MEMORANDUM AND ORDERINTRODUCTION Plaintiff Wayne Martin (“Plaintiff”) brought the instant action against Defendants Designatronics Inc. (“Designatronics”), Dyson, Dyson & Dunn, Inc. (“Dyson”), and Robert Kufner (“Kufner,” collectively, “Defendants”) alleging unlawful discrimination and retaliation in violation of 42 U.S.C. §1981 and the New York State Human Rights Law (“NYSHRL”). Presently before the Court is Defendant Dyson’s motion to dismiss pursuant to Fed. R. Civ. P. (“Rule”) 12(b)(2) for lack of personal jurisdiction, and pursuant to Rule 12(b)(5) for insufficient service of process. Also before the Court is Defendants’ joint motion to dismiss the Complaint pursuant Rule 12(b)(6) for failure to state a claim, and pursuant to Rule 12(h)(3) for lack of subject matter jurisdiction. For the reasons discussed below, the motions to dismiss are granted in part and denied in part.BACKGROUNDThe following relevant facts come from the Amended Complaint (“Am. Compl.”) and are assumed true for purposes of the motions to dismiss.Plaintiff was hired by Designatronics on December 23, 2013, as Vice President of operations. (Am. Compl. [ECF No. 34] 1.) Plaintiff oversaw and managed the consolidation of Designatronics’ production facilities from four locations into one, and was awarded a $20,000 bonus in recognition of his success in overseeing the relocation process in March 2017. (Id.
5-6.)When Plaintiff joined Defendant Designatronics, Defendant Kufner held the position of President and CEO. (Id. 8.) Plaintiff alleges that he carried out all of his own responsibilities, as well as those of Kufner, who “spent hours per day playing online videogames, thereby forcing [Plaintiff] (and others) to carry out his jobs, such as conducting performance reviews.” (Id. 9.) Plaintiff also claims that Kufner incessantly boasted about his closeness with the executive leadership of Designatronics’ parent company, Dyson, and that this “sent a clear message to everyone around him that he was ‘untouchable’ and could wield unchecked power over anyone who chose to cross him.” (Id. 14.)The Amended Complaint sets forth numerous instances of Kufner’s misconduct, both general and specific, including one instance in the Winter of 2015 when Kufner told Robert Nelson (“Nelson”), the head of Human Resources (“HR”), that a female payroll manager was a “fat slob.” (Id. 24.) On another occasion Kufner used offensive language to refer to African American football players in conversation with Nelson. (Id. 19.) Kufner made similar remarks about African American football fans to Plaintiff. (Id.) Plaintiff summarized the remarks relayed to him by Nelson in a protected complaint to HR in February 2017. (Id. 20.) Kufner later inappropriately touched a female finance manager, Josephine Borzacchiello, on the calf when they were discussing an exercise machine. (Id. 26.) Ms. Borzachiello immediately filed a sexual harassment complaint against Kufner and told the then-Chairman of the Board of Directors, Michael Walsh, that she thought Kufner was a “sexual predator.” (Id. 27.) In early 2017, in the context of reviewing a customer service employee’s performance, Kufner referred to the employee as “a gay.” (Id. 30.) Plaintiff escalated this comment to HR as well. (Id.) Plaintiff also asserts that in the first 6 months of 2017 he met with Walsh and Nelson “at least once a month to escalate complaints about Kufner’s behavior.” (Id. 32.)The Complaint includes numerous allegations of retaliation by Kufner against employees who complained about him. Kufner apparently made one woman cry when he found out she spoke to HR about him, and he eventually played a primary role in bringing about her dismissal. (Id. 38.) On October 26, 2016, Nelson informed Plaintiff that Kufner had threatened him with termination after learning that he had spoken with Walsh and an internal auditor about Kufner’s behavior. (Id. 39.) Specifically, Kufner told Nelson, “I’m connected[;] if you can’t be loyal, you’ll go the way of your predecessor.” (Id. 40.)In early April 2017, Plaintiff along with Nelson and Walsh (the “Officers”) began meeting daily to draft a performance improvement plan “merely to give [] Kufner a warning.” (Id.
