United States District Court, District of Columbia
KESSLER UNITED STATES DISTRICT JUDGE
Rosa Arias, ("Plaintiff") brings this action
against Defendant, Marriott International, Inc.,
("Defendant, " or "Marriott"), for
herself and others similarly situated. Ms. Arias alleges
violation of 42 U.S.C. 1981 for discrimination based on race,
national origin and retaliation (Count 1), breach of contract
(Count 2), breach of the implied covenant of good faith and
fair dealing (Count 3), wrongful termination (Count 4),
negligence and negligent misrepresentation of material facts
(Count 5), aggravated assault (Count 6), fraudulent
concealment of material fact (Count 7), and violation of D.C.
Code § 32-1103 (Count 7) .
matter is presently before the Court on Defendant's
Motion to Dismiss Plaintiff's Second Amended Complaint
("Mot.") [Dkt. No. 33].
consideration of the Motion, Opposition, and Reply, the
entire record herein, and for the reasons stated below,
Defendant's Motion is granted in part and denied in part.
Rosa Arias, a Spanish American, has been employed in the
Housekeeping Department at the Defendant's Washington
Marriott at Metro Center ("the Hotel") since 2003.
Second Amended Complaint ¶¶ 3, 16, 19
("SAC") [Dkt. No. 31] . As a housekeeper, Ms.
Arias' duties included cleaning hotel rooms and
bathrooms. Id. ¶ 3.' These duties required
her to work with hazardous chemicals such as furniture polish
and antibacterial all-purpose cleaning agents. Id.
¶¶ 3, 17. Ms. Arias asserts that the chemicals
required the use of Personal Protective Equipment
("PPE"), and that Marriott withheld the required
PPE. Id. ¶¶ 3, 16.
Arias asserts that at some point during her employment, she
experienced severe eye irritation, headaches, respiratory
illness and chest pain. SAC ¶4. Although Ms. Arias did
not initially know the cause of her illnesses, she now
believes that they were related to the hazardous chemicals
that she used at work. Id. ¶¶ 3-4, 7.
early 2 015, Ms. Arias requested and was granted a four month
medical leave of absence. SAC ¶ 5. She was scheduled to
return to work on May 15, 2015. Id. While on leave,
Ms. Arias was diagnosed with either heart or respiratory
complications. Id. ¶ 6.
March 31, 2015, while still on leave, Ms. Arias gave
deposition testimony in another case, Sanchez v. Mariott
Corporation, 12-cv-1577, (D.D.C.), a separate Title VII
suit against Defendant's affiliate Marriott Corporation,
about the chemicals she used at the Hotel and the use of
those chemicals without PPE. SAC ¶¶ 7-12. Her
testimony included statements that she and her coworkers told
Marriott that the chemicals were making them sick and that
Marriott never trained the Housekeeping Department on the
hazards of the chemicals. Id. ¶ 9. Ms. Arias
asserts that Defendant obviously had notice of her deposition
testimony in the Sanchez case. Id. ¶
14, 2015, one day before Ms. Arias was scheduled to return to
work, she received a phone message from the Defendant's
representative informing her that her employment was
terminated and someone else had taken her position. SAC
¶ 14. However, later, she was told that her
termination was rescinded. Id.
July, August and September 2015, Ms. Arias communicated with
the Hotel about returning from her leave of absence, and
whether she would have access to PPE upon her return. SAC
¶¶ 15-16, 19. Ms. Arias asserts that at this point,
her leave of absence was unpaid. Id. ¶¶
15-16. On September 20, 2015, Ms. Arias returned to work, and
she remains employed by the Hotel. Motion to Dismiss
Plaintiff's Second Amended Complaint at 3
("Mot.") [Dkt. No. 33-1].
about June 15, 2015, Ms. Arias filed a Complaint in the
Superior Court of the District of Columbia. See
Corrected Notice of Removal at 1 [Dkt. No. 2]. On August 8,
2015, Defendants filed a Notice of Removal from D.C. Superior
Court [Dkt. No. 1] .
August 26, 2015, Ms. Arias filed a Consent Motion for Leave
to File an Amended Complaint ("Consent Motion to
Amend") [Dkt. No. 8] . On August 27, 2015, the Court
granted Ms. Arias' Consent Motion to Amend [Dkt. No. 9],
and she filed the First Amended Complaint [Dkt. No. 10]. On
April 21, 2016, this Court granted Ms. Arias' Motion for
Leave to File a Second Amended Complaint. April 21, 2016
Order [Dkt. No. 30] . That same day, she filed the Second
Amended Complaint, which is the operative Complaint.
5, 2016, Marriott filed a Motion to Dismiss Plaintiff's
Second Amended Complaint [Dkt. No. 33]. On June 1, 2016, Ms.
Arias filed her Opposition ("Opp.") [Dkt. No. 37].
On June 13, 2016, Marriott filed its Reply
("Reply") [Dkt. No. 38].
August 12, 2016, Ms. Arias filed a Notice of Dismissal of
Claims from Plaintiff's Second Amended Complaint
("Notice of Dismissal") [Dkt. No. 40-1] and
voluntarily dismissed three of her eight claims.
STANDARD OF REVIEW
survive a motion to dismiss under Rule 12(b)(6), a plaintiff
need only plead "enough facts to state a claim to relief
that is plausible on its face" and to "nudge [ ]
[his or her] claims across the line from conceivable to
plausible." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). " [O] nee a claim has been stated
adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint."
Id. at 563.
the Twombly standard, a "court deciding a motion to
dismiss must not make any judgment about the probability of
the plaintiffs' success... [, ] must assume all the
allegations in the complaint are true (even if doubtful in
fact)... [, and] must give the plaintiff the benefit of all
reasonable inferences derived from the facts alleged."
Aktieselskabet AF 21. November 2001 v. Fame Jeans
Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal
quotation marks and citations omitted). A complaint will not
suffice, however, if it "tenders 'naked