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Johnson v. Interstate Management Co., LLC

United States District Court, District Circuit

August 27, 2013

ROBERT LEE JOHNSON, Plaintiff,
v.
INTERSTATE MANAGEMENT CO., LLC, Defendant

MEMORANDUM OPINION AND ORDER

DEBORAH A. ROBINSON United States Magistrate Judge

Plaintiff Robert Lee Johnson, proceeding pro se, commenced this action against his former employer, Defendant Interstate Management Company, following its termination of his employment.[1] This matter was referred to the undersigned United States Magistrate Judge for all purposes. Notice, Consent, and Reference of a Civil Action to a Magistrate Judge (Document No. 19); Referral to Magistrate Judge (Document No. 21). Following the previously assigned United States District Judge’s ruling on Defendant’s motion to dismiss the original complaint, Plaintiff sought leave of the court to amend his complaint, Motion [to] Amend[] Complaint (Document No. 20), which the court granted as unopposed, 09/05/2012 Minute Order. Thereafter, Defendant moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss Plaintiff’s amended complaint. Motion to Dismiss the Amended Complaint (“Defendant’s Motion”) (Document No. 25). Defendant’s motion is pending for determination by the undersigned. Upon consideration of the motion; the memoranda in support thereof and opposition thereto; Plaintiff’s pleadings, and the entire record herein, the undersigned will grant in part Defendant’s motion.

BACKGROUND

From 2006 until 2011, Plaintiff was employed as a cook at the Hamilton Crowne Plaza Hotel, an establishment managed by Defendant, a hotel management company. See generally Complaint (Document No. 1); Answer to Complaint (Document No. 16). On October 1, 2010, Plaintiff filed a complaint with the United States Equal Employment Opportunity Commission (“EEOC”), charge number 570-2011-00006, alleging violations of 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”). Complaint at 2. The EEOC was “unable to conclude that the information obtained establishe[d] violations of the statute, ” and mailed notice of Plaintiff’s right to file a lawsuit on March 30, 2011. Defendant’s Motion, Exhibit C (Document No. 25-3).[2]

On March 21, 2011, Defendant terminated Plaintiff’s employment at Hamilton Crowne Plaza. Complaint, Exhibit 1 (Document No. 1-1) at 2.[3] Defendant’s record documenting the termination indicates that “[a]n 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. [Plaintiff] prepared the meal that the employee was eating. [Plaintiff] has been documented many times regarding sanitation issues and food preparation.” Id. at 1. The same record also includes a list of previous violations and infractions. Id. Plaintiff’s “counseling/disciplinary” record includes other reports documenting previous incidents. See Id. at 3-11.

Following his termination, Plaintiff filed a complaint with the EEOC, charge number 570-2011-00907, alleging violations of Title VII, the ADEA, and the ADA. Id. at 15. In this April 22, 2011 complaint, Plaintiff alleged that he was discharged in retaliation for filing his previous EEOC complaint. Id. at 16. Specifically, Plaintiff alleged the following:

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 have [been] 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 claimaint was discharged from his most recent work for violating company safety rules and regulations policy, preparing chicken with plastic wrap. The claimaint has stated he was asks [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 misconduct. In this instant case, the employer has not provided evidence. [T]herefore, work related misconduct on the part of the claim has not been established. Decision: Therefore the claimaint listed herein is determined eligible for unemployment benefits effective 3/20/2011.[4]

Id.

After investigating Plaintiff’s complaint, the EEOC determined that it was “unable to conclude that the information obtained establishes violations of the statutes.” Id. at 13. It mailed Plaintiff a notice on June 13, 2011, advising that Plaintiff could file a lawsuit within ninety days of his receipt of the notice. Id. at 13-14. Plaintiff sought reconsideration of the EEOC’s decision, but the EEOC denied Plaintiff’s request. Id. at 12.

Plaintiff initiated this action on September 12, 2011, and after the court granted his application to proceed in forma pauperis, the Clerk of Court filed his complaint on September 20, 2011. Memorandum Opinion (Document No. 11) at 3-4. The court construed Plaintiff’s original complaint as one asserting claims “that he was terminated in retaliation for having filed complaints with the [EEOC] and the Occupational and Safety Health Administration (“OSHA”), in violation [of] Title VII of the Civil Rights Act of 1964 [], the Age Discrimination in Employment Act [], and the Americans with Disabilities Act [].” Id. at 1. The court noted that it did not appear “that plaintiff is making any non-retaliation claims, ” and accordingly, declined to address any such claims, “e.g. for age discrimination or wrongful discharge.” Id. at 8 n.3.

In his amended complaint, Plaintiff alleges “harassment in the workplace” and “hostile workplace environment” stemming from discrimination based on his race, national origin, or ethnicity. Amended Complaint (Document No. 20) at 1. Plaintiff alleges that another employee, referred to as Chef Spencer, “was racist against [Plaintiff], ” who was the only black employee that worked in the kitchen, and was “hostile” towards him because Plaintiff “caught him sexual[ly] harassing someone.” Id. at 3. Plaintiff avers that management knew, or should have known, about this behavior, because he reported it to human resources on three or four occasions. Id. at 2. Plaintiff also alleges “[d]iscrimination on the basis of age by apprenticeship programs.” Id. at 2-3. With respect to Defendant’s discriminatory actions, Plaintiff alleges that “[t]he [h]otel refuse[d] to give [him] a referral slip” after he injured himself while working, despite giving one to another employee. Id. at 3-4. Finally, Plaintiff contends that the complaint regarding the plastic on the chicken, that ultimately led to his termination, was “a set up” and that the evidence was “falsified” against him. Id. at 5.

CONTENTIONS OF THE PARTIES

Defendant, in moving to dismiss Plaintiff’s amended complaint, contends that “plaintiff has failed to exhaust his administrative remedies and/or failed to timely file his claims.” Memorandum in Support of Motion to Dismiss the Amended Complaint (“Defendant’s Memorandum”) (Document No. 25) at 1. Defendant contends that Plaintiff’s “entire amended complaint, ” in which he asserts “claims of workplace harassment based on his alleged disability, race, national origin, and ethnicity, as well as [his] claim for age discrimination, ” fails to state a claim upon which relief can be granted because Plaintiff either failed to “first file a timely charge of discrimination with the EEOC” or filed suit “well after 90 days following the issuance of the right to sue . . . .” ...


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