Plaintiff argues that Defendant violated its own disciplinary policies in terminating him and that this is evidence of pretext. See Mansfield v. Holder, Civ. A. No. 09-cv-5718, 2012 WL 406432, at *23 (E.D. Pa. Feb. 9, 2012) (acknowledging that “an employer's failure to follow a disciplinary policy might demonstrate pretext” (citing Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 80 (3d Cir. 1983))). However, Defendant's own policy states that the disciplinary policy progressive nature may skip levels: “Disciplinary action will be progressive; verbal reprimand, time off without pay, discharge....Progressive discipline may also ‘skip' less severe disciplinary action if the violation warrants, even if there have been no previous disciplinary action taken against the employee.”
This action is a protected activity under the ADA. See Mansfield v. Holder, No. 09–cv–5718, 2012 WL 406432, at *19 (E.D.Pa. Feb. 9, 2012) (“Protected activity includes ... making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing pursuant to the Act.”) (citations omitted) (emphasis added); Carroll v. N.C. Dep't of Health & Human Servs., No. 4:00–CV–159–H(4), 2001 WL 34013436, at *4 (E.D.N.C. July 17, 2001) (“it is clear that the plaintiff engaged in protected activity by filing EEOC charges”). Evans alleges that she informed the EEOC on August 3, 2009, that her co-worker had been wrongfully terminated, that Carmi “forced/requested [ ] staff [ ] to complete a survey ... and submit statements that [her coworker] was sleeping on the job,” and that there had been no formal discussions at Larchmont regarding sleeping on the job.