The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff Robert Lee Johnson, who was employed as a cook at the Hamilton Crowne Plaza Hotel ("Hotel") until he was terminated in March 2011, bring this action against the Hotel's management company, Interstate Management Company, LLC ("Interstate"), and its director of Human Resources, Vanessa R. Peters ("Peters"). Plaintiff, who is proceeding pro se, alleges that he was terminated in retaliation for having filed complaints with the Equal Employment Opportunity Commission ("EEOC") and the Occupational and Safety Health Administration ("OSHA"), in violation Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act ("ADEA"), and the Americans with Disabilities Act ("ADA"). Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendants have moved to dismiss the complaint for failure to state a claim. For the reasons stated herein, defendants' motion will be granted in part and denied in part.
According to the complaint, which at this juncture must be presumed true, Johnson was hired to work as a cook at the Hotel in July 1996. (Compl. at 2.) Over the years, Johnson's counseling/disciplinary record indicates that he was cited for several "violation/infractions." (Id., Ex. 1, at 1-11.)*fn1 For example, on March 3, 2010, Johnson was issued a "Suspension Notice" based on an alleged "violation/infraction" that occurred on February 23, 2010, involving his preparation of chicken for a large banquet. (Id., Ex. 1, at 3-5.)
On October 10, 2010, Johnson filed an EEOC complaint alleging that he had been discriminated against in violation of Title VII, the ADEA, and the ADA (the "Discrimination Charge"). (Id. at 2 & Ex. 1.) On several occasions thereafter, Johnson was again cited for a "violation/infraction." (Id., Ex. 1, at 6-9 (documenting alleged infractions on January 11, 2011, and on February 23, 2011).
On March 22, 2011, Johnson was discharged. (Id. at 2 & Ex. 1, at 1.) The counseling/disciplinary record recording the termination states that "An employee who was prepared to eat their evening meal discovered a piece of plastic under the breading of a piece of chicken he was about to eat. Robert Johnson prepared the meal that the employee was eating. Robert has been documented many times regarding sanitation issues and food preparation." (Id., Ex. 1, at 1.)
On April 22, 2011, Johnson filed a second EEOC complaint, this time alleging "retaliation," specifically that his "discharge was a retaliatory act due to me filing with the EEOC." (Id. at 2 & Ex. 1, at 16 (Charge # 570-2011-00907).) Johnson set forth the following as the "particulars" of the alleged retaliation:
I was hired by Respondent on approximately 7/9/96. My final position was as a Chef. On 10/01/10, I filed an EEOC complaint against Respondent under Title VII, ADA and ADEA (charge #570-2011-00006). On 3/22/11, I was discharged. I believe that the discharge was a retaliatory act due to me filing with the EEOC.
I believe that I have been retaliated against, in violation of Title VII of the Civil Rights Act of 1964, as amended. I believe that I was retaliated against, in violation of the Age Discrimination in Employment Act of 1967, as amended. I also believe that I have been retaliated against, in violation of the Americans with Disabilities Act of 1990, as amended. The employer has stated the claimant was discharged from his most recent work for violating company safety rules and regulations policy, preparing chicken with plastic wrap. The claimant has stated that he was ask [sic] to resign or be terminated for preparing a chicken that [was] left in a plastic bag. The employer has the responsibility to present evidence sufficient to establish a finding of conduct. In this instant case the employer has not provided evidence. Therefore, work related misconduct on the part of the claimant has not been established. (Id.) On June 13, 2011, the EEOC dismissed this charge, concluding that "[b]ased upon its investigation, the EEOC [was] unable to conclude that the information obtained establishe[d] violations" of the relevant employment discrimination statutes. (Id., Ex. 1, at 13.) In its "Dismissal and Notice of Rights," the EEOC notified Johnson that he could "file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice." (Id.) ON June 17, 2011, the DC Office of Administrative Hearings affirmed the determination of a District of Columbia Department of Employment Services Claims Examiner that Interstate had not shown that Johns was discharged for disqualifying "misconduct" and, therefore that Johnson remained qualified to receive unemployment compensation benefits." (Id., Ex. 1, at 86-88.)
On September 12, 2011, Johnson delivered the pending complaint to the Clerk of this Court along with an application to proceed in forma pauperis. On September 20, 2011, after the application to proceed in forma pauperis had been granted, the Clerk filed the complaint. The complaint alleges that Johnson "was fired because I filed a complaint with the U.S. Department of Labor, for Occupational Safety and Health Administration" and "as a retaliatory act due to me filing with the EEOC." (Id. at 1-2.) Before the Court is defendants' motion to dismiss the complaint for failure to state a claim.
I. LEGAL STANDARD FOR DISMISSAL UNDER RULE 12(b)(6)
Under Federal Rule of Civil Procedure Rule 12(b)(6), a defendant may move to dismiss a complaint for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). "To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the pleaded factual content "allows the [C]court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). The complaint must do more than set forth than "'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action . . . .'" Id. (quoting Twombly, 550 U.S. at 555). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotation marks and citation omitted). In ruling upon a motion to dismiss, a court may ...