The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Paul Johnson, an accountant at the University of the District of Columbia ("UDC"), brings this action against defendants District of Columbia, Mayor Adrian Fenty, and the UDC Board of Trustees (collectively "the District"), alleging discrimination on the basis of gender, age, and disability, and subsequent retaliation, in violation of federal anti-discrimination laws and the D.C. Human Rights Act. Before the Court is the District's motion to dismiss the second amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted .*fn1 For the reasons stated herein, the Court will grant in part and deny in part the motion to dismiss. Johnson may pursue his claims of disability discrimination and retaliation for which he satisfied the requirement to timely exhaust administrative remedies and also his claim under the Equal Pay Act. All other claims will be dismissed.
Johnson is a 66 year old male who is blind in one eye and has insulin-dependant diabetes, a condition that affects his vision, metabolism, and sleep. Second Am. Compl. ¶¶ 5, 59. In particular, his condition causes him to work slowly and sporadically fall asleep during work, and also limits his ability to drive. Id. ¶ 5. He has worked for more than 17 years as an accountant for the UDC Finance Office, and is the oldest accountant there. Id. ¶¶ 3-4, 6. His section reports to the Controller, Lashahn Gaines, whom he describes as the primary source of the alleged discriminatory conduct. Id. ¶¶ 7, 30-35. He has consistently received "exceeds expectation" evaluations for his work despite his diabetes and accompanying limitations, yet is the lowest paid accountant in the Finance Office. Id. ¶¶ 8-9.
In December, 2000, Johnson was asked to move from his position in the Cost Accounting area to the General Accounting area and assume the new title of Senior Accountant. Id. ¶ 10. As incentive he was promised a pay raise from his current salary of $44,000 to $58,000 and he accepted the position. Id. ¶¶ 11-12. However, the proposed pay increase never occurred. Id. ¶ 13. Furthermore, the position Johnson vacated was filled by a younger female who was paid a starting salary of $66,000, though performing the same duties and responsibilities he had performed. Id. ¶ 14. Unlike Johnson, she did not have a degree in accounting, and was less or, at best, only equally qualified for the position in comparison to Johnson. Id.
On August 2, 2001, frustrated with his situation at work, Johnson complained to Keith Dukes, supervisor in the General Accounting office, and Earl Cabbell, Vice President of Finance and Administration, about the delay in his salary increase. Id. ¶ 15. He was assured that he would be compensated "at a rate commensurate with his experience and in line with his peers," but in the ensuing years, the pay raise he anticipated remained unfulfilled. Id.
A year later, he began seeing reductions in his assignments. On June 26, 2002, during a department wide staff meeting, "close out" assignments were given to all accountants in the department except for Johnson, and his area of responsibility was reassigned to a consultant who made substantially more than him. Id. ¶¶ 16, 18. When Johnson made an inquiry into the reassignment of duties, he was told he was "out of order." Id. ¶ 16. The next month, on July 8, 2002, Johnson sent an internal letter of complaint to Keith Dukes entitled "Official Complaint of Unfair Employment Practices and Hostile Work Environment." Id. ¶ 17. Johnson believes that, in retaliation, his duties were further reduced and he was denied bonuses. Id. ¶¶ 18, 122. Key software was also removed from his computer, forcing him to stay late to use another employee's computer. Id. ¶ 19. When new computers were provided to his department, his was the last to be replaced. Id. ¶ 20.
On October 2, 2002, he hired an attorney who submitted a letter to Earl Cabbell regarding "unfair pay practices." Id. ¶ 21. Cabbell did not respond. Id. A year later, on October 1, 2003, Johnson's pay was increased to $54,477 as part of an across the board salary increase for everyone in the department, but falling short of the $58,000 pay increase he was promised and hence, in his view, leaving the alleged overall pay inequity unremedied.*fn3 Id. ¶ 23.
About seven months later, in May 2004, Johnson was promised a "desk audit" by his departmental supervisor (Gaines), but the audit was delayed for "a number of months." Id. ¶¶ 24- 25. Based on feedback he received from the delayed audit, Johnson wrote another letter of complaint to Keith Dukes on September 9, 2004, alleging discrimination based on age, gender, and sexual orientation. Id. ¶ 25.
Johnson was told that same month that he would be promoted to Senior Accountant following approval in a document referred to as "Form 1." Id. ¶ 26. On or about October 25, 2004, Johnson asked his Human Resources office about the status of Form 1, and was told that it had been approved on September 16, 2004, and forwarded to Gaines for her signature but had not yet been signed. Id. Johnson made further inquiries into the reason for the delay, and was told by Dukes that Gaines "did not want Mr. Johnson as a member of her team" and had made other negative comments about him. Id. The next month, Johnson asked Gaines at a staff "mini closeout meeting" when she planned to address his pay and title situation. Id. ¶ 27. She responded that he was "out of order" and criticized him for "disrupting her meeting." Id. He again heard from co-workers soon thereafter that Gaines did not want him "on the team" and hoped to humiliate him so that he would retire. Id.
Johnson alleges that Gaines acted abusively toward him in numerous ways. She constantly ridiculed him about sleeping at his desk and working slowly. Id. ¶ 31. She excluded him from assignments, awards, and other acknowledgments, and asked colleagues to document his alleged lack of timeliness, productivity, and sleep habits. Id. ¶ 33. She also made him work nights, which created more problems for his vision. Id. ¶ 34.
Johnson ultimately received the Form 1 on February 22, 2005, but it changed only his title, not his pay. Id. In early 2005 when he spoke with Gaines about his salary she told him that she could no longer help him now that he had a lawyer. Id. ¶ 35.
On July 11, 2005 Johnson filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") and was granted a right to sue letter on March 14, 2007. Id. ¶ 2. He then filed this lawsuit seeking lost wages, retirement benefits, and compensatory and punitive damages. Id. ¶ 151. Counts One and Ten allege that he received less pay than similarly situated females because of his gender, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and the Equal Pay Act, 29 U.S.C. § 206(d), and rests on his alleged replacement in 2001 by a younger female performing the same duties at a higher salary and the allegedly inequitable office-wide salary raise in 2003. Count Three alleges that he received less pay than similarly situated younger employees because of his age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., again supported by the alleged replacement in 2001. Counts Two, Four, Six, Seven, and Nine allege discrimination and hostile work environment based on actual or perceived disability, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., and the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. §§ 701 et seq., and includes among the discriminatory acts his lower salary compared to similarly situated non-disabled employees, reduction of assignments, and degrading and humiliating remarks by supervisors in front of his peers. Count Eight alleges retaliation based on his internal complaints about the alleged disparate pay and abusive treatment, and specifies the denial of assignments, bonuses, and assistance in obtaining the sought-after pay raise. In addition, in Count Five Johnson brings parallel claims of discrimination based on sex, age, and disability under the D.C. Human Rights Act ("DCHRA"), D.C. Code §§ 2-1401.01 et seq.
All that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. ___, 127 S.Ct. 2197, 2200 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp., 127 S.Ct. at 1964-65; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp., 127 S.Ct. at 1965 (citations omitted). However, a court "must not make any judgment about the probability of the plaintiff's success, for a complaint 'may proceed even if it appears that a recovery is very remote and unlikely'" or that the plaintiff "will fail to find evidentiary support for his allegations." Aktieselskabet AF 21. November 21 v. Fame Jeans, Inc., 525 F.3d 8, 17 (D.C. Cir. 2008).
The notice pleading rules are not meant to impose a great burden on a plaintiff. Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13 (2002). When the sufficiency of a complaint is challenged by a motion to dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. Leatherman v. Tarrant County Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979); see also Erickson, 127 S.Ct. at 2200 (citing Bell Atl. Corp., 127 S.Ct. at 1965)). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, "the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Commc'n Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nor does the court accept "legal conclusions cast in the form of factual allegations." Aktieselskabet AF 21. November 21, 525 F.3d at 17 n.4; see also Domen v. Nat'l Rehab. Hosp., 925 F. Supp. 830, 837 (D.D.C. 1996) (citing Papasan, 478 U.S. at 286).
Johnson alleges in his complaint that he has exhausted administrative remedies by filing a charge of discrimination against the District with the EEOC on July 11, 2005. Second Am. Compl. ¶ 2. The District responds that Johnson has nonetheless failed to timely exhaust administrative remedies for his allegations of discrimination and retaliation because the relevant events took place from 2000 to 2002. Defs.' Mem. at 15-20. The statutory scheme of Title VII requires a plaintiff to timely exhaust his or her administrative remedies before a civil action may be filed in federal court. Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). To do so, an aggrieved party must file a charge with the EEOC alleging that the employer has engaged in an unlawful employment practice. To be timely, the employee must file an administrative charge with the EEOC within 180 days "after the alleged unlawful employment practice occurred," or 300 days if proceedings have been instituted at the state or local level. 42 U.S.C. § 2000e-5(e)(1); Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. ---, 127 S.Ct. 2162, 2166 (2007). This requirement also applies to claims brought under the ADEA, ADA, and Rehabilitation Act and to retaliation claims raised under those provisions. See Washington v. Washington Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C. Cir. 1998) (explaining that the exhaustion requirement applies to claims under the ADEA); Long v. Howard Univ., 512 F. Supp. 2d 1, 12 n.6 (D.D.C. 2007) (discussing exhaustion requirement under the ADA and Rehabilitation Act); Prince v. Rice, 453 F. Supp. 2d 14, 23 (D.D.C. 2006) (explaining that exhaustion requirement applies to retaliation claims).
However, "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985). Under the doctrine of equitable estoppel, a defendant cannot assert untimeliness where the defendant has taken active steps to prevent the plaintiff from litigating in time. Smith-Haynie v. Dist. of Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998). Hence, a case will not be dismissed for failure to exhaust administrative ...