Ware v. Hyatt Corp.

Full title: JAMES WARE, Plaintiff, v. HYATT CORPORATION, Defendant.

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Date published: Mar 27, 2013

Civil Action No. 12-0395 (ABJ) (D.D.C. Mar. 27, 2013)

Opinion

Civil Action No. 12-0395 (ABJ)

03-27-2013

JAMES WARE, Plaintiff, v. HYATT CORPORATION, Defendant.

AMY BERMAN JACKSON United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff James Ware ("Ware") brings this action against defendant Hyatt Corporation ("Hyatt"). The first amended complaint, [Dkt. # 2], alleges that Hyatt created a hostile work environment for Ware on the basis of his age, race, and disability, failed to accommodate his disability, and retaliated against him in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967, as amended ("ADEA"), 29 U.S.C. § 621 et seq., the Rehabilitation Act, 29 U.S.C. § 701 et seq., the D.C. Human Rights Act ("DCHRA"), D.C. Code § 2-1401.01 et seq., and 42 U.S.C. § 1981 ("Section 1981"). It also alleges that Hyatt committed the common law torts of constructive termination, and negligent training and supervision. Hyatt filed a motion to dismiss that complaint, [Dkt. # 4], which has been fully briefed.

After defendant moved to dismiss the first amended complaint, Ware filed a motion for leave to file a second amended complaint, [Dkt. # 11], which defendant opposed, [Dkt. # 14]. The proposed second amended complaint abandons the DCHRA, Section 1981, and constructive termination claims. It asserts new discrimination and retaliation claims under the Americans with Disabilities Act of 1990, as amended ("ADA"), 42 U.S.C. § 12111 et seq., and a new common law claim for intentional infliction of emotional distress. It also amends plaintiff's Rehabilitation Act claim.

Because the Court finds that all of the claims in plaintiff's amended complaint and proposed second amended complaint fail to state claims for relief that are plausible on their face, except for the claims of hostile work environment under Title VII and the ADEA, the Court will grant plaintiff leave to file his proposed second amended complaint only to the extent that it asserts those two claims, and deny defendant's motion to dismiss the amended complaint as moot.

BACKGROUND

The following facts are alleged in both Ware's amended complaint and proposed second amended complaint ("the complaints"), except where noted. Ware is a 66-year-old African American male, who has been diagnosed with diabetes and arthritis. Am. Compl. ¶¶ 3, 6; Proposed Second Am. Compl. ¶¶ 3, 6. He was employed by Hyatt as a chef in one of its convention hotels from 1976 to 2009. Am. Compl. ¶¶ 3-5; Proposed Second Am. Compl. ¶¶ 3-5. According to the complaints, the employment relationship was quite successful for the first thirty years: Ware was promoted multiple times during the course of his career at Hyatt, and he ultimately achieved the title of sous chef. Am. Compl. ¶ 3; Proposed Second Am. Compl. ¶ 3. His responsibilities as sous chef included "managing other staff members, preparing food and specific menus, cooking various entrees, and presenting food to hotel guests." Am. Compl. ¶ 3; Proposed Second Am. Compl. ¶ 3.

Ware was diagnosed with diabetes and arthritis at some unspecified point between 2002 and 2005, when he was in his late fifties or early sixties. Am. Compl. ¶ 6; Proposed Second Am. Compl. ¶ 6. The complaints allege that around the time of Ware's diagnosis, his managers began to treat him differently. Am. Compl. ¶ 6; Proposed Second Am. Compl. ¶¶ 6. While he recounts some discrimination on the basis of race during the span of years that preceded the time period in the complaint, he attributes the change in attitude to discrimination on the basis of race, as well as his age and medical disabilities, and to retaliation for complaints that he filed with management alleging discrimination. On September 4, 2009, Ware resigned from his job at Hyatt. Am. Compl. ¶ 18. Proposed Second Am. Compl. ¶ 18.

The complaints tend to blend the various theories of the case into a general collection of grievances. For instance, in paragraph eight of the proposed second amended complaint, Ware alleges:

Throughout the last several years of his employment, Ware became the brunt of continued demeaning comments about his age and race, sanctioned by Defendant's management. One white male manager was once overheard referring to African-American workers, which included Ware, as "niggers." In May of 2007, Executive Chef Barber was overheard by several African American employees commenting about hiring "a replacement monkey" when one of the African American employees resigned. Barber repeatedly told Ware that he was too "old" to work there, specifically stating: "You're too old for this job."

Proposed Second Am. Compl. ¶ 8.

Supplementing his claims of discrimination based on race in particular, Ware alleges that beginning in 2006, one of the dining room managers "routinely and publicly referred to [Ware] as 'black boy' and 'dummy' instead of calling him by his name." Am. Compl. ¶ 16; Proposed Second Am. Compl. ¶ 16.

The complaints also allege that Executive Chef Barber repeatedly told plaintiff that he was too old for his job, Am. Compl. ¶ 8; Proposed Second Am. Compl. ¶ 8, and that during the months preceding Ware's resignation, Barber "repeatedly and continuously referred to him as an 'old man,'" Am. Compl. ¶ 9; Proposed Second Am. Compl. ¶ 9. In addition, Ware alleges that around April 2008, younger employees with less seniority than Ware received overtime opportunities that he was not offered. Am. Compl. ¶ 10; Proposed Second Am. Compl. ¶ 10.

The complaints further allege that Ware lodged the following complaints about the mistreatment:

• A July 7, 2003 "memorandum to Human Resources regarding seniority and discriminatory work scheduling";

• A November 15, 2006 "memorandum to Executive Chef Barber and Management regarding a discriminatory review of annual performance";

• A May 3, 2007 "memorandum to Executive Chef Barber, Management, and Human Resources regarding discriminatory racial comments made towards staff"; and

• An April 16, 2008 "memorandum to Executive Chef Barber regarding overtime opportunities to younger employees with less seniority."

Am. Compl. ¶ 50; Proposed Second Am. Compl. ¶ 50.

Ware alleges that as a result of these complaints, his managers' unwarranted workplace harassment intensified. Am. Compl. ¶ 17; Proposed Second Am. Compl. ¶ 17. He further alleges that after he complained about the discriminatory practices, his managers stopped providing him with adequate support staff necessary to complete his duties as sous-chef. Am. Compl. ¶ 51; Proposed Second Am. Compl. ¶ 46. He filed a complaint about the inadequate staffing with Executive Chef Barber on July 15, 2008. Am. Compl. ¶ 50; Proposed Second Am. Compl. ¶ 45.

Ware also alleges that after he disclosed his medical disabilities to his immediate supervisors, they "became increasingly demanding and even harsher." Am. Compl. ¶ 7; Proposed Second Am. Compl. ¶ 7. The complaints allege that because Ware's arthritis restricted his movement and made it difficult for him to be on his feet during his typical ten-hour work day, he relied on floor mats to ease "the shock of the kitchen's hard concrete floor on his knees and legs." Am. Compl. ¶¶ 6-11; Proposed Second Am. Compl. ¶¶ 6-11. But on March 28, 2009, when he arrived at work, Ware found that the kitchen floor mats from his work area had been removed, even though mats had not been removed from other areas of the kitchen. Am. Compl. ¶ 12, Proposed Second Am. Compl. ¶ 12.

The complaints allege that Ware complained repeatedly to his supervisors about the removal of the mats, but his grievances were dismissed. Am. Compl. ¶ 12, Proposed Second Am. Compl. ¶ 12. In response to one of Ware's inquiries about the mats, Barber allegedly chuckled and responded, "If you weren't so old you wouldn't need the mats; and the Hotel can't afford the mats, so you will have to buy more Ben Gay [sic]." Am. Compl. ¶ 13 (internal quotation marks omitted); Proposed Second Am. Compl. ¶ 13 (internal quotation marks omitted). Yet, despite Ware's repeated inquiries and his requests that the mats be replaced, Barber ordered Ware to work exclusively in the section of the food line without the mats. Am. Compl. ¶ 14; Proposed Second Am. Compl. ¶ 14. The mats were still missing when plaintiff resigned on September 4, 2009. Am. Compl. ¶ 14; Proposed Second Am. Compl. ¶ 14.

Plaintiff attributes the removal of the mats to discrimination based on his age, race, and disability, as well as to retaliation for filing his previous complaints about discriminatory treatment. Am. Compl. ¶ 51; Proposed Second Am. Compl. ¶ 51. Plaintiff alleges that he "experienced ongoing physical pain and suffering" due to defendant's failure to replace the mats. Am. Compl. ¶ 14; Proposed Second Am. Compl. ¶ 14.

Ware lodged two written complaints with Barber after the mats were removed: an April 3, 2009 memorandum "regarding staff problems and missing kitchen mats," and a May 2, 2009 memorandum "regarding lack of kitchen staff support." Am. Compl. ¶ 50; Proposed Second Am. Compl. ¶ 50. Ware also alleges that he filed complaints with Hyatt's personnel and corporate offices alleging discrimination on the basis of sex, race, age, and disability. Am. Compl. ¶ 17; Proposed Second Am. Compl. ¶ 17.

On September 4, 2009, Ware resigned from his employment with Hyatt. Am. Compl. ¶ 18. Proposed Second Am. Compl. ¶ 18.

Although not alleged in either of the complaints, Hyatt's motion to dismiss reveals that Ware filed a charge against Hyatt with the D.C. Office of Human Rights ("DCOHR") and the U.S. Equal Employment Opportunity Commission ("EEOC") on April 27, 2010, alleging discrimination on the basis of "race (black), color, national origin (U.S.), sex (male), age (63), disability, [and] personal appearance (beard)," and claiming that he was denied a reasonable accommodation and subject to retaliation and constructive discharge. Def.'s Mot. to Dismiss Am. Compl. and Mem. of Law in Support Thereof ("Def.'s Mot.") [Dkt. # 4] at 6; Charge of Discrimination, Ex. 1 to Def.'s Mot. [Dkt. # 4-1] at 10-14 & Ex. 1 to Def.'s Opp. to Pl.'s Mot. for Leave to File Second Am. Compl. ("Def.'s Opp. to Mot. for Leave to Amend") [Dkt. # 14-1] at 4-8. After an investigation, the DCOHR issued a letter of determination on April 13, 2011, in which it found no probable cause to support plaintiff's charge. Ex. 2 to Def.'s Mot. [Dkt. # 4-2]. Plaintiff requested reconsideration of the determination, and the decision was affirmed by the agency's director on September 6, 2011. Ex. 3 to Def.'s Mot. [Dkt. # 4-3].

Plaintiff filed his original complaint with this Court on March 13, 2012, [Dkt. # 1], and filed a first amended complaint on June 21, 2012. Count I alleges hostile workplace discrimination in violation of the ADEA; count II alleges hostile workplace discrimination on the basis of age in violation of the D.C. Human Rights Act ("DCHRA"). Counts III and IV both allege hostile workplace on the basis of disability and failure to accommodate in violation of the Rehabilitation Act and DCHRA, respectively. Counts V and VI both allege hostile workplace on the basis of race discrimination in violation of Title VII and the DCHRA, respectively. Count VII alleges retaliation in violation of Title VII, Section 1981 and the ADEA. Count VIII alleges retaliation in violation of the DCHRA.¹ Counts IX and X allege claims under the common law for constructive termination and negligent training and supervision, respectively.

1 The retaliation causes of action are not labeled as hostile work environment claims.

Defendant has moved to dismiss the amended complaint and plaintiff has moved for leave to file a second amended complaint.² The proposed second amended complaint abandons the Section 1981, DCHRA, and constructive termination claims and asserts new claims under the ADA for hostile work environment and failure to accommodate plaintiff's disability (proposed Count II), and for retaliation (proposed Count VI). It also asserts a new common law claim for intentional infliction of emotional distress (proposed Count VIII).³

2 The Court notes that although Hyatt opposes plaintiff's motion for leave to amend on futility grounds, plaintiff has not filed a reply in support of his motion that responds to defendant's futility argument.

3 In addition, the proposed second amended complaint corrects the Rehabilitation Act claim by invoking section 504 instead of section 501, which was pled in the first amended complaint.

STANDARD OF REVIEW

In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must "treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (citations omitted). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

I. Subject Matter Jurisdiction

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibly Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) ("As a court of limited jurisdiction, we begin, and end, with examination of our jurisdiction."). Because "subject-matter jurisdiction is an 'Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court "is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, a court "may consider such materials outside the pleadings as it deems appropriate to resolve the question of whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1993); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

II. Failure to State a Claim

"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) (internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "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. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' 'that the pleader is entitled to relief.'" Id. at 679, quoting Fed. R. Civ. Pro. 8(a)(2). A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action," id. at 678, quoting Twombly, 550 U.S. at 555, and "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. In ruling upon a motion to dismiss, a court may ordinarily consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citations omitted).

III. Leave to Amend Complaint

Before trial, a plaintiff may amend its complaint once as a matter of course, and may amend a subsequent time only if it obtains the opposing party's consent or the court's leave. Fed. R. Civ. P. 15(a)(2). According to the rule, the Court should "freely give leave [to amend] when justice so requires." But the decision to grant leave to file the amended complaint is not automatic. The Court may exercise its discretion to deny leave to amend where there is "undue delay, bad faith, undue prejudice to the opposing party, repeated failure to cure deficiencies or futility." Richardson v. United States, 193 F.3d 545, 548-49 (D.C. Cir. 1999), citing Foman v. Davis, 371 U.S. 178, 182 (1962).

A court does not abuse its discretion if it denies leave to amend or supplement based on futility. See, e.g., James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996) (agreeing with the district court that an amendment was futile when the facts alleged in the complaint "establish[ed] beyond doubt that the Government did not violate [plaintiff's] due process rights"). An amendment is futile when the proposed amended complaint would not survive a motion to dismiss. See, e.g., Ross v. DynCorp, 362 F. Supp. 2d 344, 364 n.11 (D.D.C. 2005) ("While a court is instructed by the Federal Rules of Civil Procedure to grant leave to amend a complaint 'freely,' it need not do so where the only result would be to waste time and judicial resources. Such is the case where the Court determines, in advance, that the claim that a plaintiff plans to add to his or her complaint must fail, as a matter of law . . . ."); M.K. v. Tenet, 216 F.R.D. 133, 137 (D.D.C. 2002) ("A court may deny a motion to amend the complaint as futile when the proposed complaint would not survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss."); Ruffalo v. Oppenheimer & Co., 987 F.2d 129, 132 (2d Cir. 1993) (holding that leave to amend was properly denied on futility grounds since new pleading failed to allege any additional significant facts); see also 3 Moore's Federal Practice, § 15.15[3] (Matthew Bender 3d ed.) ("An amendment is futile if it merely restates the same facts as the original complaint in different terms, reasserts a claim on which the court previously ruled, fails to state a legal theory, or could not withstand a motion to dismiss.").

ANALYSIS

In his motion for leave to file the second amended complaint, plaintiff notes that he has eliminated the section 1981 and constructive termination claims. Pl.'s Mot. For Leave to File Second Am. Compl. at 2. In addition, the proposed second amended complaint abandons all of the claims from the amended complaint that arose under the DCHRA. Accordingly, the Court will treat all of the counts in the amended complaint that asserted claims under section 1981 (part of Count VII), the DCHRA (Counts II, IV, VI, and VIII), and constructive termination (count IX) as voluntarily dismissed. Cf. Lemmons v. Georgetown Univ. Hosp., 241 F.R.D. 15, 30 (D.D.C. 2007) (explaining that a plaintiff may successfully abandon specific claims by filing a motion to amend).

The remaining claims that Ware asserts in his first amended complaint are reasserted in the proposed second amended complaint and supported with nearly the same factual assertions. The only significant difference between the facts alleged in the two complaints is that the proposed second amended complaint expressly alleges that the racial epithets used by the dining room manager persisted until Ware's resignation on September 4, 2009. Compare Am. Compl. ¶ 16 ("Starting in 2006, Matt, Defendant's Dining Room Manager, routinely and publicly referred to [plaintiff] as 'black boy' and 'dummy[.]") to Proposed Second Am. Compl. ¶ 16 ("Starting in 2006 and through 2009, Defendant's Dining Room Manager . . . routinely, publicly, and regularly referred to [plaintiff] as 'black boy' and 'dummy[.]'") (emphasis added). In addition, as will be discussed in more depth later, the proposed second amended complaint alleges that Hyatt is a covered entity under the Rehabilitation Act. Proposed Second Am. Compl. ¶ 35.

Hyatt's sole basis for arguing that the Court should deny leave to file the second amended complaint is that the amendments are futile, which the Court assesses by determining whether they would survive a motion to dismiss. Accordingly, the Court will address both pending motions together by assessing all of the claims in the proposed second amended complaint - which cover all of the remaining claims from the first amended complaint - under the appropriate Rule 12(b) standard. Where plaintiff has added new factual assertions in the proposed second amended complaint that are relevant to a particular claim, the Court will consider those allegations in assessing the sufficiency of the claim.

I. Exhaustion of Administrative Remedies for Claims Arising Under Title VII, the ADEA, and the ADA

Hyatt first argues that this Court lacks jurisdiction over plaintiff's claims arising under Title VII, the ADEA, and the ADA because Ware failed to exhaust his administrative remedies.⁴ Def.'s Mot. at 10-11. As a preliminary matter, under Title VII, the ADEA, and the ADA, failure to exhaust is not a jurisdictional bar, but is rather an affirmative defense that the defendant bears the burden of pleading and proving.⁵ See Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997); Mahoney v. Donovan, 824 F. Supp. 2d 49, 58-59 (D.D.C. 2011); Jones v. Quintana, 658 F. Supp. 2d 183, 203 n.17 (D.D.C. 2009), citing Johnson v. District of Columbia, 572 F. Supp. 2d 94, 102 (D.D.C. 2008). The Court will go on to evaluate the merits of Hyatt's defense.

4 In the motion to dismiss, Hyatt does not specify whether it is moving to dismiss the claims arising under the federal statutes for failure to exhaust for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) or for failure to state a claim under rule 12(b)(6). However, in its reply brief, it indicates that "receipt of a right-to-sue notice is a jurisdictional prerequisite to the filing of his lawsuit," so the Court construes the argument as invoking rule 12(b)(1).

5 Hyatt argues that Ware did not dispute that receipt of a right-to-sue notice is a jurisdictional prerequisite to the filing of his suit or that he failed to plead facts to satisfy this jurisdictional prerequisite, and that these concessions requires dismissal of his complaint. Def.'s Reply to Pl.'s Opp. to Def.'s Mot. ("Def.'s Reply") [Dkt. # 13] at 9. However, since Ware argues that the EEOC did in fact send him a right-to-sue notice, and that this satisfies the exhaustion requirement, Pl.'s Opp. to Def.'s Mot. ("Pl.'s Opp.") [Dkt. # 10] at 9-10, the Court will not treat Hyatt's arguments as conceded. Moreover, as explained above, the exhaustion requirements of Title VII, the ADEA, and ADA are not jurisdictional requirements.

A. Receipt of a Right-To-Sue Notice from the EEOC

Before a plaintiff may bring claims arising under Title VII, the ADEA, or the ADA in federal court, he must file a charge with the EEOC outlining his allegations against the employer. See Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995), citing 42 U.S.C. § 2000e-5(f)(1); see also Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997) ("Before bringing suit in federal court, ADA plaintiffs, like those under Title VII, must exhaust their administrative remedies by filing an EEOC charge and giving the agency a chance to act on it."). "Only after the EEOC has notified the aggrieved person of its decision to dismiss or its inability to bring a civil action within the requisite time period" may an aggrieved employee file a civil action. Id. A plaintiff must bring the action within ninety days of receiving a right-to-sue notice from the EEOC. 42 U.S.C. § 2000e-5(f)(1) (Title VII); 29 U.S.C. § 626(e) (ADEA); 42 U.S.C. § 12117(a) (applying the Title VII limitations period to ADA claims). The ninety days is counted from the day after the notice is received. Fed. R. Civ. P. 6(a)(1); see also Brewer v. District of Columbia, Civ. A. No. 11-1206 (RC), 2012 WL 4127628, at *3 (D.D.C. Sept. 20, 2012). When the actual date of receipt is unknown, courts will assume that the letter was received three to five days after it was mailed, including weekends and holidays. Brewer, 2012 WL 4127628, at *3, citing Ruiz v. Vilsack, 763 F. Supp. 2d 168, 171 (D.D.C. 2011).

Hyatt argues that the complaints fail to allege facts showing that Ware received a right-to-sue letter before filing his claims in this Court. Def.'s Mot. at 11. However, since failure to exhaust is an affirmative defense, Ware was not required to plead exhaustion in the complaint. Rather, it was sufficient for Ware to provide proof of exhaustion in his opposition to the motion to dismiss. See Bowden, 106 F.3d at 437. Ware has presented the Court with an EEOC notice of dismissal and right to sue letter, which indicates that it was mailed to him on December 12, 2011.⁶ See Dismissal and Notice of Rights, [Dkt # 15].⁷ If the Court assumes that the letter was received by plaintiff three days later, on December 15, 2011, then the ninety-day statutory limitations period would begin on December 16, 2011. Thus, the last day plaintiff could file an action in court based on the allegations in his EEOC charge would be March 15, 2012. Because plaintiff filed the complaint in this case on March 13, 2012, he filed within the statutory period.⁸ Hyatt makes no attempt to rebut the presumed date of receipt.

6 Ware cited the document in his opposition to Hyatt's motion to dismiss the first amended complaint but failed to attach it as an exhibit. Pl.'s Opp. at 9. The Court asked Ware to file the document by Minute Order of November 7, 2012. Accordingly, the EEOC right-to-sue letter appears on the docket as document number fifteen.

7 The letter indicates that December 12, 2011 is the "mailing date." Dismissal and Notice of Rights, [Dkt. # 15]. Even without this text, the Court would construe the date the letter was issued as the mailing date. See Brewer, 2012 WL 4127628, at *3, citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 (1984).

8 Although neither party raises this issue, the Court finds it prudent to explain that even though plaintiff first asserts his ADA claim in the proposed second amended complaint, which was filed outside the statutory period, the claim relates back to the filing of the original complaint on March 13, 2012 under Federal Rule of Civil Procedure 15(c)(1)(B). That rule provides that "[a]n amendment to a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading[.]" The original complaint contained allegations substantially similar to those in the proposed second amended complaint concerning plaintiff's disability, the removal of the kitchen floor mats, and plaintiff's requests for the mats to be replaced. See Compl. ¶¶ 6, 14-15, 20-21. So even though plaintiff did not raise his ADA claim in the original complaint, the claim arises out of the conduct set out - or attempted to be set out - in the original complaint. See Stith & Chadbourne & Park, LLP, 160 F. Supp. 2d 1, 10 (D.D.C. 2001) (finding that a gender discrimination claim asserted in a proposed amended complaint related back to the original complaint for statute of limitations purposes because the facts that supported the claim were the same as those that supported a race discrimination claim set forth in the original complaint and the same as the facts alleged in the plaintiff's EEOC complaint); Hayes v. Candle Corp. of Am., No. 86 C 4662, 1989 WL 6493, at *1 (N.D. Ill. Jan. 25, 1989) (finding that an ADEA claim asserted for the first time in a second amended complaint was not barred by the statute of limitations because the original complaint stated a cause of action for age discrimination under Title VII, and the ADEA claim arose out of the same conduct upon which his original Title VII claim was based).

B. Scope of EEOC Charge

Hyatt also argues that the proposed claims arising under the ADA would not survive a motion to dismiss for failure to exhaust because his claims were not within the scope of the charge of discrimination that Ware filed with the EEOC. Def.'s Opp. to Mot. for Leave to Amend at 3-4. Hyatt points out that plaintiff never specifically identified his disability on the EEOC charge form. Id.

"A Title VII lawsuit following the EEOC charge is limited in scope to claims that are like or reasonably related to the allegations of the charge and growing out of such allegations." See Park, 71 F.3d at 907 (citation and internal quotation marks omitted) ("At a minimum, the . . . claims must arise from the administrative investigation that can reasonably be expected to follow the charge of discrimination."); see also Franklin v. Pepco Holdings, Inc., 875 F. Supp. 2d 66, 70-71 (D.D.C. 2012) (applying Park in ADA context). This administrative charge requirement "serves the important purposes of giving the charged party notice of the claim and narrowing the issues for prompt adjudication and decision." Park, 71 F.3d at 907 (alterations and internal quotation marks omitted).

In evaluating whether a charge provides adequate notice, courts in this jurisdiction have held that a court's job is not "to search for magic words," but rather to "parse the substance of the allegations to determine whether they 'fairly embrace'" the claim. Ellis v. Georgetown Univ. Hosp., 631 F. Supp. 2d 71, 76 (D.D.C. 2009), citing Marshall, 130 F.3d at 1098. In Ellis, the court emphasized that a charging party's failure to tick a particular box on the charge form is not outcome determinative because the charging party may successfully "provide[] the basis for her claim in her written explanation." Id. In that case, while the plaintiff failed to check the box for a "retaliation claim" on her administrative charge, the written allegations in her charge were sufficient to provide adequate notice of a retaliation claim. Id. at 77.

There is no hard rule in this circuit about whether a charging party must name his or her specific disabling condition on the charge form. And although one court in this district has found that in the particular circumstances of that case, the plaintiff's failure to do so rendered a subsequent ADA claim based on the disability outside the scope of the charge, that case is distinguishable. See Franklin, 875 F. Supp. 2d at 70-72. In Franklin, the court held that a plaintiff was barred from bringing an ADA claim based on an alleged fibroid condition because the plaintiff did not allege sufficient facts in her EEOC charge to put the employer on notice of her condition. The plaintiff's charge stated that she had a stress disability, and it alleged that she suffered consequences stemming uniquely from that condition. Concluding that "fibroids are not 'reasonably related' to stress, such that [the defendant] could have expected, without further notice, for [plaintiff] to sue on that basis," the court held that the plaintiff's charge failed to give the defendant "specific notice during the EEOC process that she was disabled by fibroids." Id.

Hyatt relies on Franklin to argue that plaintiff's failure to name arthritis and diabetes as his disabilities on his EEOC charge bars him from bringing an ADA claim based on those conditions. Def.'s Opp. to Mot. for Leave to Amend at 3-4. It claims that "based on the limited information provided in [plaintiff's] charge, [defendant] could not have been placed on notice that plaintiff was claiming to be disabled by arthritis and diabetes, and that he was discriminated against on that basis." Def.'s Opp. to Mot. for Leave to Amend at 4. But Franklin does not stand for the proposition that a charging party must name his or her specific disability on the charging form for his or her subsequent claim to be within the scope of the charge. The court held that the factual allegations in the charge could not "fairly embrace" the plaintiff's fibroid disability because they pertained specifically and uniquely to stress.

Thus, the proper inquiry here is whether the factual allegations in Ware's charge could "fairly embrace" the pending failure to accommodate claims based on his arthritis and diabetes. Although the Court agrees that had Ware specified his disability, he would have provided better notice to Hyatt, it concludes that Ware's charge gave defendants adequate notice.

Ware's EEOC charge communicates the basic factual underpinnings of an ADA failure to accommodate claim: that he developed a disability, he requested an accommodation (the floor mats), and his supervisor denied his request. See Faison v. Vance-Cooks, -- F. Supp. 2d --, 2012 WL 4789172, at *5 (D.D.C. Oct. 9, 2012), citing Woodruff v. Peters, 482 F.3d 521, 527 (D.C. Cir. 2007) ("To establish a prima facie case of discrimination for failure to accommodate, a plaintiff must show that she is a 'qualified individual with a disability' and that her employer failed to grant her the 'reasonable accommodations' her disability necessitated."). While Ware did not specifically name the disabilities, the EEOC charge put Hyatt on notice of the very failure to accommodate claim raised here because it raised the same specific concern - the failure to provide floor mats - that forms the basis for the complaint. See Ex. 1 to Def.'s Opp. to Mot. for Leave to Amend at 7. Therefore, Ware's ADA claim falls within the scope of his EEOC charge.

II. Timeliness of Administrative Claims

Hyatt next argues that Ware's claims under Title VII, the ADEA and the ADA are time-barred because he failed to file a charge of discrimination with the EEO within the applicable statute of limitations and, therefore, failed to exhaust his administrative remedies within the time period required. The Court agrees, except as to plaintiff's claims of hostile work environment under Title VII and the ADEA.

Before a plaintiff may file an action under Title VII, the ADEA, or the ADA, he must first exhaust his administrative remedies by filing an administrative charge with the EEOC within 180 days of the challenged act, unless he has instituted proceedings within a state or local agency first, in which case, he has 300 days to file the charge. Gupta v. Northrop Grumman Corp., 462 F. Supp. 2d 56, 58 (D.D.C. 2006), citing 42 U.S.C. § 2000e-5(e) (Title VII); Murphy v. PricewaterhouseCoopers, LLP, 580 F.Supp.2d 16, 23 (D.D.C. 2008), citing 29 U.S.C. § 626(d)(2) (ADEA); Marshall v. Fed. Express. Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997), citing 42 U.S.C. § 12117(a) (ADA).⁹

9 The ADA adopts the limitations provision set out in Title VII at 42 U.S.C. § 2000e-5(e). See 42 U.S.C. § 12117(a).

"Because the District of Columbia has its own Human Rights Commission that accepts and investigates charges of employment discrimination, the statute of limitations for filing a charge alleging a violation of Title VII in D.C. is 300 days." Coleman v. Potomac Elec. Power Co., 310 F. Supp. 2d 154, 158 (D.D.C. 2004), citing 42 U.S.C. § 2000e-5(e)(1). For the same reason, the statutes of limitations for filing charges of discrimination under the ADEA and the ADA in the District of Columbia are also 300 days. Murphy, 580 F. Supp. 2d at 23 (ADEA); Marshall, 130 F.3d at 1098 (ADA).

A. Failure to Accommodate Under the ADA

Hyatt argues that Ware's claim in the proposed second amended complaint that Hyatt failed to accommodate his disability in violation of the ADA (part of Count II) is barred by the 300-day limit. Def.'s Opp. to Mot. for Leave to Amend at 4. The Court agrees.

Ware alleges that on March 28, 2009, Hyatt removed the floor mats in his work station and refused to replace them. Am. Compl. ¶ 12; Proposed Second Am. Compl. ¶ 12. He further alleges that he "continually asked [his supervisor] about the mats and implored him to replace them," but that his supervisor "refused to replace the mats even through the date of [plaintiff]'s forced resignation." Proposed Second Am. Compl. ¶ 14.

Ware characterizes his reasonable accommodation claim under the ADA as one based on defendant's continuous refusal to return the floor mats. However, "many courts have held that an alleged failure to provide a requested accommodation under the Rehabilitation Act or the ADA is . . . a 'discrete act.'" Long v. Howard Univ., 512 F. Supp. 2d 1, 15-16 (D.D.C. 2007) aff'd, 550 F.3d 21 (D.C. Cir. 2008). This Court will adopt that approach. Thus, when an employer refuses to accommodate an employee, the law views it as one discrete refusal rather than an ongoing state of refusal. This approach accords with the Supreme Court's analogous conclusions regarding Title VII. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-11 (2002) (holding that employer actions like failure to promote or to hire are not "continuing violations" which a plaintiff could challenge in Court more than 300 days after the initial refusal); see also Elmenayer v. ABF Freight System, Inc., 318 F.3d 130, 134-35 (2d Cir. 2003) ("'The rejection of a proposed accommodation is a single completed action when taken' and the continuing violation doctrine is therefore inapplicable") (internal quotations omitted); Leftwich v. Gallaudet Univ., 878 F. Supp. 2d 81, 93-94 (applying the Supreme Court's reasoning in Morgan to a reasonable accommodation claim under the DCHRA). It also accords with the way that courts in this Circuit have treated failure to accommodate claims under the Rehabilitation Act. See Guerra v. Cuomo, 176 F.3d 547, 551-52 (D.C. Cir. 1999) (holding that "a request, a second request, or even repeated requests, embracing the same basic accommodation for the same basic condition cannot be viewed as a different 'matter'" and thus cannot supply the factual basis on which to apply a continuing violations theory); see also Scarborough v. Natsios, 190 F. Supp. 2d 5, 19 n.10 (D.D.C. 2002) ("Because of the similarities between the Rehabilitation Act and the ADA, cases interpreting either are applicable or interchangeable.") (citation and internal quotation marks omitted). The Court therefore finds that Ware's 300-day filing period began running when defendant initially refused to return the floor mats.

Plaintiff's failure to accommodate claim is based on the March, 28, 2009 incident when Hyatt failed to return shock-absorbing mats to his workstation. Plaintiff filed his charge 395 days later - on April 27, 2010. Accordingly, the reasonable accommodation claim is time-barred, so the Court will not permit Ware to further amend his complaint in order to assert it.

B. Hostile Work Environment Claims

Counts I and V of the first amended complaint allege hostile work environment on the basis of age and race discrimination in violation of the ADEA and Title VII. These claims are also alleged in the proposed second amended complaint as Counts I and IV.¹⁰ In addition, Count II of the proposed second amended complaint alleges a claim of hostile work environment under the ADA. Hyatt argues that all of these claims are time-barred.

10 Even if the Court construed these counts as alleging causes of action for discrete acts of discrimination - which is not what is alleged on the face of the complaint - these claims would be barred. Discrete acts of discrimination must involve "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009), quoting Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003). But all of the discrete acts of discrimination alleged in the complaint - based both on race and age - are barred by the statutory 300-day time bar. The only acts alleged in the complaint that could possibly rise to the level of a discrete act of discrimination are Ware's allegations that Hyatt provided overtime opportunities to younger employees that it did not give to Ware, Proposed Second Am. Compl ¶ 10, and that it "gave younger subordinate employees job titles that implied seniority over him," which presented those employees with "greater opportunities for promotion, better working hours, and support staff," Am. Compl. ¶ 26; Proposed Second Am. Compl. ¶ 24. These actions took place in or around April 2008. Proposed Second Am. Compl ¶ 10. Yet Ware did not file his charge of discrimination until April 27, 2010 - at least 727 days later. Def.'s Mot. at 6; Ex. 1 to Def.'s Mot. Thus, to the extent that Ware alleges disparate treatment claims under Title VII or the ADEA, these claims are time-barred.

The analysis used to assess whether claims based on discrete acts are time-barred is modified when assessing claims of a hostile work environment. Under the "continuing violations" doctrine, "[c]onsideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for purposes of assessing liability, so long as any act contributing to the hostile environment takes place within the statutory time period." National R.R. Passengers, 536 U.S. at 105. However, "this doctrine should not be interpreted as an 'open sesame to recovery for time-barred violations' . . . [i]nstead, the plaintiff must show that the time-barred incidents are 'adequately linked into a coherent hostile environment claim.'" Craig v. District of Columbia, 881 F. Supp. 2d 26, 32 (D.D.C. 2012), quoting Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011). Thus, in order to evaluate the timeliness of the hostile work environment claim, the Court must first assess whether the claim includes actionable allegations and when they occurred.

A hostile work environment exists when an employer subjects an employee to "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (D.C. Cir. 2008) (citations omitted). To survive a motion to dismiss, plaintiff must allege facts showing that he subjectively perceived the environment as hostile, as well as facts showing that the "environment is one that a reasonable person would find hostile or abusive." Id. To determine whether the objective standard has been met, courts must consider the "totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with an employee's work performance." Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008); see also Allen v. Napolitano, 774 F. Supp. 2d 186, 205-06 (D.D.C. 2011), citing Holbrook v. Reno, 196 F.3d 255, 262-63 (D.C. Cir. 1999) (explaining that defendant's behavior must severely or pervasively alter and interfere with plaintiff's employment).

1) Title VII Hostile Work Environment

Ware's hostile work environment under Title VII is based primarily upon racial epithets used towards him by the dining room manager. Am. Compl. ¶ 43; Proposed Second Am. Compl. ¶ 16. Plaintiff satisfies the subjective prong of the test because he states that these actions made him "emotionally drained, embarrassed and so humiliated that he could no longer endure the workplace," Am. Compl. ¶ 59.

Comments of the type plaintiff identifies typically do not rise to the level of severity needed to satisfy the objective component of a hostile work environment claim, see Harris, 510 U.S. at 21 ("[M]ere utterance of an . . . epithet which engenders offensive feelings in a[n] employee does not sufficiently affect the conditions of employment to implicate Title VII [.]") (internal quotation marks omitted). However, some courts in this district have held that such comments might rise to the level of a hostile work environment if they are alleged to have occurred nearly every day for a period of years. See, e.g., Leftwich, 878 F. Supp. 2d at 99-100 (holding that the plaintiff's allegations that he was subjected to "pervasive, negative racial comments made about him" that occurred "nearly every day for three years" were sufficient to state a hostile work environment claim); Tucker, 764 F. Supp. 2d at 9 (finding the following allegation in a complaint sufficient to state a claim for hostile work environment based on sexual harassment: "During their employment at [Howard], Dr. Mountvarner harassed the Plaintiffs by frequent comments for sexual favors, improper touching, and inappropriate sexual comments in the workplace such as 'just give me a chance,' and this harassment continued virtually every day throughout the entire time Plaintiffs were employed at HUH").

The proposed second amended complaint alleges that "starting in 2006 and through 2009, Defendant's Dining Room Manager, Matt, routinely, publicly, and regularly referred to Ware as 'black boy' and 'dummy.'" Proposed Second Am. Compl. ¶ 16. Further, he alleges that the dining room manager consistently referred to plaintiff "in a condescending racially insensitive manner in the presence of Defendant's supervisors and/or managers, who allowed same [sic] to continue without correction." Am. Compl. ¶ 43. So, although he is somewhat short on the specifics, Ware has alleged that defendant regularly referred to him using racial epithets up until the time of his departure. Since his resignation occurred on September 4, 2009 and the charge of discrimination was filed on May 18, 2010, the Court cannot find that defendant has shown that none of the offensive conduct occurred within the 300-day limitations period.

Whether the totality of the allegations satisfies the hostile work environment pleading standard - and therefore whether any act contributing to a hostile environment took place within the statutory time period - is a difficult question. Construing the complaint in the light most favorable to the plaintiff, the Court concludes that Ware has pled sufficient facts to state a plausible claim that he was subjected to a hostile work environment and that at least one of the contributing acts occurred within the 300-day statute of limitations for filing his charge of discrimination. See Winston v. Clough, 712 F. Supp. 2d 1, 13 (D.D.C. 2010), quoting Twombly, 550 U.S. at 570 ("Even today, all that is required of the amended complaint at this stage is that it provide enough factual heft to show a plausible entitlement to relief; that is, that it contain 'enough facts to [nudge] a claim to relief . . . across the line from conceivable to plausible[.]"). In other words, defendant has not met its burden of showing that the claim is barred. Therefore, the Court will permit plaintiff to file the portions of the proposed second amended claim that relate to the Title VII hostile work environment claim.

2) ADEA Hostile Work Environment Claim

To support the ADEA claim, Ware alleges that one of his managers, Olsen, repeatedly referred to him as "as an 'old man' during the months preceding [his] forced resignation," Am. Compl. ¶ 9; Proposed Second Am. Compl. ¶ 9, and that another manager, Barber, "repeatedly" told him that he was too old for his job, Am. Compl. ¶ 8; Proposed Second Am. Compl. ¶¶ 8, 23. While certainly offensive, this conduct falls further from the severe and pervasive threshold. See Bell v. Gonzales, 398 F. Supp. 2d 78, 92 (D.D.C. 2005) (stating that sporadic use of abusive language is generally insufficient to establish a hostile work environment). Unlike the racial comments, these comments are only alleged to have happened over the course of a few months. Moreover, the nature of these comments is not as severe. But the conduct does fall within the necessary time period.

Ware also alleges that Hyatt "provided more favorable work conditions, flexibility, and assignments to younger and subordinate employees" and "gave younger subordinate employees job titles that implied seniority over him . . . simultaneously present[ing] younger employees greater opportunities for promotion, better working hours, and support staff." Am. Compl. ¶¶ 25-26. These allegations do not supply the severe "intimidation, ridicule, or insult" necessary to state a claim for hostile work environment. Bell, 398 F. Supp. 2d at 91. And given the lack of any specifics, the complaint does not do much to establish that this conduct is part of a pervasive hostile environment. See Rattigan v. Gonzales, 504 F. Supp. 2d 56, 82 (D.D.C. 2007) ("[C]obbling together a number of distinct, disparate acts will not create a hostile work environment."); see also Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94 (D.D.C. 2009), quoting Bell, 398 F. Supp. 2d at 94 ("Occasional instances of less favorable treatment involving ordinary daily workplace decisions are not sufficient to establish a hostile work environment"); Childs-Pierce v. Util. Workers of Am., 383 F. Supp. 2d 60, 79 (D.D.C. 2005), aff'd 187 Fed. App'x 1 (D.C. Cir. 2006) (finding that the plaintiff failed to establish a prima facie case of hostile work environment based on three incidents because the instances of discrimination were "neither severe nor widespread").

But here too, the Court must analyze the complaint in the light most favorable to the plaintiff. What we have here is sort of a soup of disconnect: plaintiff feels aggrieved, and he attributes his mistreatment to bias directed at him due to his race, his age, and his disability, as well as retaliation for his complaints about all of those things. It is not possible to distill it all neatly into specific categories at this time. Since plaintiff has at least alleged specific discriminatory statements based on both age and race, and they fall within the limitations period, the Court will permit the two counts alleging hostile work environment under the ADEA and Title VII to proceed. But it will be incumbent upon plaintiff to be able to come forward with facts that meet all of the elements of the claim, and that satisfy the timing requirements, before the next round of dispositive briefing.

3) ADA Hostile Work Environment Claim

Count III of the proposed second amended complaint alleges hostile work environment and failure to accommodate in violation of the ADA. Because the Court finds that this claim is barred by plaintiff's failure to file his charge of discrimination within the statutory 300-day period, it will not permit plaintiff to file the portion of the proposed second amended complaint that asserts this claim.

Courts in this circuit have recognized hostile work environment claims under the ADA. See Lee v. Dist. of Columbia, 09-CV-1832 RC, 2013 WL 394055, at *3 n.6 (D.D.C. Feb. 1, 2013), citing Lanman v. Johnson Cnty., 393 F.3d 1151, 1155 (10th Cir. 2004); Shaver v. Indep. Stave Co., 350 F.3d 716, 719 (8th Cir. 2003); Flowers v. S. Reg'l Physician Servs., Inc., 247 F.3d 229, 232-35 (5th Cir. 2001); Fox v. Gen. Motors Corp., 247 F.3d 169, 175-77 (4th Cir. 2001) ("Although this circuit has not resolved the question, four circuits have found that hostile work environment claims are available under the ADA.").

Here, the only discriminatory act that Ware alleges in connection with this disability is Hyatt's removal of mats from his work station on March 28, 2009, and its failure to return the mats upon plaintiff's allegedly repeated requests. Am. Compl. ¶ 14; Proposed Second Am. Compl. ¶ 14. Ware alleges that he "continually asked [his supervisor] about the mats and implored him to replace them," but that his supervisor "refused to replace the mats even through the date of [plaintiff]'s forced resignation." Proposed Second Am. Compl. ¶ 14. These facts fail to plausibly indicate a hostile work environment because they do not evidence a workplace "permeated with discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive [as] to alter the conditions of the victim's employment and create an abusive working environment." Bonnette v. Shinseki, Civ. A. No. 10-2110 ABJ, 2012 WL 5986466, at *20 (D.D.C. Nov. 30, 2012), citing Harris, 510 U.S. at 21. Rather, plaintiff's hostile work environment claim is a thinly veiled attempt to turn a failure to accommodate claim into a continuing violation of the ADA. See Guerra, 176 F.3d at 551 ("[A] request, a second request, or even repeated requests, embracing the same basic accommodation for the same basic condition cannot be viewed as a different 'matter.'").

Because Ware fails to allege acts that occurred within the statute of limitations that contribute to a hostile work environment related to his disability, his hostile work environment claim under the ADA is futile.

C. Retaliation under Title VII, ADA, and ADEA

Count VII of the amended complaint alleges claims of retaliation under Title VII and the ADEA, and Counts V, VI, and VII of the proposed second amended complaint allege claims of retaliation under Title VII, the ADA, and the ADEA. These claims are barred by Ware's failure to file an EEOC charge within the limitations period.

Ware alleges that, in retaliation for the letters of complaint that he sent to Executive Chef Barber, management, and the human resources department about discriminatory conduct on July 7, 2003, November 15, 2006, May 3, 2007, and April 16, 2008, defendant "stopped providing Ware with adequate staff support necessary to complete his Chef duties, removed the mats in his workplace, and refused to accommodate him when he complained about their removal." Am. Compl. ¶ 51; Proposed Second Am. Compl. ¶¶ 46, 51, 55. Even if one assumes that these complaints constitute statutorily protected conduct, and that defendant's alleged reactions can be construed as actionable adverse employment actions, the record shows that Ware did not file a charge of discrimination within the 300-day limitations period for filing a charge with the EEOC. See Zelaya v. UNICCO Serv. Co., 733 F. Supp. 2d 121, 126 (D.D.C. 2010) ("When considering the timeliness of a retaliation claim under Title VII, the charge must be filed with the EEOC within 300 days after the unlawful practice occurred.") (internal quotation marks omitted); 42 U.S.C. § 12117(a) (ADA); 29 U.S.C. § 626(d)(2) (ADEA). According to both complaints, the mat incident allegedly occurred on March 28, 2009, and Ware's managers allegedly stopped providing him with adequate staff some time before that (from the allegations in the complaint, it appears that it occurred in the Spring of 2008). The EEOC charge was filed on April 27, 2010, so the alleged adverse actions fall outside the 300-day filing period for retaliation claims under Title VII, the ADA, and the ADEA.¹¹ Therefore, the retaliation claims will be dismissed and the proposed amendments are futile.

11 Plaintiff also appears to base the retaliation claim on Hyatt's failure to replace the mats and the staff after plaintiff filed complaints about their removal on July 15, 2008, April 3, 2009, and May 2, 2009. However, to make a prima facie case of retaliation, plaintiff must allege that he suffered some action with "materially adverse consequences that constitute[s] objectively tangible harm." See Morrison v. Mills, -- F. Supp. 2d --, 2013 WL 874380, at *2-3 (D.D.C. Mar. 11, 2013), citing Brown v. Brody, 199, F.3d 446, 457 (D.C. Cir. 1999) (internal quotation marks omitted). While the initial removal of the mats and the removal of plaintiff's staff could arguably satisfy this standard, the Court cannot find that the later failure to replace them does. Moreover, plaintiff has not asserted claims for a continuous hostile work environment based on retaliation in either of his complaints, so the Court will not apply the continuing violations doctrine here. Accordingly, the Court will base the 300-day time bar calculations on the dates when the mats and staff were removed, not on the later period of time over which Hyatt failed to replace them.

III. Rehabilitation Act Claims

Defendant next argues that plaintiff cannot state a claim to relief that is plausible on its face under the Rehabilitation Act (Count III of plaintiff's amended complaint and his proposed second amended complaint). The Court agrees.

Hyatt has argued that plaintiff failed to allege that he is an employee covered by the Rehabilitation Act in the amended complaint because the act protects only individuals who are employed by the federal government, or by private employers that receive federal grants or participate in federal programs. Def.'s Mot. at 14, citing 29 U.S.C. §§ 791, 794. But plaintiff's proposed second amended complaint states: "Upon information and belief, Defendant is a private corporation that receives federal financial assistance and/or participates in programs or activities conduced [sic] by an Executive agency, including, but not limited to, engaging in federal contracts." Proposed Second Am. Compl. ¶ 35. While this is more conclusory than factual, defendant does not argue in its opposition to plaintiff's motion for leave to amend that this statement is insufficient, so the Court will not find that plaintiff's proposed count III is futile on this ground.

Defendant also argues that plaintiff's Rehabilitation Act claim fails because it is time-barred. Section 794a of the Rehabilitation Act expressly incorporates the procedural limitations of Title VI. Adams v. District of Columbia, 740 F. Supp. 2d 173, 181 (D.D.C. 2010), citing 29 U.S.C. § 794a(a)(2) ("the 'remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964' are available to any person aggrieved under § 794.").¹² But Title VI does not have a statute of limitations, so courts must derive one from an analogous state statute. Id. at 184, citing N. Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995).¹³

12 29 U.S.C. § 794 is also referred to as Section 504.

13 The general federal statute of limitations, 28 U.S.C. § 1658, does not apply to the Rehabilitation Act because it only governs actions arising under statutes passed after December 1, 1990. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371 (2004).

There have been a number of cases in this district in which that exercise was undertaken. In Doe v. Southeastern University, the court reasoned that because discrimination actions analogous to those brought under the Rehabilitation Act could be brought under 42 U.S.C. §§ 1981 and 1983, and the Supreme Court had applied the personal injury statute of limitations to cases brought under those sections, the same statute of limitations should apply to claims brought under the Rehabilitation Act. 732 F. Supp. 7, 9 (D.D.C. 1990), citing Wilson v. Garcia, 471 U.S. 261 (1985), superseded by statute as stated in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 377-78 (2004).

In Stewart v. District of Columbia, Civ. A. No. 04-1444 CKK, 2006 WL 626921, at *9-10 (D.D.C. Mar. 12, 2006), the court considered whether the exhaustion requirements for claims under the Rehabilitation Act mirrored those for an employment-related ADA claim. In determining that they did not, the court noted that other jurisdictions virtually unanimously applied the statute of limitations for state personal injury actions or for statutes modeled after the Rehabilitation Act. Id. Based on those cases, as well as Doe, the court concluded that the District of Columbia's three-year personal injury statute of limitations applied to a claim brought under section 504 of the Rehabilitation Act. Id. However, the court did not expressly consider whether any other state statute was more closely analogous to the Rehabilitation Act than the personal injury statute.

Other opinions considering what statute of limitations to apply for claims arising under section 504 of the Rehabilitation Act have relied on either Doe or Stewart. See, e.g., Ling Yuan Hu v. George Washington Univ., 766 F. Supp. 2d 236, 242 (D.D.C. 2011); Adams v. District of Columbia, 740 F. Supp. 2d 173, 182 (D.D.C. 2010); Gordon v. District of Columbia, 605 F. Supp. 2d 239, 244 (D.D.C. 2009); Kersey v. WMATA, 533 F. Supp. 2d 181, 190 n.8 (D.D.C. 2008); Gallion v. D.C. Dep't of Human Servs., Civ. A. No. 91-2587 SSH, 1992 WL 44360, at *1 (D.D.C. Feb. 21, 1992).

Recently, however, the D.C. Court of Appeals has come to a different conclusion. It found that the one-year statute of limitations from the DCHRA applied to a claim brought under the Rehabilitation Act because the DCHRA is more closely analogous to the Rehabilitation Act than the personal injury statute. Jaiyeola v. District of Columbia, 40 A.3d 356, 364-369 (D.C. 2012). The court also observed that while section 1983 is a uniquely federal remedy that can have no close counterpart in state statutes - which is arguably why the Supreme Court adopted statutes of limitations from state personal injury statutes - section 504 of the Rehabilitation Act "can, and does, have counterparts in some states." Id. at 365.

A state anti-discrimination statute that furnishes a sufficiently broad cause of action for disability discrimination may be the "most closely analogous" state statute to § 504; the specific cause of action for disability discrimination would be a better fit than the more general personal injury cause of action.

Id. The D.C. Court of Appeals then went on to find the DCHRA, which expressly prohibits discrimination based on disability, to be such a closely analogous state statute. Id. at 366-69 (describing all the similarities between the DCHRA and the Rehabilitation Act). Although the court acknowledged that "federal district court judges in our jurisdiction . . . have been drawn to the personal injury statute of limitations for § 504 actions (the D.C. Circuit not having had occasion to weigh in on the question)," it noted that "it appears they have not considered the [DC]HRA statute of limitations as an alternative." Id. at 364-65.

Although "a particular state's characterization of a federal claim for purposes of determining which statute of limitations is applicable is not binding on a federal court," Featherston v. District of Columbia, No. 07-1933 PLF, 2012 WL 6138088, at *1 (D.D.C. Dec. 11, 2012), quoting Banks v. Chesapeake & Potomac Tel. Co., 802 F.2d 1416, 1420 (D.C. Cir. 1986), this Court finds the rationale of the D.C. Court of Appeals in Jaiyeola to be persuasive. Accordingly, it adopts the one-year statute of limitations from the DCHRA as the statute of limitations applicable to the Rehabilitation Act in this case.

Since all of the allegedly discriminatory acts took place before plaintiff resigned from his employment in 2009, and plaintiff did not file the first complaint in this case until March 13, 2012 - well over one year later - the Court finds that plaintiff's Rehabilitation Act claims are time-barred.

IV. State and Common Law Claims

A. Intentional Infliction of Emotional Distress

The proposed second amended complaint abandons the constructive termination claim from the amended complaint and substitutes an intentional infliction of emotional distress claim as Count VIII. Defendant argues that this claim is time-barred. The Court agrees.

To prevail on a claim for intentional infliction of emotional distress, "a plaintiff must show that 'extreme and outrageous' conduct on the part of the defendant caused her 'severe emotional distress.'" Scales v. George Washington Univ., Civ. A. No. 89-0796-LFO, 1991 WL 257975, at *4 (D.D.C. Nov. 18, 1991), affirmed 44 F.3d 1031 (D.C. Cir. 1994) (per curium), quoting Sere v. Grp. Hospitalization, Inc., 443 A.2d 33, 37 (D.C. 1982).

The common law tort of intentional infliction of emotional distress does not contain a statute of limitations. Generally, the claim is governed by D.C. Code § 12-304(8) - the catch-all provision for claims without specified filing periods - which provides for a three-year filing period. Id. at *4-5.

However, when a claim for intentional infliction of emotional distressed is inextricably intertwined with a cause of action that has its own period of limitations, courts in this Circuit apply that period. See id. at *5. A claim is "intertwined" with another when it is "completely dependent on or essentially the same as another, and cannot survive as a separate, independent cause of action." Jovanovic v. US-Algeria Bus. Council, 561 F. Supp. 2d 103, 114 (D.D.C. 2008). In Scales, another court in this district applied the one-year statute of limitations applicable to claims under the DCHRA to the plaintiff's claim for intentional infliction of emotional distress because the claim was based on the same conduct that comprised her Title VII claim. Scales, 1991 WL 257975, at *5. That the plaintiff had not actually filed a claim under the DCHRA was not material because the allegations in her Title VII claim would have stated a claim under the act, and the purpose of the inextricable intertwinement doctrine is to "prevent[] claims turning on identical elements of proof from being allowed under one label but not another." Jovanovic, 561 F. Supp. 2d at 114.

Here, Ware bases his intentional infliction of emotional distress claim on Hyatt's alleged "willful, wanton, extremely reckless, and indifferent conduct, including, but not limited to, engaging in senseless ridicule, embarrassment, hostility, and deprivation of physical accommodation to Plaintiff." Proposed Second Am. Compl. ¶ 58. In other words, the claim is based on the very conduct that comprises plaintiff's discrimination and failure to accommodate claims, and the proposed second amended complaint alleges no facts that defendant intentionally caused him emotional distress by conduct "independent" of the alleged violations of Title VII, the ADA, or the ADEA. These claims, in turn, are cognizable under the DCHRA. See Scales, 1991 WL 257975, at *5. In fact, plaintiff asserted four claims under the DCHRA based on this same conduct in his amended complaint. See Am. Compl. Counts II, IV, VI, VIII. Since the allegations on which his intentional infliction of emotional distress claim is based are inextricably intertwined with claims cognizable under the DCHRA, the one-year filing period from the DCHRA applies. See D.C. Code § 2-1403.04(a). And because plaintiff filed his complaint almost three years after he left defendant's employment, his claim for intentional infliction of emotional distress is timed-barred under the applicable one-year period. Accordingly, the Court will not permit him to further amend his complaint so as to assert his proposed claim of intentional infliction of emotional distress.

B. Negligent Training and Supervision

Count X of the amended complaint and Count IX of the proposed second amended complaint assert a common law tort claim for negligent training and supervision. Defendant correctly argues that neither complaint states a claim for which relief can be granted.

D.C. law recognizes that employers have a duty of reasonable care to "select employees competent and fit for the work assigned to them and to refrain from retaining the services of an unfit employee." Jia Di Feng v. See-Lee Lim, 786 F. Supp. 2d 96, 106 (D.D.C. 2011) (internal quotation marks omitted). So when an employer neglects this duty and a third person is injured as a result, the employer may be liable under a theory of negligent supervision and training, "even though the injury was brought about by the willful act of the employee beyond the scope of employment." Id. To make a prima facie case of negligent training and supervision, the plaintiff must allege facts showing that "the employer 'knew or should have known its employee behaved in a dangerous or otherwise incompetent manner, and that the employer, armed with that actual or constructive knowledge, failed to adequately supervise the employee.'" Simms v. District of Columbia, 699 F. Supp. 2d 217, 226 (D.D.C. 2010), quoting Phelan v. City of Mt. Rainier, 805 A.2d 931, 937 (D.C. 2002). Importantly, the claim must be based on a "common law cause[] of action or dut[y] otherwise imposed by common law." Griffin v. Acadia Life Ins. Co., 925 A.2d 564, 576 (D.C. 2007).

It is well-established that a claim for negligent supervision "cannot, as a matter of law, be predicated solely on a violation of an anti-discrimination statute." Savoy v. VMT Long Term Care Mgmt. Co., Inc., 522 F. Supp. 2d 211, 213 n.3 (D.D.C. 2007). Since the duty not to discriminate is a purely statutory creation, imposing common law liability for negligent supervision claims based on failure to prevent discrimination "would be to impose liability on employers for failing to prevent a harm that is not a cognizable injury under the common law." Griffin, 925 A.2d at 577 (internal quotation marks omitted).

In both the amended complaint and proposed second amended complaint, Ware bases his negligent training and supervision claim on defendant's alleged failure "to enforce [policies and procedures related to equal employment opportunity, consistent with federal and state anti-discrimination laws] through appropriate training and supervision of its managers and offending individuals, thereby sanctioning, encouraging, and ratifying known discrimination and retaliation[.]" Am. Compl. ¶¶ 63-64; Proposed Second Am. Compl. ¶¶ 64-65. These allegations are clearly predicated on Hyatt's alleged failure to protect Ware's rights under the various anti-discrimination statutes, and therefore cannot state a claim upon which relief can be granted.

Ware argues that the proposed second amended complaint cures this defect because the new claim is based on defendant's alleged intentional infliction of emotional distress rather than its alleged discrimination. He relies on Griffin for the proposition that "a claim for negligent supervision [can] be based on a separate common law tort," 925 A.2d at 577, and argues that his claim for negligent supervision and training is "properly predicated upon the intentional infliction of emotional distress claim contained within [his] proposed Second Amended Complaint." Pl.'s Opp. at 12.

Only a tortured reading of the proposed second amended complaint would allow for the construction plaintiff advances. The express language of the negligent training and supervision count in the proposed second amended complaint describes the violation as defendant's failure to enforce policies and procedures "related to equal employment opportunity, consistent with federal and state anti-discrimination laws." Proposed Second Am. Compl. ¶¶ 64-65.

But even if the Court were to find that the negligent training and supervision claim in the proposed second amended complaint is based on the alleged intentional infliction of emotional distress, the count still fails to state a claim under Rule 12(b) because the intentional infliction of emotional distress claim is itself inextricably intertwined with his discrimination and retaliation claims, as described above. Although District of Columbia courts recognize common law claims of negligent supervision predicated on common law causes of action, the duty to prevent discrimination against an employee was "notably not included among the duties of an employer that were recognized at common law." Griffin, 925 A.2d at 576 (discussing discrimination based on sex). And although an intentional infliction of emotional distress is "now firmly established as an independent tort in the District," Scales, 1991 WL 257975, at *5, plaintiff's claim is based entirely on acts that he separately alleges were taken based on discrimination and discriminatory retaliation. Accordingly, the Court cannot find that plaintiff's claim properly alleges that Hyatt failed to prevent a harm that is a cognizable injury under the common law.

Because Ware bases his negligent training and supervision claim solely upon his allegations that Hyatt failed to protect his statutorily created rights (and not on duties otherwise imposed by common law), Count X of the first amended complaint must be dismissed. And since Count IX of the proposed second amended complaint does not cure the deficiency, the Court will deny leave to amend this count because the amendment would be futile.

CONCLUSION

For the above-stated reasons, it is

ORDERED that plaintiff's motion for leave to file a second amended complaint [Dkt. # 11] is GRANTED IN PART and DENIED IN PART. Plaintiff may file a second amended complaint on or before April 17, 2013, that contains the following portions of the proposed second amended complaint: the introductory section; paragraphs 1-19; and Counts I and IV, to the extent that they assert causes of action for hostile work environment; and it is

FURTHER ORDERED that defendant's motion to dismiss the amended complaint [Dkt. # 4] is DENIED AS MOOT.

/s/_________

AMY BERMAN JACKSON

United States District Judge DATE: March 27, 2013