Ware v. Hyatt Corp.

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

Civil Action No. 12-0395 (ABJ)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 27, 2013

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...