Peters v. District of Columbia

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ANGELLA PETERS, et al.,

Plaintiffs,

v. Civil Action No. 09-cv-02020 (BAH)

Judge Beryl A. Howell

DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION

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

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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.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural History

Two plaintiffs, Angella Peters 1 and Larry McCall, initiated this lawsuit on October 28,

2009, alleging that the District of Columbia violated their rights under the Due Process Clause of

the Fifth Amendment to the United States Constitution, for which they sought damages under 42

U.S.C. §§1981 and 1983. Shortly thereafter, the plaintiffs filed an amended complaint adding

four plaintiffs — Maria Dyson, Augustine Ekwem, Jacqueline Moore and Katherine Washington

— as well as claims under Title VII of the Civil Rights Act of 1964, the ADEA, and the

DCHRA. On March 16, 2010, the Court granted the plaintiffs’ unopposed motion for leave to

file a Second Amended Complaint, 2 which added three more plaintiffs: Joan Simpson, Melva

Meade, and Cynthia Courts-Marshall. 3 See Minute Order (Mar. 16, 2010) (Sullivan, J.). 4

1

There is discrepancy in the briefing material from the plaintiffs about the spelling of the lead plaintiff’s first name

(she is sometimes referred to as “Angela” and other times referred to as “Angella”). The Court will refer to Ms.

Peters as “Angella,” which is how her named is spelled in the Second Amended Complaint. See ECF No. 17.

2

For ease of reference, the Second Amended Complaint, ECF No. 17, which is at issue in the pending motion to

dismiss, will be cited as “Compl.” herein.

3

Although the defendant initially opposed the filing of the Second Amended Complaint as futile, the defendant

withdrew its opposition and instead “decided the most efficient way to address the procedural and substantive

deficiencies . . . would be to file a comprehensive Motion to Dismiss in response to this pleading. . . .” Def.’s Mem.

in Opp’n to Mot. to Amend, ECF No. 15, ¶ 7.

4

This case was re-assigned to the current presiding Judge on January 21, 2011.

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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.

B. Allegations in Second Amended Complaint

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.

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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 workload, the caseworker plaintiffs complain

that they were assigned an unfair number of cases, which resulted in backlogs and prompted

adverse employment actions, ranging from being “written up” to reprimands. Id. Two

supervisor plaintiffs also allege retaliation: Jacqueline Moore alleges that after she complained to

human resources about her treatment by a supervisor, she was retaliated against, id. ¶¶ 267-310,

and Cynthia Courts-Marshall alleges that she was retaliated against after she refused to fire

employees as instructed by her supervisor, id. ¶¶ 605-10, 617-18. The allegedly retaliatory

actions against these two supervisors included poor job performance evaluations, which resulted

in a denial of pay increases, id. ¶¶ 272-81, 293 (Moore); demotion to a caseworker position to

help with the post-Jacks tragedy surge in cases, id. ¶¶ 284-86 (Moore); and re-assignment or

removal of duties, id. ¶¶ 308-10 (Moore), id. ¶¶ 630-35 (Courts-Marshall). 5

5

The three remaining supervisors (Simpson, Meade and Ekwem) do not assert retaliation claims.

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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. 6 Four plaintiffs (Ekwem, Moore, Peters and

Simpson) also claim discrimination on the basis of national origin. Six plaintiffs (Dyson,

Ekwem, McCall, Moore, Peters and Washington) claim age discrimination, even though the

three plaintiffs who do not make this claim are also over 40 years of age and two of them are

older than some of the plaintiffs who do claim age discrimination. Finally, six plaintiffs (Courts-

Marshall, Dyson, McCall, Moore, Peters and Washington) claim retaliation. 7

The Title VII and ADEA discrimination claims asserted by each plaintiff are summarized

in the chart below.

Plaintiff – Discrimination based upon: Hostile Work Retaliation

Position Race National Environment

(Black) Origin Age Gender

Peters – √ √ (Jamaican) √ NO √ √

Caseworker (51)

McCall – √ NO NO NO √ √

Caseworker (57)

Washington- √ NO √ NO √ √

Caseworker (52)

Dyson – √ NO √ NO √ √

Caseworker (49)

6

Based upon statements contained in the plaintiffs’ motion for leave to amend, the defendant construed the claims

asserted in the Second Amended Complaint by the three new plaintiffs (Simpson, Meade and Courts-Marshall) to be

limited to claims ‘“under the Due Process Clause of the Fifth Amendment to the U.S. Constitution due to the

deprivation of equal protection rights; 42 U.S.C. § 1983; and 42 U.S.C. § 1981.’ (Pl.’s Mot. Amend, p.2.).” Def.’s

Mem. in Supp. of Mot. to Dismiss (“Def.’s Mem”), ECF No. 21, at 9. The Court disagrees with the defendant’s

view. The Second Amended Complaint asserts the same Title VII claims on behalf of all the plaintiffs. Compl. ¶¶

10-13.

7

Only Plaintiff Ekwem asserts additional claims of gender discrimination and pendent claims for negligence,

defamation and violation of the District of Columbia’s Whistleblower Reinforcement Act of 1998, D.C. Law 12-

160. Compl. ¶¶ 426, 499-501.

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Meade – √ NO NO NO √ NO

Supervisor (60)

Ekwem – √ √ (Nigerian) √ √ (Male) √ NO

Supervisor (52)

Simpson – √ √ (Jamaican) NO NO √ NO

Supervisor (52)

Moore – √ √ √ NO √ √

Supervisor (Trinidadian) (66)

Courts- √ NO NO NO √ √

Marshall – (46)

Administrator

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).

1. Allegations of CFSA-CPS Caseworker Plaintiffs Supervised by the

Same Supervisor

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 Angella Peters is a 51-year old, black woman of Jamaican origin, who worked

as a CPS caseworker for approximately 12 years until her resignation in October, 2009. Compl.

¶¶ 24, 25, 93. On November 9, 2009, she filed a complaint against the CFSA with the Equal

Employment Opportunity Commission (“EEOC”), which issued a right-to-sue letter on March 2,

2010. Id. ¶ 2. Peters claims racial, national origin and age discrimination, a hostile work

environment and retaliation based upon allegations that (1) a white woman supervisor

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(“Supervisor A”), 8 to whom Peters was assigned in 2005, “treated black caseworkers from

Africa and the Caribbean Islands in a demeaning fashion,” id. ¶ 40, apparently prompting three

other employees from Jamaica and Nigeria to transfer out of the supervisor’s group, id. ¶¶ 40-46,

48; (2) Supervisor A complained about, and punished Peters for, “alleged transgressions of other

caseworkers,” id. ¶¶ 50-51; “screamed at, talked down to, and pointed her finger at [Plaintiff]

Peters,” as well as yelled at her in front of others, id. ¶¶ 52-53, and made “intimidating

comments” that the supervisor did not make to her “African American co-workers,” id. ¶¶ 54-

55; (3) Supervisor A took other actions against Peters, such as blocking her from leaving her

cubicle, stopping colleagues from talking to her, and following Peters “into the bathroom and

instruct[ing] her to get back to her typing as she used the bathroom stall,” id. ¶¶ 56-58; (4)

Supervisor A “bullied” white caseworkers, id. ¶ 37; (5) Supervisor A retaliated after Peters and

her co-workers complained to the Program Manager, Supervisor B, 9 about Supervisor A’s

“abusive behavior” and race discrimination, prompting Supervisor B to hold a meeting in 2007

with Supervisor A and members of the unit, to discuss “racial sensitivity” and “assure[] the

group that there would be no retaliation,” id. ¶¶ 68-72; and (5) following the Jacks tragedy,

Peters was “assigned an overwhelming number of cases,” resulting in a case backlog for which

she was given warnings, a reprimand and proposed suspension in October, 2009, while other

members of Supervisor A’s unit with similar backlogs were not written up, id. ¶¶ 75-87 (under

caption “Retaliation”). Peters’ complaints to two program managers, Supervisors C and D, “to

8

Supervisor A is Donna Jessen. Compl. ¶ 30. Given the number of names of both plaintiffs and other CFSA

employees whose conduct is described in the Second Amended Complaint, to avoid confusion, only the names of

the plaintiffs are used in the text of this Opinion and non-party employees are referred to by their position and a

designated letter rather than by name.

9

Supervisor B is Felicia Cowser, about whom the Complaint provides no racial or ethnic information. Compl. ¶ 63.

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end the abuse” were not addressed. Id. ¶ 88. 10 In October 2009, Peters resigned from CFSA

“due to intolerable working conditions.” Id. ¶¶ 93-94.

Plaintiff Larry McCall is a 57-year old black man, who also worked as a CPS

caseworker under Supervisor A. He filed a complaint with the EEOC against the CFSA but at

the time of filing the complaint had not received a right-to-sue letter. Id. ¶ 3. 11 McCall claims

racial and age discrimination, a hostile work environment and retaliation based upon allegations

that (1) he was subjected to Supervisor A’s intimidating comments such as “I am going to write

you up,” id. ¶ 115; (2) he “watch[ed] [Supervisor A] mistreat his foreign born co-workers,” and

was part of the group who complained in 2007 to Supervisor B about Supervisor A’s abusive

behavior and race discrimination, id. ¶¶ 114, 119, 121; (3) following the Jacks tragedy, he was

assigned new cases resulting in a case backlog for which he was written up and “threatened . . .

with the possibility of termination,” even though his backlog “was similar to those of other

members of [the supervisor’s] unit, who had not been written up,” id. ¶¶ 123-37 (under the

caption “Retaliation”); and (4) McCall transferred out of CPS to a position with lower take-

home pay because he believed he would otherwise be terminated, id. ¶¶ 138-41. McCall

appears to remain employed at CFSA.

Plaintiffs Maria Dyson and Katherine Washington are 49 and 50-years old,

respectively, black women, who both worked as CPS caseworkers under the same supervisor as

Peters and McCall. Id. ¶¶ 147, 164, 202, 209. They both claim racial and age discrimination, a

hostile work environment and retaliation based upon allegations that (1) Dyson and Washington

10

Supervisor C is James Campbell and Supervisor D is William Johnson. Although the Complaint provides no

specific race or ethnic information about either supervisor, it does indicate that “the only white supervisor in [CPS]”

was Supervisor A. Compl. ¶¶ 88, 133, 136-37, 557.

11

The First Amended Complaint stated that McCall had received a right-to-sue letter from the EEOC on November

2, 2009. First Am. Compl., ECF No. 5, ¶ 2. Subsequently, plaintiffs moved for leave to amend the First Amended

Complaint to correct this statement, indicating that Plaintiff McCall had not received the letter but “has requested a

Right to Sue letter and expects to receive one shortly.” ECF No. 14, ¶ 3.

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witnessed Supervisor A abusing foreign-born employees, including Peters; Dyson “felt abused

as well,” id. ¶¶ 154-61, 211-12; (2) following the Jacks tragedy and the surge in new cases,

Dyson and Washington’s backlog of cases grew, resulting in Supervisor A writing up “Ms.

Washington for having a backlog,” id. ¶¶ 171, 215, 225; (3) after Washington complained to

management and filed a grievance with the union against Supervisor A, Washington was

transferred to a new unit, where she was again “written up” in early January, 2010, after

becoming a plaintiff in this lawsuit, id. ¶¶ 225-33; (4) Dyson complained to her supervisor

(“Supervisor E”) 12 that she was not being treated fairly after noticing that both “she and an older

Indian caseworker [in her group] were being assigned a lot more cases than their three co-

workers, one [of whom] was white and two [of whom] were younger.” Id. ¶¶ 176, 185, 187; (5)

in retaliation, Supervisor E wrote up Dyson for her backlog, accused her of abusing overtime

and ordered an audit of her timesheets, prompting Dyson to transfer to a different group in late

2009. Id. ¶¶ 192-94. Both Dyson and Washington appear to remain employed at CFSA.

2. Allegations of CFSA Supervisor Plaintiffs

Plaintiff Jacqueline Moore is a 66-year old black woman of Trinidadian origin, who

was a CFSA supervisor from 1995 until her resignation in November, 2009, except for a one-

year period from February, 2008 until February, 2009, when she was detailed to work as a CPS

hotline caseworker. Id. ¶¶ 236, 242, 284-85, 311. She filed a complaint with the EEOC, which

issued a right-to-sue letter on March 19, 2010. Pls.’ Opp’n. to Def.’s Mot. to Dismiss (“Pls.’

Mem.”), ECF No. 22, at 11; Compl. ¶ 4. Moore claims racial, age and national origin

discrimination, a hostile work environment and retaliation based upon allegations that (1) from

12

Supervisor E is Martha Stewart, who is white. Compl. ¶ 165.

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2000 to 2008, her black Program Administrator (“Supervisor F”) 13 “singled [her] out for abusive

treatment,” since Moore was the “only black foreign born supervisor” and “the oldest supervisor

on [Supervisor F’s] staff,” by “isolat[ing]” her, excluding her from meetings, becoming “hostile

when Ms. Moore made a comment,” never inviting her to lunch with the Program Administrator

and the staff, making disparaging remarks about her in the presence of other social workers,

screaming at her, and “regularly threaten[ing] to write up Ms. Moore, and on an occasion

[writing] up Ms. Moore for ‘borderline insubordination,’” Compl. ¶¶ 246-63; (2) from 2004 to

2008, her immediate supervisor (“Supervisor G”) 14 “was openly abusive,” “screamed at Ms.

Moore during a meeting,” and wrote in an evaluation that he gave her a poor job performance

evaluation because “Ms. Moore had filed complaints against him with human resources,” id. ¶¶

268-69, 280; (3) following the Jacks’ tragedy, Moore was the only supervisor demoted to

caseworker and detailed to CPS, where she received a “very good job performance evaluation”

and was “officially reinstated to the position of supervisor,” id. ¶¶ 284-92 (under caption

“Retaliation”); (4) for approximately three months in Spring 2009, when Supervisor D was her

immediate supervisor, he was “abusive,” “regularly shouted at Ms. Moore in the presence of her

staff,” and “threatened Ms. Moore with disciplinary action,” id. ¶¶ 297-300; and (5) following

an unapproved four month leave under the Family Medical Leave Act, Moore discovered that

her staff and duties had been reassigned to a younger employee, who was native born, id. ¶¶

308, 310. “Feeling that she would be officially terminated, Ms. Moore submitted her

resignation, effective January 1, 2010, in November 2009.” Id. ¶ 311.

13

Supervisor F is Valerie Douglas, who is black. Compl. ¶¶ 243, 245.

14

Supervisor G is Willie Tompkins, about whom the Complaint provides no specific race or ethnic information.

Compl. ¶ 267. As previously noted, supra note 10, the Complaint indicates that the “only white supervisor in

[CPS]” was Supervisor A. Id. ¶ 557.

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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 Jacks

tragedy.” Id. ¶¶ 315, 32-21, 325. Simpson claims racial and national origin discrimination and a

hostile work environment based upon allegations that (1) management did not express a policy of

intolerance for the use of racial/ethnic slurs when, in 2005, a Nigerian employee and an African

American employee were suspended for having a physical altercation during which the African

American employee called the Nigerian an “African monkey,” and other employees used “racial

and ethnic slurs,” including complaining about working for an Asian supervisor, id. ¶¶ 333, 344-

48; (2) she witnessed Supervisor A engage in harsh treatment of Peters and Jamaican and

Nigerian caseworkers, id. ¶¶ 352-69; (3) Simpson and Ekwem were the “only supervisors to be

regularly assigned more than five caseworkers,” but her complaints to Plaintiff Courts-Marshall

about the “disparity between the number of caseworkers assigned to her and Mr. Ekwen and their

American born counterparts,” were not remedied, id. ¶¶ 380, 387, 390; (4) Supervisor B refused

to write a recommendation for Simpson although she did so for an Asian co-worker, id. ¶¶ 396-

99; and (5) “[m]anagement perpetuated the myth that foreign social workers were only in it for

the money” by circulating a list of overtime earners, which list “included foreign born social

workers,” id. ¶¶ 406-14. In January, 2008, Simpson was terminated “in response to the Jacks

tragedy.” Id. ¶ 394.

Plaintiff Augustine Ekwem is a 52-year old black man of Nigerian origin who had

worked as a CPS supervisor for five years at the time the Second Amended Complaint was filed.

Id. ¶¶ 426, 432. He claims racial, gender, age and national origin discrimination and a hostile

work environment based upon allegations that (1) from 2004 to 2005, his white program

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administrator (“Supervisor H”) 15 “harassed” and “demeaned” him, id. ¶¶ 470, 472; (2) following

the Jacks tragedy, his workload increased significantly and, as the only Nigerian and oldest

supervisor in CPS, Ekwem was assigned more caseworkers “than any other supervisor” and both

he and Simpson were “regularly assigned more caseworkers than their American born

counterparts” as well as assigned the “problem employees.” Id. ¶¶ 446, 452, 454-55, 467, 469,

473, 477-78; and (3) Ekwem expressed concern to the Deputy Director of Operations

(“Supervisor I”) 16 and his Program Manager (“Supervisor J”) 17 about an overwhelmed

caseworker under his supervision, but this caseworker continued to be assigned additional cases,

including one in which a six month old boy died on June 25, 2008, resulting in termination of the

caseworker and suspension of Ekwem for ten days, id. ¶¶ 437, 440, 442, 445, 457, 462-64.

Ekwem appears to remain employed at CFSA.

Plaintiff Melva Meade is a 60-year old black woman, who has been a CFSA training

supervisor assigned to CPS since 2005. Id. ¶¶ 507, 510-511. She claims racial discrimination

and hostile work environment based upon allegations that (1) “several black social workers,

particularly those from Africa and the Caribbean Islands, were mistreated by their white

supervisors,” including her observation of Supervisor H harassing Ekwem and other Nigerian

caseworkers, id. ¶¶ 502-03, 530-59; (2) management circulated a list of overtime earners, which

list included foreign born social workers, and would accuse people on the list of “ripping off the

system” and “stealing overtime,” and management employed other “aggressive tactics to

[discourage] these social workers from claiming the full amount of overtime pay they had

15

Supervisor H is Heather Stowe, who is white. Compl. ¶¶ 328, 470, 528.

16

Supervisor I is Audrey Sutton, about whom the Complaint provides no racial or ethnic information. Compl. ¶

442.

17

Supervisor J is Michelle Farr, about whom the Complaint provides no racial or ethnic information. Compl. ¶ 442.

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earned,” id. ¶¶ 520-24; and (3) “[b]lack foreign born social workers, especially Africans, were

stigmatized by these accusations,” id. ¶ 526. Meade appears to remain employed at CFSA.

Plaintiff Cynthia Courts-Marshall is a 46-year old black woman, who served from

2002 to 2005 as a CFSA program manager and, in October, 2005, succeeded Supervisor H as the

program administrator in charge of CPS, until her termination in January, 2008 “due to the Jacks

tragedy.” Id. ¶¶ 565, 568-71, 641-42. She claims racial discrimination, hostile work

environment and retaliation, based upon allegations that (1) “[e]xecutive management circulated

lists with the names of the top overtime earners,” “accused people on the lists,” which included

both American and foreign born social workers, of “stealing overtime,” and caused resentment of

foreign born workers, particularly Africans, id. ¶¶ 597-602; (2) in January, 2006, Supervisor I,

the Deputy Director of Operations, directed Courts-Marshall to terminate 15 employees,

including Plaintiffs Peters, McCall, Dyson and Ekwem, but Courts-Marshall refused to comply,

since she “concluded that the individuals on the list were placed there for retaliatory reasons,

such as complaining about [Supervisor H’s] discriminatory practices,” id. ¶¶ 605, 608-09, 617-

18; and (3) Supervisor I “effectively transferred Ms. Courts-Marshall’s decision making

authority to [an Associate Deputy Director],” but refused to accept her offer to resign, and

nevertheless subsequently terminated her “without a proper investigation,” id. ¶¶ 634-36, 642

(under caption “Retaliation”). In January, 2008, Courts-Marshall was terminated “due to the

Jacks tragedy.” Id. ¶ 641.

II. LEGAL STANDARD

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

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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

(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 than “labels and conclusions” or “a formulaic recitation

of the elements of a cause of action,” and “more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555); see also Aktieselskabet AF 21.

November 21, 525 F.3d at 17 n.4 (explaining that the court has “never accepted legal conclusions

cast in the form of factual allegations”) (internal citation and quotation marks omitted).

“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

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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 (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.

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

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mere possibility of misconduct,’” the complaint must be dismissed. Jones, 634 F.3d at 596

(quoting Atherton, 567 F.3d at 681-82). 18

Viewing the claims in the light most favorable to plaintiffs, as it must at this stage of the

proceedings, the Court proceeds with a discussion of the plaintiffs’ claims as follows. The Court

first addresses, in section III, Plaintiff Ekwem’s claims, which the Court concludes are barred by

the doctrine of res judicata. The Court then turns, in section IV, to the defendant’s Motion to

Dismiss for the claims of the remaining eight plaintiffs. The Court addresses (A) the dismissal

of the Title VII and ADEA claims of five of the plaintiffs for failure to exhaust their

administrative remedies. The Court then analyzes the claims of the remaining plaintiffs, Peters,

McCall, and Moore, addressing (B) their hostile work environment claims, (C) their disparate

treatment claims, and (D) their retaliation claims. The Court then reviews the plaintiffs’ (E)

constitutional claims under 42 U.S.C. § 1983 and 42 U.S.C. § 1981, and (F) District of Columbia

Human Rights claims. Finally, the Court considers, in section V, the plaintiffs-intervenors’

Motions to Intervene. Since the Court concludes that all of the plaintiffs’ claims are subject to

dismissal, and denies the plaintiffs-intervenors’ motions to intervene, the case must be dismissed.

18

In support of a more lenient standard governing motions under Rule 12(b)(6), plaintiffs cite Conley v. Gibson, 355

U.S. 41, 45-46 (1957), see Pls.’ Mem. at 10, but the Supreme Court has “abrogated the Conley formulation in

[Twombly, 555 U.S. 544, 562-63 (2007)].” Jones v. Horne, 634 F.3d at 596 n.4; see generally Arthur R. Miller,

From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 DUKE L. J. 1 (2010)

(cited in Jones, 634 F.3d at 596 n.4). Even if the Court were not precluded by Supreme Court precedent in Iqbal

and Twombly from adopting a more lenient standard, the plaintiffs’ claims would still be dismissed. This is not a

situation where the Court is dismissing a case because plaintiffs have not been sufficiently specific in their

Complaint. In this case, the plaintiffs have pled their claims in such detail that it is possible for the Court to

determine that the plaintiffs cannot possibly prevail on their claims. There is thus no reason to allow the plaintiffs to

proceed beyond this stage of the proceedings, as no amount of elaboration of the plaintiffs’ claims would allow the

plaintiffs to prevail on the merits of their claims. As the Supreme Court cautioned in Twombly, “when the

allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should

be exposed at the point of minimum expenditure of time and money by the parties and the court.” 550 U.S. at 558

(internal citation, quotation marks and ellipsis omitted).

Page 16 of 94

III. The Claims of Plaintiff Ekwem Are Barred by Res Judicata

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 (2008).

A. Legal Standard

“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 (1971); Comm’r of Internal Revenue v. Sunnen, 333 U.S. 591, 597 (1948));

Herrion v. Children’s Hosp. Nat’l Med. Ctr., 786 F. Supp. 2d 359, 368 (D.D.C. 2011).

Page 17 of 94

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 (1980))

(emphasis in original); see also Int’l Union v. Clark, No. 02-1484, 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.

B. Analysis

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

Page 18 of 94

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, he

alleges that the CFSA discriminated against him on the basis of his “race (black), national origin

(Nigerian), age (52), and gender (male).” Id. ¶ 426.

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

Page 19 of 94

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. 19

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

19

The claims asserted by the movant plaintiff-intervenor Patricia Ivey are likely also barred by res judicata since her

prior discrimination lawsuit against the defendant arising from her employment as a CPS caseworker has also been

dismissed. See Ivey v. Fenty, 789 F. Supp. 2d 65 (D.D.C. 2011) (plaintiff’s age discrimination suit for violation of

Due Process and Equal Protection Clauses of the Fifth Amendment to the U.S. Constitution, 42 U.S.C. § 1983,

dismissed for failure to state a claim). Since the parties have not briefed this issue, however, and her motion to

intervene is resolved on different grounds, the Court need not address this issue.

Page 20 of 94

and are therefore dismissed.

IV. DEFENDANT’S MOTION TO DISMISS DISCRIMINATION CLAIMS OF THE

REMAINING EIGHT PLAINTIFFS

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 are addressed seriatim

below, assuming the truth of the plaintiffs’ allegations as the Court must do at the 12(b)(6) stage

of proceedings.

A. Dismissal of Title VII and ADEA Claims of Five Plaintiffs For Failure to

Exhaust Administrative Remedies

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. 20

20

In order to insure the completeness of the record regarding the status of the plaintiffs’ EEOC filings, the Court

directed the plaintiffs to submit “copies of any charge filed by a plaintiff or applicant for intervention with the

EEOC that is related to the allegations in the Second Amended Complaint [and] . . . . any resulting right-to-sue letter

issued by the EEOC.” Minute Order (Dec. 19, 2011). In response, the plaintiffs submitted the EEOC charges filed

Page 21 of 94

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 remedies. Def.’s Reply Mem. in Supp. of Mot. to Dismiss

(“Def.’s Reply”), ECF No. 23, at 1. The Court agrees in part and disagrees in part. Specifically,

as explained below, while the Court finds that McCall and Moore have timely exhausted their

administrative remedies, the non-filing plaintiffs may not “piggy-back” on the administrative

exhaustion by three of the plaintiffs.

by Plaintiffs Peters, Moore and McCall, as well as copies of the right-to-sue letters issued by the EEOC to each of

these plaintiffs. Pls.’ EEOC Docs, ECF No. 30. The plaintiffs indicated that three unidentified proposed intervenors

had filed EEOC complaints and one (Fedelia Phillips) had received a right-to-sue letter. Id. at 1. While a court may

not consider “matters outside the pleadings” in evaluating a motion to dismiss under Rule 12(b)(6) without

converting the motion to one for summary judgment under Rule 56, see FED. R. CIV. P. 12(d), documents that are

referenced in, or an integral part of, the complaint are deemed not “outside the pleadings.” Mead v. Lindlaw, No.

11-1063, 2012 U.S. Dist. LEXIS 33225, at *7 (D.D.C. Mar. 13, 2012) (“In deciding a Rule 12(b)(6) motion, a court

may consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the

complaint, or documents upon which the plaintiff’s complaint necessarily relies even if the document is produced

not by [the parties].”) (internal quotations and citations omitted); Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45,

46 (D.D.C. 2009). In this case, the EEOC charges filed by Peters, McCall and Moore are referenced in the

Complaint and therefore may be considered, along with the EEOC right-to-sue letters, without converting this

motion into one for summary judgment. See Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 120

n.2 (D.D.C. 2011) (where “[t]he charge of discrimination is referred to in the complaint . . . , a reference that also

necessarily incorporates in the complaint the letter of determination resulting from the charge . . . the complaint

necessarily relies upon the fact of the charge and the letter in pleading that administrative proceedings were pursued

before this action was begun [and] the motion need not be converted to one for summary judgment.”); Hamilton v.

Rhee, 770 F. Supp. 2d 241, 244 n.2 (D.D.C. 2011) (noting that EEOC charge “was incorporated by reference in the

plaintiff’s complaint, and the court properly considers it as part of a motion to dismiss”).

Page 22 of 94

1. Purpose of the Exhaustion Requirement

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 (1973); United Air Lines, Inc.

v. Evans, 431 U.S. 553, 555 n.4 (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

Page 23 of 94

(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).

2. Plaintiffs Peters, McCall and Moore’s Title VII and ADEA Claims

Meet Exhaustion Requirement

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 law is clear that “the defect of a prematurely filed lawsuit may be excused when it is

cured by the issuance of a right to sue letter while the action is pending.” Cruz-Packer v. District

of Columbia, 539 F. Supp. 2d 181, 190 (D.D.C. 2008) (citing Williams, 721 F.2d at 1418 n.12).

Thus, defendant’s exhaustion argument is moot as to Moore and McCall. See Fennell v. AARP,

770 F. Supp. 2d 118, 126 (D.D.C. 2011) (motion to dismiss for failure to exhaust administrative

remedies denied where plaintiff received EEOC right-to-sue letter during pendency of lawsuit);

Giardino v. District of Columbia, 252 F.R.D. 18, 20 (D.D.C. 2008) (“Because the EEOC . . .

issued a right-to-sue letter prior to the dismissal of his federal employment claims, those claims

will not now be dismissed.”); Holmes v. PHI Serv. Co., 437 F. Supp. 2d 110, 123 (D.D.C. 2006)

Page 24 of 94

(“[T]he plaintiff’s failure to exhaust her administrative remedies before bringing this action was

cured when the EEOC issued its second right-to-sue letter to the plaintiff . . . encompassing her

retaliatory discharge claim.”); see also Hunter v. D.C. Child & Family Servs. Agency, 710 F.

Supp. 2d 152, 157 (D.D.C. 2010) (where plaintiff failed to allege receipt of right-to-sue letter but

District did not contest that plaintiff received the EEOC letter after the filing of the complaint,

District’s “exhaustion argument is deemed abandoned”). Accordingly, to the extent that the

defendant’s motion to dismiss for failure to exhaust administrative remedies is intended to reach

Moore and McCall, the motion is unavailing on this ground.

3. No Vicarious Exhaustion for Five Non-Filing Plaintiffs

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. 21 The single-filing

exception “allows non-filing parties to join the suit of another similarly situated plaintiff who did

file an administrative complaint against the same defendant.” Brooks v. Dist. Hosp. Partners,

L.P., 606 F.3d 800, 804 (D.C. Cir. 2010) (citing Foster v. Gueory, 655 F.2d 1319, 1322 (D.C.

21

The Court is cognizant that because failure to exhaust administrative remedies is an affirmative defense, a plaintiff

does not need to plead exhaustion in a complaint. Kim v. United States, 632 F.3d 713, 719 (D.C. Cir. 2011); Colbert

v. Potter, 471 F.3d 158, 165 (D.C. Cir. 2006). This means that the defendant bears the burden of pleading and

proving untimely exhaustion. Rosier v. Holder, No. 10-525, 2011 U.S. Dist. LEXIS 67527, at *6-7 (D.D.C. June

24, 2011) (citing Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997)). When, however, in response to a

motion to dismiss, plaintiffs, such as the ones at bar, concede that they did not exhaust their administrative remedies

and proffer a legal theory to excuse that failure, the court may assess the viability of that theory on a 12(b)(6)

motion. See Uzlyan v. Solis, 706 F. Supp. 2d 44, 53 (D.D.C. 2010) (analyzing under Rule 12(b)(6) plaintiff’s

claimed “basis upon which the exhaustion requirements should be waived”); see also Thompson v. DEA, 492 F.3d

428, 438 (D.C. Cir. 2007) (“Further, even when failure to exhaust is treated as an affirmative defense, it may be

invoked in a Rule 12(b)(6) motion if the complaint somehow reveals the exhaustion defense on its face.”).

Page 25 of 94

Cir. 1981)); see also Byrd v. District of Columbia, 807 F. Supp. 2d. 37, 59 (D.D.C. 2011)

(“Under specific circumstances, a court may alternatively apply the ‘single filing exception’ to

allow a plaintiff who failed to adhere to administrative requirements to vicariously exhaust her

filing responsibilities via another plaintiff’s timely filed EEOC claim.”) (quoting Brooks, 606

F.2d at 807). This exception is only available to non-filing parties, however, if they possess

claims that are “so similar to those asserted by the original plaintiff that no purpose would be

served by requiring them to file independent charges.” Id. at 63 (internal citations and quotation

marks omitted); see also Price v. Choctaw Glove & Safety Co., 459 F.3d 595, 599 (5th Cir.

2006) (claims dismissed of plaintiff members of decertified class who had not filed

administrative charges since “[a] non-charging party cannot bring her own independent lawsuit

based upon another party’s charge.”); Horton v. Jackson County Bd. of County Commr’s, 343

F.3d 897, 900-01 (7th Cir. 2003) (single filing rule not applicable to plaintiff, who was allegedly

retaliated against for supporting the discrimination suit of co-plaintiff who filed administrative

charge, since despite the connection between them, different acts were behind the firing of the

two plaintiffs).

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

Page 26 of 94

separate . . . filings.” Id. (quoting Foster, 655 F. 2d at 1332) (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 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 reason, in cases where the single-filing doctrine has been invoked, courts have

examined the original EEOC filing of the party with the perfected EEOC charge to evaluate

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whether it provided sufficient notice of all charges by the plaintiffs who claim to be similarly

situated and seek to “piggy-back” on that charge. Recent cases from this jurisdiction are

instructive in evaluating the similarity of claims for employment discrimination and retaliation to

support application of the single-filing exception. For example, in Brooks v. Dist. Hosp.

Partners, L.P., the D.C. Circuit found that the district court had improperly dismissed claims

asserted by external applicants for nursing assistant positions for lack of administrative

exhaustion. 606 F.3d at 807. The court concluded those external applicants could “piggy back”

on the perfected EEOC charge filed by an internal applicant since examination of that EEOC

charge showed that it raised the same race discrimination claim as the external applicants, was

asserted on behalf of others similarly situated, and the EEOC’s investigation reviewed data

related to both internal and external applicants to find a disparate impact on black candidates

from the employer’s use of a new three-part screening test. Id. Thus, the court held that an

independent EEOC filing by the external applicants “would have been redundant: [the employer]

already had received adequate notice of appellants’ exact allegation and the EEOC had first

crack at resolving that allegation.” Id. In such circumstances, where multiple plaintiffs’ claims

arose from the same allegedly discriminatory practice presented to and analyzed by the EEOC,

the court found that the plaintiffs had “properly invoked the single-filing exception to join the

lawsuit . . . .” Id. 22

22

Courts in other jurisdictions have apparently limited application of the single-filing exception to circumstances

where the party with the perfected administrative charge had noted the collective or class-wide nature of the claim in

the EEOC charge of discrimination. See Welch v. Eli Lilly & Co., No. 06-0641, 2009 U.S. Dist. LEXIS 70389, at

*10-12 (S.D. Ind. Aug. 11, 2009); see also Price v. Choctaw Glove & Safety Co., Inc., 459 F.3d 595, 599 (5th Cir.

2006) (finding that a party invoking the single filing rule must establish that: the plaintiff is similarly situated to the

person who filed the EEOC charge; the charge provided some notice of the collective or class-action nature of the

charge; and the individual who filed the EEOC charge filed a suit that the piggybacking plaintiff may join);

Anderson v. Montgomery Ward & Co., 852 F.2d 1008, 1016-17 (7th Cir. 1988) (finding that employees subject to

same discriminatory practice were not required to file timely charges with the EEOC so long as similarly situated

employees filed allegations of class-wide discrimination); Greene v. City of Boston, 204 F. Supp. 2d 239, 241 (D.

Mass. 2002) (finding that “similarly situated plaintiffs, who have failed to file administrative charges, or who have

Page 28 of 94

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 factual inquiry and

testimony from different witnesses,” and therefore would not put the defendant on notice of the

extent of the plaintiff’s allegations or potential hostile work environment and retaliation claims.

Id. at 64. As a consequence, the court dismissed that plaintiff’s Title VII claims for failure to

comply with the administrative requirements. Id.

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”

filed untimely charges, are permitted to piggyback on a timely-filed charge that gives the EEOC and the employer

fair notice of allegations of class-wide discrimination.”).

Page 29 of 94

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) 23 may not piggyback on the administratively exhausted claims because

these plaintiffs allege different bases for discrimination and different kinds of mistreatment by

different supervisors. Def.’s Mem. at 11-12; Def.’s Reply at 3-4. The Court agrees.

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

23

The claims of Plaintiff Ekwem are barred by the doctrine of res judicata, see supra, and therefore are not

discussed in this section of the opinion.

Page 30 of 94

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] that a younger, Black American had been hired to fill [her] position.”

Pls. EEOC Docs., ECF No. 30-3, at 1. Yet, despite their EEOC charges of age discrimination,

which are repeated in the Second Amended Complaint, three of the non-filing plaintiffs (Meade,

Simpson, and Courts-Marshall) are 40 or older but do not allege any age discrimination.

Furthermore, despite the EEOC charges by Peters and Moore of national origin discrimination

against non-American born black employees, McCall and four of the non-filing plaintiffs

(Dyson, Washington, Meade, Courts-Marshall) do not fit into the category of “non-American

born” and still claim that they, too, were discriminated against because they were black. 24

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

24

While Moore’s EEOC charge identifies the younger employee who assumed Moore’s position as “Black

American,” the Second Amended Complaint identifies that employee as “newly hired,” “younger” and “native

born,” omitting the fact that the employee was also black. Compl. ¶ 308.

Page 31 of 94

“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 conduct at issue. The EEOC charges of both Peters and McCall cite allegedly

unfair conduct only by Supervisor A and Moore cites such conduct only by Supervisor F. In the

Second Amended Complaint, Moore also describes allegedly abusive conduct by Supervisors D

and G. The non-filing plaintiffs complain about entirely different supervisors. Non-filing

plaintiffs Dyson, Simpson, Meade and Courts-Marshall complain about conduct by Supervisors

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B, E, H and I, who are nowhere complained about by Peters, McCall or Moore either in the

Complaint or in the perfected EEOC charges.

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

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(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 unit within CPS); ¶

233 (Washington written-up); ¶ 394 (Simpson terminated); ¶ 561 (Meade feared retaliation but

alleges no adverse employment action); ¶ 641 (Courts-Marshall terminated).

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

Page 34 of 94

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 25 of plaintiffs

Dyson and Washington, will be dismissed for failure to exhaust administrative remedies.

B. Hostile Work Environment Claims of Plaintiffs Peters, McCall and Moore

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. 26 Def.’s Mem. at 15-16.

The Court agrees that these plaintiffs have failed to plead a prima facie case of hostile work

environment.

25

Plaintiffs Meade, Simpson and Courts-Marshall did not assert age discrimination claims under the ADEA.

26

The defendant summarily asserts without analysis that “many of the allegations” underlying the plaintiffs’ Title

VII claims are time-barred, stating that Title VII claims require the filing of “a charge of discrimination with the

[EEOC] either 180 days or 300 days after the alleged unlawful employment practice occurred. 42 U.S.C. §2000e-

5(e)(1).” Def.’s Mem. at 22-23. For purposes of a hostile work environment claim, however, the law permits

consideration of activity falling outside the limitation period so long as the acts underlying the claim occur within

the period. See Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011) (“Provided that an act contributing to the

claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court

for the purposes of determining liability.”) (quoting Singletary v. District of Columbia, 351 F.3d 519, 526-27 (D.C.

Cir. 2003) and Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).

Page 35 of 94

1. Legal Standard

A plaintiff may establish a violation of Title VII by proving that the employer created or

condoned a discriminatorily hostile or abusive environment. Meritor Sav. Bank, FSB v. Vinson,

477 U.S. 57, 64-65 (1986). Discrimination in this form occurs “[w]hen the workplace is

permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or

pervasive to alter the conditions of the victim’s employment and create an abusive working

environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation and quotation marks

omitted); Singletary, 351 F.3d at 526. The Supreme Court in Harris explained that assessing

whether a hostile work environment exists has both subjective and objective components. Thus,

no Title VII violation is present “if the victim does not subjectively perceive the environment to

be abusive” and the conduct “is not severe or pervasive enough to create an objectively hostile or

abusive work environment.” Harris, 510 U.S. at 21-22.

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. 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 (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.

Page 36 of 94

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. 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 (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; see also Faragher,

524 U.S. at 788 (“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 (quotation marks and emphasis

omitted). In other words, plaintiffs are required to establish a causal connection between the

harassment and their protected activity to succeed on the claim. See Nichols v. Truscott, 424 F.

Supp. 2d 124, 140-41 (D.D.C. 2006). “It is therefore important in hostile work environment

cases to exclude from consideration personnel decisions that lack a linkage of correlation to the

claimed ground of discrimination. Otherwise, the federal courts will become a court of

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personnel appeals.” Lewis v. District of Columbia, No. 07-0429, 2010 U.S. Dist. LEXIS 93299,

at *38-39 (D.D.C. Sept. 8, 2010) (citing Bryant v. Brownlee, 265 F. Supp. 2d 52, 63 (D.D.C.

2003)).

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, No. 07-0643, 2011 U.S. Dist. LEXIS 131426, at *59-60 (D.D.C. Nov. 15,

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).

2. Analysis

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

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[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, McCall and Moore are

addressed individually below.

a. Plaintiff 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 CFSA-

CPS. 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]

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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 (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)

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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 forced transfer. In

fact, the only adverse personnel actions cited by Peters — warnings and a reprimand allegedly

culminating in her alleged constructive discharge in October, 2009 — occurred after the 2008

Jacks tragedy and are part of the factual allegations underlying Peters’ claim of retaliation. See

Compl. ¶¶ 74-89 (captioned “Retaliation”); see also Hampton v. Vilsack, 760 F. Supp. 2d 38, 56-

57 (D.D.C. 2011) (“Plaintiff cannot, however, rely on the discrete acts upon which he bases his

discrimination and retaliation claims to support a hostile environment claim.”) (citing Franklin v.

Potter, 600 F. Supp. 2d 38, 76 (D.D.C. 2009) (“Because plaintiff’s allegedly hostile events are

the very employment actions he claims are retaliatory, he cannot so easily bootstrap alleged

retaliatory incidents into a broader hostile work environment claim.”) (internal quotation marks

and citations omitted)); Wade v. District of Columbia, 780 F. Supp. 2d 1, 19 (D.D.C. 2011)

(rejecting plaintiff’s effort to transform amalgamation of disparate treatment claims into cause of

action for hostile work environment for lack of connection in pervasive pattern of severe

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harassment) (citing Lester v. Natsios, 290 F. Supp. 2d 11, 33 (D.D.C. 2003) (“Discrete acts

constituting discrimination or retaliation claims . . . are different in kind from a hostile work

environment claim that must be based on severe and pervasive discriminatory intimidation or

insult.”)).

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).

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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 their race or ethnicity, were assigned and expected to deal with an increased load,

presumably because they were more experienced.

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

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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 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.

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b. Plaintiff McCall

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); id. ¶ 354 (“[Supervisor A] singled Ms. Peters out for

harsh treatment.”) (Simpson). Yet, these allegations that Supervisor A targeted Peters more than

other similarly situated caseworkers actually undermines the plaintiffs’ assertion that Supervisor

A’s conduct towards them was uniformly animated by their protected status rather than some

personal animosity towards Peters. When focusing on Supervisor A’s conduct towards him,

McCall alleges only that this supervisor “constantly tried to intimidate him with comments like,

‘I am going to write you up.’” Id. ¶ 115. This allegation of threatened personnel action falls

short of alleging that the threat was because of his protected status and, in any event, simply does

not amount to such extreme discriminatory intimidation or ridicule to alter the conditions of his

employment. Franklin, 600 F. Supp. 2d at 77 (the fact that supervisor “threatened” plaintiff with

job-related consequences for his refusals to meet workplace expectations does not demonstrate a

hostile work environment pervaded by discrimination or retaliation); Singh v. U.S. House of

Reps., Comm. on Ways & Means, 300 F. Supp. 2d 48, 56 (D.D.C. 2004) (“Criticisms of a

subordinate’s work and expressions of disapproval (even loud expressions of disapproval) are the

kinds of normal strains that can occur in any office setting. . . .”); see also Baloch, 550 F.3d at

1201 (finding that “totality of circumstances” did not show hostile work environment despite

plaintiff’s “several verbal clashes with his supervisor in the workplace”). Thus, McCall fails to

establish the third and fourth requisite elements for a prima facie case of hostile work

environment.

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c. Plaintiff Moore

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 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 travails without

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any other indication that they were due to her protected status, is not enough to show a hostile

work environment. Moore also complains about her detail as a “hotline caseworker” following

the Jacks tragedy. She alleges, however, that she was not the only supervisor “detailed” to assist

with the surge of child abuse and neglect reports occurring after the Jacks tragedy, although she

claims to be the only supervisor placed in a “hotline caseworker” position. Id. ¶ 285. While

detailed as a hotline caseworker, she “received compliments on her work and a very good job

performance evaluation,” and following the detail, she was reinstated to a supervisory position

with a staff. Id. ¶¶ 285, 291, 292. Positive feed-back and evaluations, as well as restoration to a

full management position, are inconsistent with a claim that she was discriminated against in a

hostile work environment. Thus, without more, her bare allegations about her protected status

are insufficient to show that the treatment Moore received from Supervisor F was because of her

age, national origin or race.

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).

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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 of her race, age or

national origin. In view of the positive job performance evaluations she received during her

detail, restoration of her supervisory position upon completion of the detail, and positive

descriptions by other plaintiffs about Moore’s performance in 2009, see, e.g., id. ¶¶ 196, 230-32,

the Second Amended Complaint simply does not indicate that the allegedly hostile work

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conditions unreasonably interfered with her work performance. See Curry v. District of

Columbia, 195 F.3d 654, 662 n.16 (D.C. Cir. 1999) (citing Harris, 510 U.S. at 23); Hussain v.

Gutierrez, 593 F. Supp. 2d 1, 6-7 (D.D.C. 2008). Thus, even considering the retaliation

allegations as part of Moore’s claim of hostile work environment does not cure the failure to

meet the fourth element for a prima facie case.

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.

C. Disparate Treatment Claims of Plaintiffs Peters, McCall and Moore

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

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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. 27

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.

1. Legal Standard

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

27

At the same time, however, a plaintiff may not combine discrete acts to form a hostile work environment claim,

“without meeting the required hostile work environment standard.” Baird, 662 F.3d at 1252.

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decision causing significant change in benefits.” Baird, 662 F.3d at 1248 (quoting Douglas v.

Preston, 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 (2004)).

2. Analysis

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,

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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 fairly accurate

and not merely advocacy hyperbole. Def.’s Mem. at 12. The incidents of disparate treatment

alleged by Plaintiffs Peters, McCall and Moore are analyzed below.

a. Alleged Disparate Treatment Actions Against Plaintiffs Peters and

McCall

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, 28

threatening to write them up, Compl. ¶ 54 (Peters), ¶ 115 (McCall); and (2) in 2008, following

the Jacks tragedy and surge in child abuse and neglect reports, writing them up for having

backlogs of cases when other caseworkers with similar backlogs were not written up, id. ¶¶ 83-

85 (Peters), ¶¶ 131-32 (McCall). In addition, Peters claims that, at unspecified times apparently

between 2005 and 2007, this supervisor (3) screamed and talked down to her, id. ¶ 52; and (4)

28

While the Complaint does not provide the precise timing of the events cited, the Court discerns the time period

“between 2005 and 2007” based on the chronological order in which the events are described over the years covered

in the Second Amended Complaint.

Page 52 of 94

took inappropriate actions, such as blocking her from leaving her desk and interrupting her

conversations with co-workers or her restroom breaks. Id. ¶¶ 56-58.

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 (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.”).

Page 53 of 94

Peters filed her EEOC “Charge of Discrimination” on November 9, 2009, and McCall

filed his charge on November 2, 2009. Thus, only disparate treatment claims based on events

occurring after January 13, 2009 for Peters and January 6, 2009 for McCall are timely.

Singletary, 351 F.3d at 526 (“‘[D]iscrete discriminatory acts’ such as terminations and failures to

promote . . . ‘are not actionable if time barred, even when they are related to acts alleged in

timely filed charges.’”) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113

(2002)). The allegations describing conduct that occurred between 2005 and 2008 are time-

barred.

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

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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.

b. Alleged Disparate Treatment Actions Against Plaintiff Moore

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

Discrimination” with the EEOC on December 8, 2009, see ECF No. 30-3 at 1, and therefore, any

allegations concerning events that occurred before February 11, 2009 are untimely.

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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. 29 Id. ¶¶ 93-4 (Peters); ¶ 311 (Moore); Pls.’ Mem. at

22. McCall claims that he was forced to accept a transfer out of the CPS that reduced his take

home pay. Compl. ¶¶ 138-40. Even assuming as true that the resignations and transfer were

adverse employment actions, these plaintiffs fail to show that they were subject to any discrete

29

Moore alleges in the Second Amended Complaint that she resigned, Compl. ¶ 311, and in her EEOC “Charge of

Discrimination” that “[a]s of 11-23-09 I am on leave pending my retirement effective 12-31-09.” ECF No. 30-3.

Whether Moore resigned or retired is immaterial since under either circumstance the Court will construe her

allegation as one of constructive discharge.

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acts of discrimination because of their race, age or national origin and therefore that there was

any causal connection to their resignations or transfer.

D. Retaliation Claims of Plaintiffs Peters, McCall and Moore

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.

1. Legal Standard

Title VII makes it an unlawful employment practice for an employer:

to discriminate against any of his employees . . . because he has opposed

any practice made an unlawful employment practice by this subchapter,

or because he has made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing under this

subchapter.

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).

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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 (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). Yet, the Court in Burlington Northern

distinguished “materially adverse” actions from “trivial harms,” “petty slights,” and “minor

annoyances.” Id. at 68. 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; 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,

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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 (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 an inference of causation, but only where the two events are very close in

time.”) (quoting Woodruff, 482 F.3d at 529).

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, No. 08-755, 2011 U.S. Dist. LEXIS 142160, at *23 (D.D.C. Dec.

9, 2011) (citing Woodruff, 482 F.3d at 530); McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C. Cir.

2012).

2. Analysis

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.

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a. Retaliation Claims of Plaintiffs Peters and McCall

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. 30 Id. ¶ 138.

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

30

In their opposition brief, the plaintiffs state that McCall transferred out of CPS “after being threatened by

[Supervisor A] with a write up that he felt would lead to his termination,” Pls.’ Mem. at 23, but the Complaint

attributes this final write-up threat to Supervisor D. Compl. ¶138.

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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 to

management about Supervisor A’s mistreatment of them. Thus, this allegation simply cannot

plausibly support a retaliation claim.

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

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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 circumstances, rather than a retaliatory act. Denial of requests for transfer, without any

allegation that requiring an employee to stay in an assigned position for which the objective

terms of pay, rank, and general tasks have remained the same, simply do not constitute an

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adverse action to support a retaliation claim. See Bright v. Copps, No. 08-0755, 2011 U.S. Dist.

LEXIS 142160, at *40 (D.D.C. Dec. 9, 2011) (plaintiff’s claim that she was denied

reassignment, without identifying any “objectively tangible harm” resulting from defendant’s

refusal to reassign her, was not enough to show “how this denial could possibly dissuade a

reasonable worker from ‘making or supporting a charge of discrimination.’”); Dorns v. Geithner,

692 F. Supp. 2d 119, 132-34 (D.D.C. 2010) (finding that refusal of transfer request, poor

performance review, refusal to permit attendance at training session and denial of advancement

for sick leave, did not in aggregate constitute adverse employment action).

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 caseworkers 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

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(D.D.C. 2001), aff’d, No. 01-5122, 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

“[write-up].” Id. ¶ 138. The causal links between Peters’ resignation and McCall’s decision to

transfer and the retaliatory acts are too tenuous, however. McCall never alleges that he

complained about Supervisor D, who was about to issue the write-up. See Perry v. Clinton, No.

08-cv-1216, 2011 U.S. Dist. LEXIS 147034, at *62 (D.D.C. Aug. 29, 2011) (holding no causal

link established between protected activity and retaliation when plaintiff “provided no evidence

or argument explaining why [supervisor] would decide to retaliate against her because she filed a

complaint against someone else.”) (emphasis in original). Moreover, Supervisor A’s case

assignments and reprimands for backlogs to both plaintiffs had occurred before they complained

about these actions and the fact that these actions continued unabated after their complaints does

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not show that they were retaliatory, but more plausibly that they were a result of the surge in

child abuse cases and increased performance pressure under which CPS and its management

were operating after the Jacks tragedy.

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 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. Aug. 17, 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 (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.

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b. Retaliation Claim of Plaintiff Moore

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 Supervisors G and F, and Moore alleges that

Supervisor D then “became abusive as well.” Id. ¶¶ 297-99.

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. 31

31

Moore does not appear to contend that her alleged constructive discharge was an adverse employment action in

retaliation for her complaints about her supervisors. Indeed, the multiple years between her complaints about

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Even if the Court were to assume this claim was timely, Moore has not sufficiently alleged

protected activity or a causal link to support her retaliation claim.

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, No.

07-0429, 2010 U.S. Dist. LEXIS 93299, at *34-35 (D.D.C. Sept. 8, 2010) (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., No. 08-1972, 2011 U.S. Dist. LEXIS 112227, at *23-24 (D.D.C.

Sept. 30, 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.

Supervisors F and G and her resignation would defeat any causal connection between those events. Moreover, her

claim of constructive discharge stems from her allegation that her job responsibilities were removed following her

return from a four month leave under the Family and Medical Leave Act (FLMA). Id. ¶¶ 303-11. When she

requested the leave, her supervisor “told Ms. Moore that her request would not be approved.” Id. ¶ 304.

Nevertheless, Moore took the leave, returning to work in October, 2009 to “discover[] that [CFSA] had stopped her

paychecks, removed her name from the computer system, and given her position, office and staff to a newly hired

employee.” Id. ¶ 308. There is no allegation that Moore’s leave request was denied for any discriminatory reason or

that any other similarly situated supervisors were granted leave requests when her request was denied. Taking a

leave for an extended period of four months after a supervisor has communicated that the leave was not approved

provides a legitimate reason for the actions taken by CFSA and would defeat her claim of constructive discharge.

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Even assuming that the complaints Moore made to human resources in 2001, 2005 and

2007 preceding her detail as a “hotline caseworker,” were timely and statutorily protected

activity, she would still fail to state a cognizable retaliation claim for two reasons. First, her

temporary detail does not constitute an adverse employment action. The Second Amended

Complaint is replete with allegations about the surge in child abuse and neglect reports after the

Jacks tragedy that overwhelmed the caseworkers at CPS with backlogged cases. Moore was one

of four supervisors re-assigned to CPS to assist with this surge in cases. While Moore alleges

that she was the only such supervisor demoted to caseworker, she does not allege that her pay

was docked or her benefits diminished in any way or that this temporary re-assignment had any

practical consequences. See Mungin, 116 F.3d at 1557 (“[C]hanges in assignments or work-

related duties do not ordinarily constitute adverse employment actions if unaccompanied by a

decrease in salary or work hour changes.”); Ndondji v. Inerpark Inc., 768 F. Supp. 2d. 264, 282

(D.D.C. 2011) (transfer to undesirable location was not materially adverse employment action

since plaintiff did not allege any “’objectively tangible harm’ such as a decrease in salary or

benefits”); Martin v. Locke, 659 F. Supp. 2d 140, 148 (D.D.C. 2009) (finding plaintiff failed to

show that her job transfer constituted an adverse employment action when she did not allege her

pay or grade was reduced). The fact that she felt “humiliated” is unfortunate but does not turn

this event into an adverse employment action. See Baird, 662 F.3d at 1249 (alleged episodes are

“akin to the sort of ‘public humiliation or loss of reputation’ that . . . fall[] below the

requirements for an adverse employment action”).

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

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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 her. Waterhouse v. District of Columbia, 298 F.3d 989,

996 (D.C. Cir. 2002) (attributing racial animus to person who hired plaintiff “seriously undercut”

claim that plaintiff was terminated on account of her race); see also Vatel v. Alliance of Auto.

Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011) (fact that employer initially selected plaintiff “is

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probative evidence that [employer] did not discriminate against [plaintiff] on account of her race

or gender when he dismissed her later that year”).

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.

E. Constitutional Claims Under 42 U.S.C. § 1983 and § 1981

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.

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1. Legal Standard

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 (1978); Garnes-El v. District of Columbia, No. 08-2233, 2012 U.S. Dist.

LEXIS 8961, at *8 (D.D.C. Jan. 25, 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 20 (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 (quoting

Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003)) (internal quotation marks

removed). The D.C. Circuit has made clear that causation involves more than mere negligence,

and “means that, faced with actual or constructive knowledge that its agents will probably violate

constitutional rights, the [District government] may not adopt a policy of inaction.” Warren, 353

F.3d at 39.

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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 (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 (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; Hamilton v. District of Columbia, 720

F. Supp. 2d 102, 113-14 (D.D.C. 2010).

2. Analysis

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

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