UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
KENNETH DICKERSON, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 09-2213 (RWR)
)
DISTRICT OF COLUMBIA, et al., )
)
Defendants. )
_____________________________ )
MEMORANDUM ORDER
Plaintiffs Kenneth Dickerson and fourteen other principals
and assistant principals1 from the District of Columbia Public
Schools (“DCPS”) brought this putative class action in the D.C.
Superior Court against the District of Columbia, its Mayor, and
the Chancellor of the DCPS, seeking damages in an amended
complaint for race and age discrimination in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et
seq. and the District of Columbia Human Rights Act (“DCHRA”),
D.C. Code Ann. § 2-1401.01 et seq., wrongful discharge,
defamation, civil conspiracy, and violation of the Employee
Retirement Income Security Act (“ERISA”), based upon the
termination of their employment in June 2008. (Am. Compl. ¶¶ 53-
69.) The defendants removed the action to this court.
1
Wilma Gaines, Janette Johns-Gibson, Charles Harden Jr.,
Harriet Kargbo, Treva Lindsey, Antonia Peters, Andre Roach,
Jacqueline Williams, Donna Edwards, Carol Barbour, Marta Guzman,
Mary Grant, Richard Patterson, and Wellington Wilder.
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The plaintiffs have moved for leave to file a second amended
complaint that would add four new plaintiffs, add new factual
allegations, expand the civil conspiracy count, and add new
claims of violation of 42 U.S.C. § 1981 and breach of employment
contract. (Pls.’ Mot. for Leave to File Second Amended Compl.
¶¶ 1-2.) The proposed second amended complaint alleges that
before the termination of their employment, the plaintiffs were
third party beneficiaries of the Union’s collective bargaining
agreement (“CBA”) with the District, and that the defendants
discriminated against the plaintiffs based on race and age by
repeatedly failing to follow the procedures and policies set
forth in the CBA and preventing the plaintiffs from enforcing
their contractual rights. (Notice of Errata Re Pls.’ Proposed
Second Am. Compl. (“Second Am. Compl.”) ¶¶ 74-78, 93-95.)
The defendants oppose the plaintiffs’ motion for leave to
file, arguing that the plaintiffs’ proposed amendments would not
survive a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), and therefore would be futile. However, the defendants
fail to demonstrate that leave to file should be denied. “The
defendant has the burden of showing why leave to file an amended
complaint should not be granted.” Smith v. Cafe Asia, 598 F.
Supp. 2d 45, 48 (D.D.C. 2009). The decision whether to grant
leave to amend a complaint is within the discretion of the court,
but leave “should be freely given unless there is a good reason,
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such as futility, to the contrary.” Willoughby v. Potomac Elec.
Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996). “An amendment is
futile ‘if the proposed claim would not survive a motion to
dismiss.’” Smith, 598 F. Supp. 2d at 48 (quoting James Madison
Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996)). A claim
fails to survive a motion to dismiss filed under Rule 12(b)(6)
when it does not plead sufficient factual detail to state a claim
that is plausible on its face.
To survive a motion to dismiss, a complaint must
contain sufficient factual matter, acceptable as true,
to “state a claim to relief that is plausible on its
face.” . . . A claim has facial plausibility when the
plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is
liable for the misconduct alleged.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)).
The defendants argue that the plaintiffs’ proposed 42 U.S.C.
§ 1981 count would be futile because it fails to state a claim
since plaintiffs had no right to continued employment beyond
their one-year contracts; the count neither alleges a contractual
relationship with the Mayor or the Chancellor, nor amply alleges
a factual basis for municipal liability (Defs.’ Opp’n at 3-8);
and the claim is barred by the CBA. (Defs.’ Opp’n at 8-9.) The
defendants also argue that the plaintiffs’ claim for breach of
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employment contract is barred by the Comprehensive Merit
Personnel Act (“CMPA”).2
I
Section 1981 of Title 42 of the United States Code serves to
protect the right to make and enforce a contract free of racial
discrimination. The statute defines making and enforcing
contracts as “the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual
relationship.” 42 U.S.C. § 1981(b). To establish a claim under
§ 1981, plaintiffs must show that (1) they are members of a
racial minority group; (2) the defendant intended to discriminate
on the basis of race; and (3) the discrimination pertained to one
of the activities enumerated in the statute. Mitchell v. DCX,
Inc., 274 F. Supp. 2d 33, 44-45 (D.D.C. 2003) (citing Morris v.
Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996)); see also
Mazloum v. Dist. of Columbia Metro. Police Dep’t, 522 F. Supp. 2d
24, 37 (D.D.C. 2007). Here, the proposed second amended
2
The defendants also argue that the new facts added to the
plaintiffs’ claim of civil conspiracy in the second amended
complaint do not result in a claim that is plausible on its face.
Since leave to file a second amended complaint is being granted,
thus rendering moot the defendants’ pending motion to dismiss the
first amended complaint, the defendants will be free to resurrect
this argument in any motion to dismiss the second amended
complaint they may choose to file. Even if this argument about
this one amendment has merit, the court will exercise its
discretion to not let one flawed amendment among multiple
amendments bar the filing of the second amended complaint.
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complaint alleges that the plaintiffs are all African-American or
Hispanic males and females (Second Am. Compl. ¶¶ 35, 41), that
the defendants discriminated against them based on race (Second
Am. Compl. ¶¶ 38, 78), and that the enumerated activity pertained
to following contractual evaluation procedures and terminating
the employment contracts (Second Am. Compl. ¶¶ 77-78). Whatever
limitation may have existed on plaintiff’s right to continued
employment, plaintiffs have amply alleged that while they were
employed, their right to have evaluations and termination
decisions be free from racial discrimination was violated.
II
The defendants argue that the proposed amended complaint
does not contain a viable cause of action under 42 U.S.C. § 1981
because the second amended complaint does not allege a
contractual relationship between the plaintiffs and the Mayor or
Rhee. (Defs.’ Mem. at 3-4.) However, the defendants do not
argue that the second amended complaint fails to allege a
contractual relationship between the plaintiffs and the District
of Columbia. The lack of a contractual relationship between the
plaintiffs and some of the defendants would not be a reason to
deem the entire second amended complaint futile. Furthermore,
the authority cited by the defendants, Domino’s Pizza v.
McDonald, 546 U.S. 470 (2006), holds that a plaintiff alleging a
claim under 42 U.S.C. § 1981 must “initially identify an impaired
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‘contractual relationship.’” Domino’s Pizza, 546 U.S. at 476.
Domino’s Pizza does not support the proposition that a plaintiff
must allege complete privity of contract with all defendants;
instead, it merely requires that a plaintiff have rights under
the existing contract, or be a third party beneficiary of the
contract. Id.
III
The defendants also argue that the plaintiffs’ proposed
amended complaint does not allege that a policy or custom of the
District of Columbia was the “moving force” that caused the
discriminatory interference with their contract rights. (Defs.’
Mem. at 4-5.) To allege a claim under § 1981 against a
municipality, a plaintiff must allege that the violation of the
right to make and enforce contracts protected by § 1981 was
caused by the municipality’s custom or policy. See Monell v.
Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690-91 (1978); Smith
v. Janey, 664 F. Supp. 2d 1, 9 (D.D.C. 2009). The District’s
custom or policy may cause a violation of the right to make or
enforce contracts under several different circumstances. The
District or one of its policymakers may explicitly adopt a policy
that is the moving force behind a violation. Warren v. Dist. of
Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004). Another way to
allege that a policy or custom caused the violation is to allege
that a policymaker knowingly ignored a practice that was
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consistent enough to constitute a custom. Id. The
unconstitutional discrimination could also be “so widespread as
to constitute a custom, practice or policy . . . .” Reed v.
Dist. of Columbia, 474 F. Supp. 2d 163, 168 (D.D.C. 2007). An
agency practice need not be “authorized by written law,” but may
be “so permanent and well settled as to constitute a 'custom or
usage' with the force of law.” Monell 436 U.S. at 691. Here,
the proposed second amended complaint alleges that at all times
relevant to the complaint, the DCPS acted “by and through its
Chancellor, Michelle Rhee,” and that as Chancellor, Rhee had
“authority to make operational decisions for DCPS, inclusive of
personnel matters affecting the DCPS educational service
(including staff, administrative employees, contractors, and
others providing services to DCPS),” and that Rhee engineered the
discriminatory mass firings. (Second Am. Compl. ¶¶ 26-30.)
Therefore, the proposed second amended complaint alleges that a
policymaker, Rhee, adopted or actually initiated, the repeated
discriminatory practice curtailing the plaintiffs’ contract
rights.
IV
The defendants assert that the plaintiffs’ § 1981 claims are
barred by the provision in the CBA that states that “any
complaint concerning discrimination as prohibited by the D.C.
Human Rights Law shall be processed under procedures provided in
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D.C. Official Code § 2-1403.04.” (Defs.’ Opp’n at 8-9.)
However, that provision of the CBA does not state that it applies
to claims arising under federal anti-discrimination statutes such
as 42 U.S.C. § 1981, and the defendants have presented no
authority establishing that the CBA provision does bar § 1981
claims.
V
The defendants maintain that the plaintiffs’ breach of
contract claims would be futile because plaintiffs failed to
pursue their exclusive remedies provided under the Comprehensive
Merit Personnel Act (“CMPA”), D.C. Code § 1-601.01 et seq. The
CMPA assures “that the District of Columbia government shall have
a modern flexible system of public personnel administration,
which shall . . . [e]stablish impartial and comprehensive
administrative or negotiated procedures for resolving employee
grievances.” D.C. Code § 1-601.2(a)(5); Robinson v. Dist. of
Columbia, 748 A.2d 409, 411 (D.C. 2000) (stating that “[w]ith few
exceptions, the CMPA is the exclusive remedy for a District of
Columbia public employee who has a work-related complaint of any
kind”). With the CMPA, the District “sought to create a
mechanism for addressing virtually every conceivable personnel
issue among the District, its employees, and their unions -- with
a reviewing role for the courts as a last resort, not a
supplementary role for the courts as an alternative forum.”
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Alexis v. Dist. of Columbia, 44 F. Supp. 2d 331, 349 (D.D.C.
1999) (internal quotation omitted). “Based on the CMPA's
administrative scheme, courts in this district have repeatedly
dismissed claims that have not been initially pursued under the
CMPA's procedures.” Payne v. Dist. of Columbia, 592 F. Supp. 2d
29, 35 (D.D.C. 2008).
Here, in the proposed second amended complaint, the
plaintiffs allege that they did attempt to exhaust their
administrative remedies under the CBA by raising grievances
through their collective bargaining unit (Second Am. Compl. ¶ 57,
Ex. 2 (Grant Aff.) at 6-7), and proceeding to the Office of
Employee Appeals, the organ the defendants cite as being part of
the CMPA exhaustion process (Defs.’ Opp’n at 10). It is
premature to conclude from this briefing that the plaintiffs
failed to exhaust their administrative remedies and that
permitting their new claims would be futile.
* * * * *
Therefore, it is hereby
ORDERED that the plaintiffs’ motion [Docket Entry 4] for
leave to file an second amended complaint be, and hereby is,
GRANTED. The Clerk is directed to docket as the Second Amended
Complaint the exhibit attached to the Notice of Errata [Docket
Entry 7]. It is further
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ORDERED that the defendants’ motion [Docket Entry 5] to
dismiss the first amended complaint be, and hereby is, DENIED
without prejudice as moot. It is further
ORDERED that the plaintiffs’ motion [Docket Entry 13] for an
extension of time to file a motion for class certification be,
and hereby is, GRANTED. The plaintiffs’ motion shall be filed 90
days after the defendants file an answer.
SIGNED this 24th day of August, 2011.
/s/
RICHARD W. ROBERTS
United States District Judge