MEMORANDUM-DECISION AND ORDERI. INTRODUCTION Pro se Plaintiff Shaun Garvey (“Plaintiff”) commenced this action on November 15, 2017, against his former employer Interactions Consumer Experience Marketing, Inc. (“Interactions”) pursuant to the Americans with Disability Act (“ADA”). See Dkt. Nos. 1, 2. On April 10, 2018, Plaintiff filed a Third Amended Complaint in which he added the allegations of sex discrimination in violation of Title VII of the Civil Rights Act of 1964 against Interactions and a new party in this action, Wegmans Food Market, Inc. (“Wegmans”). See Dkt. No. 22. On August 14, 2018, Plaintiff filed a letter motion to dismiss the case against Interactions, which was granted by the Court. See Dkt. Nos. 37, 38. Currently before the Court is Defendant Wegmans’ motion to dismiss Plaintiff’s Third Amended Complaint. See Dkt. Nos. 36.II. BACKGROUNDPlaintiff worked for Interactions as a brand ambassador from 2014 until March 2016 when his employment was terminated. See Dkt. No. 22-1 at 2. Wegmans is a client of Interactions. See id. at 2-3. Plaintiff claims that Wegmans is not his “full” or “first” employer, but it is his “secondary employer.” See Dkt. No. 22 at 7. Plaintiff claims to have anxiety and panic disorders, and that he had three medical episodes while working at Wegmans stores located in Fayetteville, Auburn, and Johnson City. See Dkt. No. 22-1 at 2. Sometime after these medical episodes, Wegmans requested Plaintiff not to return to its stores, and Plaintiff’s employment with Interactions was terminated. See id. at 3. Plaintiff believes that he suffered discrimination based on his disability. See id. at 1.Upon his termination, Plaintiff filed one claim against Interactions and two claims against Wegmans with the New York State Division of Human Rights (“NYSDHR”) claiming employment discrimination based on disability, which was also cross-filed with the U.S. Equal Employment Opportunity Commission (“EEOC”). See Dkt. No 22-1; Dkt. No 22-2; Dkt. No. 36-10 at 7. In his Third Amended Complaint, Plaintiff only attached the NYSDHR’s determination against Interactions, but it does make reference to the two cases (#10181618 and #10181619) that Plaintiff filed against Wegmans. See Dkt. No. 22-1 at 4. Both NYSDHR disability discrimination complaints against Wegmans resulted in finding of “Probable Cause.” See id.; Dkt. No. 36-6 at 1, 14.During the course of NYSDHR’s investigation, Mr. Clark, a grocery customer service associate who works as a “stocker” at Wegmans in Auburn, lodged a complaint against Plaintiff in which he stated being uncomfortable around Plaintiff after Plaintiff allegedly came in the bathroom and said, “I thought you were naked.” Dkt. No. 22 at 6. Mr. Clark also stated that Plaintiff “would stare at him and he would ask him ‘can I help you out.’” Id. Mr. Clark maintains that “he was not aware of [Plaintiff's] sexual orientation, but he was uncomfortable,” so he reported the incident to his manager. Id. During NYSDHR’s investigation, Wegmans stated that they requested Plaintiff not to return to the Auburn store due to the “issue in the bathroom,” and “this had nothing to do with [Plaintiff's] illness or his medical attention.” Dkt. No. 36-6 at 16. Wegmans maintains that “management had to provide a safe environment for their employees” and “after it was determined that [Plaintiff] was inappropriate, the determination was to request that he be pulled from [Wegman's] account.” Id. at 3, 16.Plaintiff denies the bathroom incident and any other sexual misconduct. See Dkt. No. 22 at 6. He claims that Wegmans just brought these allegations to discredit him during NYSDHR proceedings and to try to justify his termination. See id. In his Third Amended Complaint, Plaintiff alleges that Wegmans falsely accused him of sexual misconduct and that it failed to properly investigate the sexual accusation against him in violation of Tile VII. See id. at 1-4.Wegmans has moved to dismiss Plaintiff’s Third Complaint on three grounds. See Dkt. Nos. 36, 36-10. First, Wegmans asserts that Plaintiff’s claims are barred by the Confidential Settlement Agreement and General Release, which was signed by Plaintiff on February 24, 2017. See Dkt. No. 36-10 at 11-13; Dkt. No. 36-7. Second, Plaintiff failed to state a claim for gender discrimination under Title VII. See No. 36-10 at 13-14. Lastly, Plaintiff’s claim is time barred and Plaintiff has not exhausted administrative remedies. See id. at 14-16.III. DISCUSSIONA. Standard of ReviewA motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the party’s claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the pleader’s favor. See ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Although a court’s review of a motion to dismiss is generally limited to the facts presented in the pleading, the court may consider documents that are “integral” to that pleading, even if they are neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).To survive a motion to dismiss, a party need only plead “a short and plain statement of the claim,” see Fed. R. Civ. P. 8(a)(2), with sufficient factual “heft to ‘sho[w] that the pleader is entitled to relief[,]‘” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted). Under this standard, the pleading’s “[f]actual allegations must be enough to raise a right of relief above the speculative level,” see id. at 555 (citation omitted), and present claims that are “plausible on [their] face,” id. at 570. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citation omitted). “Where 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.”‘” Id. (quoting [Twombly, 550 U.S.] at 557, 127 S. Ct. 1955). Ultimately, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief,” Twombly, 550 U.S. at 558, or where a plaintiff has “not nudged [its] claims across the line from conceivable to plausible, the[ ] complaint must be dismissed.” id. at 570.Despite this recent tightening of the standard for pleading a claim, complaints by pro se parties continue to be accorded more deference than those filed by attorneys. See Erickson v. Pardus, 551 U.S. 89, 127 (2007). As such, Twombly and Iqbal notwithstanding, this Court must continue to “construe [a complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggests.” Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d Cir. 2002).B. Plaintiff’s Claims Are Bared by the Confidential Settlement Agreement and General Release of All ClaimsThe Supreme Court has held that “an employee may waive his cause of action under Title VII as part of a voluntary settlement.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 (1974). The court must determine if “the employee’s consent to the settlement was voluntary and knowing.” Id. at 52 n.15. To determine if a settlement agreement releasing Title VII claims is voluntary and knowing, we apply the “‘totality of the circumstances’ test.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 438 (2d Cir. 1998). This inquiry includes the following factors:“1) the plaintiff’s education and business experience, 2) the amount of time the plaintiff had possession of or access to the agreement before signing it, 3) the role of plaintiff in deciding the terms of the agreement, 4) the clarity of the agreement, 5) whether the plaintiff was represented by or consulted with an attorney, and 6) whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law.”Id. (quotation omitted). Courts have also considered “whether the employer encouraged the employee to consult an attorney and whether the employee had a fair opportunity to do so.” Id. (citation omitted).In the present matter, the language and terms of the settlement agreement are clear. See Dkt. No. 36-7.1 The document is called “Confidential Settlement Agreement and General Release of All Claims” and it clearly states that the parties to the agreement are Shaun Garvey and Wegmans Food Markets, Inc. See id. at 1. Under the section titled “COMPLETE WAIVER AND RELEASE,” Settlement Agreement states as follows:Mr. Garvey…does hereby forever discharge and release Wegmans…from any and all claims, demands, causes of action, and complaints (collectively called “claims”), that he now has or may in the future have, or which any person or entity may have on his behalf, on account of or arising out of any matter or thing that has happened, developed or occurred before the date of this agreement.Id. at2a. Further, the settlement agreement specifically states that “[t]his release, discharge and waiver includes…any: claims arising out of or under…Title VII of the Civil Rights Act of 1964,…[and] any other federal, state, county, or municipal law providing a cause of action related to employment or discrimination.” Id. at2b.The sexual misconduct allegations against Plaintiff occurred sometime before November 14, 2016, when the NYSDHR investigations were concluded, and Plaintiff signed the Settlement Agreement on February 24, 2017. See Dkt. No. 36-6 at 15; Dkt. No. 36-7 at 5. Therefore, the language of the Agreement is clear that Plaintiff completely discharged Wegmans of any and all claims arising out the NYSDHR investigations including related to any statement or allegations of sexual misconduct because they arose “out of any matter or thing that has happened, developed or occurred before the date of this agreement.” See Dkt. No. 36-7 at2b. In addition, the Agreement is clear that Plaintiff specifically released Wegmans of any claims arising out of under Title VII, which is the cause of action brought against Wegmans in this matter.Further, Wegmans advised Plaintiff to consult with an attorney before signing the Agreement. See Dkt. No. 36-7 at4. Also, Plaintiff had twenty-one calendar days from the date he received the agreement to accept the terms. See id. at16.Additionally, the Court notes that Plaintiff has not disputed the validity of the Settlement Agreement and has not claimed that he entered into the Agreement involuntarily or unknowingly. See Dkt. No. 22. In fact, by signing the Settlement Agreement, Plaintiff has declared that he signed it voluntarily and without pressure. See id. at12. Further, as result of the Agreement, Plaintiff withdrew both claims that he had filed against Wegmans with the NYSDHR and EEOC. See Dkt. No. 36-8. Therefore, the Court finds that Plaintiff voluntarily and knowingly entered into the Settlement Agreement with Wegmans, and that the language of the Settlement Agreement clearly precludes Plaintiff from asserting his discrimination claim under Title VII against Wegmans. “Once an individual executes a valid settlement agreement, he cannot subsequently seek both the benefit of the agreement and the opportunity to pursue the claim he agreed to settle.” Reidy v. Runyon, 971 F. Supp. 760, 764 (S.D.N.Y. 1997).Accordingly, the Court grants Defendant’s motion to dismiss.C. Plaintiff Failed to State a Claim for Gender Discrimination under Title VIIEven assuming Plaintiff’s claim was not barred by the Settlement Agreement, the Court finds that the complaint does not plausibly allege a claim for sex discrimination under Title VII. Discrimination claims under Title VII are evaluated under the burden-shifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). It is the plaintiff’s burden to plausibly allege a prima facie case of discrimination. See Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001); Lewis v. Erie Cnty. Med. Ctr. Corp., 907 F. Supp. 2d 336, 346 (W.D.N.Y. 2012). A prima facie case of discrimination consists of four elements the plaintiff must allege: “(1) [he] falls within a protected class, (2) [he] was performing [his] duties satisfactorily, (3) [he] was subject to an adverse employment action, and (4) the adverse employment action occurred under circumstances giving rise to an inference of unlawful discrimination.” Lewis, 907 F. Supp. 2d at 346.“However, to survive a motion to dismiss, ‘a plaintiff is not required to plead a prima facie case under McDonnell Douglas, at least as the test was originally formulated.’” Wolfinger v. Consol. Edison Co. N.Y., Inc., No. 17-CV-1710, 2018 WL 3637964, *8 (E.D.N.Y. July 31, 2018) (citing Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2016)); see also Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002). Rather, “to defeat a motion to dismiss… in a Title VII discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision.” Vega, 801 F.3d at 86; see also Zarda v. Altitude Express. Inc., 883 F.3d 100, 118 (2d Cir. 2018) (en banc).In the present matter, Plaintiff does not claim that he was discriminated against or treated differently because of his sex or sexual orientation. See Dkt. No. 22. Although Plaintiff suffered an adverse action by having his employment terminated, Plaintiff does not claim that his sex or sexual orientation was a motivating factor. See id. Instead, the record consistently shows that Plaintiff claims and believes that his employment was terminated because of a disability, i.e., his anxiety and panic disorder. See Dkt. Nos. 22, 36.Plaintiff does claim that he was falsely accused of sexual misconduct and that Wegmans failed to properly investigate this accusation. See Dkt. No. 22 at 1-4. Although Plaintiff alleges that he was falsely accused because of his sex or sexual orientation, he fails to allege that the subsequent inadequate investigation was motivated by such inappropriate considerations. Courts have consistently held that an allegation of being falsely accused of sexual misconduct alone does not establish a claim for sex discrimination under Title VII. See Balazs v. Liebenthal, 32 F.3d 151, 155 (4th Cir. 1994) (“An allegation that he was falsely accused of conduct which, if true, might have given rise to a claim of employment discrimination based on sex by someone else in no way states a cause of action that plaintiff himself was a victim of discrimination based on his sex”); Matlosz v. J.P. Morgan Chase, No. 03 Civ. 6235, 2005 WL 2242196, *7 (S.D.N.Y. Sept. 3, 2005).Accordingly, the Court finds that Defendant is entitled to dismissal on this alternative ground.D. Plaintiff Did Not Exhaust His Administrative RemediesFiling a charge with the EEOC is “an essential element” of a Title VII claim and a prerequisite to bringing suit in federal court. See Butts v. City of N.Y. Dep’t of Hous., 990 F.2d 1397, 1402 (2d Cir. 1993), abrogated by statute on other grounds as stated in Hawkins v. 1115 Legal Service Care, 163 F.3d 684 (2d Cir. 1998); see also Francis v. City of N.Y., 235 F.3d 763, 767-68 (2d Cir. 2000); 42 U.S.C. §2000e-5(e). Jurisdiction is conferred if a claim was previously raised in an EEOC charge or if the federal claim is “reasonably related” to such a claim. See Butts, 990 F.2d at 1401-02. A claim is “reasonably related” to one raised in an EEOC charge (1) when it falls within the “scope of the EEOC investigation which can reasonably be expected to grow out of the charge;” (2) where the claim alleges retaliation for filing the EEOC charge, and it would likely be discovered during the EEOC investigation; and (3) “where a plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge.” Id. at 1402-03 (citations omitted).“In determining whether a particular claim is reasonably related to the plaintiff’s EEOC complaint, ‘[w]e look not merely to the four corners of the often inarticulately framed charge, but take into account the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.’” Gomes v. Avco Corp., 964 F.2d 1330, 1334 (2d Cir. 1992) (quotation omitted). This loose pleading standard has subsequently been limited to instances where the facts stated in the EEOC claim could have reasonably been expected to alert the EEOC to an additional, unstated claim. See McKinney v. Eastman Kodak Co., 975 F. Supp. 462, 467 (W.D.N.Y. 1997) (failing to find reasonable relatedness between disparate impact and retaliation claims when the employee claimed she was discharged in retaliation for previous complaints but did not allege any facts describing the process that employer implemented in deciding to terminate its employees). The focus is not necessarily on the specific claims charged with the EEOC, but rather “‘on the factual allegations made in the [EEOC] charge itself, describing the discriminatory conduct about which a plaintiff is grieving.’” Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (quoting Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 637 (9th Cir. 2002)). While EEOC claims need not be artfully pleaded, they must state more than “vague, general allegations” to satisfy the EEOC exhaustion requirement. Butts, 990 F.2d at 1403.In the present matter, Plaintiff filed two complaints against Wegmans with NYSDHR claiming employment discrimination based on disability, which was also cross-filed with EEOC. See Dkt. No. 22-1; Dkt. No. 22-2; Dkt. No. 36-10 at 7. In these complaints, Plaintiff alleges that he “suffers from anxiety and panic disorder;” he did not receive accommodations; he had three medical episodes while working at Wegmans stores; and “due to the medical incidents, [Wegmans] requested that he no longer work in their stores.” Dkt. No. 36-6 at 2-3, 15-16. Plaintiff has never claimed that he was discriminated against, treated differently, or harassed while working at Wegmans stores due to his sex or sexual orientation. See id. Plaintiff did not state any fact that could have reasonably been expected to alert the EEOC to an unstated claim related to sex discrimination. See Dkt. No. 36-6; Herzog v. McLane Ne., 999 F. Supp. 274, 276 (N.D.N.Y. 1998) (“[T]he Court cannot find that Plaintiff’s Title VII claim [based on sex discrimination] is reasonably related to her ADA claim”). Further, even if we assume, arguendo, that Plaintiff’s disability and sex discrimination claims were reasonably related, on or about February 24, 2017, Plaintiff withdrew his ADA charges with the EEOC against Wegmans as a result of their Settlement Agreement. See Dkt. No. 36-8 at 2. Therefore, even if Plaintiff had a claim for sex discrimination, he has not exhausted his administrative remedies.IV. CONCLUSIONAfter carefully reviewing the entire record in this matter, the parties’ submissions, and the applicable law, and for the reasons stated above, the Court herebyORDERS that Defendant’s motion to dismiss (Dkt. No. 36) is GRANTED; and the Court furtherORDERS that the Clerk of the Court shall enter judgment in Defendant’s favor and close this case; and the Court furtherORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with Local Rules.IT IS SO ORDERED.Dated: November 14, 2018.Albany, New York
