Ivey v. Fenty

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
PATRICIA IVEY, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-cv-1548 (ABJ)
)
ADRIAN FENTY, )
)
Defendant. )
____________________________________)

MEMORANDUM OPINION

This matter is before the Court on defendant’s Motion to Dismiss for failure to state a

claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). Plaintiff Patricia Ivey, a

former employee of the District of Columbia Child and Family Services Agency (“the Agency”),

has sued former Mayor Adrian Fenty in his official capacity, 1 alleging violations of her

constitutional rights and her rights under a consent decree governing the Agency. For the

reasons set forth below, the Court will dismiss plaintiff’s claims because she has failed to state a

claim upon which relief can be granted.

1 Plaintiff brings her suit against the Mayor in his official capacity. Pl.’s Opp. at 6. “[A]
suit against a state official in his or her official capacity is not a suit against the official but rather
is a suit against the official’s office.” See Wills v. United States, 491 U.S. 58, 71 (1989)
(citations omitted). Accordingly, the Court substitutes the District of Columbia as Defendant in
this matter because it is the proper party to be sued. See Henneghan v. DCPS, 597 F. Supp. 2d
30, 40 (D.D.C. 2008) (substituting the District of Columbia for DCPS); Waker v. Brown, 2010
WL 4985921, at * 2 (D.D.C. 2010) (substituting the District of Columbia in place of mayor,
police chief, and Department of Corrections).
 BACKGROUND

Plaintiff was employed as a caseworker with the Agency’s Child Protective Services Unit

(“Unit”), where she investigated reports of child abuse and neglect until her resignation in

August 2008. Am. Compl. ¶¶ 10-11. During the period at issue in the complaint, the District of

Columbia was subject to an implementation plan set forth in a consent decree and order issued

in LaShawn v. Fenty, No. 89-1754, Dkt. No. 864 (D.D.C. Feb. 27, 2007). Id. ¶¶ 12-13. The

February 2007 plan specified that no caseworker within in the unit was supposed to be assigned

more than 12 cases at one time. Id. ¶ 14.

In January 2008, U.S. Marshals conducting an eviction in the District of Columbia

discovered the bodies of four young girls who were allegedly murdered by their mother, Banita

Jacks. Id. ¶ 16. Although the Agency had previously received an initial report of child abuse

and neglect about the Jacks children, the assigned caseworker had never been able to make

contact with the family. Id. ¶ 17. As a result of the murders, the Agency came under intense

public scrutiny, and Mayor Fenty terminated seven employees who were involved in the Jacks

case, including plaintiff’s supervisor. Id. ¶¶ 18–20. While the number of available caseworkers

was thus reduced, at the same time, in light of the publicity surrounding the treatment of the

children, the number of abuse and neglect reports to the agency increased. Compl. ¶ 21.

Plaintiff’s claims arose in the context of this “surge” of work pending within the Unit. See

Compl. ¶ 22.

In the wake of the Jacks case, plaintiff’s caseload expanded to far exceed the 12 case

limit. See id. ¶¶ 32–34. Plaintiff states that by April of 2008, she had been assigned 54 cases

with a backlog of 47. Id. ¶ 50. According to plaintiff, no other caseworker had been assigned as

many claims. Id. ¶ 37. Plaintiff reports that she was overwhelmed by her caseload, and that

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despite complaints to management, nothing was done to reduce the number of cases she had been

assigned. Id. ¶¶ 36, 49. She also alleges that her supervisor threatened her with disciplinary

action if she did not eliminate her backlog. Id. ¶ 52. Plaintiff says she “felt” management was

deliberately assigning her more cases she could handle, and she “felt” her situation was hopeless.

Compl. ¶¶ 46-47. She became “angry and depressed” and “had a deep fear that a child, who was

buried in her backlog, would die or suffer serious harm.” Id. ¶¶ 43, 47.

In this case, plaintiff, who was fifty-eight in August of 2008, alleges that she was

discriminated against on the basis of her age. Id. ¶ 2. In the spring of 2008, the Child Protective

Services Unit had 50 caseworkers. Id. ¶ 61. Plaintiff claims that out of these caseworkers, 14 of

them had been assigned 40 or more cases, id. ¶ 62, and that eleven of the 14 were older than 40

years old. Id. The complaint also states that “caseloads for younger coworkers were generally

kept below 40” and that “[i]n general, younger caseworkers were not assigned as many cases as

older coworkers.” Id. ¶¶ 63, 64.

The complaint reveals that in July of 2008, management redistributed some of the cases

in the Unit. Plaintiff’s caseload decreased from approximately 53 cases to 30 cases, a number

she still found overwhelming to manage. Id. ¶ 72. In August of 2008, a child accidently died

from ingesting her father’s prescription medication in one of the cases to which plaintiff had only

recently been assigned. Id. ¶ 77. The Agency placed plaintiff on administrative leave while the

matter was reviewed. Id. ¶ 80. Before that process was complete, plaintiff resigned because she

“sens[ed] her termination was imminent.” Id. ¶ 81.

On October 22, 2009, plaintiff filed this action against Mayor Fenty in his official

capacity, alleging that the District of Columbia’s “acts, polic[i]es, practices and procedures”

violated her rights under the Due Process and Equal Protection Clauses of the Fifth Amendment

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to the U.S. Constitution, 42 U.S.C. § 1983, and the consent decree in LaShawn. Am. Compl. at

11. In her prayer for relief, plaintiff asked the Court to (1) award her damages for lost pay and

benefits with interest; (2) retain jurisdiction over this action to assure full compliance with court

orders and applicable law; (3) require defendant to file reports as the Court deems necessary; (4)

award her attorney’s fees and costs; and (5) award her compensatory and punitive damages. Id.

While the amended complaint contained multiple requests for “declaratory [and] injunctive

relief,” see Am. Compl. ¶¶ 2-5, plaintiff now concedes that she is not seeking equitable relief.

Pl.’s Opp. at 8.

Defendant has moved for dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a

claim upon which relief can be granted.

ANALYSIS

I. STANDARD OF REVIEW

“To survive a [Rule 12(b)(6)] motion to dismiss a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted); see also Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal, the Supreme Court reiterated the two

principles underlying its decision in Twombly: “First, the tenet that a court must accept as true all

of the allegations contained in a complaint is inapplicable to legal conclusions.” 129 S. Ct. at

1949. And “[s]econd, only a complaint that states a plausible claim for relief survives a motion

to dismiss.” Id. at 1950.

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.” Id. at 1949.

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

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sheer possibility that a defendant has acted unlawfully.” Id. “[W]here the well-pleaded facts do

not permit the court to infer more than the mere possibility of misconduct, the complaint has

alleged — but it has not ‘show[n]’ ‘that the pleader is entitled to relief.’” Id. (quoting Fed. R.

Civ. Proc. 8(a)(2)). A pleading must offer more than “labels and conclusions” or a “formulaic

recitation of the elements of a cause of action,” id., (quoting Twombly, 550 U.S. at 570), and

“[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory

statements, do not suffice.” Id. In ruling upon a motion to dismiss, a court may ordinarily

consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated

by reference in the complaint, and matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citations omitted).

When considering a motion to dismiss under Rule 12(b)(6), the complaint “is construed

liberally in [plaintiff’s] favor, and [the Court should] grant [plaintiff] the benefit of all inferences

that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276

(D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if

those inferences are unsupported by facts alleged in the complaint, nor must the Court accept

plaintiff’s legal conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

II. PLAINTIFF’S CONSTITUTIONAL CLAIMS UNDER § 1983

A. Section 1983 Claims

Plaintiff seeks damages under 42 U.S.C. § 1983, which “authorizes equitable relief and

compensatory damages against any ‘person’ who, under color of law, deprives another of a

constitutional right.” People for the Ethical Treatment of Animals v. Gittens, 396 F.3d 416, 424–

25 (D.C. Cir. 2005). As a municipality, the District of Columbia is a “person” for purposes of

§1983. Best v. District of Columbia, 743 F. Supp. 44, 46 (D.D.C. 1990) (citing Monell v. Dep’t

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of Soc. Servs. of the City of New York, 436 U.S. 658 (1978)). But the District may be subject to

liability under section 1983 “when an official policy or custom causes the complainant to suffer a

deprivation of a constitutional right.” See Carter v. District of Columbia, 795 F.2d 116, 122

(D.C. Cir. 1986). The policy or custom itself must be “the moving force behind the

constitutional violation.” Id. (quoting Monell, 436 U.S. at 694); see also Oklahoma City v.

Tuttle, 471 U.S. 808, 823 (1985) (requiring affirmative link between the city’s policy and alleged

constitutional violation).

To hold the District liable under section 1983, a “plaintiff must show ‘not only a violation

of his rights under the Constitution or federal law, but also that the District’s custom or policy

caused the violation.’” Feirson v. District of Columbia, 506 F.3d 1063, 1066 (D.C. Cir. 2007)

(quoting Warren v. District of Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004). “At the pleading

stage, only an allegation of the existence of a policy, practice, or custom and its causal link to the

constitutional deprivation suffered is required.” Maniaci v. Georgetown Univ., 510 F. Supp. 2d

50, 64 (D.D.C. 2007). However, if plaintiff’s “constitutional rights were not violated . . . his

§1983 claims against the . . . [d]efendants must fail.” Feirson, 506 F.3d at 1068. 2

B. Due Process Claims

In this section 1983 action, plaintiff alleges first that defendant violated her rights under

the Due Process Clause of the Fifth Amendment. To state a due process claim, a plaintiff must

allege a deprivation of interests protected by the Fifth Amendment, such as a liberty or property

2 Defendant argues that the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§ 633a(a), is the exclusive federal remedy for age discrimination claims in the employment
context, thereby “foreclosing age discrimination claims brought pursuant to §1983.” Def.’s
Mem. Dismiss at 9. Plaintiff argues that the ADEA is not the exclusive remedy for rights
violations that have an independent constitutional basis. Pl.’s Opp. at 6. But because plaintiff
fails to state an actionable claim under section 1983, the Court does not need to resolve that
issue.
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interest. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (property interest

in employment protected under the Due Process clause was created by state law); cf. Evans v.

District of Columbia, 391 F. Supp. 2d 160, 166–7 (D.D.C. 2005) (employee had no property

interest protected by the Fourteenth Amendment in continued employment).

But in this case, plaintiff fails to identify any due process right that defendant allegedly

violated. See, e.g., Loudermill, 470 U.S. at 538. Plaintiff does not allege that her liberty was

infringed, and the Court cannot conclude that her due process claim was premised on an alleged

property interest in continued employment with the Agency since the complaint contains no

allegations suggesting that she was anything other than an at-will employee. 3 As a result,

plaintiff has failed to state a claim for violation of the Due Process Clause, and these claims will

be dismissed.

C. Equal Protection Claims

1. Intentional Discrimination Claim

Plaintiff next claims she was discriminated against in violation of her rights under the

Equal Protection Clause of the Fifth Amendment. Am. Compl. ¶ 3. She alleges that defendant

“assigned an overwhelming number of cases to older caseworkers, specifically, and then

threatened them with disciplinary action if they failed to eliminate their backlog.” Id. at 1–2.

In accordance with the two-pronged procedure recommended in Iqbal, the Court will

begin its analysis by identifying the allegations in the complaint that “because they are no more

than conclusions, are not entitled to the assumption of truth.” Iqbal, 129 S. Ct. at 1950. In

3 At-will employees have no property interest in their employment “because there is no
objective basis for believing that they will continue to be employed indefinitely.” Hall v. Ford,
856 F.2d 255, 265 (D.C. Cir. 1988) (at-will employee who served “at the pleasure” of university
president had no property interest in employment); see also Mills v. Dist. of Columbia Dept. of
Mental Health St. Elizabeth Hosp. Managers, 2010 WL 5168887, at *4 (D.D.C. 2010) (at-will
District of Columbia employee had “no protected interest in his employment”).
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paragraph 56 of her complaint, under the heading, “The Defendant created a hostile work

environment for older caseworkers, including Ms. Ivey, by assigning them an overwhelming

number of cases and then threatening them with disciplinary action if they did not eliminate their

backlog,” plaintiff simply repeats the heading. She alleges that “[m]anagement deliberately

assigned an overwhelming number of cases to older caseworkers and then threatened them with

disciplinary action if they did not eliminate their backlog.” Compl. ¶ 56. She also alleges “[i]n

general, younger caseworkers were not assigned as many cases as older caseworkers.” Compl. ¶

64. These are the sort of conclusory allegations that will not suffice to state a cause of action.

Iqbal also states: “when there are well-pleaded factual allegations, a court should assume

their veracity and then determine whether they plausibly give rise to an entitlement to relief.”

129 S. Ct. at 1950. All of the key facts underlying plaintiff’s discrimination claim are set out in

paragraphs 61 through 66. Plaintiff alleges that 11 of the 14 case workers who were assigned

more than 40 cases–or approximately 78.5% of them–were 40 year of age or older. Compl. ¶ 62.

But the complaint does not go on to provide the context that would make this statistic

meaningful. What percentage of the total group of 50 caseworkers was over 40 years old? What

were the ages of the caseworkers with smaller caseloads? The complaint says only that

“caseloads for younger caseworkers were generally kept below 40” and “[i]n general, younger

caseworkers were not assigned as many cases as older caseworkers.” Am. Compl. ¶¶ 61-64

(emphasis added). But were their caseloads significantly smaller than those assigned to the older

employees? And what was the level of experience of the younger workers?

Even if these barebones allegations were enough to describe some sort of disparate

impact on the older workers, the complaint also fails to allege the necessary element of

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discriminatory purpose — i.e., that these workers received a larger share of the work specifically

because of their age.

To state a claim for intentional discrimination under the Equal Protection Clause, a

plaintiff “must plead and prove that the defendant acted with discriminatory purpose.” Iqbal,

129 S. Ct. at 1948; see also Washington v. Davis, 426 U.S. 229, 240–245 (1976) (to state a claim

for equal protection violation, a plaintiff must allege an improper motive and not merely a

discriminatory impact.). “‘[P]urposeful discrimination requires more than ‘intent as volition or

intent as awareness of consequences;’ it instead involves a decisionmaker’s undertaking a course

of action ‘because of,’ not merely ‘in spite of,’ [the action’s] adverse effects upon an identifiable

group.” Iqbal, 129 S. Ct. at 1948 (quoting Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279

(1979)); see also Atherton v. Dist. of Columbia Off. of the Mayor, 567 F.3d 672, 688 (D.C. Cir.

2009); Aref v. Holder, No. 10-cv-0539, 2011 WL 1195813, at *18 (D.D.C. March 30, 2011);

Hall v. Lanier, No. 07-cv-0970, 2011 WL 635294, at *3 (D.D.C. Feb. 23, 2011).

Plaintiff fails to allege a plausible claim that defendant violated her equal protection

rights by assigning cases “because of, not merely in spite of” her age. See Iqbal, 129 S. Ct. at

1948 (quotations omitted). Plaintiff’s allegations of intentional discrimination consist solely of

her statement that all but 3 of the 14 workers with over 40 cases was over 40 years old and that

“caseloads for younger caseworkers were generally kept below 40.” Am. Compl. ¶¶ 61-64.

Plaintiff makes no express claim that the defendant was motivated by some discriminatory

animus, and the Court cannot reasonably infer from her allegations that defendant “acted with a

discriminatory intent or purpose.” Iqbal, 129 S. Ct. at 1948. Indeed, there are multiple other

inferences that can be drawn from these allegations. For example, at a time when the Agency

was under intense public scrutiny, one reasonable interpretation of the allegations is that more

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cases were assigned to older caseworkers because of their superior experience and knowledge of

child protective services. The complaint provides an explanation for why, during the surge of

reports, the defendant would have assigned more cases to plaintiff — she specifically alleges that

she had received outstanding performance reviews and promotions. Am. Compl. ¶ 25. Thus,

plaintiff’s conclusory allegations of discrimination, without any supporting information, “stop

short of the line between possibility and plausibility of entitlement to relief.” Iqbal, 129 S. Ct. at

1949 (quoting Twombly, 550 U.S. at 555); see also Atherton, 567 F.3d at 688 (reversing district

court finding that plaintiff stated equal protection claims where “spare facts and allegations . . .

do not permit the court to infer more than the mere possibility of misconduct”) (internal citations

omitted); Ekwem v. Fenty, 666 F. Supp. 2d 71, 79 (D.D.C. 2009) (another plaintiff challenging

the Agency’s assignment of cases in the wake of the Jacks murders could not establish a claim

for equal protection violation where he failed to allege any facts indicating the presence of

discriminatory intent).

Moreover, even assuming that plaintiff had plausibly alleged intentional discrimination,

her claim fails because “[p]roof of a single incident of unconstitutional activity is insufficient to

impose liability [under section 1983] unless there was proof that there was a policy in place that

was unconstitutional.” Sanders v. Dist. of Columbia, 522 F. Supp. 2d 83, 88 (D.D.C. 2007)

(citing Monell, 436 U.S. at 694. While plaintiff alleges that she had a larger caseload than any

other caseworker, and that other older workers were also asked to carry a heavy load, this is not

enough to state a claim that defendant used a “discriminatory policy or practice” to distribute

more cases to older employees because of their age. See Plater v. Dist. of Columbia Dep’t of

Transp., 530 F. Supp. 2d 101, 108 (D.D.C. 2008). Even if these allegations were “consistent

with [] defendant’s liability,” the Court cannot reasonably infer from what is in the complaint

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that defendant “acted with discriminatory purpose.” Iqbal, 129 S. Ct. at 1948. Plaintiff therefore

has not established the necessary elements of an equal protection claim under section 1983, and

this claim must be dismissed.

2. Constructive Discharge Claim

The Court next turns to plaintiff’s claim for constructive discharge. To establish a claim

for constructive discharge, a plaintiff must prove that (1) intentional discrimination existed, (2)

the employer deliberately made working conditions intolerable, and (3) aggravating factors

justified the plaintiff’s conclusion that she had no option but to end her employment. See Carter

v. George Washington Univ., 180 F. Supp. 2d 97, 110 (D.D.C. 2001) (citing Clark v. Marsh, 665

F.2d 1168, 1173–74 (D.C. Cir. 1981); Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1558

(D.C. Cir. 1997) (holding that a plaintiff alleging constructive discharge must show that the

“employer deliberately made working conditions intolerable and drove the employee out” of the

position) (internal quotations omitted). 4 “The mere existence of workplace discrimination is

insufficient to make out a constructive discharge claim.” Veitch v. England, 471 F.3d 124, 130

(D.C. Cir. 2006). Rather, constructive discharge “requires a finding of discrimination and the

existence of certain ‘aggravating factors’ that would force a reasonable employee to resign.” Id.

(quoting Mungin, 116 F.3d at 1558) (emphasis in original); Clark v. Marsh, 665 F.2d 1168, 1173

(D.C. Cir. 1981) (“[C]ase law does indicate a general reluctance to predicate a finding of

constructive discharge upon the fact of discrimination.”)

Plaintiff has failed to allege facts that “plausibly give rise to an entitlement to relief” for

constructive discharge. Iqbal, 129 S. Ct. at 1949–50; see also Bryant v. Pepco, 730 F. Supp. 2d

4 Defendant argues that plaintiff’s claim for constructive discharge should be dismissed
because she has failed to exhaust her administrative remedies. See Def.’s Mem. to Dismiss at 5.
The Court does not reach this question, however, because it finds that plaintiff fails to state a
claim for constructive discharge.
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25, 32 (D.D.C. 2010) (“formulaic recitation” of the elements of constructive discharge is

insufficient to state a claim under Twombly). Since plaintiff does not plausibly allege that that

defendant “acted with discriminatory purpose,” she fails to plead intentional discrimination.

Iqbal, 129 S. Ct. at 1948. She similarly fails to allege that her “employer deliberately made

working conditions intolerable and drove [her] out.” Mungin, 116 F.3d at 1558. With respect to

the working conditions, plaintiff alleges that she “worked late on weekdays and put in time on

weekends,” that “her work schedule gave her little time for family and friends,” and that she

“had no time for her normal recreational activities such as golf.” Am. Compl. ¶¶ 39–41. She

states that the size of her caseload made her unable to perform effectively, id. ¶ 45, or to live up

to a social worker’s professional standards. Id. ¶ 48. Fearful about the harm that could befall the

children in her backlog, “she was worried and had trouble sleeping,” id. ¶44, and she felt

“hopeless,” “angry,” and “depressed.” Id. ¶¶ 43, 47, 56.

While the court assumes the veracity of plaintiff’s stated concerns about the risks to

children in the Agency’s ballooning caseloads, her allegations fall short of stating a plausible

claim for constructive discharge. See Crenshaw v. Georgetown Univ., 23 F. Supp. 2d 11, 20

(D.D.C.1998) (plaintiff’s “subjective belief that her tenure has become intolerable is insufficient

to support a claim for constructive discharge”). Even if the Court were persuaded that plaintiff

had alleged sufficient facts to describe an “intolerable” working environment, what plaintiff fails

to do is set forth a basis for the conclusion that these conditions were “deliberately” imposed by

her employer. 5 Simply labeling defendant’s assignment of cases to older caseworkers as

5 Even though the LaShawn consent decree ordered the Agency to assign a maximum of 12
cases, the allegations do not support an inference that defendant deliberately made working
conditions intolerable for older employees. As the Court has already discussed, there are a
number of reasons that management may have been inclined to assign cases to older
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“deliberate” is insufficient to plausibly claim that defendant intended to create “intolerable

working conditions and dr[i]ve [her] out.” Mungin, 116 F.3d at 1558. See also Iqbal, 129 U.S.

at 1949 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.”).

For one thing, plaintiff’s complaint makes it clear that the Agency was dealing with an

exigent situation, created by the decision to discharge a number of workers associated with the

Jacks case at the very time that the publicity surrounding the case prompted a surge in reports.

And, plaintiff’s own allegations detract from her claim that defendant deliberately engineered a

situation that would prompt her to leave. The complaint alleges that plaintiff began complaining

to management about her excessive workload in April of 2008, see Am. Compl. ¶ 49, but by July

2008, her caseload had decreased from approximately 54 cases to 30. See Am. Compl. ¶ 72.

The Court cannot reasonably conclude that defendant was deliberately assigned too many cases

for the purpose of driving her out in the face of her own allegation that she resigned at a time

when her caseload was going down. Indeed, the opposite conclusion is more plausible.

Furthermore, plaintiff does not even allege that it was the caseload that triggered her resignation.

Rather, she states that she was placed on administrative leave because a child within her caseload

had died, and she resigned “sensing that her termination was imminent.” Am. Compl. ¶ 81.

Finally, presuming that defendant placing plaintiff on administrative leave is the alleged

“aggravating factor,” plaintiff also fails to show that this event justified her resignation. See

Veitch v. England, 471 F.3d 124, 130 (D.C. Cir. 2006) (“Aggravating factors are those aspects of

a discriminatory work environment that, by making the workplace so disagreeable, prevent the

employee from seeking remediation on the job.”) (internal quotations omitted). Plaintiff’s

caseworkers, including that they were the most experienced and capable employees working in
the Child Protective Services Unit at the time.

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allegations state that she was placed on administrative leave after the accidental death of a child

in one of her assigned cases. See Am. Compl. ¶ 80. In light of the Jacks murders only seven

months before and the serious nature of the event that led to her administrative leave, defendant’s

response appears appropriate based on the allegations. Because plaintiff “fail[s] to allege or

show facts that could amount to constructive discharge,” this claim must be dismissed. See

Turner v. Dist. of Columbia, 383 F. Supp. 2d 157, 171–2 (D.D.C. 2005).

III. PLAINTIFF’S § 1985 CLAIM

Plaintiff concedes that she does not have a conspiracy claim under 42 U.S.C. § 1985.

Pl.’s Opp. at 8. Accordingly, this claim will be dismissed.

IV. PLAINTIFF’S CLAIM UNDER LASHAWN V. FENTY

Plaintiff alleges that defendant violated her rights under the LaShawn consent decree by

assigning her more cases than the maximum designated by the consent decree. Am. Compl. ¶ 5.

Because plaintiff was not a party to the consent decree and does not suggest that she was “one of

the intended beneficiaries in order to have enforcement rights,” SEC v. Prudential Sec., Inc., 136

F.3d 153, 159 (D.C. Cir. 1998), she does not have a private right of action under LaShawn v.

Fenty. See Ekwem, 666 F. Supp. 2d at 81. 6 The Court, therefore, will grant defendant’s Motion

to Dismiss with respect to these claims.

6 To the extent that plaintiff relies on the consent decree as a standard for determining
intolerable working conditions, the Court considered this allegation as part of the claims for
intentional discrimination and constructive discharge and has determined that plaintiff has not
alleged a plausible claim. See infra Section B(ii).
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 CONCLUSION

For the foregoing reasons, and based upon the motion, the opposition, and the entire

record in the case, defendant’s motion to dismiss is granted. Accordingly, the Court dismisses

plaintiff’s claims for failure to state a claim upon which relief can be granted and will enter

judgment for defendant. An appropriate order will issue.

/s/
AMY BERMAN JACKSON
United States District Judge

DATE: June 6, 2011

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