RICHARD W. ROBERTS, District Judge.
Plaintiffs Kenneth Dickerson and fourteen other principals and assistant principals
The defendants oppose the plaintiffs' motion for leave to file, arguing that the plaintiffs' proposed amendments would not survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and therefore would be futile. However, the defendants fail to demonstrate that leave to file should be denied. "The defendant has the burden of showing why leave to file an amended complaint should not be granted." Smith v. Cafe Asia, 598 F.Supp.2d 45, 48 (D.D.C.2009). The decision whether to grant leave to amend a complaint is within the discretion of the court, but leave "should be freely given unless there is a good reason, such as futility, to the contrary." Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C.Cir.1996). "An amendment is futile `if the proposed claim would not survive a motion to dismiss.'" Smith, 598 F.Supp.2d at 48 (quoting James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C.Cir.1996)). A claim fails to survive a
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
The defendants argue that the plaintiffs' proposed 42 U.S.C. § 1981 count would be futile because it fails to state a claim since plaintiffs had no right to continued employment beyond their one-year contracts; the count neither alleges a contractual relationship with the Mayor or the Chancellor, nor amply alleges a factual basis for municipal liability (Defs.' Opp'n at 3-8); and the claim is barred by the CBA. (Defs.' Opp'n at 8-9.) The defendants also argue that the plaintiffs' claim for breach of employment contract is barred by the Comprehensive Merit Personnel Act ("CMPA").
Section 1981 of Title 42 of the United States Code serves to protect the right to make and enforce a contract free of racial discrimination. The statute defines making and enforcing contracts as "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). To establish a claim under § 1981, plaintiffs must show that (1) they are members of a racial minority group; (2) the defendant intended to discriminate on the basis of race; and (3) the discrimination pertained to one of the activities enumerated in the statute. Mitchell v. DCX, Inc., 274 F.Supp.2d 33, 44-45 (D.D.C.2003) (citing Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir.1996)); see also Mazloum v. Dist. of Columbia Metro. Police Dep't, 522 F.Supp.2d 24, 37 (D.D.C.2007). Here, the proposed second amended complaint alleges that the plaintiffs are all African-American or Hispanic males and females (Second Am. Compl. ¶¶ 35, 41), that the defendants discriminated against them based on race (Second Am. Compl. ¶¶ 38, 78), and that the enumerated activity pertained to following contractual evaluation procedures and terminating the employment contracts (Second Am. Compl. ¶¶ 77-78). Whatever limitation may have existed on plaintiff's right to continued employment, plaintiffs have amply alleged that while they were employed, their right to have evaluations and termination decisions be free from racial discrimination was violated.
The defendants argue that the proposed amended complaint does not contain a viable cause of action under 42 U.S.C.
The defendants also argue that the plaintiffs' proposed amended complaint does not allege that a policy or custom of the District of Columbia was the "moving force" that caused the discriminatory interference with their contract rights. (Defs.' Mem. at 4-5.) To allege a claim under § 1981 against a municipality, a plaintiff must allege that the violation of the right to make and enforce contracts protected by § 1981 was caused by the municipality's custom or policy. See Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Smith v. Janey, 664 F.Supp.2d 1, 9 (D.D.C.2009). The District's custom or policy may cause a violation of the right to make or enforce contracts under several different circumstances. The District or one of its policymakers may explicitly adopt a policy that is the moving force behind a violation. Warren v. Dist. of Columbia, 353 F.3d 36, 39 (D.C.Cir.2004). Another way to allege that a policy or custom caused the violation is to allege that a policymaker knowingly ignored a practice that was consistent enough to constitute a custom. Id. The unconstitutional discrimination could also be "so widespread as to constitute a custom, practice or policy. . . ." Reed v. Dist. of Columbia, 474 F.Supp.2d 163, 168 (D.D.C.2007). An agency practice need not be "authorized by written law," but may be "so permanent and well settled as to constitute a `custom or usage' with the force of law." Monell, 436 U.S. at 691, 98 S.Ct. 2018. Here, the proposed second amended complaint alleges that at all times relevant to the complaint, the DCPS acted "by and through its Chancellor, Michelle Rhee," and that as Chancellor, Rhee had "authority to make operational decisions for DCPS, inclusive of personnel matters affecting the DCPS educational service (including staff, administrative employees, contractors, and others providing services to DCPS)," and that Rhee engineered the discriminatory mass firings. (Second Am. Compl. ¶¶ 26-30.) Therefore, the proposed second amended complaint alleges that a policymaker, Rhee, adopted or actually initiated, the repeated discriminatory practice curtailing the plaintiffs' contract rights.
The defendants assert that the plaintiffs' § 1981 claims are barred by the provision in the CBA that states that "any complaint concerning discrimination as prohibited by the D.C. Human Rights Law shall be processed under procedures provided in D.C. Official Code § 2-1403.04." (Defs.' Opp'n at 8-9.) However, that provision of the CBA does not state that it
The defendants maintain that the plaintiffs' breach of contract claims would be futile because plaintiffs failed to pursue their exclusive remedies provided under the Comprehensive Merit Personnel Act ("CMPA"), D.C.Code § 1-601.01 et seq. The CMPA assures "that the District of Columbia government shall have a modern flexible system of public personnel administration, which shall . . . [e]stablish impartial and comprehensive administrative or negotiated procedures for resolving employee grievances." D.C.Code § 1-601.02(a)(5); Robinson v. Dist. of Columbia, 748 A.2d 409, 411 (D.C.2000) (stating that "[w]ith few exceptions, the CMPA is the exclusive remedy for a District of Columbia public employee who has a work-related complaint of any kind"). With the CMPA, the District "sought to create a mechanism for addressing virtually every conceivable personnel issue among the District, its employees, and their unions— with a reviewing role for the courts as a last resort, not a supplementary role for the courts as an alternative forum." Alexis v. Dist. of Columbia, 44 F.Supp.2d 331, 349 (D.D.C.1999) (internal quotation omitted). "Based on the CMPA's administrative scheme, courts in this district have repeatedly dismissed claims that have not been initially pursued under the CMPA's procedures." Payne v. Dist. of Columbia, 592 F.Supp.2d 29, 35 (D.D.C.2008).
Here, in the proposed second amended complaint, the plaintiffs allege that they did attempt to exhaust their administrative remedies under the CBA by raising grievances through their collective bargaining unit (Second Am. Compl. ¶ 57, Ex. 2 (Grant Aff.) at 6-7), and proceeding to the Office of Employee Appeals, the organ the defendants cite as being part of the CMPA exhaustion process (Defs.' Opp'n at 10). It is premature to conclude from this briefing that the plaintiffs failed to exhaust their administrative remedies and that permitting their new claims would be futile.
Therefore, it is hereby
ORDERED that the plaintiffs' motion [Docket Entry 4] for leave to file an second amended complaint be, and hereby is, GRANTED. The Clerk is directed to docket as the Second Amended Complaint the exhibit attached to the Notice of Errata [Docket Entry 7]. It is further
ORDERED that the defendants' motion [Docket Entry 5] to dismiss the first amended complaint be, and hereby is, DENIED without prejudice as moot. It is further
ORDERED that the plaintiffs' motion [Docket Entry 13] for an extension of time to file a motion for class certification be, and hereby is, GRANTED. The plaintiffs' motion shall be filed 90 days after the defendants file an answer.