled as "Interference, Discrimination, And Retaliation Under The FMLA Against Defendants Asia TV, ZEEL, and Chandra.” In its opening brief, Asia TV argued that, to the extent Donahue claims that Asia TV interfered with his FMLA benefits, such a claim should be dismissed. In his opposition, Donahue states that he brings his claim only on a theory of FMLA retaliation. See PL's Mem. of Law in Opp. to Defs.’ Mots. To Dismiss PL’s Compl. and Strike Certain Compl. Allegations, at 10 n.3. Donahue's counsel confirmed at oral argument that Donahue is not claiming interference with his FMLA benefits.
. ZEEL also argues that Donahue's claims against it fail because he does not sufficiently allege ZEEL’s involvement. Even though a joint employer relationship does not necessarily mean that both employers are liable for discriminatory conduct, Sosa,
. Though not attached to the complaint, we may consider the EEOC charge incorporated by reference. Muhammad v. New York City Transit Auth.,