MEMORANDUM-DECISION AND ORDER

GARY L. SHARPE, Senior District Judge.

I. Introduction

Plaintiff Craig Alpaugh commenced this action against defendants PhyAmerica Government Services, Inc. and White Stone Consulting, LLC, alleging claims pursuant to Title VII of the Civil Rights Act of 1964.1 Pending are defendants' pre-answer motions to dismiss for failure to state a claim. (Dkt. Nos. 12, 13.) For the reasons explained below, the motions are granted.

II. Background2

While employed by PhyAmerica as a physician's assistant at Fort Drum Military Base, Alpaugh worked with nurse practitioner Lucille McDermott, an employee of White Stone. (Compl. ¶¶ 9, 14, 17, 18, Dkt. No. 1.) McDermott "repeatedly [made] inappropriate comments regarding Islam/Muslims, Hispanics, African-Americans, and a female co-worker." (Id. ¶ 17.) Alpaugh, who is "not a member of the protected classes" that were targeted by McDermott, found the comments "to be highly insulting and offensive" and "unwelcome, insensitive and outrageous." (Id. ¶¶ 18, 21, 28.)

Alpaugh first complained about these comments to White Stone's chief executive officer in March 2012. (Id. ¶ 30.) White Stone, however, "failed to adequately investigate, or to intervene after discovering through its bad faith investigation, corroboration of [Alpaugh]'s allegations as to hostile work environment." (Id. ¶ 31.) Additional complaints made by Alpaugh to White Stone were unavailing. (Id. ¶ 32.) Alpaugh also complained to his own supervisor with PhyAmerica, but no satisfactory action was taken. (Id. ¶ 33.) In December 2012, Alpaugh complained of a hostile work environment, in writing, to both PhyAmerica and White Stone. (Id. ¶ 39.) Alpaugh was fired shortly thereafter despite having "received a raise for satisfactory performance" just one month prior. (Id. ¶¶ 44, 45.)

After his termination, Alpaugh filed a complaint with the New York State Division of Human Rights (DHR), where he complained of unlawful discrimination; in his DHR complaint, Alpaugh admitted that he was not a member of any protected class targeted by McDermott's remarks. (Id. ¶ 4; Dkt. No. 1, Attach. 2; Dkt. No. 12, Attach. 2 at 3.)3

The parties are in agreement that, as a result of the foregoing, Alpaugh alleges claims of discrimination, hostile work environment, and retaliation pursuant to Title VII. (Compl. ¶¶ 11-49.)

III. Standard of Review

The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled and will not be repeated here. For a full discussion of the standard, the court refers the parties to its prior decision in Ellis v. Cohen & Slamowitz, LLP, 701 F.Supp.2d 215, 218 (N.D.N.Y. 2010), abrogated on other grounds by Altman v. J.C. Christensen & Assocs., Inc., 786 F.3d 191 (2d Cir. 2015).

IV. Discussion

Defendants argue that none of Alpaugh's claims are viable. In particular, defendants assert that, because Alpaugh is not a member of any protected class, his claims of discrimination and hostile work environment cannot stand. (Dkt. No. 12, Attach. 1 at 2-7; Dkt. No. 13, Attach. 1 at 2.) As for the retaliation claim, defendants contend that Alpaugh failed to exhaust his administrative remedies on that issue and that the claim is not "reasonably related" to the claims that he did raise with DHR such that an exception to the exhaustion rule applies. (Dkt. No. 12, Attach. 1 at 8-11; Dkt. No. 13, Attach. 1 at 3-4.) White Stone separately argues that the claims asserted against it must be dismissed for a more fundamental reason: it is not Alpaugh's employer and therefore is not subject to liability under Title VII. (Dkt. No. 13, Attach. 1 at 3-4.)4 Because Alpaugh has failed to state a claim, as explained below, his complaint must be dismissed.

In order to state a claim for relief under Title VII for discrimination or hostile work environment, the plaintiff must establish that he or she is a member of a protected class. See Gladwin v. Pozzi, 403 F. App'x 603, 605 (2d Cir. 2010) (reciting the elements of a Title VII discrimination claim, which includes that the plaintiff "falls within a protected class"); Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (explaining that "it is `axiomatic' that . . . a plaintiff must demonstrate that the conduct [giving rise to a hostile work environment] occurred because of" his or her protected class characteristic (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)).

Here, Alpaugh's discrimination and hostile work environment claims fail because he cannot establish a prima facie case. With respect to both of those claims, he is admittedly not a member of any protected class. Indeed, Alpaugh concedes in his complaint and his DHR complaint that he "was and is not a member of the protected class attributable to the vile and insensitive comments made by McDermott." (Compl. ¶ 28; Dkt. No. 12, Attach. 2 at 3.)5 Because protected class membership is an element of those claims, Alpaugh cannot possibly recover under Title VII.

Turning now to Alpaugh's retaliation claim, as a prerequisite to filing Title VII claims in federal court, the plaintiff "must first present `the claims forming the basis of such a suit . . . in a complaint to the EEOC or the equivalent state agency.'" Littlejohn v. City of New York, 795 F.3d 297, 322 (2d Cir. 2015) (quoting Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir.2006) (per curiam) (citing 42 U.S.C. § 2000e-5)). Claims that are not presented to the EEOC or, as relevant here, DHR, may be raised all the same provided that they are "reasonably related to the claim[s] filed with the agency." Id. (internal quotation marks and citation omitted). "A claim is considered reasonably related to conduct complained of in the EEOC [or DHR] charge if, for instance, it `would fall within the reasonably expected scope of an EEOC [or DHR] investigation of the charges of discrimination.'" Amin v. Akzo Nobel Chems., Inc., 282 F. App'x 958, 961 (2d Cir. 2008) (quoting Alfano v. Costello, 294 F.3d 365, 381 (2d Cir. 2002)). Distilled to its essence, "the reasonably related standard means that loose pleading is permitted before the EEOC" or DHR. Id. (internal quotations marks and citation omitted)

Here, Alpaugh failed to explicitly raise a claim of retaliation in the DHR complaint by checking the "Retaliation" box or making specific factual allegations. (Dkt. No. 12, Attach. 2 at 3.)6 He did, however, mention the "loss of [his] employment" in the factual narrative he provided, (id. at 5), and the DHR Determination After Investigation7 reveals that the DHR investigation touched upon Alpaugh's firing, (Dkt. No. 1, Attach. 2 at 4 ("PhyAmerica . . . maintains that [Alpaugh]'s employment was terminated on the instruction of the U.S. Army."); Id. at 6 ("[I]f PhyAmerica was aware of [Alpaugh]'s allegations prior to his termination, and no action was taken, this could indicate a failure by [PhyAmerica] to provide [Alpaugh] with a work environment free from unlawful discrimination.") Alpaugh's unexhuasted retaliation claim is not reasonably related to his exhausted claims. Indeed, the allegations and ensuing DHR investigation cannot be fairly viewed as encompassing a claim of retaliation. See Jenkins v. N.Y.C. Transit Auth., 646 F.Supp.2d 464, 473 (S.D.N.Y. 2009). While the court gives little weight to the cases relied upon by PhyAmerica, which primarily emanate from out-of-Circuit authorities, (Dkt. No. 12, Attach. 1 at 9-11), it nonetheless is convinced that Alpaugh's failure to exhaust should not be excused.

Perhaps the best guidance on the issue from within the Second Circuit body of law comes from Amin. There, the plaintiff, like Alpaugh, apparently failed to check the appropriate box to indicate retaliation, and, instead, only indicated that he was discriminated against on the basis of age, religion, and national origin. See 282 F. App'x at 961. Critically, the plaintiff in Amin submitted an affidavit along with his EEOC complaint in which he alleged "that his employment . . . had been terminated for those reasons." Id. (emphasis added). Because the plaintiff alleged discriminatory termination, the Circuit reasoned that the EEOC investigation "would involve a review of [the employer]'s stated reasons for [the] discharg[e]," and that "[r]elevant evidence would include [the plaintiff]'s annual performance reviews," which included documents that referenced the plaintiff's prior complaints of discrimination in violation of Title VII. Id. Therefore, the Court held that the investigation by the EEOC "would reasonably be expected to assess whether [the plaintiff's] complaints to [the employer] of discrimination on that basis played a role in [the employer]'s decision to discharge [the plaintiff]." Id. The instant case is readily distinguishable from Amin. What is starkly absent here is any allegation by Aplaugh that connects his "loss of employment," (Dkt. No. 12, Attach. 2 at 5), to his complaints about discrimination or hostile work environment. Despite the loose pleading standard, Alpaugh's retaliation claim is not reasonably related to the exhausted claims because retaliation would not fall within the reasonably expected scope of the DHR investigation for discrimination and hostile work environment given the allegations made in the DHR complaint. Accordingly, Alpaugh's failure to exhaust that claim requires dismissal.

V. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that PhyAmerica's motion to dismiss (Dkt. No. 12) is GRANTED; and it is further

ORDERED that White Stone's motion to dismiss (Dkt. No. 13) is GRANTED; and it is further

ORDERED that Alpaugh's complaint (Dkt. No. 1) is DISMISSED; and it is further

ORDERED that the Clerk close this case; and it is further

ORDERED that the Clerk provide a copy of this Memorandum-Decision and Order to the parties.

IT IS SO ORDERED.