BERYL A. HOWELL, District Judge.
Plaintiffs are nine current and former employees of the District of Columbia's Child and Family Services Agency ("CFSA"), who assert that the CFSA "discriminated against them and similarly situated employees on the basis of their race, national origin, age, and/or in retaliation for complaining about discriminatory practices." Second Amended Complaint ("Compl."), ECF No. 17, at 2. As a consequence of CFSA's alleged discriminatory and retaliatory actions, plaintiffs claim that they are entitled to damages under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 633a(a), the District of Columbia Human Rights Act ("DCHRA"), and 42 U.S.C. §§ 1981 and 1983.
Pending before the Court are (1) the defendant's motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss plaintiffs' Second Amended Complaint, and (2) two motions, pursuant to Rule 24 of the Federal Rules of Civil Procedure, for leave to permit nine additional current and former employees of CFSA to intervene as plaintiffs in this action. All together, the plaintiffs' Complaint and proposed intervenors' Complaints-in-intervention amount to over one hundred pages and over one thousand numbered paragraphs. They have alleged such a plethora of facts that they have made clear their success on the merits is impossible. For the reasons set forth below, the Court finds that the claims of six plaintiffs are barred by res judicata or failure to meet the procedural prerequisites for bringing this action, and the claims of the three remaining plaintiffs fail to state cognizable causes of action. Consequently, the defendant's motion to dismiss is granted and the motions to intervene are denied.
Two plaintiffs, Angella Peters
The plaintiffs have continued to seek leave to add plaintiffs to this action. On July 23, 2010, and again on April 22, 2011, the plaintiffs moved, pursuant to Federal Rule of Civil Procedure 24, to allow a total of nine additional putative plaintiffs to intervene. These motions to intervene are opposed by the defendant and have been denied by Order entered on March 30, 2012. This Memorandum Opinion sets forth the reasons for that Order.
The nine plaintiffs named in the Second Amended Complaint are black women and men who have worked as caseworkers and supervisors at the CFSA for varying lengths of time, ranging from three to eighteen years. Four of the plaintiffs are current or former caseworkers and the other five plaintiffs are current or former supervisors. The four caseworker plaintiffs (Angella Peters, Larry McCall, Maria Dyson and Katherine Washington) complain primarily about the allegedly abusive and discriminatory conduct directed at them by a single supervisor. Three of these caseworker plaintiffs apparently remain employed at CFSA: both Maria Dyson and Katherine Washington remain caseworkers in Child Protective Services ("CPS"), a component of CFSA, and Larry McCall's current assignment is not identified. The five management plaintiffs (Cynthia Courts-Marshall, Jacqueline Moore, Joan Simpson, Augustine Ekwem and Melva Meade), complain about the conduct of at least eight other managers at CFSA, including the CFSA Deputy Director of Operations, for allegedly creating a hostile work environment, and discriminatory and retaliatory conduct. Two of the management plaintiffs (Augustine Ekwem and Melva Meade) remain employed at CFSA, while the other three management plaintiffs (Cynthia Courts-Marshall, Jacqueline Moore and Joan Simpson) are no longer employed at CFSA.
The Second Amended Complaint asserts two core allegations against CFSA: first, "[f]rom as early as 2001, the Child and Family Services Agency had a custom of allowing its supervisors to bully older, black social workers, particularly those from Africa or the Caribbean Islands," and this conduct created a hostile work environment that management condoned. Compl. at 2. Second, CFSA, from as early as 2003, "had a custom of allowing its supervisors to retaliate against social workers who complain about discriminatory practices." Id. The alleged retaliatory actions against the plaintiffs took different forms, ranging from re-assignment of duties to demotion in position to the unfair assignment of an overwhelming caseload. Specifically, the four caseworker plaintiffs complain that, following the tragic discovery, in January 2008, of the deaths of Banita Jacks' four young daughters in a Washington, D.C. row house, there was a "surge in [the number of] child abuse and neglect reports." Id. ¶¶ 75-89 (Peters), ¶¶ 125-33 (McCall), ¶¶ 166-93 (Dyson), ¶¶ 213-28 (Washington). While acknowledging this across-the-board increase in
All nine plaintiffs claim that they were discriminated against on the basis of race and subjected or exposed to a hostile work environment during at least some portion of their employment at CFSA between 2001 and 2009.
The Title VII and ADEA discrimination claims asserted by each plaintiff are summarized in the chart below.
Plaintiff-Position Discrimination based upon: Hostile Work Race (Black) National Origin Age Gender Environment Retaliation Peters-Caseworker ✓ ✓(Jamaican) ✓(51) NO ✓ ✓ McCall-Caseworker ✓ NO NO(57) NO ✓ ✓ Washington-Caseworker ✓ NO NO(52) NO ✓ ✓ Dyson-Caseworker ✓ NO ✓(49) NO ✓ ✓ Meade-Supervisor ✓ NO NO(60) NO ✓ NO
Ekwem-Supervisor ✓ ✓(Nigerian) ✓(52) ✓(Male) ✓ NO Simpson-Supervisor ✓ ✓(Jamaican) NO(52) NO ✓ NO Moore-Supervisor ✓ ✓(Trinidadian) ✓(66) NO ✓ ✓ Courts-Marshall-Administrator ✓ NO ✓(46) NO ✓ ✓
The factual allegations underlying the claims of discrimination, hostile work environment and retaliatory actions vary among the plaintiffs, as described in more detail below. Detailed review of these claims, viewing the claims in the light most favorable to the plaintiffs, is necessary to assess their sufficiency and whether they "plausibly give rise to an entitlement to relief," as required by Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1941, 173 L.Ed.2d 868 (2009).
Four of the plaintiffs served as caseworkers in CFSA's Child Protective Services and complain about the allegedly discriminatory and retaliatory conduct of the same supervisor.
Plaintiff Joan Simpson is a 52-year old black woman of Jamaican origin, who was a CPS supervisor from 2005 until 2008, when she was "terminated as a result of
The defendant has moved to dismiss the Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. In evaluating whether a complaint sufficiently states a claim for relief to withstand a motion to dismiss under this Rule, the court must first ascertain whether the complaint contains "a short and plain statement of the claim showing that the pleader is entitled to relief," as well as grounds for the court's jurisdiction and the specific relief sought. FED.R.CIV.P. (8)(a). While "detailed factual allegations" are not required, the complaint must "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citation and quotation marks omitted); see also Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C.Cir.2004). In assessing whether a complaint is sufficient, the "court `constru[es] the complaint liberally in the plaintiff's favor,' `accept[ing] as true all of the factual allegations contained in the complaint.'" Aktieselskabet AF 21. November 2001 v. Fame Jeans, 525 F.3d 8, 15 (D.C.Cir.2008) (quoting Kassem v. Wash. Hosp. Ctr., 513 F.3d 251 (D.C.Cir. 2008)); see also Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C.Cir. 2009).
Notably, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. 1937, 1940. Thus, the complaint must set forth more
"To survive a motion to dismiss, the pleadings must suggest a plausible scenario that shows that the pleader is entitled to relief." Jones v. Horne, 634 F.3d 588, 595 (D.C.Cir.2011) (internal citation and quotations omitted); see also Ivey v. Fenty, 789 F.Supp.2d 65, 68 (D.D.C.2011) ("A claim is facially plausible when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.") (internal citations and quotations marks omitted). The plausibility standard for pleading demands more than that the factual allegations present a "sheer possibility that a defendant has acted unlawfully," and requires a "common sense," "context-specific" examination of the pleadings to "determine whether they plausibly give rise to an entitlement to relief." Iqbal, 129 S.Ct. at 1949; see also Twombly, 550 U.S. at 567-70, 127 S.Ct. 1955 (antitrust complaint dismissed because allegations of parallel conduct, even accepted as true, were consistent with an unlawful agreement but also compatible with, and indeed more likely explained by, lawful, unchoreographed free-market behavior and, therefore, did not plausibly suggest an unlawful agreement). "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 129 S.Ct. at 1949 (citation and internal quotation marks omitted). Indeed, to "enter the realm of plausible liability," the factual allegations must be more than merely "neutral" or "suggestive," and plaintiffs must "[nudge] their claims across the line from conceivable to plausible." Twombly, 550 U.S. at 557 n. 5, 570, 127 S.Ct. 1955.
Consequently, when evaluating whether a complaint sufficiently sets forth a plausible claim for relief under Rule 12(b)(6), the court must apply a two-pronged approach, which, first, "identif[ies] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 129 S.Ct. at 1950. Second, the court must examine the factual allegations and, assuming their veracity, "then determine whether they plausibly give rise to an entitlement to relief." Id. Absent factual matter permitting the court "to infer `more than the mere possibility of misconduct,'" the complaint must be dismissed. Jones, 634 F.3d at 596 (quoting Atherton, 567 F.3d at 681-82).
The Court first turns to Plaintiff Ekwem's claims. The defendant contends that the claims asserted by Plaintiff Augustine Ekwem should be dismissed because he is barred from asserting them under the doctrine of res judicata. Indeed, Ekwem concedes that he was an individual plaintiff in a separate lawsuit previously filed in this Court arising out of his employment at CFSA. Pls.' Mem. at 26. His prior lawsuit was dismissed with prejudice less than two months before joining this suit, on December 10, 2009, as a plaintiff in the First Amended Complaint. See Ekwem v. Fenty, 666 F.Supp.2d 71, 81 (D.D.C.2009) ("The Court dismisses plaintiff's federal claims because he has failed to state a claim for which relief can be granted [and] declines to exercise supplemental jurisdiction and dismisses plaintiff's state law claims without prejudice."). For the reasons discussed below, Ekwem's claims are barred under the doctrine of claim preclusion or res judicata. Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008).
"The doctrine of res judicata prevents repetitious litigation involving the same causes of action or the same issues." Sheppard v. District of Columbia, 791 F.Supp.2d 1, 4 (D.D.C.2011) (citing I.A.M. Nat'l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 946 (D.C.Cir.1983)). Under claim preclusion, a subsequent lawsuit will be barred if there has been prior litigation (1) involving the same claims or cause of action, (2) between the same parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction. See Porter v. Shah, 606 F.3d 809, 813 (D.C.Cir. 2010); Smalls v. United States, 471 F.3d 186, 192 (D.C.Cir.2006) (citing Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 323-24, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Comm'r of Internal Revenue v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715,
Moreover, a "`final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.'" Drake v. FAA, 291 F.3d 59, 66 (D.C.Cir.2002) (quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)) (emphasis in original); see also Int'l Union v. Clark, No. 02-1484, 2006 WL 2598046, at *12 n. 19, 2006 U.S. Dist. LEXIS 64449, at *46 n. 19 (D.D.C. Sept. 11, 2006) ("[I]ndividual who did properly exhaust his administrative remedies ... is nevertheless barred from maintaining his Rehabilitation Act claim in this case because he litigated that claim to a judgment on the merits in [another] case.... The doctrine of res judicata therefore applies to [that plaintiff]'s claim and requires dismissal of his claim."). There is no question here that the third and fourth prongs have been met since Ekwem's prior lawsuit was dismissed in a final judgment on the merits by another judge from this Court. Thus, only the first and second factors for application of the res judicata doctrine need be addressed.
In his dismissed complaint, Ekwem claimed, inter alia, that the defendants — the Mayor of the District of Columbia and CFSA — allegedly discriminated against him in violation of his right to equal protection under the Fifth Amendment, and conspired to deprive him of those rights in violation of 42 U.S.C. §§ 1983, 1985, 1986 and 1988. Ekwem concedes that both of his lawsuits "allege employment discrimination at the [CFSA]," but argues that the first prong required for application of res judicata is not met. Pls.' Mem. at 26. Specifically, he contends that his current Complaint differs from the dismissed claims in two ways: first, the instant Complaint focuses on "a hostile work environment claim under Title VII, § 1981, ADEA, and DCHRA;" and, second, the instant Complaint asserts different facts regarding the "constructive terminations" of co-workers in November 2009 that were not in existence at the time of his prior lawsuit. Id.
The fact that the causes of action here are not identical to the causes of action in the prior suit, however, does not overcome application of the res judicata doctrine to bar Ekwen's claims. "Whether two cases implicate the same cause of action turns on whether they share the same `nucleus of facts.'" Apotex, Inc. v. FDA, 393 F.3d 210, 217 (D.C.Cir.2004) (quoting Drake, 291 F.3d at 66); Page v. United States, 729 F.2d 818, 820 (D.C.Cir.1984). The factual allegations underpinning Ekwem's current claims mirror those in the dismissed action. In the dismissed action, for example, Ekwem alleged that he was unfairly assigned an overwhelming number of cases to supervise in 2008 and that he was improperly disciplined after the death of a child whose case had been assigned to a caseworker under Ekwen's supervision. Ekwem, 666 F.Supp.2d at 74-75. He asserts the same allegations in the instant complaint, namely, that his workload increased significantly in 2008 and that by June of 2008, he had been assigned more caseworkers than any other supervisor. Compl. ¶¶ 446, 452. The instant Complaint also avers that a caseworker under Ekwem's supervision was assigned a child abuse and neglect case "which concluded on June 25, 2008 with the death of a six month old boy." Id. ¶ 457. According to the Second Amended Complaint, the caseworker was terminated and, on July 9, 2008, Ekwem was placed on administrative leave. Id. ¶¶ 462-63. Based on this conduct,
Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. In this action, Ekwem reasserts claims of discrimination that have been previously decided on the merits, and a new claim of "hostile work environment" that arises from the same factual basis and thus could have been brought in his prior lawsuit. Despite the differences in legal theories, both actions advanced by Ekwem relate largely to the same time period and turn on allegations that Ekwem was unfairly assigned too many cases and too many caseworkers to supervise, which resulted in him being improperly suspended. The claims he asserts here could have been brought in that action and, having skipped that opportunity, he is not allowed to assert them here.
Finally, as to the last factor, the parties in the dismissed lawsuit are the same parties in this litigation. In the prior action, Ekwem named Adrian Fenty, in his official capacity as Mayor of the District of Columbia, and the CFSA as defendants. See Ekwem, 666 F.Supp.2d at 74. The real party in interest for the Mayor and CFSA in the dismissed lawsuit was the District, which is the same defendant as in the instant action. See Sheppard, 791 F.Supp.2d at 7 n. 6 ("Claims against the Mayor of the District of Columbia in his official capacity are construed as claims against the District itself.") (citing Atchinson v. District of Columbia, 73 F.3d 418, 424 (D.C.Cir.1996)); Waker v. Brown, 754 F.Supp.2d 62, 65 (D.D.C.2010) (substituting the District of Columbia in place of mayor, police chief, and Department of Corrections); Henneghan v. D.C. Pub. Schs., 597 F.Supp.2d 34, 37 (D.D.C.2009) (substituting the District of Columbia for DCPS).
In sum, Ekwem's instant claims are against the same party, the District of Columbia, involve the same core factual allegations, the same discrimination claims, and new claims that could have been raised in the prior dismissed action. Thus, his claims are barred by res judicata and are therefore dismissed.
The defendant has moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the claims of the remaining eight plaintiffs on grounds that: first, the plaintiffs' statutory claims under Title VII and the ADEA are barred for failure to exhaust administrative remedies; and second, the allegations of discrimination underlying the plaintiffs' Title VII, ADEA, 42 U.S.C. §§ 1981 and 1983, and DCHRA claims are insufficient either under the McDonnell-Douglas framework or to demonstrate the requisite custom or policy of the District of Columbia to establish municipal liability. These arguments
The defendant argues for dismissal of the Title VII and ADEA claims in the Second Amended Complaint, except the claims asserted by Peters, as untimely due to the failure to exhaust administrative remedies. Def.'s Mem. at 11. At the time of filing the Second Amended Complaint only Peters had received a Right-to-Sue letter from the Equal Employment Opportunity Commission ("EEOC"), even though both McCall and Moore had also filed EEOC complaints. Compl. ¶¶ 2-4. Both McCall and Moore subsequently received their right-to-sue letters on March 19 and August 26, 2010, respectively. Pls.' Mem. at 11, 28; Pls.' EEOC Docs, ECF No. 30-2.
The defendant does not address the impact of receipt by McCall and Moore of their EEOC right-to-sue letters after the filing of this lawsuit. Instead, the defendant analyzes the claims of these two plaintiffs as part of the group of plaintiffs who filed no complaint with the EEOC ("non-filing plaintiffs"), and argues that the Title VII and ADEA claims of all eight of these plaintiffs should be dismissed for failure to exhaust administrative remedies before filing suit. The plaintiffs contend that any non-filing plaintiff may rely on "vicarious exhaustion" to assert his or her discrimination claims here. The defendant counters that "the diverse and varied nature" of the plaintiffs' claims precludes the availability of vicarious exhaustion to excuse the failure to exhaust administrative
Generally, exhaustion of administrative remedies by filing a charge of discrimination with the EEOC is required before a plaintiff may bring a civil suit under Title VII or the ADEA. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n. 4, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); Washington v. Wash. Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C.Cir.1998) ("Before ... suing under either the ADEA or Title VII, an aggrieved party must exhaust his administrative remedies...."); McKeithan v. Boarman, 803 F.Supp.2d 63, n. 3 (D.D.C.2011); see also 29 U.S.C. § 626(d)(1); 42 U.S.C. § 2000e-5(f)(1). "The purpose of the [administrative exhaustion] doctrine is to afford the agency an opportunity to resolve the matter internally and to avoid unnecessarily burdening the courts." Artis v. Bernanke, 630 F.3d 1031, 1034 (D.C.Cir.2011) (quoting Wilson v. Pena, 79 F.3d 154, 165 (D.C.Cir.1996)). Ordinarily, as proof of such exhaustion of administrative remedies, a plaintiff would receive a right-to-sue letter from the EEOC, indicating either the EEOC's dismissal of the case or its inability to bring a civil action within 180 days of the plaintiff's EEOC charge. 42 U.S.C. § 2000e-5(f)(1); see also Park v. Howard Univ., 71 F.3d 904, 907 (D.C.Cir.1995) ("Only after the EEOC has notified the aggrieved person of its decision to dismiss or its inability to bring a civil action within the requisite time period can that person bring a civil action herself."); Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363, 1366 (D.C.Cir.1998); Adams v. District of Columbia, 740 F.Supp.2d 173, 186 (D.D.C. 2010). Thus, receipt of a notice of right-to-sue letter is a condition precedent to the initiation of a Title VII or ADEA action in court. See Williams v. Wash. Metro. Area Transit Auth., 721 F.2d 1412, 1418 n. 12 (D.C.Cir.1983); Bondy v. Humana, Inc., No. 95-456, 1996 U.S. Dist. LEXIS 10035, at *10 (D.D.C.1996); see also Tlush v. Mfrs. Res. Ctr., 315 F.Supp.2d 650, 655 (E.D.Pa.2002) (receipt of right-to-sue letter from the EEOC is a condition precedent to filing a Title VII claim).
At the outset, the defendant does not challenge Peters' claims under Title VII or the ADEA for failure to exhaust administrative remedies since she received her EEOC right-to-sue letters on March 2, 2010, after the filing of the original and First Amended Complaint, on October 28, 2009 and December 10, 2009, respectively, but before the filing of the Second Amended Complaint on March 16, 2010. Compl. ¶ 2; Pls.' EEOC Docs, ECF No. 30-1. Moore "received her Right to Sue Letter on March 19, 2010," after the filing of both the First Amended Complaint, when Moore first joined the action as a plaintiff, and the Second Amended Complaint. Pls.' Mem. at 11, 28; Compl. ¶ 4; Pls.' EEOC Docs., ECF No. 30-3. McCall received his right-to-sue letters from the EEOC for both his Title VII and ADEA claims on August 26, 2010, after the filing of all three complaints. Compl. ¶ 3. Pls.' EEOC Docs., ECF No. 30-2.
The remaining five plaintiffs (Dyson, Washington, Meade, Simpson, and Courts-Marshall) have concededly not previously filed any complaints with the EEOC, despite the requirement that all employment discrimination claims be initially and timely filed with the EEOC prior to pursuing relief in court. These five plaintiffs rely upon the "single-filing" exception to the normal rule to urge the Court to allow them to "piggy-back" on Peters' perfected charge and, presumably, the now perfected charges of McCall and Moore.
In Cook v. Boorstin, 763 F.2d 1462 (D.C.Cir.1985), which is relied upon by plaintiffs, see Pls.' Mem. at 10, the court explained that "the critical factor in determining whether an individual Title VII plaintiff must file an [administrative] charge, or whether he may escape this requirement by joining with another plaintiff who has filed such a charge, is the similarity of the two plaintiffs' complaints." Cook, 763 F.2d at 1466 (internal quotation marks omitted). In assessing the similarity of claims, the court provided a practical test, explaining that "[w]here the two claims are so similar that it can fairly be said that no conciliatory purpose would be served by filing separate [administrative] charges, then it would be wasteful, if not vain ... to require separate ... filings." Id. (quoting Foster, 655 F.2d at 1322) (internal quotations omitted). The court cautioned, however, that "where the two complaints differ to the extent that there is a real possibility that one of the claims might be administratively settled while the other can be resolved only by the courts... each plaintiff should be required to separately file ... [a] charge in order to effectuate the purpose of Title VII's provisions for administrative relief." Id. (internal emphasis omitted); see also De Medina v. Reinhardt, 686 F.2d 997, 1012 (D.C.Cir.1982) (reversing district court's dismissal of intervenor's claim upon finding that "her claim was so similar to that made by [plaintiff], who had filed an EEOC charge ... that it can fairly be said that no conciliatory purpose would be served by filing separate EEOC charges"); Byrd, 807 F.Supp.2d at 63 ("The similarity of two claims is evaluated for whether the original filing performs the principal notice function of the EEOC filing requirement, thus rendering a second filing by a similarly situated plaintiff unnecessary and wasteful."); Moore v. Chertoff, 437 F.Supp.2d 156, 163 (D.D.C.2006) ("A plaintiff may invoke the doctrine of vicarious exhaustion only if one plaintiff actually has exhausted his or her claims and if the exhausted claims are so similar to the unexhausted claims ..."); Int'l Union v. Clark, No. 02-1484, 2006 WL 2598046, at *10, 2006 U.S. Dist. LEXIS 64449, at *37 (D.D.C. Sept. 11, 2006) (failure of some plaintiffs to exhaust their administrative remedies may be excused "so long [as] one of their co-plaintiffs has properly exhausted a claim that is `so similar that it can fairly be said that no conciliatory purpose would be served by filing separate [administrative complaints]'").
As noted above, the exhaustion requirement serves the dual purpose of notice to the employer of the charge and an opportunity for both the employer and the EEOC to settle the dispute. For this
The district court in Byrd v. District of Columbia reached a different result. In that Title VII lawsuit, four plaintiff-employees alleged sexual harassment and retaliation by two male supervisors at the D.C. Department of Parks and Recreation. Byrd, 807 F.Supp.2d at 45. Chief Judge Lamberth reviewed the original EEOC charge and a supporting internal report submitted to the EEOC to determine whether a plaintiff, who never filed an EEOC complaint before joining the lawsuit, was permitted to "piggy-back" on her co-plaintiffs' perfected administrative complaints. Id. at 63. Despite certain similarities of legal claims and "overlapping" facts between the EEOC charge and the factual allegations asserted by the plaintiff, Chief Judge Lamberth concluded that the plaintiff's complaint would require "a different
The Court finds that the legal and factual issues at stake in the instant matter are more akin to those in Byrd, where the court determined vicarious exhaustion was unavailable, than in Brooks. The Second Amended Complaint summarily mentions that Peters, McCall and Moore filed charges with the EEOC, without any description of the precise factual allegations presented to that agency. No party to the instant action provided the Court with a copy or details regarding the contents of these perfected EEOC charges in order to assess the sufficiency of notice about the discrimination allegations, until the Court so directed. In its briefing, the defendant relies solely on a comparison of factual allegations and legal claims asserted by the plaintiffs in the Second Amended Complaint to show that they are so "diverse and varied" and "wide-ranging" that "separate administrative adjudication was not only possible, but necessary." Def.'s Reply at 3. In the defendant's view, the five non-filing plaintiffs (Dyson, Washington, Simpson, Meade and Courts-Marshall)
The legal claims of the five non-filing plaintiffs are not identical to those asserted by McCall, Moore, and Peters in the Second Amended Complaint or in their perfected EEOC charges. In the Second Amended Complaint, the three filing plaintiffs each assert claims of race discrimination, hostile work environment and retaliation, and both Moore and Peters also assert claims of age and non-American born national origin discrimination, all of which were stated in their respective EEOC charges. While each of the non-filing plaintiffs assert legal claims of race discrimination and hostile work environment within CPS during all or part of the same time period from 2005 to 2009, only one (Simpson) claims national origin discrimination, two (Washington and Dyson) claim age discrimination and four (claim retaliation). Thus, the non-filing plaintiffs provide different combinations of protected status for their discrimination claims than those included in the perfected EEOC charges of Peters, McCall, and Moore.
The differences in their legal claims undercut each other. Peters and Moore's EEOC charges assert age and national origin discrimination based upon the alleged assignment of more work and the alleged harsher scrutiny given to older, non-American born black caseworkers and supervisors. More precisely, Peters states in her EEOC charge that black caseworkers and supervisors, who are "age 40 and over, and non-American born are systematically assigned more work and subjected to harsher scrutiny than others who are not in these categories." Pls.' EEOC Docs., No. 30-1, at 1. Moore indicates in her EEOC charge that she has "been subjected to differential treatment as compared to my non-Trinidadian co-workers," including that after a leave, she "discover[ed]
The differences in the factual allegations pertaining to each plaintiff's claims also undercut each other. For example, notably, Moore was one of four supervisors detailed to CPS to assist with the surge in cases after the Jacks tragedy, and despite her "humiliat[ion] by her demotion to hotline caseworker," she "received compliments on her work and a very good job performance evaluation," after which she was "officially reinstated to the position of supervisor and given a staff." Compl. ¶¶ 285-92. Moore's positive experience is difficult to square with the allegations of race, age and national origin discrimination directed at CPS caseworkers alleged by her co-plaintiffs. The Second Amended Complaint further undermines this core racial and national origin discrimination claim with inconsistent allegations that employees who were not black also suffered discriminatory actions. See, e.g., id. ¶¶ 176-88 (Dyson) (Indian co-worker also assigned more cases than "white," "younger" co-workers); id. ¶ 37 (Peters) (Supervisor A "bullied" white caseworkers). As the defendant observes, "the individual plaintiffs' allegations are so varied that they even contradict themselves." Def.'s Reply Mem. at 3.
Although the non-filing plaintiffs' legal claims overlap with those of the perfected EEOC charges, this is not enough to excuse the bypassing of the administrative process for these five plaintiffs when the underlying factual allegations for each of their claims differ significantly. The single-filing doctrine is limited to cases in which the legal claims are identical and arise from the same facts, not merely from overlapping or similar facts that may be linked to each other because the facts involve employees of the same agency. Indeed, just because the plaintiffs claim to have suffered a violation of one or more of the same provisions of law as contained in the perfected EEOC charges does not mean that their claims depend upon a shared set of facts or a common injury that would have provided notice of the individual claims. Unlike Brooks, where not only the legal claims were identical but also the factual allegations supporting those claims stemmed from the employer's use of the same challenged hiring practice, Peters, McCall and Moore's perfected administrative charges each allege distinct factual events that not only differ among themselves but also from those of the five non-filing plaintiffs.
Among the myriad ways in which the allegations asserted by the non-filing plaintiffs in the Second Amended Complaint differ from the facts set forth in the EEOC charges filed by McCall, Moore and Peters are that different management personnel were responsible for the discriminatory
In addition, the alleged misconduct engaged in by Supervisors A through I towards the non-filing plaintiffs varies significantly from the specific conduct alleged in the perfected EEOC charges. McCall's EEOC charge refers to a single instance of Supervisor A giving him a critical written performance warning in July, 2009, while Peters' EEOC charge states that the same Supervisor A "singled [her] out" and "on at least four occasions" made formal write-ups about Peters' performance, even though similarly situated employees, who were younger and white, were not written-up. Pls.' EEOC Docs., at ECF Nos. 30-1, 30-2. In the Second Amended Complaint, Peters provides additional detail that Supervisor A made abusive and demeaning comments and engaged in bullying conduct directed at her. The other three CPS caseworkers (McCall, Dyson and Washington) allegedly witnessed aspects of Supervisor A's mistreatment of Peters, but nowhere allege that this abusive conduct was directed at them. Indeed, even though Dyson was supervised by Supervisor A, she claims that a different supervisor, Supervisor E, imposed performance penalties on her due to her backlog of cases following the Jacks tragedy. Compl. ¶¶ 190-92.
As noted above, in her EEOC charge, Moore cites her black Supervisor F for excluding Moore from meetings and assigning her "a greater work load and ... menial task[s]." Pls.' EEOC Docs., ECF No. 30-3.
By contrast to the conduct of Supervisors A and F cited in the perfected EEOC charges, the allegedly discriminatory conduct engaged in by the other supervisors set forth in the Second Amended Complaint covers a broad range of activity. For example, certain supervisors are accused of ineffectually addressing employee complaints about Supervisor A's conduct (Supervisors B, C, D), refusing to write a recommendation (Supervisor B), or directing a subordinate to terminate employees purportedly for retaliatory reasons (Supervisor I). These differences are significant. Confronted with the charges of the three filing plaintiffs, the EEOC would not have been alerted to the scope of the allegations asserted now by the non-filing plaintiffs against a far greater number of supervisors in the Second Amended Complaint.
Finally, the claimed adverse employment consequences of the defendant's allegedly discriminatory conduct varies between the filing and the non-filing plaintiffs. For example, both Peters and Moore claim that their resignations were constructive discharges, and McCall claims that his job transfer was a constructive transfer. See Peters EEOC Charge, ECF No. 30-1 ("I resigned because the conditions were unbearable."); Moore EEOC Charge, ECF No. 30-3 ("I am on leave pending my retirement...."); McCall EEOC Charge, ECF No. 30-2 ("I transferred out of the Ms. Jessen's unit" and, according to the Compl. ¶ 138, out of the CPS). By contrast, the non-filing plaintiffs claim injuries ranging from poor performance write-ups and transfers within CPS to termination. See, e.g., Compl. ¶ 194 (Dyson transferred to another
In sum, the allegations of the non-filing plaintiffs are not "so similar" that "no conciliatory purpose would be served by filing separate EEOC charges...." Foster, 655 F.2d at 1322. Consequently, the administrative complaints filed by McCall, Moore and Peters would not suffice to provide notice to the EEOC or the possibility of the disposition of claims by the non-filing plaintiffs, who seek to "piggy-back" on their co-plaintiffs' perfected EEOC charges. Therefore, the doctrine of "vicarious exhaustion" does not apply and each plaintiff is required to exhaust his or her individual administrative remedies. Only Peters, Moore and McCall satisfy the exhaustion requirement. Accordingly, the Title VII claims of the non-filing plaintiffs Dyson, Washington, Meade, Simpson, and Courts-Marshall, as well as the ADEA claims
Plaintiffs Peters, McCall and Moore contend that they have "actionable hostile work environment claims based on race, age and/or national origin discrimination." Pls.' Mem. at 11. Viewing the allegations in the light most favorable to the plaintiffs, the Second Amended Complaint alleges, generally, that CFSA "[m]anagement condoned a hostile work environment and took no measures to prevent it." Compl. at 2. In particular, both Peters and McCall allege in support of their claims, that they "worked in a racially hostile work environment, from 2005 to 2009, where [older], black caseworkers, particularly those from Africa and the Caribbean Islands, were bullied by their supervisors." Id. ¶¶ 22, 97. Moore alleges that she, too, "worked in a hostile work environment, from 2001 to the present, where she was bullied by her supervisors." Id. ¶ 237. The defendant contends that these plaintiffs have failed to establish a prima facie claim of a hostile work environment since, even if they were mistreated by their supervisors, they cannot show it was because of their protected status.
A plaintiff may establish a violation of Title VII by proving that the employer created or condoned a discriminatorily
While the subjective test of whether the plaintiff actually found the environment abusive may be readily satisfied in employment discrimination suits, the Supreme Court has acknowledged that the boundaries of what constitutes an objectively discriminatorily hostile work environment is not "a mathematically precise test." Id. at 22, 114 S.Ct. 367. The "objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances." Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (internal quotations and citations omitted). This objective test requires examination of the totality of the circumstances, including "the frequency of the discriminatory [or retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23, 114 S.Ct. 367.
The Supreme Court has been clear that Title VII does not establish a "general civility code for the American workplace." Oncale, 523 U.S. at 80, 118 S.Ct. 998. Indeed, "Title VII does not prohibit all verbal or physical harassment in the workplace." Id. "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to" a hostile work environment. Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal quotation marks and citations omitted); see also EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir. 2008) (complaints that would objectively give rise to bruised or wounded feelings or incidents that are premised on nothing more than rude treatment, callous behavior, or a routine difference of opinion and personality conflict will not satisfy the severe or pervasive standard).
To "[prevent] Title VII from expanding into a general civility code," the Supreme Court has emphasized as "crucial" the requirement that the behavior be "so objectively offensive as to alter the conditions of the victim's employment." Oncale, 523 U.S. at 81, 118 S.Ct. 998; see also Faragher, 524 U.S. at 788, 118 S.Ct. 2275 ("Conduct must be extreme to amount to a change in the terms and conditions of employment...."). Bosses may be harsh, unfair and rude, but conduct so characterized does not necessarily rise to the level of a Title VII violation.
In addition, the plaintiff "must always prove that the conduct at issue was not merely tinged with offensive ... connotations, but actually constituted discrimination... because of" the employee's protected status. Oncale, 523 U.S. at 81, 118 S.Ct. 998
Taken together, the Supreme Court's guidance about the requisite elements for a hostile work environment claim has been enumerated as follows: the plaintiff must show that (1) he or she is a member of a protected class; (2) he or she was subjected to unwelcome harassment; (3) the harassment occurred because of the plaintiff's protected status; (4) the harassment was severe to a degree which affected a term, condition, or privilege of employment; and (5) the employer knew or should have known about the harassment, but nonetheless failed to take steps to prevent it. Turner v. Shinseki, 824 F.Supp.2d 99, 122 (D.D.C.2011); Dorns v. Geithner, 692 F.Supp.2d 119, 135-36 (D.D.C.2010) (citing Hendricks v. Paulson, 520 F.Supp.2d 65, 89 (D.D.C.2007)); Roberson v. Snow, 404 F.Supp.2d 79, 89-90 (D.D.C.2005).
Set against these requirements, and assuming the "veracity" of the plaintiffs' claims, plaintiffs Peters, McCall and Moore have "failed to alleged facts that `plausibly give rise to an entitlement to relief'" for their hostile work environment claims. Ivey, 789 F.Supp.2d at 72 (quoting Iqbal, 129 S.Ct. at 1949-50).
In this case, there is no dispute that plaintiffs Peters, McCall and Moore, who each are black and over 40 years of age, are members of a protected class and that they each allege that they personally felt the CFSA-CPS environment was hostile. Indeed, as to Peters and McCall at least, the defendant concedes that, "[i]f taken as true, these allegations may establish that [Supervisor A] was rude and intimidating...." Def.'s Mem. at 14. Thus, the Court finds that the first two elements of a hostile work environment claim are met.
Nevertheless, the defendant contends that the plaintiffs fail to show that any alleged mistreatment was because of their membership in a protected class. Id. at 14-18. In determining whether a hostile work environment exists, the court must look at the "totality of the circumstances," including whether the comments or actions at issue "expressly focused" on the plaintiff's protected class. McKeithan, 803 F.Supp.2d at 69 (quoting Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C.Cir. 2008)). According to the defendant, "no plaintiff in this action alleges facts showing that he or she was the direct target of a single discriminatory remark or action, much less a working environment heavily polluted with discrimination." Def.'s. Reply at 5 (internal citation and quotation marks omitted). Indeed, the plaintiffs acknowledge that "the harassment, with a few exceptions, was primarily harsh treatment as opposed to racial or ethnic comments." Pls.' Mem. at 16. Moreover, the defendant argues that merely witnessing abusive conduct, when the conduct at issue does not contain "any sort of racial, ethnic or age-related overtones," Def.'s Reply at 4, is not enough to establish a valid claim for hostile work environment. The hostile work environment claims of plaintiffs Peters,
Peters provides the most detail about patently unpleasant conduct by Supervisor A that was directed at Peters and that she claims contributed to the hostile work environment at CFSACPS. Supervisor A allegedly over a period of about four years, "harassed" Peters, treated her "like a `whipping boy,'" "screamed at, talked down to, and pointed her finger [and] ... yelled at Ms. Peters," "made intimidating comments" about getting her fired or threatening to "write [her] up," physically blocked Peters on several occasions from leaving her cubicle with the placement of a chair and instructed her to get back to work when Peters was in the bathroom, and interrupted Peters' conversations to stop others from talking to her. Compl. ¶¶ 36-73. Indeed, Peters is identified as the employee who was "the principal target of [Supervisor A's] abuse." Compl. ¶¶ 48, 223; see also id. ¶ 108 ("Ms. Peters received the worst treatment."); id. ¶ 158 ("Ms. Peters received the most degrading treatment of anyone."); id. ¶ 354 ("[Supervisor A] singled Ms. Peters out for harsh treatment."). The defendant argues that these actions directed at Peters do not contain discriminatory content and therefore "fail to show that [Supervisor A] mistreated Ms. Peters because of her protected status." Def.'s Mem. at 15 (emphasis in original). Indeed, even rude office conduct that generates stressful working conditions does not create liability for discrimination under Title VII, unless that conduct is "permeated with discriminatory intimidation, ridicule, and insult." Harris, 510 U.S. at 21, 114 S.Ct. 367 (internal quotations omitted).
In an effort to satisfy the requirement of showing an environment hostile to persons due to their race, national origin or age — as opposed to generally unpleasant for all the employees and particularly unpleasant for Peters — the plaintiffs allege that "older, black caseworkers, particularly those from Africa and the Caribbean Islands, were bullied by their supervisors [while] [s]imilarly situated caseworkers, who were younger or not black, were not bullied by their supervisors." Compl. ¶¶ 22-23, 97-98, 145-46. Yet, this assertion is undermined by the allegations that (1) white caseworkers managed by Supervisor A "were bullied like their black counterparts," id. ¶ 37; (2) Supervisor A "complain[ed] about other caseworkers," id. ¶ 50, apparently without distinction as to their protected status; (3) Supervisor A "did not make [intimidating] comments to... Ms. Peters' African American co-workers," id. ¶ 55; and (4) Supervisor A's unit, which the complaint alleges includes both white and black caseworkers, complained about this supervisor's "abusive behavior" and accused her of race discrimination, id. ¶¶ 37, 68-69; 119. As the defendant states, "plaintiffs' allegations clearly indicate that [Supervisor A] mistreated everyone, regardless of their race." Def.'s Mem. at 15.
Not only do the internally inconsistent factual allegations in the Complaint defeat the third requisite element of showing that Peters was subjected to abuse because of her protected status, but she has failed to establish the fourth requisite element for a hostile work environment claim. Specifically, during the several years that Peters worked for Supervisor A from 2005 until early 2008, there is no allegation that she was penalized by any material adverse change in the terms or conditions of her employment. Over the course of those four years, she does not allege that she was given any "write-up," any reprimand, any suspension, or any
Even if Peters' allegations of adverse personnel actions in 2008 and 2009 are considered in support of her claim of a hostile work environment as well as her retaliation claim, they must be considered in the context of other allegations in the Complaint. Peters' claims about her treatment following the Jacks tragedy generally boil down to the allegation that she was assigned an overwhelming number of cases, which created a backlog for which she was penalized by being "written up" multiple times, when "other members of [Supervisor A's] unit" with similar backlogs "were not written up." Compl. ¶ 85. She alleges more specifically that "by March 31, 2008" she "had 41 cases to investigate with a backlog of 31 cases," and was being written up for the backlog the following month. Id. ¶¶ 79, 83. She had more of a backlog than McCall and Dyson but less of a backlog than Washington, but they too were written up. Id. ¶¶ 127, 131 (as of March 31, 2008, McCall had 36 cases to investigate with a backlog of 28 cases); id. ¶ 168 (as of March 31, 2008, Dyson had 38 cases to investigate with a backlog of 28 cases); id. ¶ 215 (as of March 31, 2008, Washington had 42 cases to investigate with a backlog of 33 cases); see also ¶¶ 438, 445 (caseworker supervised by Ekwem had, in March, 2008, "40 cases assigned her," which increased thereafter to "57 cases"). Thus, from the face of the Complaint at least, it seems that, contrary to Peters' claim, other caseworkers in her unit with similar backlogs were, in fact, also written up, including American-born caseworkers (McCall, Dyson and Washington) and caseworkers older than Peters who do not claim age discrimination (McCall).
Moreover, other allegations make clear that the increased assignment of cases was not just to black caseworkers. An Indian caseworker was also assigned a large number of cases, id. ¶¶ 176-85, and of fourteen caseworkers with 40 or more cases, eleven were older than 40 years of age and five of those older workers were foreign born caseworkers from Africa, the Caribbean Islands and India. Id. ¶¶ 183-84. This suggests that the majority of caseworkers assigned a large caseload were not foreign-born and that the increase in reports of child abuse and neglect increased the workload across the board. In addition, it suggests that older caseworkers, no matter
Another judge on this Court has reached a similar conclusion in dismissing equal protection claims of hostile work environment and intentional discrimination of Patricia Ivey, a proposed plaintiff-intervenor in this action. See Ivey, 789 F.Supp.2d at 65 (Jackson, J.). In that case, the plaintiff alleged that the defendant "created a hostile work environment for older caseworkers... by assigning them an overwhelming number of cases and then threatening them with disciplinary action if they did not eliminate their backlog," while "younger caseworkers were not assigned as many cases...." Id. at 70. Judge Jackson found the allegations insufficient to meet the plausibility threshold in Iqbal in view of the common sense questions about how much smaller the caseloads of younger workers were compared to those of the older employees and "what was the level of experience of the younger workers?" Id. at 70. She also scrutinized the plausibility of the plaintiff's allegation that the assignment of a large caseload was motivated by some discriminatory animus and concluded that "there are multiple other inferences that can be drawn from these allegations." Id. at 71. Judge Jackson observed, "[f]or example, at a time when the Agency was under intense public scrutiny, one reasonable interpretation of the allegations is that more cases were assigned to older caseworkers because of their superior experience and knowledge of child protective services." Id.
The instant allegations make apparent that the CFSA-CPS work environment was stressful and that this stress increased in 2008 after the Jacks tragedy, with supervisors pressing to ensure satisfactory job performance by caseworkers. Indeed, in the wake of the deaths of the four Jacks children, increased scrutiny within the agency on job performance would be a common sense response to such a tragic wake-up call. Even a highly stressful work environment is not the same as a hostile work environment imbued with the requisite pervasive discriminatory animus to support a Title VII claim. While Peters complains that she was penalized for her job performance, this simply does not constitute an adverse employment action because of her protected status, when she concedes in the Complaint that she "could not eliminate her backlog no matter how many hours she worked," Compl. ¶ 84, and other allegations make apparent that others were similarly over-loaded with cases and penalized for their backlogs. See Reshard v. Lahood, No. 87-2794, 2010 WL 1379806, at *4, 2010 U.S. Dist. LEXIS 34426, at *17 (D.D.C. Apr. 7, 2010) (letter of reprimand for employee's failure to perform assigned duties not materially adverse, even though it would be placed in employee's personnel file for up to three years).
For these reasons, Peters has failed to satisfy the requirements for a prima facie case of hostile work environment by showing that she was subjected to hostility because of her protected status or that pervasive hostility adversely affected the conditions of her employment amounting to an adverse employment action. Accordingly, she has failed to state a claim of hostile work environment.
Plaintiff McCall corroborates the treatment by Supervisor A of Peters, alleging that "Ms. Peters received the worst treatment." Compl. ¶ 108; see also id. ¶ 158 ("Peters received the most degrading treatment of anyone.") (Dyson); id. ¶ 223 ("Peters was the principal target of [Supervisor A's] abuse.") (Washington);
Plaintiff Moore alleges in support of her claim of hostile work environment that for eight years, from 2000 to 2008, Supervisor F, who is black, singled her out for abusive treatment, including making "disparaging remarks," such as "I did not pick you" and "You would not have been my choice;" excluding her from meetings and staff lunches; screaming at her; and threatening to write her up for "borderline insubordination." Compl. ¶¶ 247-63. Moore does not indicate how frequently such remarks were made. While the Court certainly does not condone the expression of disparaging or unfair remarks by a supervisor to an employee, Moore's continued performance of her supervisory duties over an eight year period, with positive evaluations for her performance during her detail and from caseworkers whom she supervised, see, e.g., Compl. ¶¶ 196, 232, tends to undercut her contention that this was a hostile work environment. See Sewell v. Chao, 532 F.Supp.2d 126, 142 (D.D.C.2008) ("[s]tray remarks made occasionally over an approximately eight-year period" including raised voices by supervisor, do not make workplace hostile), aff'd per curiam, Sewell v. Hugler, No. 08-5079, 2009 WL 585660, at *1-2, 2009 U.S.App. LEXIS 4136, at *2-4 (D.C.Cir. Feb. 25, 2009).
Moore seeks to satisfy the third element for a prima facie case of hostile work environment that she was mistreated because of her race, age or national origin with the bare allegations that she was "the only black foreign born supervisor" and the "oldest supervisor" under Supervisor F. Compl. ¶¶ 247, 249. She alleges that she was "excluded from many meetings," yet also complains about Supervisor F's conduct towards her when she "did attend meetings." Id. ¶¶ 255-56. After one incident, apparently in 2001, when Supervisor F "began screaming at her," Moore complained to human resources and received an apology from the supervisor. Id. ¶¶ 257-59. These are clearly upsetting work incidents but such
In addition, in the portion of the Complaint relating to her "Hostile Work Environment" claim, Moore does not claim that the harassment was severe to a degree which affected a term, condition, or privilege of employment to satisfy the fourth element for this claim. Indeed, co-plaintiffs give positive reviews of Moore's work performance. Compl. ¶ 196 ("Dyson considered Ms. Moore to be one of the best supervisors at the agency."); ¶ 232 ("Washington enjoyed working under Ms. Moore."). Moreover, while Moore claims that she "feared that her job was in jeopardy," id. ¶ 265, such concern, without more, simply does not constitute an adverse employment action. See Herbert v. Architect of the Capitol, 766 F.Supp.2d 59, 76 (D.D.C.2011) (proposed reprimand that "`put [plaintiff] in fear' that it would `jeopardize his promotion'" is not a materially adverse action) (citation omitted).
The Complaint does not make clear whether the factual allegations underlying Moore's "Retaliation" claim are also proffered in support of the hostile work environment claim, a confusion that applies equally to the claims for discrete discriminatory acts, as discussed below. Under the caption of "Retaliation," Moore alleges a series of actions by three different supervisors stretching over the period from 2005, after she complained to a counselor from the Employee Assistance Program and to human resources, until her alleged constructive discharge in November, 2009. These retaliation allegations claim (1) "openly abusive" conduct towards her by Supervisor G, including poor job performance evaluations from Supervisors F and G in 2005, 2006, and 2007, which resulted in making her ineligible for a pay increase; (2) "harsh treatment" by Supervisor D in the spring of 2009 that consisted of "regularly shout[ing]" at Moore and "on at least two occasions threaten[ing] Ms. Moore with disciplinary action;" (3) her "detail" as a hotline caseworker in CPS to assist with the post-Jacks surge in child abuse and neglect reports; and (4) removal of her staff, office and position, after she took an unapproved four-month leave under the Family Medical Leave Act. Compl. ¶¶ 267-311.
Even if these retaliation allegations — consisting of poor performance evaluations, threatened disciplinary action, a temporary detail to a subordinate position and removal of her job responsibilities — are considered as part of her hostile work environment claim to show that the abusive environment adversely affected her employment conditions, the Second Amended Complaint simply does not show that any of the actions outlined were because
In sum, despite the lengthy factual allegations asserted in the Complaint in support of the plaintiffs' claim of hostile work environment, they have failed to establish critical elements for such a claim that would "nudge" their allegations into the plausible realm. Without plausible allegations, the claims do not survive the Motion to Dismiss.
As previously noted, the Title VII and ADEA discrimination and retaliation claims of only Plaintiffs Peters, McCall and Moore survive the defendant's exhaustion challenge. The Second Amended Complaint contains broad allegations of disparate treatment associated with a hostile work environment. See, e.g., Compl. at 2 (the defendant "discriminated against them and similarly situated employees on the basis of their race, national origin, age"); id. ¶ 23 (Peters) ("Similarly situated caseworkers, who were younger or not black, were not bullied by their supervisors."); id. ¶ 98 (McCall) (same); id. ¶ 250 (Moore) ("[Supervisor F] singled Ms. Moore out for abusive treatment."). The Second Amended Complaint does not clearly distinguish the allegations underlying the hostile work environment claim from those showing disparate treatment arising from discrete discriminatory acts due to the plaintiffs' race, age and/or national origin. See Baird, 662 F.3d at 1253 (noting that plaintiff's failure to segregate in the complaint those events she claims constitute a hostile work environment from discrete acts of discrimination and/or retaliation "doubtless complicates the court's task"). In any event, the D.C. Circuit has made clear that the same acts may "simultaneously support different types of Title VII claims" since "plaintiffs are free to plead alternative theories of harm that might stem from the same allegedly harmful conduct." Id. at 1252.
To the extent that the plaintiffs are alleging discrete discriminatory acts, the defendant contends that dismissal of the plaintiffs' disparate treatment claims is warranted because the plaintiffs "have failed to allege facts that show an adverse employment action," or that their "alleged mistreatment was because of [their] membership in a protected class." Def.'s Mem. at 18-19. As already noted, supra note 24, the defendant also asserts without analysis, that "[m]any of plaintiffs' allegations fall well outside of" the applicable limitations period. Id. at 23. The disparate treatment claims of Peters, McCall and Moore will now be evaluated seriatim below for their sufficiency.
Both Title VII of the Civil Rights Act and the ADEA make it "unlawful for an employer" to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age," 29 U.S.C. § 623(a)(1), or "because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Under both Title VII and the ADEA, "the two essential elements of a discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii) because of the plaintiff's race, color, religion, sex, national origin [or] age ..." Baloch, 550 F.3d at 1196; Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493 (D.C.Cir.2008).
An "adverse employment action" is "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Baird, 662 F.3d at 1248 (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir. 2009)); see also Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.Cir.2003) ("Adverse employment action ... [entails a] tangible employment action evidenced by firing, failing to promote, a considerable change in benefits, or reassignment with significantly different responsibilities."). Thus, "not everything that makes an employee unhappy is an actionable adverse action." Baird, 662 F.3d. at 1250 (internal citation omitted).
"[R]esignations or retirements are presumed to be voluntary...." Veitch v. England, 471 F.3d 124, 134 (D.C.Cir. 2006) (Rogers, J., concurring); see also Keyes v. District of Columbia, 372 F.3d 434, 439 (D.C.Cir.2004); Henn v. Nat'l Geographic Soc'y, 819 F.2d 824, 828 (7th Cir.1987). The doctrine of constructive discharge may apply in certain circumstances to allow an employee to overcome the presumption of voluntariness and demonstrate that the resignation or retirement constituted an adverse employment action by showing that the resignation or retirement was, in fact, not voluntary. Aliotta v. Bair, 614 F.3d 556, 566-67 (D.C.Cir. 2010) (citing Rowell v. BellSouth Corp., 433 F.3d 794, 805 (11th Cir.2005)); Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 480 (1st Cir.1993). "The test for constructive discharge is an objective one: whether a reasonable person in the employee's position would have felt compelled to resign under the circumstances." Aliotta, 614 F.3d at 566; see also Steele v. Schafer, 535 F.3d 689, 695 (D.C.Cir.2008) (for constructive discharge, a plaintiff must show that "the abusive working environment became so intolerable that [the] resignation qualified as a fitting response") (quoting Penn. State Police v. Suders, 542 U.S. 129, 134, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004)).
The Second Amended Complaint repeatedly alleges in general, conclusory terms that Plaintiffs Peters, Moore and McCall, along with other employees and the non-filing plaintiffs, were "harassed" or subjected to "abusive treatment." See, e.g., Compl. ¶¶ 43-45, 47, 105-07, 114, 154-55, 157 (referring to unnamed Nigerian and Jamaican or foreign-born caseworkers being abused). The specific discrete discriminatory actions allegedly directed at plaintiffs Peters, Moore and McCall must be teased out of these general assertions in order to assess the sufficiency of their claims of disparate treatment. Indeed, the defendant's characterization of the plaintiffs' allegations as "disjointed" and as an effort to "throw a host of allegations of discrimination against the wall in an apparent hope that something will stick," is
The same factual allegations underlying the plaintiffs' claims of hostile work environment are also apparently used to support the claims of discrete discriminatory actions. See Baird, 662 F.3d at 1252 ("[P]laintiffs are free to plead alternative theories of harm that might stem from the same allegedly harmful conduct."). Both Peters and McCall claim that Supervisor A discriminated against them by: (1) at unspecified times apparently between 2005 and 2007,
At the outset, the Court must consider the obvious, namely, whether claims stretching back to 2005 are time-barred. The alleged adverse acts occurring in 2008 or earlier fall outside the 300-day statute of limitations for filing an EEOC complaint and are time-barred. Title VII requires "aggrieved persons" to file a charge with the EEOC within 180 days after the alleged unlawful employment practice occurred, but this period is extended to 300 days when the person has initially instituted a procedure with a state or local agency. 42 U.S.C. § 2000e-5(e)(1). A "work-sharing" arrangement between the EEOC and the District of Columbia Office of Human Rights ("DCOHR") deems timely-filed EEOC charges as cross-filed with the DCOHR, making the deadline for filing EEOC charges in the District of Columbia 300 days from the date of the alleged discrimination. Tucker v. Howard Univ. Hosp., 764 F.Supp.2d 1, 2 (D.D.C.2011) ("In the District of Columbia, an [EEOC] charge must be filed within 300 days of the date of the alleged discrimination."); Ellis v. Georgetown Univ. Hosp., 631 F.Supp.2d 71, 78 (D.D.C.2009) ("When a charge of discrimination is filed with the EEOC in the District of Columbia, a claim is automatically cross-filed with the D.C. Office of Human Rights ("DCOHR") pursuant to a `worksharing agreement' between the two agencies.") (citing Carter v. George Washington Univ., 387 F.3d 872, 879 (D.C.Cir. 2004)). This requirement is one of "the prerequisites that a plaintiff must satisfy before filing suit." Amtrak v. Morgan, 536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); see also Singletary, 351 F.3d at 523; Currier, 159 F.3d at 1366 & n. 2; Smith-Thompson v. District of Columbia, 657 F.Supp.2d 123, 131 (D.D.C. 2009) (employee claiming discrimination under Title VII must comply with this timing requirement "or lose the ability [to] recover for it.").
Peters filed her EEOC "Charge of Discrimination" on November 9, 2009, and McCall filed his charge on November 2,
The only disparate treatment allegation made by Peters that appears to fall within the statutory period is that "[Superviser A] wrote up [Peters] multiple times until the warnings lead [sic] to a reprimand and the reprimand to a proposed suspension in October 2009," prompting her to resign that month. Compl. ¶¶ 87, 93-94. Peters alleges that her "backlog was similar to those of other members of [Supervisor A's] unit, who were not written up." Id. ¶ 85. Just as this claim was found insufficient to support the hostile work environment claim, it is insufficient to support a disparate treatment claim. As discussed, in subsection B.2.a, supra, penalizing Peters for poor work performance when she concedes she "could not eliminate her backlog no matter how many hours she worked," Compl. ¶ 84, may have appeared to her to be unfair but that is a far cry from discriminating against her for her protected status. In the context of the increased workload and pressure under which CPS was operating in the aftermath of the Jacks tragedy, the increased scrutiny and supervision given to employees is not surprising. Moreover, as discussed in connection with her claims of hostile work environment, contrary to Peters' claim that her assigned workload and reprimands for her backlog in 2009 were discriminatory, the workload increases appear to have been shared by other caseworkers, who were similarly written up for backlogs. These claims simply do not support a claim of disparate treatment.
McCall makes no disparate treatment allegation that falls within the statutory period. Indeed, while he complains about being unfairly "written up" for his backlog of cases after the Jacks tragedy, the latest occasion he cites for such a write-up occurred "[i]n the summer of 2008." Id. ¶ 131. The only other incident he cites within the statutory period is that "[i]n the summer of 2009, [he] suffered a groin injury that caused him to take a week off from work," and upon his return Supervisor A told him that "she should have written him up for complaining about her a year earlier." Id. ¶ 137. This appears to be an allegation of retaliation rather than disparate treatment, however, and no other information is provided to assist the Court in understanding the purpose for which that allegation is made. In short, McCall has not made out a timely claim of disparate treatment.
Moore claims that her supervisors from 2000 to 2008 discriminated against her by: (1) screaming at or making disparaging remarks about her, id. ¶¶ 263, 269; (2) regularly threatening to write her up and actually writing her up for "borderline insubordination," id. ¶¶ 261, 301; (3) excluding her from staff meetings and lunches, id. ¶¶ 255, 257, 260; (4) giving her poor job performance evaluations in 2005, 2006 and 2007, id. ¶¶ 274-80; and (5) detailing her to serve as a "hotline caseworker" following the Jacks tragedy, id. ¶ 285. To the extent that any of these allegations constitute disparate treatment, they are all time-barred. Moore filed her "Charge of
The only allegations occurring between February 11, 2009 and her resignation in November 2009 asserted by Moore that may support a disparate treatment claim are that after Supervisor D became her supervisor in the spring of 2009, he "regularly shouted at [her] in the presence of her staff," Compl. ¶ 300, and removed her job responsibilities upon her return from an unapproved four-month FMLA leave, id. ¶¶ 303-08. These allegations simply are not sufficient to state a claim of disparate treatment. Nowhere does Moore allege that Supervisor D treated her harshly due to her protected status. Even harsh treatment by a supervisor does not support an employment discrimination claim, absent any assertion that the treatment was due to the plaintiff's race, age or national origin. Indeed, Moore indicates that her relationship with Supervisor D started off well, id. ¶ 299 ("[Supervisor D] was initially sympathetic ..."), which is not consistent with the behavior of a supervisor motivated by racial animus.
Moreover, it strains common sense to attribute the removal of Moore's job responsibilities to disparate treatment. Not only does she not make that allegation, she concedes that she took a four-month leave from her job that was not approved by her supervisor.
In order to meet the requirement of showing an adverse employment action for a disparate treatment claim under Title VII or the ADEA, both Peters and Moore claim that their resignations were constructive discharges.
Plaintiffs Peters, McCall and Moore each claim that they were retaliated against for complaining about the discriminatory conduct of their supervisors. The defendant contends that "the Complaint itself shows there was a legitimate reason for the purportedly retaliatory acts" and therefore the plaintiffs fail to make out a prima facie case of retaliation. Def.'s Mem. at 19. The Court agrees that the retaliatory acts alleged are either time-barred or are insufficient as a matter of law.
Title VII makes it an unlawful employment practice for an employer:
42 U.S.C. § 2000e-3(a).
To establish a prima facie case of retaliation under Title VII, a plaintiff must show that "(1) he engaged in protected activity; (2) he was subjected to an adverse employment action; and (3) there was a causal link between the protected activity and the adverse action." Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C.Cir.2012) (quoting Woodruff v. Peters, 482 F.3d 521, 529 (D.C.Cir.2007)); Wiley v. Glassman, 511 F.3d 151, 155 (D.C.Cir. 2007); Smith v. District of Columbia, 430 F.3d 450, 455 (D.C.Cir.2005); Morgan v. Fed. Home Loan Mortg.Corp., 328 F.3d 647, 651 (D.C.Cir.2003); Singletary, 351 F.3d at 524; Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir.1985).
As to the first element, protected activity encompasses utilizing informal grievance procedures such as complaining to management or human resources about the discriminatory conduct. Richardson v. Gutierrez, 477 F.Supp.2d 22, 27 (D.D.C. 2007) ("It is well settled that Title VII protects informal, as well as formal, complaints of discrimination."); see also Bell v. Gonzales, 398 F.Supp.2d 78, 94 (D.D.C. 2005) ("Initiation of EEO counseling to explore whether an employee has a basis for alleging discrimination constitutes protected activity, even in the absence of an unequivocal allegation of discrimination.").
A plaintiff meets the second element to show a prima facie case of retaliation if "a reasonable employee would have found the challenged action materially adverse," meaning that it "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ("Burlington Northern"). Thus, adverse actions giving rise to retaliation claims are broader than for disparate impact claims and are "not limited to discriminatory actions that affect the terms and conditions of employment," but reach any harm that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Baird, 662 F.3d at 1249 (quoting Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405). Yet, the Court in Burlington Northern distinguished "materially adverse" actions from "trivial harms," "petty slights," and "minor annoyances." Id. at 68, 126 S.Ct. 2405. The Court also noted that "[c]ontext matters" and "the significance of any given act of retaliation will often depend upon the particular circumstances." Id. at 69, 126 S.Ct. 2405; see also id. ("[A]n act that would be immaterial in some situations is material in others.") (citation omitted). As discussed above, resigning, retiring or transferring from a position, as plaintiffs Peters, Moore and McCall did, respectively, may constitute an adverse employment action of constructive discharge or involuntary transfer if the plaintiff shows that the resignation, retirement or transfer occurred under conditions that forced that choice. Baird, 662 F.3d at 1248-49.
Finally, the third element of the test requiring a causal link between the protected activity and the adverse employment action may be satisfied merely by close temporal proximity between the two events. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (noting that the temporal connection must be "very close": a three-or four-month period between an adverse action and protected activity is insufficient to show a causal connection, and a twenty-month period suggests "no causality at all"); Hamilton, 666 F.3d at 1357 ("[T]emporal proximity can indeed support
Significantly, however, even if the plaintiff establishes a prima facie case of retaliation, dismissal may still be warranted for failure to state a claim if the defendant shows a legitimate non-discriminatory reason for its actions. See Broderick v. Donaldson, 437 F.3d 1226, 1231 (D.C.Cir. 2006). Such a legitimate reason breaks the causal connection between the first two elements and defeats a retaliation claim. Then "the court must simply determine whether the plaintiff has put forward enough evidence to defeat the proffer and support a finding of retaliation." Bright v. Copps, 828 F.Supp.2d 130, 142 (D.D.C. 2011) (citing Woodruff, 482 F.3d at 530); McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C.Cir.2012).
Set against the applicable legal standard for showing a prima facie case of retaliation, the retaliation claims of Peters, McCall and Moore fall short. The retaliation claims of these three plaintiffs are discussed below.
Both Peters and McCall allege that they engaged in protected activity on two occasions. First, in 2007, they complained to management personnel about the abusive conduct of Supervisor A, resulting in a meeting convened by Supervisor B at which they "accused Supervisor A of race discrimination." Compl. ¶¶ 69-73, 119-21. Although they were assured "that there would be no retaliation," Supervisor A "became very hostile." Id. ¶¶ 73, 123. Second, "in 2008 and 2009," Peters and McCall lodged complaints with Supervisors C and D about Supervisor A's actions in writing them up and threatening penalties for their backlog of cases in the aftermath of the Jacks tragedy, even though other caseworkers in the unit with similar backlogs were not written up. Id. ¶¶ 79-89, ¶¶ 128-32. According to Peters and McCall, despite their complaints to management about Supervisor A's treatment, "neither [Supervisor C or D] took steps to end the abuse." Id. ¶ 88; see also id. ¶ 133. Their requests for transfer were denied. Id. ¶¶ 89, 134. When poor job evaluations led to a proposed suspension in October, 2009, Peters resigned. Id. ¶ 93. When Supervisor D advised McCall that he was facing a write-up, McCall transferred out of CPS in August, 2009.
At the outset, again, the Court must consider the timeliness of these allegations of retaliation that date back to 2007. The first allegation of retaliation in the form of increased hostility from Supervisor A towards Peters and McCall appears to be time-barred. The vague timing set forth in the Second Amended Complaint indicates that the increased hostility of Supervisor A began in 2007 and, therefore, occurred long before the statutory 300-day period in January 2009 before the filing of these plaintiffs' EEOC charges. In any event, even if this allegation of retaliation were considered to be timely, the claim does not survive the Motion to Dismiss. Other than increased hostility from Supervisor A, neither Peters nor McCall assert that they were subjected to an adverse employment action in connection with their 2007 complaint
With regard to the second incidence of retaliation, the Second Amended Complaint is not entirely clear when "[i]n 2008 and 2009" Peters made informal complaints to program managers Supervisors C and D "about [Supervisor A] ... to end the abuse." Compl. ¶ 88. No dates whatsoever are provided for when McCall "complained to several managers, including [Supervisors C and D], about [Supervisor A's] abusive behavior." Id. ¶ 133. Nevertheless, both Peters and McCall allege that following these complaints, nothing changed and presumably Supervisor A's abusive conduct continued. Even assuming that these allegations are timely, they are insufficient to support a claim of retaliation for several reasons.
First, the Court finds that Peters and McCall's complaints to Supervisor C and D do not clearly constitute protected activity. While informal complaints to management may constitute protected activity, the plaintiffs must clearly complain about discriminatory treatment. While the Second Amended Complaint suggests that Peters and McCall complained to management about Supervisor A assigning them too many cases and then penalizing them for a backlog when other caseworkers were not penalized, they do not allege that they complained about being targeted for this harsher treatment due to their race, age or national origin or even in retaliation for their prior complaints about her.
Second, the fact that nothing changed after they complained in 2008 and 2009 about Supervisor A to Supervisors C and D undercuts their claims of retaliation. According to the allegations, even after they complained, "the abuse" from Supervisor A continued in the form of too many cases and the imposition of performance penalties for their backlogs. In other words, their allegations do not even suggest that following their complaints, Supervisor A became more hostile, penalized them more severely or assigned them even more cases than before their complaints as retaliation for their complaints.
Third, the adverse employment actions that Peters and McCall allege to have stemmed from their 2008 and 2009 complaints to Supervisors C and D do not appear to be causally connected, even if those complaints were deemed to be protected activity. The allegations can be construed to identify three adverse employment actions: denial of transfers, unfair penalties for their backlogs of cases and constructive discharge or transfer. The defendant argues that "the Complaint itself shows there was a legitimate reason for the purportedly retaliatory acts." Def.'s Mem. at 19. Specifically, the defendant contends that the Complaint's acknowledgement of the surge in reported child abuse and neglect cases following the January 2008 Jacks tragedy provides "a legitimate nondiscriminatory ... reason for the increased workload that was entirely divorced from any alleged protected activity." Id. at 20. The defendant is correct.
Regarding the denial of transfer requests from both Peters and McCall, Compl. ¶¶ 89, 134, it is not entirely clear whether this allegation is meant to indicate an adverse employment action. Assuming it is so intended, however, it does not suffice. The denial of their transfer requests at a time when CPS was handling a "surge in child abuse and neglect reports," id. ¶ 76, and at least one co-plaintiff Augustine Ekwem alleges that he had too many caseworkers to supervise, id. ¶¶ 473-78, more plausibly appears to have been a reasonable management decision under the
Regarding the assignment of cases and penalties for backlogs, it is not plausible to view these as retaliatory acts given the other allegations in the Second Amended Complaint. Peters alleges that she was assigned an "overwhelming number of cases" and admits that her backlog was growing and she "could not eliminate" it. Compl. ¶¶ 79-84. Likewise, McCall had a growing backlog and an "overwhelming caseload." Id. ¶¶ 127-29. Both Peters and McCall were long-term CPS employees and therefore it is reasonable that management would expect them to be able to handle more cases than less experienced caseworkers. While Peters and McCall may perceive that they were treated more harshly than others in the unit, the job performance penalties meted out to them due to their backlogs were not unfounded and other allegations in the Second Amended Complaint undercut their claim that they were the only case-workers with, and penalized for, their backlogs. See, e.g., Compl. ¶¶ 176-84, 215-17. See also Lester v. Natsios, 290 F.Supp.2d 11, 29-30 (D.D.C.2003) ("[I]ncreased workloads and undesirable work assignments of which plaintiff complains also do not rise to the level of adverse employment actions ... but rather constitute only the ordinary tribulations of the workplace, which employees should expect.") (internal quotations omitted); Mack v. Strauss, 134 F.Supp.2d 103, 113 (D.D.C.2001), aff'd, No. 01-5122, 2001 WL 1286263, 2001 U.S.App. LEXIS 24097 (D.C.Cir. Sept. 28, 2001) (allegedly increased workload does not constitute actionable injury where not accompanied by adverse change in terms, conditions or privileges of employment); Brodetski v. Duffey, 199 F.R.D. 14, 21 (D.D.C.2001) (holding that plaintiff had not shown an adverse employment action sufficient to establish a prima facie case of retaliation based upon, inter alia, the assignment of "a disproportionate amount of work" to him in a "pattern of `deliberate overloading,'" combined with plaintiff's unhappiness over supervisor's personnel assignments and written reprimand); see also Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1557 (D.C.Cir.1997) ("[C]hanges in assignments or work-related duties do not ordinarily constitute adverse employment decisions.").
Finally, Peters and McCall appear to assert that the manner in which they left CPS was an adverse employment action caused by the retaliatory action of Supervisor A. Peters alleges that she resigned due to Supervisor A writing her up "multiple times until the warnings lead [sic] to a reprimand and the reprimand lead [sic] to a proposed suspension in October 2009." Compl. ¶ 87. McCall alleges he transferred out of CPS when Supervisor D advised him that he was facing a
In any event, the defendant contests Peters and McCall's claims that her resignation and his transfer were involuntary and constitute a constructive discharge and a "constructive involuntary transfer," respectively. The defendant contends neither plaintiff has alleged a work environment so intolerable that resignation or transfer was the fitting response or that their alleged mistreatment was because of their "membership in a protected class." Def.'s Mem. at 18-19. In circumstances, as here, "where a plaintiff has failed to state a hostile working environment," the defendant concludes, "he or she simply cannot state a claim for constructive discharge" or constructive involuntary transfer. Id. at 18. The Court agrees. Sewell v. Hugler, No. 08-5079, 2009 WL 585660, at *1, 2009 U.S.App. LEXIS 4136, at *3 (D.C.Cir. Feb. 25, 2009) (unpublished) ("[T]he district court correctly concluded that the failure of Sewell's constructive discharge claim follows a fortiori from the failure of her other claims" of hostile work environment.); McKeithan v. Boarman, 803 F.Supp.2d 63, 70 n. 5 (D.D.C.2011) ("[B]ecause [plaintiff] has failed to show that his working environment was hostile, he cannot establish that he was constructively discharged."); Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992), aff'd on other grounds, 511 U.S. 244, 114 S.Ct. 1522, 128 L.Ed.2d 229 (1994) (to prove constructive discharge, the plaintiff must "demonstrate a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment."). To the extent that Peters seeks to use her resignation and McCall use his transfer to show the requisite adverse employment action to support their retaliation claims, the effort is unavailing.
For these reasons, the retaliation claims of Peters and McCall must be dismissed.
Plaintiff Moore alleges four instances in which she complained about mistreatment from her supervisors: (1) in 2001, she complained to "human resources" about Supervisor F after this supervisor requested that Moore not speak at a meeting and screamed at her, and Moore's complaint prompted an apology from this supervisor, Compl. ¶¶ 257-59; (2) in 2005, she complained to "human resources" and the "Employee Assistance Program" about Supervisor G screaming at her, id. ¶¶ 269-72; (3) in 2007, she complained to "human resources" about Supervisor G's poor evaluation of her based on "the fact that [she] had filed complaints against him with human resources," id. ¶¶ 280-81; and (4) in 2009, she complained to Supervisor D about retaliatory treatment from her prior
The Complaint is not clear whether Moore claims that all four instances in which she complained about her three supervisors over the course of eight years is protected activity that prompted retaliation. Since she filed her EEOC charge on December 8, 2009, however, any claims of retaliation occurring prior to February 11, 2009 are time-barred. Neither party addresses the timeliness issue in any detail, however. Indeed, the plaintiffs' opposition memorandum focuses on the first three instances of her complaints to human resources. Specifically, Moore asserts that her claim of retaliation is established because, after lodging her complaints, presumably in 2001, 2005 and 2007, about Supervisors G and F, "she was transferred to a non-supervisory position; and there is a causal link between her complaint[s] about [those supervisors] and her detail to a non-supervisory position." Pls.' Mem. at 24.
This Circuit has made clear that, "[n]ot every complaint garners its author protection under Title VII." Broderick, 437 F.3d at 1232 (plaintiff's written complaint to her supervisors did not constitute a protected activity because she complained of her treatment but did not allege that she was suffering discrimination or retaliation); see also Lewis v. District of Columbia, 653 F.Supp.2d 64, 79 (D.D.C.2009) (plaintiff's retaliation claim dismissed since her complaints of mistreatment do not qualify as protected activity absent any allegation that these complaints contained allegations of discrimination or retaliation); Beyene v. Hilton Hotels Corp., 815 F.Supp.2d 235, 247 (D.D.C.2011) (plaintiff "must demonstrate that he complained of some unlawful discrimination based on his membership in a protected class" and, absent allegation that his complaint about supervisors' harassment referred to his religion or national origin, his retaliation claim fails). The Second Amended Complaint contains no allegation that when Moore complained to human resources about her mistreatment by Supervisors G and F, she stated that she was being discriminated against. "While no `magic words' are required, the complaint must in some way allege unlawful discrimination, not just frustrated ambition," to qualify as protected activity. Broderick, 437 F.3d at 1232. Moore has failed to meet this requirement.
Even assuming that the complaints Moore made to human resources in
Even if the tangible benefits remain the same, a transfer that involves the permanent withdrawal of an employee's supervisory responsibilities may amount to a demotion and an adverse employment action. See Geleta v. Gray, 645 F.3d 408, 412 (D.C.Cir.2011) (materially adverse employment action due to retaliation may be shown where plaintiff provides evidence that he was transferred from supervisory position overseeing twenty employees to a desk job where he supervised no one); Pardo-Kronemann v. Donovan, 601 F.3d 599, 608 (D.C.Cir.2010) (allegedly retaliatory transfer from a legal to non-legal job could qualify as an adverse employment action); Czekalski v. Peters, 475 F.3d 360, 364 (D.C.Cir.2007). By contrast to these cited cases, however, Moore's transfer was not permanent. Furthermore, in the context of the serious workload increase that CPS faced, as described by the plaintiffs in their Complaint, the legitimate reasons for management's temporary re-assignment of Moore to assist in addressing the serious surge in reports of child neglect and abuse, appears to have been appropriate. Baloch, 550 F.3d at 1191 (courts should not engage in "judicial micromanagement of business practices by second-guessing employers' decisions.") (citation omitted). In fact, Moore alleges that she was very effective in her detailed position and "closed approximately a thousand investigations." Compl. ¶ 290. Rather than a discriminatory or retaliatory action, her temporary re-assignment appears to have been a sound administrative step to make effective use of personnel to deal with a significant workload problem. Moreover, Moore was reinstated to her supervisory position one year after her detail and "given a staff." Compl. ¶ 292. This is probative evidence that the management decision to give her a temporary detail did not have invidious motivation since that would be inconsistent with the decision to reinstate her. In other words, her claim is "seriously undercut" by the allegation that the same managers who discriminated against her also reinstated
Second, the complaints she made in 2001, 2005 and 2007 to human resources are not close in time to when she was detailed to be a caseworker. This undermines significantly any causal link between the purported protected activity and the allegedly retaliatory temporary re-assignment.
In sum, Moore has failed to allege that she engaged in protected activity and, even if she did, her temporary re-assignment does not constitute an adverse employment action, let alone a retaliatory act caused by her complaints, sufficient to state a claim for retaliation.
Accordingly, the defendant's motion to dismiss the claims of retaliation by Plaintiffs Peters, McCall and Moore is granted.
The plaintiffs assert discrimination claims under 42 U.S.C. § 1983 and § 1981, "which do not require administrative exhaustion." Pls.' Mem. at 11. Specifically, the Second Amended Complaint states that "Defendants['] acts, policies, practices and procedures ... violated Plaintiffs' rights secured by the Due Process Clause of the Fifth Amendment to the U.S. Constitution." Compl., Prayer for Relief at 58(a). Evaluation of the factual allegations pertinent to each of these constitutional claims asserted on behalf of all nine plaintiffs would be a challenge since, as the defendant points out, "[p]laintiffs make no effort to tie these claims to a specific statute." Def.'s Mem. at 12. Nevertheless, the claims suffer the fatal flaw of not sufficiently alleging a custom or practice of the municipality to support them.
Section 1983 authorizes equitable relief and compensatory damages against "[e]very person who, under color of any [law] ... custom, or usage, of any State or... the District of Columbia, subjects, or causes to be subjected ... any ... person... to the deprivation of any rights ... secured by the Constitution and laws...." 42 U.S.C. § 1983. To state a claim under section 1983, plaintiffs must allege facts sufficient to show not just a constitutional violation, but that the District of Columbia had a policy or custom that caused the alleged violation of their constitutional rights. Jones v. Horne, 634 F.3d 588, 601 (D.C.Cir.2011); Warren v. District of Columbia, 353 F.3d 36, 38-39 (D.C.Cir.2004); see also 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); Garnes-El v. District of Columbia, 841 F.Supp.2d 116, 121 (D.D.C.2012). The District, as a municipal corporation, is a "person" for purposes of section 1983 liability. Plaintiffs may show causation exists in several ways: (1) if "the municipality or one of its policymakers explicitly adopted the policy that was `the moving force of the constitutional violation'" id. at 121 (quoting Warren, 353 F.3d at 39); (2) if "a policymaker ... knowingly ignore[d] a practice that was consistent enough to constitute custom," Warren, 353 F.3d at 39 (citation omitted); or (3) if the District government failed to respond "`to a need ... in such a manner as to show deliberate indifference to the risk that not addressing the need will result in constitutional violations.'" Warren, 353 F.3d at 39
A cause of action under § 1981 may be brought when a plaintiff has suffered an injury flowing from the racially-motivated breach of his contractual relationship with another party. Domino's Pizza v. McDonald, 546 U.S. 470, 480, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006). Violation of the rights guaranteed by § 1981 by state entities can be remedied exclusively through the cause of action for damages created by § 1983. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). To prevail on a claim under § 1981 against the District, therefore, a plaintiff must show that the violation of his "`right to make contracts' protected by § 1981 was caused by a custom or policy within the meaning of Monell and subsequent cases." Id. at 735-36, 109 S.Ct. 2702; Hamilton v. District of Columbia, 720 F.Supp.2d 102, 113-14 (D.D.C.2010).
The plaintiffs' allegations do not establish that a custom, policy or practice of the District of Columbia caused their alleged injuries, which is fatal to their claims under 42 U.S.C. §§ 1981 and 1983. Other than conclusory allegations in the prefatory section of the Second Amended Complaint, the plaintiffs do not allege that any District official explicitly condoned, knowingly ignored, or failed to respond in a manner showing deliberate indifference to discriminatory activity based on race, age or national origin within CFSA. On the contrary, the allegations make clear that steps were taken to address perceived or overt discriminatory activity at CFSA. For example, when employees complained of abusive conduct on the part of Supervisor A, Supervisor B convened a meeting about the complaints and assured employees, including some of the plaintiffs, that there would be no retaliation. Compl. ¶¶ 71-72, ¶¶ 119-22. Similarly, when a Nigerian caseworker and African-American employee had an altercation in the workplace and yelled racial epithets, "both workers were suspended." Id. ¶¶ 536-40. When Moore complained about Supervisor F's conduct towards her in 2001, Supervisor F was prompted to apologize to her. Id. ¶ 259.
Moreover, among the plaintiffs are several supervisors and management personnel who allege expressly that they took actions to stop any perceived discrimination or retaliation. For example, plaintiff Courts-Marshall, who was "put in charge of the Child Protective Services Administration at the Child and Family Services Agency," id. ¶ 570, alleges that she "refused to fire any of the people on the list" whom she believed were put on the list "for retaliatory reasons." Id. ¶¶ 617-18. She also instructed "program managers," who are mid-level management at CFSA, to help "supervisors whose names were on the list." Id. ¶ 620. In fact, she alleges that she "launched a campaign to make sure that all social workers had the training and support they needed to perform their jobs." Id. ¶ 619. In addition, plaintiff Meade was a training supervisor in CPS and she claims that "Human Resources offered diversity training on topics like race discrimination and sexual harassment..." Id. ¶ 514. These allegations make clear that the District did not have a custom or policy that caused any alleged injuries of the plaintiffs.
The Second Amended Complaint asserts that the plaintiffs notified the Mayor's office of the instant civil action against the city on December 21, 2009, and that the "District of Columbia Government's Office of Risk Management reviewed the claims, determined that none were tort issues, and closed the files." Compl. ¶ 5. Among the claims asserted is one for declaratory and injunctive relief and damages to protect and redress "deprivation of rights secured by the District of Columbia Human Rights Act of 1977" ("DCHRA"). Id. ¶ 12. The defendant argues that the plaintiffs failed to comply with the notice requirements of D.C.Code § 12-309, which operates as a six-month statute of limitations for certain claims asserted against the District of Columbia. and therefore plaintiffs' DCHRA claims should be dismissed.
The defendant is correct that D.C.Code § 12-309 operates as a six-month statute of limitations for certain claims asserted against the District of Columbia. It is well settled that state law notice requirements apply only to state law claims and do not bar federal question claims. Morton v. District of Columbia Hous. Auth., 720 F.Supp.2d 1, 6 (D.D.C.2010) (citing Daskalea v. District of Columbia, 227 F.3d 433, 446 (D.C.Cir.2000)) ("The six-month notice requirement of the D.C.Code does not apply to plaintiff's claim under section 1983."); Candido v. District of Columbia, 242 F.R.D. 151, 158-59 (D.D.C.2007) (holding that the notice requirement of D.C.Code § 12-309 does not bar federal due process claim). Thus, the only claim asserted by plaintiffs subject to D.C.Code § 12-309 is the DCHRA claim.
D.C.Code § 12-309 provides that:
Here, plaintiffs filed this lawsuit on October 28, 2009 and filed their first amended complaint, which added several new plaintiffs, on December 10, 2009. According to their Second Amended Complaint, plaintiffs allege that they "notified the Mayor's Office of this civil action against the District of Columbia on December 21, 2009." Compl. ¶ 5. However, a party must provide notice under § 12-309 prior to filing a lawsuit. See Campbell v. District of Columbia, 568 A.2d 1076, 1077-78 (D.C.1990) (holding that "notice must have been given before suit"); McGee v. District of Columbia, 646 F.Supp.2d 115, 121 (D.D.C.2009) ("[T]he claims ... are barred because the plaintiff did not provide notice to the mayor until after filing his lawsuit."). Any notice provided on December 21, 2009, therefore, would not satisfy
Plaintiffs argue that D.C.Code § 12-309 only applies to "personal injury and property damage claims," Pls.' Mem. at 29, but courts have specifically held that D.C.Code § 12-309 applies to DCHRA actions. See Giardino v. District of Columbia, 252 F.R.D. 18, 23 (D.D.C.2008); see also Owens v. District of Columbia, 993 A.2d 1085, 1087-89 (D.C.2010). Accordingly, plaintiffs' claims under the DCHRA must be dismissed.
The plaintiffs seek to double the number of plaintiffs in this suit with two motions to permit nine additional current or former employees of CFSA to intervene as plaintiffs of right, under either Rule 24(a)(2), or permissively, under Rule 24(b). FED. R.CIV.P. 24; Movants' Mot. to Intervene, ECF No. 24 ("First Motion"); Movants' Second Mot. to Intervene, ECF No. 27 ("Second Motion").
The defendant opposes both of the motions to intervene. Def.'s Opp'n to First Mot. to Intervene ("Def.'s Opp'n First Mot."), ECF No. 25; Def.'s Opp'n to Second Mot. to Intervene ("Def.'s Opp'n Second Mot."), ECF No. 28. The defendant contends that the nine would-be plaintiff-intervenors ("Movants") should not be granted leave to intervene since the allegations underlying their claims are sufficiently different that the requirements for intervention under both Rule 24(a)(2) and (b) are not satisfied. The Court agrees.
In the discussion that follows, the Court will first review the legal standards applicable to both prongs of Rule 24 and then describe in detail the Movants' claims, in order to evaluate the differences in those claims from those of the plaintiffs, since those differences are the basis for the defendant's objection to these motions. Finally, the Court will assess the merits of the motions for intervention based upon the applicable legal standards.
Rule 24 of the Federal Rules of Civil Procedure sets forth the requirements for both intervention as of right and permissive intervention. See FED.R.CIV.P. 24(a) & (b). While "[i]n theory" a court has "no discretion when intervention is under Rule 24(a)," 7C Wright, Miller & Kane, Federal Practice & Procedure, § 1913 (3d ed.2007), practically speaking, even this basis for intervention involves "a measure of judicial discretion...." Fund for Animals v. Norton, 322 F.3d 728, 732 (D.C.Cir.2003) (citing Mass. Sch. of Law at Andover v. United States, 118 F.3d 776, 779 (D.C.Cir.1997) (noting "the existence of district court discretion over the timeliness and adequacy of representation issues under Rule 24(a)(2)")). If there is no right to intervene under Rule 24(a), "it is wholly discretionary with the court whether to allow
Rule 24(a)(2) states in relevant part:
The Court of Appeals for the D.C. Circuit has parsed the language of Rule 24(a)(2) to require four factors in order for a movant to qualify for intervention of right: "(1) the timeliness of the motion; (2) whether the applicant claims an interest relating to the property or transaction which is the subject of the action; (3) whether the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest; and (4) whether the applicant's interest is adequately represented by existing parties." Fund for Animals, 322 F.3d at 731 (quoting Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1074 (D.C.Cir.1998)); Karsner v. Lothian, 532 F.3d 876, 885 (D.C.Cir. 2008). Additionally, the proposed intervenor seeking to participate on equal footing with the original parties to the suit must demonstrate standing under Article III of the Constitution. Jones v. Prince George's Cnty., 348 F.3d 1014, 1017 (D.C.Cir.2003) ("[P]rospective intervenors in this circuit must possess standing under Article III of the Constitution."); Norton, 322 F.3d at 731-32; United States v. Philip Morris USA, 566 F.3d 1095, 1146 (D.C.Cir.2009); Ctr. for Biological Diversity v. EPA, 274 F.R.D. 305, 308 (D.D.C.2011); In re ESA Litig., 270 F.R.D. 1, 4 (D.D.C.2010).
To establish standing under Article III, a prospective intervenor must show: (1) he or she has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Sierra Club v. EPA, 292 F.3d 895, 898 (D.C.Cir.2002). The requisite showing for standing of injury-in-fact and causation are closely related to the second and third factors under Rule 24(a), which require a showing of interest in the subject matter of the lawsuit and the potential impairment of that interest absent intervention in the suit. See, e.g., Roeder v. Islamic Republic of Iran, 333 F.3d 228, 233 (D.C.Cir.2003) ("[A]ny person who satisfies Rule 24(a) will also meet Article III's standing requirement."); Defenders of Wildlife v. Jackson, 284 F.R.D. 1, 5, 2012 WL 896141, at *4 (D.D.C.2012) (noting that outcome is the same whether standing is considered separately or as part of Rule 24(a)(2) interest requirements); Akiachak Native Cmty. v. U.S. Dep't of Interior, 584 F.Supp.2d 1, 7 (D.D.C.2008) ("The standing inquiry is repetitive in the case of intervention as of right because an intervenor who satisfies Rule 24(a) will also have Article III standing.").
Rule 24(b) authorizes permissive intervention for a movant who timely files
The nine Movants include seven former CFSA employees (Patricia Ivey, Delores Junious, Emmanuael Mbadiugha, Sophia Mickens-Lewis, Nicky Odaka, Njideka Odiana and Fidelia Phillips) and two current CFSA employees (Nellie Lahia and Edwin Monono). Unlike the plaintiffs, who complain about their treatment while employed at CPS, only three of the Movants (Ivey, Lahai, Mickens-Lewis) were employed within this component of the CFSA. The other six Movants complain about their treatment in the following components of CFSA: In-Home and Reunification Services, the Family Stabilization Branch, and the Licensing & Monitoring Division. Only one of the Movants served as a CFSA supervisor or manager (Mickens-Lewis) and the remainder are non-managerial employees. The Movants were employed at CFSA for varying lengths of time, ranging from about eighteen years to only a few years. As with the nine plaintiffs, all nine of the Movants claim that they were discriminated against on the basis of race and subjected to a hostile work environment during at least some portion of their employment at CFSA. In addition, six of the Movants (Junious, Mbadiugha, Mickens-Lewis, Monono, Odiana and Phillips) claim retaliation; six Movants (Lahia, Mbadiugha, Monono, Odaka, Odiana and Phillips) claim discrimination on the basis of national origin; and two Movants (Mbadiugha and Monono) claim age discrimination.
According to documents submitted by the plaintiffs, Phillips has received an EEOC right-to-sue letter and three other unnamed Movants have filed charges with the EEOC but have not yet received their right-to-sue letters. Pls.' EEOC Docs., ECF No. 30. Apparently, the five other Movants have not filed complaints with the EEOC, let alone exhausted any administrative remedy.
The Title VII and ADEA discrimination claims asserted by each Movant are summarized in the chart below.
Movant-CFSA Discrimination based upon: Hostile Work Component Race (Black) National Origin Age Gender Environment Retaliation Monono-Licensing ✓ ✓ (Cameroon) ✓ (53) NO ✓ ✓ & Monitoring Division Ivey-CPS ✓ NO NO(58) NO ✓ NO Odiana-In-Home ✓ ✓ (Nigerian) NO(34) NO ✓ ✓ & Reunification Services Phillips-In-Home ✓ ✓ (Nigerian) NO(53) NO ✓ ✓ & Reunification Services Mbadiugha-In-Home ✓ ✓ (Nigerian) NO(55) NO ✓ ✓ & Reunification Services Lahai-CPS ✓ ✓ (Sierra Leone) NO(62) NO ✓ NO Odaka-In-Home ✓ ✓ (Nigerian) NO(41) NO ✓ NO & Reunification Services Junious-Family ✓ NO NO(47) NO ✓ ✓ Stabilization Branch Mickens-Lewis-CPS ✓ NO NO(44) NO ✓ ✓ Administrator
Just as the summary chart above reflects differences in the claims asserted by the Movants, the factual allegations underlying the claims of discrimination, hostile work environment and retaliatory actions vary among each of the nine Movants, as described in more detail below.
One of the Movants,
Mickens-Lewis is a 44-year old African American woman, who worked in CPS as a supervisor from 2000 to 2001, as a program manager from 2002 to 2003, as the acting program administrator from 2003-2004, and as a program manager from 2004 to 2008, during which time in the fall
The Movants argue that they should be permitted to intervene "because Intervenors and Plaintiffs share common claims against Defendant in terms of facts, evidence, and legal theories." First Compl.-Int., at 2. Specifically, the Movants state that both the Movants and plaintiffs allege they worked "in a hostile work environment at the Child and Family Services Agency during the past ten years. The hostile work environment was discriminatory and retaliatory." Movants' Reply Mem., ECF No. 29, at 1-2; Movants' Reply Mem., ECF No. 26, at 2.
The Defendant counters that the pending motions to intervene should be denied since each Movant has "an independent right of action that he or she can pursue regardless of the outcome of this proceeding." Def.'s Opp'n to First Mot., ECF No. 25, at 2-3; Def.'s Opp'n to Second Mot., ECF No. 28, at 2-3. Consequently, according to the defendant, the Movants cannot make the requisite showing that, absent intervention, their interests would be impeded or impaired under Rule 24(a)(2). In addition, the defendant argues that permissive intervention under Rule 24(b) should be denied because joining the Movants' "legally distinct" claims would "expand the scope of the issues before the Court and delay the current proceedings." Def.'s Opp'n to First Mot. at 3; Def.'s Opp'n to Second Mot. at 4. Even if these motions were not moot, for these and other reasons discussed below, the Court agrees with the defendant that the Movants would not be permitted to intervene.
The defendant does not dispute that the Movants have standing
First, the Movants have no legally cognizable interest in the specific claims asserted by the plaintiffs in this employment discrimination lawsuit. While the Movants may share with the plaintiffs similar legal claims against the same defendant, the factual sufficiency of each claim would be assessed for each plaintiff and movant individually. Indeed, the Movants concede "the individual nature of the discrimination/retaliation claims" when they argue that "the interests of the Intervenors cannot be adequately protected by the current parties to the litigation." First Mot. at 2; Second Mot. at 1.
Second, even if the Movants had a legally cognizable interest, that interest would not be impaired by a judgment on the plaintiffs' claims. Impairment exists when the decision in a pending matter would foreclose or adversely affect the rights of the proposed intervenor in a subsequent proceeding. Even if one or more plaintiffs would have prevailed with a judgment in his or her favor, the legal interests and claims of the Movants would, as a practical matter, be unaffected. As the defendant correctly points out, each Movant has "an independent right of action that he or she can pursue regardless of the outcome of this proceeding." Def.'s Opp'n to Second Mot., ECF No. 28, at 3. See Shea v. Angulo, 19 F.3d 343, 347 (7th Cir.1994) (where proposed intervenor is free to initiate own suit for recovery no matter whether plaintiff prevails, there is no potential impairment of intervenor's interest); In re Safeguard Scientifics, 220 F.R.D. 43, 48-49 (E.D.Pa.2004) (denying motion to intervene as of right because impairment requirement was not met where proposed intervenors "remain[ed] free to assert their claims by filing individual civil actions against [the defendant]").
In connection with the impairment factor, the Court is cognizant that if the Movants individually filed their own complaints for employment discrimination, at least five may be unsuccessful. The record is bare of any evidence that five of the Movants filed a discrimination charge with the EEOC, received a right-to-sue letter from the EEOC or otherwise exhausted their administrative remedies. Thus, if non-filing Movants attempt to file individually the claims asserted in the First and Second Complaints-in-Intervention, the effort may be futile and their claim would be subject to dismissal for failure to exhaust their administrative remedies. This impairment would not be due to the disposition of this action, however, but to the Movants own action or inaction and therefore is not the type of impairment that Rule 24(a) was intended to protect against. See United States v. New York, 198 F.3d 360, 366 (2d Cir.1999) ("Any failure on their part to act within the applicable statutes of limitations does not sufficiently impair their interests to warrant intervention under Rule 24(a)(2); rather, the harm to their interests must be attributable to the court's disposition of the suit in which intervention is sought."); Jones v. GES Exposition Servs., No. 02-6243, 2004 WL 2011396, at *8, 2004 U.S. Dist. LEXIS 17981, at *27 (N.D.Ill. Sept. 3, 2004)
Indeed, the claims of the non-filing Movants would be subject to challenge for failure to exhaust their administrative remedies, just like the claims of the non-filing plaintiffs. Although neither the defendant nor the Movants address this issue, the non-filing Movants presumably would seek to excuse their failure to exhaust their administrative remedies for their employment discrimination claims by relying on vicarious exhaustion, just as the non-filing plaintiffs have done. Cf. James v. England, 332 F.Supp.2d 239, 248 (D.D.C.2004) ("[T]he District of Columbia Circuit has permitted intervention in Title VII class action lawsuits by parties even if they have not exhausted their administrative remedies."). The five non-filing Movants, however, would be no more entitled to vicarious exhaustion than the non-filing plaintiffs, for whom vicarious exhaustion is not available due to the disparate nature of their legal and factual claims, as discussed in section IV. A. 3, supra. Their divergent factual allegations make amply clear that the EEOC could not have had notice of the Movants' claims based upon the EEOC charges filed by the three plaintiffs who exhausted their administrative remedies. Thus, the Movants would not be able to rely upon the "single-filing" rule to assert their claims. Accord Kifafi v. Hilton Hotel Ret. Plan, No. 98-1517, 2004 WL 3619156, at *5, 2004 U.S. Dist. LEXIS 28928, at *16-17 (D.D.C. Sept. 27, 2004) (denying motion to intervene in ERISA suit where plaintiff's exhaustion "does not excuse Intervenors own failure to do so," since movants' claims differ in nature from plaintiff's claims).
In sum, the Court finds that, even if these motions were not moot, the Movants would have failed to meet the requirements for intervention of right.
As an alternative ground, the Movants contend that the Court should exercise its broad discretion for permissive intervention under Rule 24(b)(2) and grant their motions to intervene. Even if the motions to intervene were not moot, the Court would decline to allow permissive intervention. For permissive intervention, the Movants must show that they share with the main action a common question of law or fact, and the Court "must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." FED.R.CIV.P. 24(b)(1)(B) & (3). The Movants would satisfy neither of these requisite showings.
The Movants acknowledge the differences in the factual allegations among each of the Movants and the plaintiffs, stating that the claims of each "present[] their unique experience." Movants' Reply Mem., ECF No. 29, at 2; Movants' Reply Mem., ECF No. 26, at 2. Nonetheless, the Movants contend that these conceded differences militate in favor, not against, intervention because together each "plaintiff and/or intervenor adds a piece to a complex puzzle" that "portray[s] a hostile work environment." Id. The Court disagrees.
Close examination of the Movants' claims make clear that they do not sufficiently share common questions of law or fact in common with each other or the main action that these claims could be efficiently considered together. Other courts have similarly denied intervention in discrimination cases for failure to show a common question of law or fact "where
Despite the limited overlap in the factual allegations and legal claims of the Movants and plaintiffs, the fact remains that each asserts particular individual circumstances. The Movants' claims largely relate to different CFSA units, different supervisors, different allegedly discriminatory and retaliatory actions, and different adverse actions than the plaintiffs. For example, while all of the plaintiffs complain about their treatment in the CPS component of CFSA, six of the Movants allege discriminatory treatment by other units, including In-Home and Reunification Services, the Licensing & Monitoring Division and the Family Stabilization Branch. See Bergman v. Snow, No. 06-303, 2008 U.S. Dist. LEXIS 109274, at *2-3 (D.D.C. July 10, 2008) (motion to intervene in disability discrimination suit denied as having "no merit" where movant claimed to "suffer from similar psychiatric disorders" as plaintiff but worked in "entirely different parts of the Agency"). The three Movants who did work in CPS complain about entirely different actions than the plaintiffs. Outlined below are several examples:
The differences in each Movant and plaintiff's experiences would unduly complicate and confuse the circumstances that apply to each party. For example, the Movants complain about Supervisors K through T, wholly different supervisors than A through J, whose actions are the source of the plaintiffs' complaints. In total, at least twenty different supervisors at various management levels in various CFSA components are alleged to have engaged in discriminatory or retaliatory actions against different Movants and the plaintiffs. Keeping track of which supervisor took an allegedly illegal action against a particular plaintiff or Movant would lead to unnecessary confusion.
The differences in the nature of the alleged actions underlying different legal claims would also raise a significant risk of engendering potential prejudice not only to
Accordingly, even if these motions were not moot, the Court would deny the Movants' motions to intervene of right or permissively.
For the foregoing reasons, the defendant's Motion to Dismiss the Second Amended Complaint will be GRANTED, and the plaintiffs' two pending Motions to Intervene will be DENIED. This case will be dismissed.
A separate order consistent with these findings and conclusions of law shall accompany this Memorandum Opinion.
