The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Currently before the Court are the defendant's Motion to Dismiss [D.E. #7], the plaintiff's Motion for Leave to Amend Complaint [D.E. #10], the defendant's Motion to Strike Plaintiff's Surreply [D.E. #14], and the plaintiff's Motion for Leave to Amend Complaint and File Surreply [D.E. #16]. For the reasons stated below, the Court will grant the plaintiff's motion for leave to amend complaint and file his surreply, deny the defendant's motion to strike the plaintiff's surreply and grant the defendant's motion to dismiss.
The plaintiff, Calvino Stanford ("Stanford"), brought this action in this Court against the Potomac Electric Power Company ("PEPCO") pursuant to 29 C.F.R. § 1910.269 (2000), an Occupational Safety and Health Act ("OSHA") regulation, and 24 U.S.C. 134(b) (1996).*fn1 Complaint ("Compl.") and Amended Verified Complaint ("Am. Compl.") ¶ 1.*fn2 The plaintiff's two count complaint asserts claims of intentional infliction of emotional distress and the creation of a hostile work environment Id. ¶¶ 13-14. According to Stanford, these claims arose on January 13, 2004, when a crew leader at PEPCO, Bryan Harrod ("Harrod"), "ordered  Stanford into a manhole to take measurements and determine what feeders were going through the manhole" despite the fact that Stanford had never received proper manhole safety entry training. Id. ¶¶ 6-7. The plaintiff further alleges that he was not provided with rubber insulated gloves as protective gear prior to entering the manhole, and consequently had to enter the manhole and take the measurements with his bare-hands while surrounded by three 13,000 volt feeders. Id. ¶¶ 8-10. Moreover, Stanford alleges that Harrod "knew [he] had not had training and did not have the proper protective gear" when he ordered him into the manhole. Id. ¶ 11. In complying with Harrod's order, Stanford further complains that "he was filled with fear and apprehension during the time he was in the manhole and later after he came out of the manhole." Id. ¶ 12. Stanford therefore requests that this Court award him appropriate damages of not less than $1,000,000 for intentional infliction of emotional distress and for having been subjected to a hostile work environment. Id. at 2.
PEPCO has moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) based upon the plaintiff's purported failure to state a claim upon which relief can be granted. Motion to Dismiss ("Def.'s Mot.") at 1. PEPCO maintains that Stanford's complaint fails to state a claim for three reasons. First, they contend that Mr. Stanford's intentional infliction of emotional distress claim is deficient because the conduct alleged is not "outrageous . . . [,] intentional or reckless," nor is the alleged resulting emotional distress "severe" for purposes of creating a prima facie case of intentional infliction of emotional distress. Id. Second, PEPCO argues that the hostile work environment claim cannot be maintained because OSHA does not confer a private cause of action. Id. Third, PEPCO argues that both claims must be dismissed because they are barred by the doctrine of res judicata since Stanford had previously litigated "these same factual allegations in a prior [class action] lawsuit against PEPCO" in Butler v. Potomac Elec. Power Co., No. 03-0946 (D.D.C. October 15, 2003). Id.*fn3
Subsequent to the filing of PEPCO's dismissal motion, on November 1, 2004, the plaintiff filed a motion for leave to file a second amended complaint pursuant to Federal Rule of Civil Procedure 15 and Local Rule 15.1. Motion to for Leave to Amend Complaint ("Mot. to Amend Compl.") at 1. Stanford seeks to further amend his complaint to add two additional claims -- one for retaliation pursuant to 42 U.S.C. 2000e-3(a) ("Title VII") and a claim for punitive damages. Id. Specifically, Stanford contends that PEPCO ordered him to go into the manhole without protective gear or proper training in retaliation for an earlier lawsuit against PEPCO in which he was a party and alleged that he had been the victim of racial discrimination. Mot. to Amend Compl. at 4. PEPCO opposed the motion for leave to further amend the complaint, arguing that the proposed amendments could not survive a motion to dismiss and thus should be denied as futile. Defendant's (1) Reply in Support of Motion to Dismiss and (2) Opposition to Motion for Leave to Amend Complaint ("Def.'s Reply & Opp'n") at 4. Additionally, the defendant claims that Stanford has not yet exhausted his required administrative remedies,*fn4 and even if he has, his allegations do not constitute an "adverse employment action", which is required to plead a prima facie case of retaliation. Id. at 4-5 (citations omitted). PEPCO also opposes the plaintiff's attempt to assert a claim for punitive damages, arguing that a request for a punitive damage award is not an independent cause of action, but rather is an additional remedy that may be recovered if the plaintiff prevails on the question of liability. Id. at 5-6 (citations omitted).
On November 19, 2004, without acquiring permission from the Court, Stanford filed a surreply to the defendant's motion to dismiss, wherein he asserted that the Court could also exercise jurisdiction over his retaliation claim under 42 U.S.C. 1981. Plaintiff's Surreply to Defendant's Motion to Dismiss ("Pl.'s Surreply") at 1-2. The defendant then moved to strike the plaintiff's surreply, alleging that a surreply is not permitted without leave of court and that the surreply was "an improper attempt to amend the pleadings without following the requirements of Federal Rule of Civil Procedure 15." Motion to Strike Plaintiff's Surreply ("Mot. to Strike") at 1. In response, on December 16, 2004, Stanford filed a joint motion for leave to amend his complaint and a motion to file the surreply. Motion for Leave to Amend Complaint and File Surreply ("Second Mot. to Amend Compl.") at 1. Stanford argues that the Court should grant him leave to file his surreply because it is necessary to assert 42 U.S.C. § 1981 as a jurisdictional basis for the prosecution of his retaliation claim. Id. at 2.*fn5 Furthermore, the plaintiff requests that the Court permit him to amend his complaint for a third time in order to add 28 U.S.C. 1332(a) -- diversity of citizenship jurisdiction -- as the jurisdictional basis to prosecute his intentional infliction of emotional distress claim in this Court.*fn6 Id. The defendant also opposed this motion on the ground that the section 1981 retaliation claim, like the Title VII retaliation claim, must be dismissed because there is no cognizable adverse employment action alleged in the pleadings, thus making this further request to the amend the complaint futile. Defendant's Opposition to Motion for Leave to Amend Complaint and File Surreply ("Def.'s Opp'n") at 2-3.
1. Leave to Amend the Complaint
Before a defendant responds to a complaint, the plaintiff may amend the complaint once as a matter of right. Fed. R. Civ. P. 15(a). However after a responsive pleading has been filed, the complaint may be amended "only by leave of court or by written consent of the adverse party." Id. While the court has sole discretion to grant or deny leave to amend, absent a sufficient reason to deny an amendment request, leave should be "freely given." Forman v. Davis, 371 U.S. 178, 182 (1962) (quoting Fed. R. Civ. P. 15(a)). The rationale for this liberal perspective is that "[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Id. at 182. Reasons to deny leave to amend include "undue delay, bad faith or dilatory motive . . . , repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility." Id. The primary consideration in deciding whether to permit an amendment focuses on whether the non-moving party will be prejudiced due to unfair disadvantage or deprivation of the opportunity to discover and present facts. In re Vitamins Antitrust Litigation, 217 F.R.D. 34, 36-37 (D.D.C. 2003) (finding that despite significant inexcusable delay in filing, absent prejudice to non-moving party, leave to file should be granted).
Res judicata "bars a claim where there has been a final judgment on the merits in a prior suit involving the same parties or their privies and the same cause of action." Polsby v. Thompson, 201 F. Supp. 2d 45, 48 (D.D.C. 2002). "The four factors that must exist for res judicata to apply are (1) an identity of parties in both suits; (2) a judgment rendered by a court of competent jurisdiction; (3) a final judgment on the merits; and (4) the same cause of action in both suits." Id. (citations omitted); Paley v. Estate of Ogus, 20 F. Supp. 2d 83, 87 (D.D.C. 1998). This doctrine "serves the dual purpose of protecting litigants from the burden of relitigating an identical issue against the same party or his privy and of promoting judicial economy by preventing needless duplicative litigation." Drake v. Cappelle, No. Civ.A. 02-1049, 2005 WL 670755, at *8 (D.D.C. 2005) (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979)).
3. Motion to Dismiss under Rule 12(b)(6)
To survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint need only provide "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957) (citing Fed. R. Civ. P. 8(a)). And, when reviewing a motion to dismiss, the court must accept as true all the factual allegations contained in the complaint. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). A motion to dismiss under Rule 12(b)(6) tests not whether a plaintiff will ultimately prevail on the merits, but only whether the plaintiff has properly stated a claim for which he is entitled to relief. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C. 2000). Thus, a complaint ...