MEMORANDUM OF DECISION AND ORDER
On October 1, 2015, the Plaintiffs Aubrey Love (“Love”), Paul Dunham (“Dun-ham”), and Andrew Nelson (“Nelson”, together with Love and Dunham, the “Plaintiffs”) commenced this civil rights action against their former employer, the Defendant Premier Utility Services, LLC (“Premier”), and its parent company USIC Locating Services, LLC (“USIC”, together with Premier, the “Defendants”), alleging race-based employment discrimination and a racially hostile work environment, in violation of 42 U.S.C. § 1981 (“§ 1981”) and relevant provisions of the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. L. § 290 et seq.
Presently bеfore the Court is motion by the Defendants, pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 12(b)(6), seeking to dismiss the complaint for failure to state a claim upon which relief may be granted. For the reasons that follow, the motion to dismiss is granted in part and denied in part.
I. Background
Unless otherwise noted, the following facts are drawn from the complaint and are construed in favor of the Plaintiffs.
Premier is a New York corporation with a principal place of business in Hauppauge. See Compl. ¶ 6. Although the company was acquired in or about April 2015 by the Defendant USIC, Premier continues to be recognized by the New York State Division of Corporations as a discrete operating entity, and all of the relevant events alleged in the complaint occurred pre-ac-quisition. See id. ¶7. Relevant here, Premier operates facilities in three New York locations: Queens, Brooklyn, and Haup-pauge. See id. ¶ 10.
The Plaintiffs are African American. Sеe id ¶2. As employees of Premier, they were each assigned to work on manhole projects, which are allegedly considered “field positions” in that they are “physically taxing jobs that pay considerably less than Premier’s office or management positions.” See id. ¶¶ 13-14. Allegedly, the majority of Premier employees assigned to work on manhole projects are African American, while the majority of employees working in “higher paying, less strenuous office or mаnagement positions” are Caucasian or non-African American. See id. ¶¶ 15-16.
A. The Allegations Relating to the Plaintiff Aubrey Love
Love began his employment at Premier’s Queens location on September 9, 2013. See id. ¶ 11. In September 2014, he was
Approximately one week into his tenure at the Hauppauge location, Love parked his car in the front of the Premier building. See id. ¶ 18. The company’s Senior Director of Field Operations, one Edward Heaney, wrote Love a “fake parking ticket” and placed it on his vehicle’s windshield. Id The Plaintiffs allege that this was done “to make Mr. Love feel uncomfortable and unwelcome” because Heaney “did not want African Americans working in Hauppauge.” Id. In this regard, it is alleged that Heaney “would openly and frequently refer to African American employees as ‘dumb niggers’ ” in Love’s presence. Id. ¶ 19.
Is it further alleged that, in late-September 2014, Love was assigned to report to a supervisor identified as “Mike K,” who, according to the Plaintiffs, is “a self-proclaimed Ku Klux Klan member.” Id ¶ 20. Mike K allegedly stated to Love that he “proudly flew a Confederate flag” in the front of his home. Id. ¶ 21.
On one occasion in October 2014, Mike K allegedly made the following remark to Love: “Ed [Heaney] placed you with me in hopes that I would make you quit your job, but you’re different. You’re not like the other niggers.” Id. ¶ 23. He further stated that: “the definition of a ‘nigger’ is an ignorant person. You talk with sense. You’re different than most niggers.” Id.
On another occasion in January 2015, Heaney allegedly stated to two supervisors in Love’s presence: “don’t worry about those stupid niggers, they’re going to fail” the Training Program. Id. ¶ 24. He further stated that “[w]e don’t neеd any niggers out here on [Long] Island representing Premier.” |d
On January 28, 2015, Love’s employment was terminated. See id. ¶25. The reason provided by Premier was that business had slowed, and Love was advised that he would be contacted for future work opportunities if and when business increased. See id. However, the company never contacted Love again. See id.
B. The Allegations Relating to the Plaintiff Paul Dunham
Dunham began his employment at Premier’s Brooklyn location on July 24, 2014. See id. ¶ 12. Similar to Love, Dunham was transferred from Premier’s Brooklyn location in December 2014 to complete the Training Program in Hauppauge. See id. ¶ 29.
Allegedly, in mid-January 2015, Dunham overheard Heaney remark to two other supervisors “don’t worry about those stupid niggers, they’re going to fail this [training] course. We don’t need any niggers out here on [Long] Island representing Premier.” Id. ¶ 30.
Similar to Love, on or about January 24, 2015, Dunham was allegedly told that Premier’s business had slowed and that his employment was being terminated. See id. ¶ 31. Like Love, the company advisеd Dun-ham that it would contact him for future work opportunities, but never did. See id.
C. The Allegations Relating to the Plaintiff Andrew Nelson
Nelson also began his employment at Premier’s Brooklyn location on July 24, 2014, See id. ¶ 12. Similar to Love and Dunham, in December 2014 Nelson was transferred from Premier’s Brooklyn location [o complete the Training Program in Hauppauge. See id. ¶ 26.
Similar to Love and Dunham, on January 24, 2015, Nelson’s employment was terminated due to a purported downturn in business. See id. ¶ 28. Again, Premier advised Nelson that the company would contact him for future work opportunities if and when business increased. See id. However, it never contacted him again. See id.
D. The Present Action
On these facts, the Plaintiffs allege causes of action based on racial discrimination and a racially hostile work environment, in violation of §, 1981 and the NYSHRL.
On December 4, 2015, the Defendants moved under the provisions of Fed. R. -Civ. P, 12(b)(6) to dismiss the complaint, .contending that the Plaintiffs’ allegations, even if taken as true, fail to plausibly state claims upon which relief can be granted.
II. Discussion
A. The Standard of Review
Under Fed. R. Civ. P. 12(b)(6), a party may move to dismiss a cause of action that “fail[s] to state a claim upon which relief can be granted.” “To survive a motion to dismiss, the complaint must plead ‘enough facts to state a claim to relief that is plausible on its face,’ Bell Atl. Corp. v. Twombly,
B. As to Whether the Plaintiffs Have Stated Plausible Claims for Race-Based Employment Discrimination under 42 U.S.C. § 1981
1. The Applicable Legal Standards
“Section 1981 prohibits intentional discrimination on the ground of race with respect to, inter alia, the enjoyment of the terms of employment.” Skates v. Inc. Vill. of Freeport, No. 15-ev-1136,
In this regard, the Supreme Court has instructed that a Title VII plaintiff need not allege a prima facie case of discrimination in order to survive a motion to dismiss. See Swierkiewicz v. Sorema N.A.,
Rather, “the ordinary rules for assessing the sufficiency of a complaint apply” to claims of racial discrimination, id. at 511,
2. Application to the Facts of this Case
Applying these standards, the Court finds that the complaint in this case clearly states a viable cause of action based on race-based employment discrimination. The Plaintiffs, all African Amеrican, allege that they were transferred to a Premier location that was staffed with predominantly Caucasian employees, including one who allegedly identified as a white supremacist. They further allege that, upon arriving at the new facility, they were subjected to various racially-tinged remarks by their direct supervisor and others in managerial positions. This included numerous occasions were the word “nigger” was used, including at least one such occasion wherе that term was directed at the Plaintiff Love. In this regard, the allegations include multiple statements that overtly and impliedly suggested that the supervisors of the Hauppauge location did not want African Americans joining the company’s Long Island contingency. In each case, the Plaintiffs allege that they were made to feel unwelcome and were eventually terminated, ostensibly without cause.
Under the authority of Swierkiewicz and its progeny, the Court finds that these allegatiоns lend sufficient plausible support to a minimal inference of discriminatory motivation to pass Rule 12 muster. Indeed, in the Court’s view, there is no doubt that the allegations give the Defendants fair notice of what the Plaintiffs’ claims are and the grounds upon they rest. See Swierkiewicz,
Accordingly, the Defendants’ motion to dismiss the Plaintiffs’ claim of racial discrimination under § 1981 for failure to state a claim is denied.
C. As to Whether the Plaintiffs Have Stated Plausible Claims for Race-Based Employment Discrimination under the NYSHRL
It is well-settled that discrimination claims under the NYSHRL are also analyzed using the standards applicable to Title VII claims. See Knox v. Town of Southeast,
Thus, for substantially the same reasons as outlined above, the Court finds that he complaint in this case states a plausible claim for racial discrimination under the NYSHRL, and the Dеfendants’ motion to dismiss that claim is denied.
1. The Applicable Legal Standards
“Section 1981 has been interpreted to ‘provide[ ] a cause of action for race-based employment discrimination based on a hostile work environment.’” Littlejohn,
“ ‘This standard has both objective and subjective components: the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive.’ ” Id. at 321 (quoting Raspardo v. Carlone,
2. Application to the Facts of this Case
At the outset, the Court is persuaded by the Defendants’ contention that the Plaintiffs may not “aggregate” their allegations in order to depict an overall hostile work environment. See, e.g., Berryman v, SuperValu Holdings, Inc.,
a. As to the Plaintiff Love
Over the course of approximately four months, between September 2014 and late-January 2015, Love alleges that he was subjected to the following conduct that forms the basis of his hostile work environment claim: ■
(1) one week into his tenure, in or about early-September 2013, Heaney placed a fake parking ticket on Love’s vehicle;
(2) Heaney “openly and frequently” referred to African American employees as “dumb niggers” in Love’s presence;
(3) in late-September 2014, Love was made to report to Mike K, who allegedly identifies as a whitе supremacist and stated to Love that he “proudly” displays a Confederate flag at his home;
• (4) in' October 2014, Mike K stated to Love that Heaney’s goal in having him report to Mike K was to make him quit his job;
(5) also in October 2014, Mike K stated to Love that the definition of a “nigger” is an “ignorant person,” but that Love was “not like the other niggers” because he “talk[ed] with sense”;
(6) in January 2015, Heaney stated to other supervisors in Love’s presence that the “stupid niggers” were going to fail the Training Program; and
(7) also in January 2015, Heaney stated to other supervisors in Love’s presence that Premier did not “need any niggers” presenting the company on Long Island.
In the Court’s view, these allegations, taken as true and construed in favor of the Plaintiff Love, plausibly allege a racially hostile work environment. The complaint makes it clear that the word “nigger,” which is of course an “unambiguous racial epithet,” was “bantered about regularly” by Heaney and other supervisors in positions of superiority relative to Love. Ewing v. Coca Cola Bottling Co. of New York, Inc., No. 00-cv-7020,
Further, the Defendants are alleged not only to have used this slur, but to have done so repeatedly in such a way as to communicate to the Plaintiffs that Premier did not want individuals of their race working at the Hauppauge location. See id. (observing that “‘no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such a ‘nigger’ by a supervisor in the presence of subordinates’”) (quoting Cruz v. Coach Stores, Inc.,
Against that backdrop, even ostensibly race-neutral allegations, such as Heaney issuing Love a “fake parking ticket,” can plausibly be interpreted as contributing to a racially hostile environment. See Crawford v. AMTRAK, No. 3:15-cv-131,
Under these circumstances, the Court finds that these allegations—if borne out by the evidence—could lead a rational jury to conclude that (1) the harassment hei'e is of such quality or quantity that a reasonable employee would find the conditions of Love’s employment altered for the worse, and (2) that he subjectively experienced a worsening of his working conditions. See Crawford,
In reaching this conclusion, the Court is not persuaded by the Defendants’ contentions that Love’s allegations tell of mere stray remarks, a few “isolated incidents,” which do not rise to an actionable level of severity or pervasiveness. While it is true that, generally, a handful of isolated incidents will not rise to an actionable level, in this case, the Court finds that the number and frequency of the alleged remarks over a relatively short period of time distinguishes the facts alleged by Love from other cases where claims based on an allegedly hostile work environment were found to be too episodic or non-severe to withstand judicial scrutiny. Compare Paul v. Postgraduate Ctr. for Mental Health,
In the Court’s view, this is particularly applicable in light of the fact that many of the alleged remarks by Love’s supervisors involve the word “nigger,” which is objectively and inextricably linked to racial animus. See Wesley-Dickson,
. Similarly, the Court, also rejects, the Defendants’ contention-.that the period of time Love worked at the Hauppauge office—approximately four, months—is too brief to plausibly claim that he was subjected to a hostile work environment. See Anderson v. England,
While the Defendants’ arguments in this regard may be relevant to an analysis on summary judgment, at this early stage, the question for the Court is simply whether, taken together, a jury crediting Love’s general allegations could reasonably find pervasive harassment, even in the absence of specific details about each incident. See Crawford,
Therefore, the Court finds that the Plaintiff Love has stated enough facts to make it plausible that he was subjеcted to a racially hostile work environment, in violation of 42 U.S.C. § 1981. Accordingly, the Defendants’ motion to dismiss Love’s claim based on a hostile work environment under § 1981 is denied.
b. As to the Plaintiffs Dunham and Nelson
The Court reaches a different conclusion with respect to the allegations of a hostile work environment relating to Dun-ham and Nelson. As the Defendants appropriately point out, Dunham and Nelson each allege to have witnessed only one discriminatory remark. In both cases, the remark was not directed at them. Further, there is no allegation that either Dunham or Nelson knew about one another’s experience, .or that either of them were aware
While the Court is sensitive to the harsh language alleged to have been overheard by these Plaintiffs, the law in this Circuit is well-settled that a single instance of allegedly discriminatory conduct, unless extraordinarily severe, generally cannot sustain a claim based on a hostile work environment. See Alfano v, Costello,
In this case, taking the facts alleged with respect to Dunham and Nelson as true, they do not satisfy this exacting standard. See Albert-Roberts v. GGG Constr., LLC,
Accordingly, the Defendants’ motion to dismiss the claims by Dunham and Nelson that they suffered a racially hostilе work environment is granted.
E. As to Whether the Plaintiffs Have Stated Plausible Claims for a Racially Hostile Work Environment under the NYSHRL
Hostile work environment claims under the NYSHRL are analytically identical to such claims under § 1981 and Title VII. See, e.g., Cotterell v. Gilmore,
F. As to the Plaintiffs’ Cross-Motion to Amend and the Form of Their Papers
The Plaintiffs indicate in their opposing briеf a request that, in the event the Court grants the Defendants’ motion to dismiss, in whole or in part, they be granted leave to amend the complaint to cure any pleading deficiency. However, this request is procedurally improper, and at this juncture, will be denied. See Garnett-Bishop v. N.Y, Cmty. Bancorp, Inc., No. 12-cv-2285,
This ruling is made without prejudice to the Plaintiffs’ renewal of their request as a formal motion under Rule 15(a).
Finally, the Court notes that the Plaintiffs’ opposing legal memorandum, in part, is contrary to this Court’s Individual Rule 11(A), which prohibits the use of footnotes in papers filed with the Court. The parties are advised that, in the future, papers containing footnotes will not be considered, withоut any further notice to the. filing party.
III. Conclusion
Based on the foregoing, the Court grants in part and denies in part the Defendants’ motion to dismiss. The Court grants the motion and dismisses the claims by the Plaintiffs Dunham and Nelson based on a racially hostile work environment in violation of 42 U.S.C. § 1981 and the NYSHRL. The Court denies the motion in all other respects.
Further, the Court denies the Plaintiffs’ request for leave to amend their pleading without prejudice to renewal as a formal motion under Fed. R. Civ. P. 15.
Finally, the Court directs the Defendants to interpose an answer to the complaint within 20 days of the date of this Order, and respectfully refers this matter to United States Magistrate Judge Anne Y. Shields for discovery.
It is SO ORDERED