OPINION & ORDER Romano Bernardi (“Plaintiff”) brings this Action, pursuant to Title VII, 42 U.S.C. §2000e, et seq., New York law, and 42 U.S.C. §1983, against the New York State Department of Corrections and Community Supervision (“DOCCS”) and Daniel Rushia (“Rushia”; together, “Defendants”), alleging that Defendants discriminated against Plaintiff in the context of his employment based on his national origin, and retaliated against Plaintiff after he complained of this allegedly discriminatory treatment. (See Am. Compl. (“AC”) (Dkt. No. 19).) Before the Court is Defendants’ Motion To Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (the “Motion”). (Not. of Mot. (Dkt. No. 26).) For the reasons that follow, the Motion is granted in part and denied in part. I. Background A. Factual Background The following facts are taken from Plaintiff’s Amended Complaint and attached exhibits. They are assumed true for purposes of adjudicating the instant Motion. Beginning in October 2002, Plaintiff was employed by DOCCS as an electrician working at the Bedford Hills Correctional Facility (“BHCF”). (AC 18.) Plaintiff, an Italian immigrant with a pronounced accent, (id. 4), confronted discrimination and abusive behavior and language throughout his employment, (id. 19). This included “co-workers telling [P]laintiff to ‘go back to his own country,’ many references to [P]laintiff’s immigrant status, claims that his ‘guinea food stinks’, use of this and other Italian slurs, and many similar comments.” (Id. 20 (brackets omitted).) Rushia, Plaintiff’s supervisor, (id. 12), was among the DOCCS employees who made these statements, (id. 21). In addition, Plaintiff “observed that [DOCCS] [a]dministration favored non-immigrant employees[] over immigrants such as Plaintiff[] regarding the allocation, distribution[,] and payment of overtime.” (Id. 25; see also id. 45 (same).) The preference given to non-immigrants benefited Rushia, who is a non-immigrant. (Id. 27.) Plaintiff “was very vocal and challenged the [DOCCS] administration for failing to fairly distribute overtime to him and other immigrant workers.” (Id. 24.) On February 28, 2014, Plaintiff filed a complaint (the “2014 Complaint”) with the New York State Division of Human Rights (“NYSDHR”). (Id. 39.) The 2014 Complaint, among other things, charged that DOCCS discriminated when assigning overtime, favoring American over foreign-born employees. (Id.; see also id. Ex. D (“2014 Complaint”) 22 (Dkt. No. 19-1).)1 Its primary claim was that Plaintiff had been wrongfully suspended for allegedly assaulting another employee, an incident that never occurred. (2014 Complaint 22.) The 2014 Complaint claimed that this discipline was consistent with the pattern of receiving frequent Notices of Discipline (“NODs”) for behavior that other employees engaged in routinely without discipline. (Id.) It claimed that this discipline was the result of discrimination based on national origin and retaliation for Plaintiff’s complaints about the same. (Id.) On April 7, 2014, DOCCS allowed Plaintiff to return to work and dropped all disciplinary charges. (Id. at 29.) In a filing dated May 16, 2014, Plaintiff continued to seek $10,000 in lost wages for the period during which he was improperly suspended. (Id. at 30.) In February 2015, Plaintiff and DOCCS settled the 2014 Complaint, with Plaintiff receiving $10,000 and DOCCS agreeing “to adhere to the Human Rights Law.” (AC Ex. E (“Settlement”) 43 (Dkt. No. 19-1).) After returning to work, Plaintiff suffered a serious injury. (AC 44.) Plaintiff received Workers’ Compensation benefits and missed work for much of 2016. (Id.) Upon returning to work in early 2017, Plaintiff observed that DOCCS continued to discriminate against foreignborn employees, including assigning them less overtime. (Id. 45.) Plaintiff complained about this to DOCCS administration. (Id. 46.) DOCCS did not properly investigate Plaintiff’s complaints. (Id. 47.) Instead, Plaintiff claims that DOCCS continued discriminating, and later retaliated against him. (Id. 48-49.) On April 12, 2018, Rushia and another employee falsely accused Plaintiff of threatening and harassing them. (Id.
29-30, 32.) As a result, Plaintiff was served with a NOD on April 13, 2018 (the “April 2018 NOD”). (Id. 31.) In addition, Rushia and the other employee filed criminal complaints charging harassment. (Id.) Plaintiff hired counsel to contest the NOD. (Id. 35.) On May 8, 2018, Plaintiff’s counsel submitted a grievance (the “Grievance”) to the Disciplinary Panel Administration (“DPA”) of the New York State Governor’s Office of Employee Relations based upon the April 2018 NOD. (Id. 36.) The Grievance was received by DOCCS’s Bureau of Labor Relations on May 10, 2018. (Id. 37.) On May 22, 2018, Plaintiff served a Notice of Claim (the “Notice”) upon DOCCS. (Id. 79.) The Notice claimed, among other things, that “[t]he [a]dministration of [BHCF] is determined to terminate [Plaintiff] because of his continued vocal protest of the unjust and discriminatory behavior in the allocation of overtime to [BHCF] employees, so that ‘immigrant employees’ receive little [or]…no overtime while ‘American born employees’ receive essentially all of the allotted overtime.” (Id. 80; id. Ex. C (“Notice”) 16 (Dkt. No. 19-1).) On June 12, 2018, DOCCS issued a second NOD to Plaintiff (the “June 2018 NOD”). (AC 52.) This NOD was the basis on which Plaintiff’s employment was terminated in late 2018 or early 2019. (Id.
