UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DAVID GOLDEN, : : Plaintiff, : Civil Action No.: 16-1660 (RC) : v. : Re Document Nos.: 22, 23, 26, 34 : MANAGEMENT & TRAINING : CORPORATION, et al ., : : Defendants. :
MEMORANDUM OPINION
G RANTING [22] D EFENDANT M ANAGEMENT & T RAINING C ORPORATION ’ S M OTION TO D ISMISS ; G RANTING [23] D EFENDANT C HUGACH G OVERNMENT S OLUTIONS LLC’ S M OTION TO D ISMISS ; D ENYING AS M OOT [26] P LAINTIFF ’ S M OTION FOR L EAVE TO F ILE S ECOND A MENDED C OMPLAINT ; D ENYING AS M OOT [34] D EFENDANT C HUGACH G OVERNMENT S OLUTIONS LLC’ S M OTION F OR L EAVE TO F ILE A S URREPLY
I. INTRODUCTION Plaintiff David Golden brings t his civil action against Managem ent & Training Corporation and Chugach Government Solutions LLC, alleging that they retaliated against him in violation of the Age Discrim ination in Employment Act of 196 7, 29 U.S.C. §§ 621 et seq. Specifically, Plaintiff claims that Defendants placed him on a performance improvement plan and ultimately fired him in 2015 for an internal grievance thathe submitted in 2013, alleging “age discrimination” and a “hostile work environment.” See First Am. Compl. ¶¶ 1, 7–18, ECF No. 20. This matter now comes before the Court on Defendants’ motions to dismiss pursuant to Rule 12(b)(6) of the Federal R ules of Civil Procedure, see generally MTC’s Mot. Dismiss (“MTC’s Mot.”), ECF No. 22; CGS’s Mot. Dismiss Am. Compl. (“CGS ’s Mot.”), ECF No. 23, as well as Plaintiff’s Motion for Leave to File a Second Amende d Complaint (“Plaintiff’s Mot. for Leave”), ECF No. 26, and Chugach Government Solutions LLC’s Motion for Leave to File a2 Surreply, ECF No. 34. For the follo wing reasons, the Court con cludes that it must grant Defendants’ motions to dismiss and will deny as moot Plaintiff’ s motion to amend and Chugach Government Solutions LLC’s Mo tion for Leave to File a Surreply.

II. FACTUAL BACKGROUND In May 2009, David Golden was hire d as a career and technical t raining manager at the Potomac Job Corps facility, located in the District of Columbia . First Am. Compl. ¶¶ 5, 7, ECF No. 20. The Potomac Job Corps facility is one of several locat ions around the country at which the U.S. Department of Labor a dministers a program called Job C orps. See First Am. Compl. ¶¶ 5–6. Job Corps is a free academic and career technical trai ning program for young, former offenders designed to provide thos e individuals with skills and education that will allow them to obtain meaningful employment and become productive members of their communities. First Am. Compl. ¶¶ 5, 8. Chugach Government Services, Inc. (“CGSI”) is an Alaska corporation that allegedly contracted with the Dep artment of Labor to operate th is program on its behalf throughout the United States. 1 Proposed Second. Am. Compl. ¶ 6, ECF No. 26-2. Management & Training Corporation (“MTC” ) is a subcontractor under CGSI, that “assists in the management of the Potomac Job Corps facility.” Proposed Second Am. Compl. ¶ 5. Golden alleges that he was hired by MTC when he was 57 year s old and that his responsi bilities at the facility included

1 Although Golden’s First Amended C omplaint indicates that Chuga ch Government Solutions (“CGS”) was responsib le for operating the program, see First Am. Compl. ¶ 6, Golden has conceded in subsequent filings that, in fact, this work was performed by CGS’s affiliate, CGSI. See Pl.’s Mem. P & A Supp. Mot. Leav e File Second Am. Compl. at 3 ( “Pl.’s Mem. Supp. Mot. Leave”), ECF No. 26-1 (requesting leave to replace C GS with CGSI, “the proper entity to be sued,” without alte ring the facts of the complaint ). For the purpose of clarity in setting forth the relevant facts , the Court accepts Golden’s as sertion that CGSI is the true identity of the party referenced in his First Amended Complaint.3 teaching former criminal offenders about educational training, plumbing, and culinary arts. See First Am. Compl. ¶ 7. On October 16, 2013, Golden filed a gr ievance with MTC’s Equal Employment Opportunity (“EEO”) Coordinator in which he alleged “age discri mination” and a “hostile working environment.” First. Am. Compl. ¶ 12. Golden’s grievance allegedly encompassed two perceived harms. See First. Am. Compl. ¶ 12. First, G olden claimed that, beginning in 2011, he had informed his supervisors of concerns he had relating to Def endants’ allegedly poor administration of the Job Corps pr ogram and the lack of certainresources and administrative support that they provid ed to him and his staff. 2 First Am. Compl. ¶¶ 9–10, 12. According to Golden, however, these concerns went unaddressed. See First Am. Compl. ¶ 12. Second, he claimed that his MTC supervisor erroneously placed him on a per formance improvement plan (“PIP”) in 2012 for allegedly f ailing to obtain certifications for students, even though Golden had maintained a satisfactory rat ing on his performance evaluation for that year. First. Am. Compl. ¶¶ 11–12. According to Golden, his administrative concerns wen t unaddressed and he was erroneously placed on the PIP because of “age discrimination,” though his complaint provides no details explaining how he arrived at that conclusion. See First Am. Compl. ¶ 12. He further

2 For example, Plaintiff complain ed that: “(1) students were goi ng six to eight months without a qualified in structor; (2) overcr owded classrooms; (3) lack of budget al location for specific projects; (4) Defendant s’ refusal to provide proper tr aining opportunities to Plaintiff and his staff; yet providing the sa me opportunity to other staff me mbers; (5) Defendants’ refusal to hire qualified staff; (6) Defenda nts’ failure to process purcha se orders requested by Plaintiff’s staff (7) failure to monitor construction work performed at Pot omac Job Corps by outside contractors; (8) lack of inventory control equipment at the Cor ps’ facility; (9) Defendants’ refusal to order equipment for students and staff members; (10) Defendants’ failure to provide a budget; . . . (11) failure to provi de air-conditioning in class rooms during summer months; (12) failure to provide heat in c lassrooms during the winter mo nths; (13) failure to provide working computers for students i n classrooms.” First. Am. Compl . ¶ 10.4 alleged that these harms were rep resentative of a “hostile work environment,” but again, he provides no other detail s supporting that belief. See First Am. Compl. ¶ 12. At some point in 2015, more than a y ear after Golden’s internal complaint, a different MTC supervisor placed Golden on yet another PIP. First Am. Com pl. ¶ 13. Again, this was done despite Plaintiff maintaini ng a satisfactory performance r ating for that year. First Am. Compl. ¶ 13. Then, in July 2015, MTC t erminated Golden from hi s employment because he allegedly failed to complete the second PIP’s requirements. Fi rst Am. Compl. ¶ 14. On February 18, 2016, Golden filed a C harge of Discrimination w ith the Equal Employment Opportunity Commissi on (“EEOC”), alleging that he ha d been “discriminated against and been the victim of retaliation for engaging in prot ected activity” i n violation of the
ADEA. See EEOC Charge of Discrimination, E CF No. 25-3. Three months late r, on May 18, 2016, the EEOC issued a right-to- sue letter. EEOC Dismissal an d Notice of Rights, ECF
No. 1-2. On August 16, 2016, Golden brought su it against MTC and ChugachGovernment Solutions (“CGS”)—not CGSI—alle ging that Defendants retaliated against him by “erroneously placing Plaintiff on a PIP and terminating him despite his sati sfactory ratings on his yearly performance appraisals” as a res ult of Golden’s “internal compl aint for age discrimination and hostile work environment.” C ompl. ¶ 17, ECF No. 1. Golden’s C omplaint, however, sought relief under Title VII of the C ivil Rights Act of 1964, not the ADEA. Compl. ¶ 1. After Defendants filed motions to dismiss highlighting this fact, Gol den amended his Complaint to replace the Title VII claim w ith a retaliation claim under the ADEA on November 3, 2016. See generally First Am. Compl. Golden did notalter any of the underlying al legations. Compare Compl., with First. Am. Compl.5 On November 21, 2016, MTC and CGS each filed new motions to dis miss pursuant to Rule 12(b)(6) of the Federal R ules of Civil Procedure. See generally MTC’s Mot.; CGS’s Mot. One of the arguments advance d by CGS in its motion was that it could not be liable to Golden because it, in fact, did not operate the Potomac Job Corps faci lity and thus could not have been his employer. See CGS’s Mot. at 3–4. CGS pointe d out, as it had in its prior mot ion, that the facility was, in rea lity, operated by CGSI. See CGS’s Mot. at 3–4. In response, Golden filed a motion for leave to file a sec ond amended complaint, which soug ht to replace CGS with CGSI without altering any of the underl ying factual allegations, see generally Pl.’s Mot. for Leave, and Defendants opposed the motion, see generally CGS’s Opp’n to Pl.’s Second Mot. Leave Am. Compl., ECF No. 30; MTC’s Opp’ n Pl.’s Mot Leave File Second Am. Compl., ECF No. 32. The Court now addresses each of the pending motions. 3

III. LEGAL STANDARD The Federal Rules of Civil Proce dure require that a complaint c ontain “a short and plain statement of the claim” in order to give the defendant fair not ice of the claim and the grounds upon which it rests. Fed . R. Civ. P. 8(a)(2); accord Erickson v. Pardus , 551 U.S. 89, 93 (2007) (per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has properl y stated a claim.
See Scheuer v. Rhodes , 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald , 457 U.S. 800 (1982). A court cons idering such a motion presu mes that the complaint’s factual allegations are true and construes them lib erally in the pl aintiff’s favor. See,

3 CGS has also sought leave to file a surreply in opposition to Golden’s motion for leave to amend. See generally Def. Chugach Government Solutions LLC’s Mot. Leave File Surrepl y, ECF No. 34. Because the Court need not reach the issues addres sed in CGS’s brief to resolve the motions currently before the Court, the Court denies this motio n as moot.6 e.g., United States v. Philip Morris, Inc. , 116 F. Supp. 2d 131, 135 (D.D.C. 2000). Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain suf ficient factual matter, accepted as true, to ‘state a claim to rel ief that is plausible on its face .’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). This means that a plaintiff’s factual allegati ons “must be enough to raise a righ t to relief above the speculative level, on the assumption that all the allegations in the compla int are true (even if doubtful in fact).” Twombly , 550 U.S. at 555–56 (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” ar e therefore insufficient to withstand a motion to dismiss. Iqbal , 556 U.S. at 678. A court need not accept a plaintiff’s legal conclusions as true, see id. , nor must a court presume the ve racity of the legal conclusion s that are couched as factual allegations. See Twombly , 550 U.S. at 555.

IV. ANALYSIS Because Golden’s First Amended Complaint and his proposed Secon d Amended Complaint share the same underlyi ng factual alle gations and ass ert the same claim for relief under the ADEA, the Court first co nsiders whether Plaintiff’s A DEA claim is time-barred and whether he has adequately pled a claim for retaliation. For th e reasons set forth below, the Court concludes that Golden’s ADEA cl aim is not time-barred because h is ADEA claim, which alleges the same facts as his original T itle VII claim, relates back to the date of his first pleading. However, the Court also finds that Golden has failed to allege a plausible claim for retaliation under the ADEA because he has failed to allege facts demonstrat ing that he engaged in an activity protected by the statute. This is so because, althoug h he allegedly submitted an internal grievance in 2013 for “age discri mination” and “hostile work en vironment,” he has not alleged any facts that might support an i nference that he held a reason able, good faith belief that the7 perceived harms he reported were violations of the ADEA. Accor dingly, the Court finds that Golden has failed to plausibly sta te a claim for relief under the ADEA and will grant Defendants’ motions to dismiss. However, becaus e the Court believes that the deficiencies may be cured through subsequent pleading, the Cou rt will dismiss the complai nt without prejudice and grant Golden leave to amend the complaint. Furthermore, because the deficiencies present in the First Amended Complaint are also present in Golden’s proposed amendme nt and because the Court is granting Plaintiff leave to ame nd those deficiencies, the Court will also permit Golden to replace CGS with CGSI as a defendant i n any forthcoming pleading, but i t will deny Golden’s motion as

moot. A. Statute of Limitations CGS argues that Golden’s ADEA cl aim must be dismissed because G olden’s First Amended Complaint, which first r aised a claim under the ADEA, i s untimely. See CGS’s Mot. at 8–9. Golden contends, however, tha t his claim is not time-b arred because it relates back to the date of his original complaint . Pl.’s Opp’n to CGS’s Mot. at 1 0. Specifically, Golden argues that his First Amended Complaint relates back because he simplyreplaced his former Title VII claim with an ADEA claim without changing any of the underlying facts. Golden has the better of the arguments. The law permits a plaintiff t o file an ADEA action within ninety days of receiving a right-to-sue letter from the EEOC. See 29 U.S.C. § 626(e). Golden’s ri ght-to-sue letter was mailed on May 18, 2016, Compl. at Ex. A, ECF No. 1-2, and was p resumably received by at least May 23, 2016, see Taye v. Amundson , 908 F. Supp. 21, 203 (D.D.C. 1995) (when not otherwise alleged, EEOC letters are presumptively received thre e to five days later). Accordingly, Golden was require d to file his ADEA claim on or b efore August 21, 2016.8 Although Golden filed his original c omplaint alleging a Title V II claim on August 16, 2016, see Compl., he did not assert a claim under the ADEA until November 3, 2016, see generally First Am. Compl. Consequently, Golden’ s ADEA claim can only survive if it relates back to the date of his original Complaint. Rule 15(c) of the Federal Rules of Civil Procedure permits an amendment to relate back to the date of an original pleadi ng if “the amendment asserts aclaim or defense that arose out of the conduct, transaction, or occurr ence set out—or attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c )(1)(B). An amended complaint, however, does not relate back when it “asserts a new ground f or relief supported by facts tha t differ in both time and type from those the original pleading set forth.” Mayle v. Felix , 545 U.S. 644, 650 (2005). Thus, an amended complaint cannot “fault [a defendant] for conduct diffe rent from that identified in the original complaint.” Meijer, Inc. v. Biovail Corp. , 533 F.3d 857, 866 (D.C. Cir. 2008). The D.C. Circuit has explained that “ [t]he underlying question is whethe r the original complaint adequately notified the defendants of the basis for liability t he plaintiffs would l ater advance in the amended complaint.” Id

. Here, it is clear that Golden’s First Amended Complaint asserts a claim that arose out of the “conduct, transaction, or occurrence” that he pled in his o riginal Complaint. As Golden correctly argues, his First Ame nded Complaint merely replaced h is earlier Title VII claim with a claim under the ADEA. Contrary t o CGS’s arguments, the First A mended Complaint does not assert any new facts that differ in “time and type” from those in Golden’s original complaint or fault Defendants for “conduct diffe rent from that identified inthe original complaint” because, in9 fact, it does not allege any new facts whatsoever. 4 Rather, it simply changes the formal legal basis for the relief that Golden seeks. Under such circumstanc es, relation back under Rule 15 is
proper. See Dave v. District of Columbia , 811 F. Supp. 2d 111, 117 (D.D.C. 2011) (holding that the “§ 1981 claim relates back t o the original complaint, and i s not barred by the statute of limitations” because “[t]he amended complaint contains no new f actual allegations upon which the plaintiff seeks to base his proposed § 1981 claims”); 6A C. Wright, A. Miller, & M. Kane,
Federal Practice and Procedure § 1497, 113–14 (3d Ed. 2010) (“The fact that an amendment changes the legal th eory on which the action initially was brou ght is of no consequence if the factual situation upon which the action depends remains the sam e and has been brought to the defendant’s attention by the orig inal pleading.”). Thus, the C ourt finds that Golden’s First Amended Complaint relates back t o the date of his original plea ding, meaning that his ADEA claim is not time-barred.
B. ADEA Retaliation Claim Although Golden’s claim is not tim e-barred, he has not adequate ly pled a retaliation claim under the ADEA. The ADEA ma kes it unlawful for an employ er to retaliate against an employee for “oppos[ing] any pr actice made unlawful” by the statute. See 29 U.S.C. § 623(d). Unlike the substantive anti-di scrimination provision, which “se eks to prevent injury to individuals based on who they are, i.e. , their status[,][t]he antiret aliation provisi on seeks to prevent harm to individuals based on what they do, i.e. , their conduct.” Burlington N. & Santa

4 Moreover, any suggestion that CGS is now surprised by Plaintif f’s claim under ADEA would be highly disingenuous. Indee d, CGS argued that Plaintif f’s original complaint should be dismissed because his “EEOC Ch arge . . . claims retaliation on the basis of age under the ADEA , but now he brings a claim for Title VII retaliation.” CGS’s Mem. S upp. Mot. Dismiss Compl. at 8, ECF No. 14 (emphasis in original).10 Fe Ry. Co. v. White , 548 U.S. 53, 63 (2006). To state a c laim for retaliation und er the ADEA, a plaintiff must allege that “(1) he engaged in statutorily prote cted activity; (2) that he suffered a materially adverse action by his employer; and (3) a causal lin k connects the two

. ” Jones v.
Bernanke , 557 F.3d 670, 677 (D.C. Cir. 2009); see also Tomasello v. Rubin , 167 F.3d 612, 619 (D.C. Cir. 1999) (“[T]he test fo r determining r etaliation under the ADEA and Title VII is identical.”) (citation omitted )). Defendants do not dispute th at Golden has ade quately alleged a materially adverse action, having been placed on a PIP that ult imately led to his termination. Defendants argue, however, that Go lden’s retaliation claim must fail because he has not adequately alleged e ither that he engaged i n a statutorily prot ected activity or that there was a causal connection between that activity and any actions taken b y Defendants. The Court agrees that Plaintiff has not alleged a s tatutorily pro tected activity

. 5 Under the ADEA, submitting a form al or informal complaint of un lawful discrimination based on age to one’s employer constitutes statutorily protecte d activity. See 29 U.S.C. § 623(d); see also Peters v. Dist. of Columbia , 873 F. Supp. 2d 158, 202 (D.D.C. 2012) (“informal complaints to management may constitute protected activity”). To qualify for protection, the grievance need not invoke any “‘mag ic words,’” but it “must in some way allege unlawful discrimination, not just frustrated ambition.” Broderick v. Donaldson , 437 F.3d 1226, 1232 (D.C. Cir. 2006). And though “an employee’s retaliation claim does not rise or fall on the success of [his] underlying, good-fa ith discrimination claim,” Nurriddin v. Bolden , 818 F.3d 751, 757, n.5 (D.C. Cir. 2016), the employee must have “reasona bly and in good faith believed

5 Because the Court finds that Plai ntiff has failed to allege a statutorily protected activity, it need not address defendants’ arguments concerning causation. But, to the extent Plaintiff will file yet another amended Compl aint, he would be wise to heed th e Defendants’ arguments concerning causation.11 [the challenged practice] was unlawful under the statute,” McGrath v. Clinton , 666 F.3d 1377, 1380 (D.C. Cir. 2012). If “the pr actice the employee opposed i s not one that could reasonably and in good faith be regarded as unl awful under [the ADEA], thi s element is not satisfied.” Id. (citing Clark Cnty. Sch. Dist. v. Breeden , 532 U.S. 268, 271 (2001)). Golden alleges that he filed an internal grievance with MTC’s E EO coordinator in October 2013, claiming that MTC’s “failure to address his [vari ous administrative] concerns . . . as well as his erroneous placement on a PIP in 2012” were the r esult of “age discrimination” and were characteristic of a “hostil e work environment” First. Am. Compl. ¶ 12. MTC essentially argues, however, that Golden ha s failed to allege any facts fro m which to infer that Golden had a reasonable, good-faith belief that he was opposing an unlawful employment practice under the
ADEA. See MTC’s Mot. at 4–6. MTC argues th at Golden’s 2013 EEO complaintwas simply a “renewal” of his earlier adminis trative concerns and a generali zed complaint that he was placed on the 2012 PIP. Golden’s mere app lication of the label “age d iscrimination” and “hostile work environment,” MTC argues, cannot “convert complaints about rout ine workplace issues into protected activity” when he has not alleged any f acts that supp ort an inference that any of the supposed harms had anything to do with Golden’s age. See MTC’s Mot. at 4–6. The Court agrees that, even read liberally, Golden’s complaint does not sufficiently allege that he engaged in prot ected activity. To start, Defend ants’ supposed failure to address Golden’s litany of administrativ e concerns, standing alone, doe s not give rise to a reasonable inference that Defendants enga ged in age discrimination. Indee d, Golden has not offered any allegation that connects Defendant s’ failures to act with Golde n’s age or otherwise demonstrated that they were motivated by any discriminatory animus. Further , Golden’s bald assertion that Defendants did not address his co ncerns because of his age “nei ther makes the accusation true12 nor makes it reasonable for him to have believed it was true.” 6 McGrath v. Clinton , 666 F.3d at 1381; see also Iqbal , 556 U.S. at 678 (“Threadbare recita ls of the elements of a cause of action, supported by mere conclusory sta tements, do not suffice.”). If Golden’s internal charge about his various administrative concer ns is to serve as the predicat e for his retaliation claim, Golden must allege some set of facts from which to infer that he reasonably believed Defendants’ failure to act was a manifestation of age discrimination. See George v. Leavitt , 407 F.3d 405, 417 (D.C. Cir. 2005) (dismissing Title VII r etaliation claim because “the incidents of which [plaintiff] complained [to his employer] c ould not reasonab ly be thought to constitute an abusive working environment in violation of Title VII.”); Drumm v. SUNY Geneseo Coll ., 486 F. App’x 912, 914 (2d Cir. 2012) (dismissing Title VII retaliation claim because “plaintiff’s allegation that she ‘had a good faith basis to believe that she was being treated differ ently on the basis of her sex’ is conclusory and therefore insuffi cient to satisfy her pleading b urden” and “plaintiff’s allegations that can properly be considere d factual do not suggest that she had a reasonable belief that she

6 In Sparrow v. United Air Lines, Inc. , the D.C. Circuit instructed that “all a complainant ha[d] to say to survive a mo tion to dismiss under Rule 12(b)(6) ” was something to the effect of “I was turned down for a job because of my [protected status].” 216 F.3d 1111, 1115 (D.C. Cir. 2000) (internal quotations omitted). It premised this conclusi on, at least in part, on Conley v. Gibson , 355 U.S. 41, 45–46 (1957), where the Supreme Court held that a complaint should only be dismissed for failure to state a claim if “it appears beyond doubt that the plaintiff can prove no set of facts in support of h[er] claim which would entitle h[er ] to relief.” However, inBell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007), and Ashcroft v. Iqbal , 556 U.S. 662 (2009) the Supreme Court “retired the C onley no-set-of-facts test,” id . at 670. As a result, although the issue is not entirely settled, the Court agrees with other cour ts in this District that the Sparrow pleading standard is no longer controlling. See, e.g., Jackson v. Acedo , 08–cv–1941, 2009 WL 2619446, at *4 (D.D.C. Aug. 26, 2009) (concluding that “ Sparrow is no longer binding authority in light of” the Supreme Court’s observations “in Twombly ”); Ali v. D.C. Gov’t , 697 F. Supp. 2d 88, 92 (D.D.C. 2010) (describing the “ questions that [have] ari se[n] about the continued validity of Sparrow in light of Twombly and Iqbal ”); Greer v. Bd. of Trs. of Univ. of D.C. , 113 F. Supp. 3d 297, 310 (D.D.C. 2015) (noting that “ Twombly and Iqbalrequire more factual context” than the “multiple assumptions” necessary to state a claim under the Sparrow standard).13 was a victim of gender discrimination.”); Morales-Cruz v. Univ. of Puerto Rico , 676 F.3d 220, 227 (1st Cir. 2012) (holding that “am ended complaint fails to s et forth a plausible claim of retaliation” under Title VII because comments cited in complain t to employer “were unarguably gender-neutral and do not afford a n objectively reasonable foun dation for a reta liation action.”). Because Golden offers no set of fact s from which to infer that he reasonably believed Defendants’ failure to act was amanifestation of age discrimin ation, the Court cannot find that such a charge satisfies his bur den to allege protected activity

. Likewise, Golden’s placemen t on the 2012 PIP does not support areasonable inference of unlawful age discrimination. The D.C. Circuit has made clear that mere placement on a PIP, without more, does not constitute an adverse employment action suitable for sustaining a claim under the ADEA. See Taylor v. Small , 350 F.3d 1286, 1293 (D.C. Cir. 2003) (placement on PIP was not “an adverse employment action upon which [plaintiff] ma y base a claim of discrimination” when she did “not present evidence suggesting s he suffered any ‘significant change in [her] employment status.’”). “[R]ather[,] placement on the PIP must have resulted in an adverse action.” Chowdhury v. Bair , 604 F. Supp. 2d 90, 96 (D.D.C. 2009) (emphasis in original). Golden, however, has not alleged that anything happened as a result of his placement on the 2012 PIP. And even if he ha d, he again does not allege any facts demonstrating that MTC placed him on the PIP because of his age. Indeed, MTC allegedl y placed Golden on the PIP because he “fail[ed] to obtain certifications for his students at the Corps.” First Am. Compl. ¶ 11. Although Golden claims that he ha d “satisfactory performan ce appraisals” in 2012, he does not dispute MTC’s purported justi fication for the PIP or allege any other facts suggesting that the PIP was a result of Golden’s age. Thus, there is no reasonable basis to believe that Golden’s placement on the 2012 PIP was the res ult of age discrimination.14 Finally, neither the alleged failure to address Golden’s admini strative concerns nor Golden’s alleged placement on the PIP in 2012 when viewed separ ately or in the aggregate could reasonably be considered to have created a “hostile work enviro nment” under the ADEA. The Supreme Court has explained that a hostile work environment exi sts “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insu lt that is sufficiently severe or pervasive to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 78 (1998) (quoting Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1993)) (emphasis added). This requires some connection between the al leged abuse and the plaintiff’s protected status. See e.g., McKeithan v. Boarman , 803 F. Supp. 2d 63, 70 (D.D.C. 2011) (holding that plainti ff’s “claim that he suffered a hostile wor k environment based on age discrimination must also be dismissed” because he “offers nothi ng to support a claim that any of [supervisor]’s conduct was linked to his age, and he fails to o ffer any evidence or argument that would suggest that he was exposed t o discriminatory intimidatio n, ridicule, or insult because of his age.”); Peters. , 873 F. Supp. 2d at 190–95 (D.D.C. 2012) (dismissing Title VII hostile work environment claims where Compl aint failed to dem onstrate that e mployees were subjected to abuse “because of [their] protected status”); Hunter v. District of Columbia , 797 F. Supp. 2d 86, 94 (D.D.C. 2011) (dismissing cla im for Title VII hostile work e nvironment where “[t]he Court [was] left to infer that each act was discrimin atory or retalia tory simply based on the fact that he is a man, or that he is African–American, or both.”); Jones v. Billington , 12 F. Supp. 2d 1, 12 (D.D.C. 1997) (Title VII hostile wo rk environment claim failed where plaintiff had “not demonstrated that any of the conduc t of which he complains was related to his race, or that his workplace was permeated with racially discriminatory behavior”) . But in this case, as discussed above, the Complaint does not prov ide any link between the Defe ndants’ actions and Golden’s15 age. Thus, Golden has failed t o plead any facts from which to infer that he had a reasonable basis to believe that Defendant s had created a hostile work env ironment violative of the ADEA. 7
As a result of these deficienci es, Plaintiff’s claim under the ADEA must be dismissed. Although Golden allegedly submitted an internal grievance claim ing “age discrimination” and “hostile work environment,” the facts underpinning those claims , as alleged in the complaint, simply do not allow the Court to c onclude that he had a “reason able, good faith belief” that defendants violated the ADEA. Accordingly, Golden has not pled a statutorily protected activity for which a retaliation claim might lie under the ADEA and dism issal of his claim is appropriate. See e.g., George , 407 F.3d at 417 (dismissing Title VII retaliation claim becau se “the incidents of which [plaintiff] complaine d [to his employer] could not rea sonably be thought to constitute an abusive working environment in violation of Title VII”). Ho wever, because the Court is not convinced that the Complaint could not be cured through the all egation of additional facts, the Court will dismiss the Complaint without prejudice and grant Go lden leave to amend. See
Firestone v. Firestone , 76 F.3d 1205, 1209 (D.C. Cir. 1996) (“A dismissal with prejudice is warranted only when a trial court determines that the allegatio n of other facts cons istent with the challenged pleading could not possi bly cure the deficiency.”) ( emphasis in origin al) (internal quotations omitted).

7 Furthermore, the alleged harassi ng behavior is not sufficientl y severe, pervasive, or extreme to rise to the level of an actionable hostile work envi ronment. See e.g., Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1998) (stating that“conduct must be extre me” to create a hostile work environment); Walden v. Patient-Centered Outcomes Research Inst. , 177 F. Supp. 3d 336, 344–45 (D.D.C. 2016) (Plainti ff’s placement on PIP and receipt of negativ e performance evaluation were not “sufficiently s evere or pervasive” to const itute a hostile work environment); Munro v. LaHood , 839 F. Supp. 2d 354, 366 (D.D.C. 2012) (Plai ntiff’s allegatio n that his supervisors placed him on a PIP , gave him unfavorable performan ce feedback, told him he could not submit any more assignments, yelled at him during a meeting about his PIP, and placed him on an extended Performance Opportunity Period upon failure to c omplete his PIP were not “severe or pervasive enough to c onstitute a hostile work enviro nment”).16 C. Golden’s Motion for Leave to Amend his Complaint Also pending before the Court is Golden’s motion for leave to a mend his complaint to add CGSI as a party. In its Moti on to Dismiss, CGS argued that the Potomac Job Corps facility is operated by CGSI, not CGS, and that Golden could not plausib ly allege that CGS was his employer. See CGS’s Mot. at 3–6. Rather than c ontest CGS’s argument, Golden sought leave of court to file a Second Amended Complaint. See generally Pl.’s Mot. for Leave. Golden’s proposed amendment did not alter any of the facts from his prio r complaints other than replace CGS with CGSI, which Golden adm its is the “proper entity to be sued.” Pl.’s Mem. Supp. Mot.
Leave at 3. The Court has already found that th e First Amended Complaint fa iled to state a claim. These same deficiencies are als o present in Golden’s proposed a mendment. Thus, granting Golden’s motion and deeming his proposed amendment as filed wou ld be futile because it could not withstand a motion to dismiss. See James Madison Ltd. by Hecht v. Ludwig , 82 F.3d 1085, 1099 (D.C. Cir. 1996); United States ex rel. Westrick v. Second Chance Body Armor, Inc. , 893 F. Supp. 2d 258, 264 (D.D.C. 2012). However, the Court has also a lready granted Golden leave to cure deficiencies in his First Amended Complaint. 8 Because the Court is granting Golden leave

8 Even if Golden substitutes CGSI for CGS and alleges new facts curing the ADEA issues, that alone will not cur e the problems with his claims a gainst CGSI without additional facts demonstrating that CGSI was his employer. The D.C. Circu it has recognized that “an individual may be jointly empl oyed by two or more entities” and that, in making that determination, the critical inqui ry for the Court is the degree of control that the purported employer has over the empl oyment relationship. Al–Saffy v. Vilsack , 827 F.3d 85, 96 (D.C. Cir. 2016) (citing Redd v. Summers , 232 F.3d 933, 938–39 (D.C. Cir. 2000)). But Golden alleges t hat all of the purportedly unlawful e mployment actions in this case were carried out by MTC—not CGSI—and his Complaint is silenton the issue of CGSI’s control over Golden or other MTC employees. See First Am. Compl. ¶¶ 7, 11–14. Although Golden alleges that CGS I maintained a “human resources director at the [Potomac Job Corps facility] . . . [that] oversaw the duties and responsibilities of MTC’s hired s taff including [Golden],” Firs t Am. Compl. ¶ 6, it is not tantamount to an allegation that CGSI could “control and direct ” both the details and results of17 to cure these deficiencies, it will also permit Golden to repla ce CGS with CGSI as a defendant. 9

10

V. CONCLUSION For the foregoing reasons, the Court GRANTS Defendants’ motions to dismiss,
DENIES AS MOOT Plaintiff’s Motion for Leave t o Amend to File Second Amended Complaint, and DENIES AS MOOT CGS’s Motion To File Leave To File A Surreply. An order consistent with this Memo randum Opinion is separately and contemporaneously issued.
Dated: July 21, 2017 RUDOLPH CONTRERAS United States District Judge

Golden’s work or that it contro lled the “terms and conditions” of his employment, see Redd , 232 F.3d at 938. Thus, Golden’s alle gation of oversi ght, standing alone, is not enough to establish that CGSI was Golden’s employer. See Mack v. Aspen of DC, Inc. , 15-cv-1973, 2017 WL 1214395 at *3 (D.D.C. Mar. 31, 2017) (dismissing claims because allegation that plaintiff “reported to and [was] directl y supervised by” defendant was no t sufficient to establish that defendant was plaintiff’s “‘employer’ for purposes of Title VII liability”); Miles v. Howard Univ. , 83 F. Supp. 3d 105, 115 (D.D.C. 2015) (Defendant’s quality co ntrol oversight was “insufficient to establish that it was a joint employer of the plaintiff”). Although the joint employment inquiry is fact int ensive and a plaintiff need not a llege every facet of a relationship in order to sufficiently allege t hat a defendant is a joint emp loyer, more is needed here.
9 Although the Court does not decide the issue, the Court notes that CGS’s argument that an amended complaint adding CGSI would be time-barred and not r elate back to his original pleading because Golden must have known “the identity of CGSI” at that time, CGS’s Opp’n to Pl.’s Second Mot. Leave Am. C ompl. at 5–6, seems doubtful in li ght of the Supreme Court’s decision in Krupski v. Costa Crociere S. p. A. , 560 U.S. 538 (2010).
10 Because the Court resolves Golden’s motion for leave to amend his complaint on other grounds, the Court need not addres s CGS’s argument—which it rai sed in its opposition brief and in its proposed surreply, but not in its motion to dismiss—that Golden failed to exhaust his administrative remedies. Indeed, in this Circuit, a failure to exhaust administrative remedies under the ADEA is considered “an affirmative defense, not a jur isdictional requirement,” for which the defendant bears the bur den of proof and which is more properly considered on a motion for summary judgment. See Koch v. Walter , 935 F. Supp. 2d 164, 170 (D.D.C. 2013); Ahuja v. Detica Inc. , 742 F. Supp. 2d 96, 102–03 (D.D.C. 2010) (converting motion t o dismiss into motion for summary judgment in order to resolve defendant’ s arguments that plaintiff failed to exhaust administrative remedi es). Thus, the Court denies CG S’s motion for leave to file a surreply as moot.