ROGER W. TITUS, District Judge.
Plaintiff Kiana Marshall initiated this lawsuit against her former employer, Defendant AIMCO/Bethesda Holdings, Inc., in December of 2010. Plaintiff alleges unlawful discharge and harassment in violation of the Age Discrimination in Employment Act. On February 8, 2013, Defendant filed a motion to dismiss. For the reasons discussed below, the motion will be granted.
On April 25, 2008, Plaintiff, a pro se litigant, was discharged from her employment with AIMCO/Bethesda Holdings, Inc. ECF No. 1 at 1-2. On June 12, 2008, Plaintiff filed a complaint with the Maryland Human Relations Commission. See ECF No. 1 at 3. On October 18, 2010, the United States Equal Employment Opportunity Commission ("E.E.O.C") sent Plaintiff a right to sue letter. ECF No. 1, Ex. 1. On December 23, 2010, within the requisite 90 days, the present action was filed. See 29 U.S.C. §626(e); ECF No.1.
The complaint alleges employment discrimination under the Age Discrimination in Employment Act ("ADEA") of 1967, as amended, 29 U.S.C. §§ 621, et seq., claiming that Plaintiff was discharged and harassed due to her age. ECF No. 1 at 1-3. Plaintiff asserts that she was "harassed" by a co-worker who had an aggressive and intimidating demeanor. Id. at 2. Plaintiff further claims that management permitted the harassment to continue, in violation of its existing policies and procedures, due to Plaintiff's age. Id. Plaintiff alleges that she was told to ignore the co-worker's behavior because Plaintiff "was the older party." Id. at 3.
On December 11, 2012, after Plaintiff had failed numerous times to properly serve Defendant, despite instructions from the Court, Defendant waived service. ECF No. 21. On February 25, 2013, Defendant moved to dismiss the case for failure to state a claim. ECF No. 23. Defendant asserts that Plaintiff has failed to allege a prima facie case for age discrimination, claiming that the complaint does not support a discriminatory discharge or harassment claim. Id. In her response, Plaintiff failed to address any of the issues raised in Defendant's motion. See ECF No. 25.
STANDARD OF REVIEW
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A court must consider all well-pleaded allegations in a complaint as true, see Albright v. Oliver, 510 U.S. 266, 268 (1994), and must construe factual allegations in the light most favorable to the plaintiff. See Lambeth v. Bd. of Comm'rs of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005). To survive a 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) (quotation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "But where 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 shown'-that the pleader is entitled to relief." Id. at 679; see also Simmons & United Mortg. & Loan Invest., 634 F.3d 754, 768 (4th Cir. 2011) ("On a Rule 12(b)(6) motion, a complaint must be dismissed if it does not allege enough facts to state a claim to relief that is plausible on its face.") (quotation and emphasis omitted). "Thus, in reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) a court must determine whether it is plausible that the factual allegations in the complaint are enough to raise a right to relief above the speculative level.'" Monroe v. City of Charlottesville, 579 F.3d 380, 386 (4th Cir. 2009) (quoting Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009)).
I. Count I - Wrongful Termination
Under the ADEA, an employer cannot terminate or discriminate against an employee based on age. 29 U.S.C. § 623(a)(1). An age discrimination claim requires Plaintiff to allege that age played a role and was a determinative influence on an adverse employment decision. See Reeves v. Sanderson Plumbing Prods., Inc., 530 US. 133, 141 (2000). There are two ways to establish an age discrimination claim: (1) the McDonnell Douglas burden-shifting framework or (2) the "mixed motive" framework. Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 284-85 (4th Cir. 2004).
A. McDonnell Douglas Framework
Under the McDonnell Douglas framework, Plaintiff must allege a prima facie case of discrimination. Hill, 354 F.3d at 285. Defendant may rebut Plaintiff's allegations by showing a legitimate, nondiscriminatory reason for the adverse employment action, which shifts the burden back to Plaintiff to show pretext. Id.
To establish a prima face case, Plaintiff must allege that (1) she is part of the protected class; (2) she was qualified for the job and her job performance met the employer's legitimate expectations; (3) she was discharged; and (4) after discharge, the position either remained open or was filled by a person substantially younger with similar qualifications. Warch v. Ohio, 435 F.3d 510, 513 (4th Cir. ...