                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

CYNTHIA HILL, et al.,                              :
                                                   :
       Plaintiffs,                                 :       Civil Action No.:      1:13-0001 (RC)
                                                   :
       v.                                          :       Re Document No.:       8
                                                   :
HON. VINCENT GRAY, et al.,                         :
                                                   :
       Defendants.                                 :

                                  MEMORANDUM OPINION

        GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS

                                       I. INTRODUCTION

       The plaintiffs are ten former employees of the District of Columbia Public Schools, who

were subject to a reduction-in-force. The plaintiffs brought this suit against the District of

Columbia alleging defamation, due process violations, and age discrimination. The defendants

moved to dismiss all of the plaintiffs’ claims. For the following reasons, the defendants’ motion

to dismiss will be granted, in part, regarding the plaintiffs’ defamation and due process violations

claims and denied, in part, regarding the plaintiffs’ discrimination claims.


                                II. FACTUAL ALLEGATIONS

       On or around October 2, 2009, the District of Columbia Public Schools (“DCPS”)

delivered notices of removal to over two hundred employees of DCPS as part of a reduction-in-

force (“RIF”), which went into effect on November 2, 2009. Compl. ¶ 16. The plaintiffs were

all employees of DCPS. Compl. ¶ 14. At the time of removal, Cynthia Hill, the initially filing

plaintiff of the complaint, worked as a science teacher at Ballou High School; Carol Carter was

assigned to Abraham Simon Elementary School; Curtise Woodward was a social science teacher

                                                  1
at Easter High School; Phyllis Lovett was a special education teacher at Ballou High School;

Sandra Williams was assigned at Duke Ellington School of the Arts; Adele LaFranque was

assigned at Ballou High School; Jerelyn Ola Jones was assigned at Woodson Senior High

School; and Francis Simmons was a special education teacher at Eastern Senior High School.

Defs.’ Mot. to Dismiss 2-3; Compl. ¶¶ 15, 49-97. Four of the ten plaintiffs, Curtise Woodward,

Adele LaFranque, Sandra Williams, and Francis Simmons, retired after notice of the RIF, but

before the RIF went into effect. Pls.’ Opp’n 1. All of the plaintiffs were over the age of forty

years old when removed from their positions. Compl. ¶ 14. Additionally, each of the plaintiffs

is African-American or Hispanic. Pls.’ Opp’n 2.

       The plaintiffs allege that they did not receive “‘reasonable notice’ as to the essential

factors to be considered in removing [t]eachers from their employment positions. . . . [or] the

nature and type of factors being used in determining [their] likelihood of removal.” Compl. ¶ 17.

Furthermore, plaintiffs allege that they “were not made aware of documents and information

gathered [that was] used by DCPS officers and administrators to determine [removal] . . . [and]

had no access to [such] documents and information.” Compl. ¶ 18. “[M]ore than two years after

they were written, submitted, and published,” the plaintiffs received full copies of the

information used by DCPS. Pls.’ Opp’n 2. As a result, the plaintiffs “were unable to either

confront or rebut the content of unsupported negative allegations.” Compl. ¶ 18.

       According to the plaintiffs, the defendants used a Competitive Level Documentation

Form (“CLDF”) system, including Competitive Level Ranking Score Card (“CLRSC”)

documents, to determine who would be removed pursuant to the RIF. Compl. ¶ 25; Pls.’ Opp’n

2. CLDFs and CLRSCs contained narratives written by DCPS principals and administrators

about employee’s performance. Pls.’ Opp’n 2. The plaintiffs argue that the narratives were



                                                 2
untrue and that “[t]he CLDF was used to describe [p]laintiffs’ professional performances as

opposed to using verifiable information such as evaluations, verifiable observations, or supported

documents, professional third parties, or active parents.” Pls.’ Opp’n 2-3. Once the plaintiffs

received copies of the CLRSCs in early 2012, they claim they became aware of statements that

were “untrue, unsupported by facts, destructively defamatory, and completely contrary to . . .

previous yearly evaluations.” Compl. ¶ 32.

         Ms. Hill, the initially filing plaintiff, filed a complaint with the U.S. Equal Employment

Opportunity Commission (“EEOC”) in November of 2010. Compl. ¶ 20. On October 4, 2012,

Ms. Hill received a right-to-sue letter from the EEOC, Compl. ¶ 20, and filed her complaint with

this Court on January 2, 2013, Pls.’ Opp’n 3. On May 6, 2013, Ms. Hill filed a motion to amend

her initial complaint along with the amended complaint, which includes the nine additional

plaintiffs. Pl.’s Mot. for Leave to File Am. Compl. This Court granted the motion, and the

amended complaint was filed on May 26, 2013. Pls.’ Opp’n 3. All of the nine added plaintiffs

filed complaints with the EEOC except for two, Carol Carter and James Lightfoot. Defs.’ Mot.

to Dismiss 3. The seven plaintiffs that filed with the EEOC received right-to-sue letters between

the dates of November 30, 2012 and March 28, 2013. 1 Pls.’ Opp’n 3. Additionally, eight

plaintiffs 2 filed complaints regarding the RIF with the District of Columbia Office of Employee

Appeals (“OEA”). Defs.’ Mot. to Dismiss. 4.




1
  According to the defendant, the plaintiffs received their right-to-sue letters on the following dates: Roland Ashby-
Rier on January 1, 2013; Curtise Woodward on March 28, 2013; Phyllis Lovett on February 28, 2013; Adele
LaFranque on November 30, 2012; Sandra Williams on January 31, 2013; and Jerelyn Ola Jones on January 15,
2013. Defs.’ Mot. to Dismiss 4.
2
  The eight plaintiffs are Cynthia Hill, Carol Carter, James Lightfoot, Curtise Woodward, Phyllis Lovett, Adele
LaFranque, Sandra Williams, and Frances Simmons. Defs.’ Mot. to Dismiss 4.

                                                           3
                                          III. ANALYSIS

       First, the defendants argue that the plaintiffs’ defamation claims should be dismissed

under Federal Rule of Civil Procedure (Fed. R. Civ. P.) 12(b)(6) for failure to state a claim,

because the plaintiffs’ defamation claims do not fall within the applicable one-year statute of

limitations. The defendants argue, however, that even if the defamation claims are not time-

barred, then this Court lacks subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), because

the District of Columbia Comprehensive Merit Personnel Act gives jurisdiction over the

plaintiffs’ claims to the OEA. Second, the defendants argue that the plaintiffs’ due process

violation claims should be dismissed under Fed. R. Civ. P. 12(b)(6) for falling outside of the

applicable three-year statute of limitations. Third, the defendants argue that each of the plaintiffs’

discrimination claims should be dismissed in three separate parts: (1) six plaintiffs failed to

properly exhaust administrative remedies; (2) three plaintiffs did not face the requisite adverse

action; and (3) one plaintiff is barred by res judicata.

   A. Legal Standards of Review

           1. Motion to Dismiss for Lack of Subject Matter Jurisdiction (12(b)(1))

       Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies

outside this limited jurisdiction . . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

377 (1994); see also Gen. Motors Corp. v. E.P.A., 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a

court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). It is

the plaintiff’s burden to establish that the court has subject matter jurisdiction. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 561 (1992).

       Because subject matter jurisdiction focuses on the Court’s power to hear a claim, the

Court must give the plaintiff’s factual allegations closer scrutiny than would be required for a



                                                  4
12(b)(6) motion for failure to state a claim. See Grand Lodge of Fraternal Order of Police v.

Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Thus, the court is not limited to the allegations

contained in the complaint. See Wilderness Soc’y v. Griles, 824 F.2d 4, 16 n.10 (D.C. Cir.

1987). Instead, “where necessary, the court may consider the complaint supplemented by

undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus

the court’s resolution of disputed facts.” Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C.

Cir. 1992) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).

            2. Motion to Dismiss for Failure to State a Claim (12(b)(6))

        The Federal Rules of Civil Procedure require that a complaint contain “a short and plain

statement of the claim” in order to give the defendants fair notice of the claim and the grounds

upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate

likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.

See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court considering such a motion presumes

that the complaint’s factual allegations are true and construes them liberally in the plaintiff’s

favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). It

is not necessary for the plaintiff to plead all elements of her prima facie case in the complaint.

See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14 (2002); Bryant v. Pepco, 730 F. Supp.

2d 25, 28–29 (D.D.C. 2010).

        Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient

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

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). This means that a plaintiff’s factual allegations “must be enough to raise a right to relief



                                                   5
above the speculative level, on the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Twombly, 550 U.S. at 555–56 (citations omitted). “Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements,” are therefore

insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a

plaintiff’s legal conclusions as true, see id., nor must a court presume the veracity of the legal

conclusions that are couched as factual allegations. See Twombly, 550 U.S. at 555.

    B. The Defendants’ Motion to Dismiss Regarding the Plaintiffs’ Defamation Claim is
       Granted

            1. Failure to State a Claim based on Statute of Limitations

        The first issue raised by the defendants’ motion to dismiss is whether the plaintiffs’

defamation claim is barred by the applicable one-year statute of limitations. The Court finds that

it is not barred.

        A defamation action is considered untimely and barred if it is brought after one year from

the time the action accrued. Farris v. Compton, 652 A.2d 49, 53-54 (D.C. 1994) (citing D.C.

Code § 12-301 (1989)). The moment of accrual typically begins when the injury occurs. Id. at

54. However, with defamation claims, when the injury might not be readily apparent when it

occurs, the moment of accrual is tolled and begins to run when the plaintiff “has discovered or

reasonably should have discovered all of the essential elements of her possible cause of action.”

Caudle v. Thomason, 942 F. Supp. 635, 641 (D.D.C. 1996) (quoting Farris, 652 A.2d at 54); see

also Stith v. Chadbourne & Parke, LLP., 160 F. Supp. 2d 1, 8 (D.D.C. 2001) (applying the

“discovery rule” to a defamation case where the plaintiff had no reason to suspect or know about

the defamatory statement until actually seeing the statement).

        The defendants argue that the plaintiffs’ defamation claims are time-barred, because the

claims accrued on or before October of 2009, when the statements were made and used to decide

                                                  6
removal, more than three years before the plaintiffs’ complaint was filed in January of 2013.

Defs.’ Mot. to Dismiss. 5-6. The plaintiffs argue, based on one plaintiff’s affidavit, that accrual

of the claim did not begin until March of 2012, when the plaintiffs learned of the defamatory

statements, which falls within the one-year statute of limitations. 3 Pls.’ Opp’n 5, Ex. 3.

        The plaintiffs claim that the defendants defamed them in narratives written in the CLDFs

and CLRSCs, which were used to select employees for removal during the RIF in late 2009.

Compl. ¶¶ 32-33. At the time of removal, the plaintiffs claim that they did not receive any

information or materials used by the defendants in support of selecting the plaintiffs for removal.

Compl. ¶¶ 17-18. The plaintiffs claim that they were unaware of the CLRSCs’ contents until

receiving copies of the CLRSCs by mail in 2012. Pls.’ Opp’n 5. One plaintiff swore in an

affidavit, “I did not receive a copy of the narrative from [defendants] and other matters related to

my termination until on or about March 10, 2012.” Pls.’ Opp’n, Ex. 3. Once the plaintiffs

received copies of the CLRSCs in early 2012, they claim they became aware of statements that

were “untrue, unsupported by facts, destructively defamatory, and completely contrary to . . .

previous yearly evaluations.” Compl. ¶ 32.

        Because the tolling exception applies to accrual of defamation claims, and because the

plaintiffs claim they were not aware of the defendants’ alleged defamatory statements until

receiving copies of the narratives in 2012, the plaintiffs have shown “enough to raise a right to

relief above the speculative level, on the assumption that all the allegations in the complaint are

true.”” Twombly, 550 U.S. at 555–56 (citations omitted). If the plaintiffs’ claimed early 2012



3
  If the Court applies a March 2012 accrual date, it is possible that some (or all) of the later-added plaintiffs’
defamation claims would fall outside the applicable one-year statute of limitations because they were not added to
the complaint until May 2013, more than a year after the defamation claim accrued. But it is also possible that,
pursuant to Fed. R. Civ. P. 15, these plaintiffs’ later-added defamation claims could relate back to the date the
original complaint was filed in January 2013, thus, making them timely. However, because neither party raised or
addressed this issue, the Court does not address it.

                                                         7
accrual is accepted as true, as required by this Court at the motion to dismiss stage, it would

render their January 2013 filing of this action timely, as it is within the allotted one-year statute

of limitations. Therefore, it is plausible that the plaintiffs’ defamation claim is timely, and the

Court denies the defendants’ motion to dismiss on these grounds.

             2. No Subject Matter Jurisdiction Under the CMPA

        The defendants argue that even if the plaintiffs’ defamation claim is timely, it is not

actionable because of the District of Columbia Comprehensive Merit Personnel Act (CMPA).

The Court finds this argument to be meritorious.

        With rare exceptions, the CMPA is “the exclusive avenue for aggrieved employees of the

District of Columbia to pursue work-related complaints.” Holman v. Williams, 436 F. Supp. 2d

68, 74 (D.D.C. 2006). Among the grievances covered by the CMPA, “[c]ourts have repeatedly

found defamation to be a claim that lands squarely within the CMPA’s jurisdiction.” Owens v.

District of Columbia, 923 F. Supp. 2d 241, 251 (D.D.C. 2013) (holding that the plaintiff’s

defamation claim must be remedied pursuant to the CMPA because it arose directly from her

employment). The CMPA requires aggrieved employees to first file with the Office of

Employee Appeals (OEA), which has primary jurisdiction over such claims. See D.C. Code § 1-

606.02; Washington v. District of Columbia, 538 F. Supp. 2d 269, 275-76 (D.D.C. 2008)

(explaining that before any judicial review, the employee must first go through the OEA);

Owens, 923 F. Supp. 2d at 249 (finding that the OEA has jurisdiction “in the first instance” and

is the “first line of relief”).

        If there is any jurisdictional question regarding whether the CMPA applies, the plaintiff is

still required to first invoke the CMPA’s procedure “‘because the determination whether the

OEA has jurisdiction is quintessentially a decision for the OEA to make.’” Id. (quoting



                                                  8
McManus v. District of Columbia, 530 F. Supp. 2d 46, 78 (D.D.C. 2007)). The OEA, pursuant

to the CMPA, still has “primary jurisdiction to resolve the plaintiffs’ claims” even when “an

alleged constitutional violation is intertwined with an alleged statutory violation.” Washington,

538 F. Supp. 2d at 275 (citing Nat'l Treasury Employees Union v. King, 961 F.2d 240, 243 (D.C.

Cir.1992)); see also Owens, 923 F. Supp. 2d at 248 (“Simply presenting a constitutional claim is

insufficient to exempt plaintiffs from complying with the CMPA procedure.”); McManus, 530 F.

Supp. 2d at 79 (“Plaintiffs therefore cannot use a constitutional hook to reel their CMPA-

precluded claims into this Court.”). This Court has also applied this principle when plaintiffs

present Title VII claims and held that plaintiffs must first bring CMPA claims to the OEA. See

Lewis v. District of Columbia, 885 F. Supp. 2d 421, 427-28 (D.D.C. 2012) (granting defendant’s

motion to dismiss in part for plaintiff’s CMPA claim, even though it was intertwined with a Title

VII claim).

       As the plaintiffs argue, courts sometimes recognize exceptions to the CMPA when the

plaintiff’s exhaustion of remedies would be futile. See Winter v. Local Union No. 639,

Affiliation With Intern. Broth. of Teamsters, 569 F.2d 146, 149 (D.C. Cir. 1977); Pls.’ Opp’n 7-8.

A plaintiff can demonstrate a “clear and positive showing of futility” when the prescribed

remedy would not provide adequate relief or when the prescribed remedy would certainly result

in an adverse decision. Winter, 569 F.2d at 149 (finding that the administrative remedy provided

adequate relief because the plaintiff could obtain at least some of the remedy he sought); see also

Johnson v. District of Columbia, 552 F.3d 806, 812-13 (D.C. Cir. 2008) (holding that the

plaintiff did not make a clear showing of futility because past cases supported the prescribed

administrative remedy being the appropriate procedure for the plaintiff’s claim); Randolph-

Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 105-06 (D.C. Cir. 1986) (explaining that



                                                 9
an adverse decision is certain when the “agency charged with arbitration has indicated that it

does not have jurisdiction over the dispute, or because it has evidenced a strong stand on the

issue in question and an unwillingness to reconsider the issue”).

       The defendants correctly point out that the plaintiffs’ defamation claims fall under the

CMPA. Defs.’ Mot. to Dismiss 6; see Owens, 923 F. Supp. 2d at 251. Although the plaintiffs

raise a jurisdictional question regarding whether the CMPA applies when their defamation

claims are linked to the same set of facts as their discrimination claims, this argument is

irrelevant, “‘because the determination whether the OEA has jurisdiction is quintessentially a

decision for the OEA to make.’” Owens, 923 F. Supp. 2d at 249 (quoting McManus, 530 F.

Supp. 2d at 78); see also Lewis, 885 F. Supp. 2d at 427-28. The OEA, therefore, has primary

jurisdiction over the plaintiffs’ defamation claims, if no exceptions apply. See D.C. Code § 1-

606.02; Washington, 538 F. Supp. 2d at 275-76.

       The plaintiffs argue that pursuing their defamation claims before the CMPA would be

futile, thus, excusing them from having to bring that claim there first. Pls.’ Opp’n 8. In support

of their futility argument, the plaintiffs state that the defendants withheld the alleged defamatory

reports from the plaintiffs and that the defendants “refused to negotiate” with the plaintiffs. Pls.’

Opp’n 8. While this may be true, it does not demonstrate a “clear and positive showing of

futility,” because it does not lend support to a finding that the OEA would not provide adequate

relief or that the OEA would certainly provide a decision against the plaintiffs. See Winter, 569

F.2d at 149. The plaintiffs also argue that filing with the OEA will be futile, because the OEA

will deny jurisdiction of the defamation claims for timeliness. Pls.’ Opp’n 10. As already

shown, however, it is plausible that the discovery tolling rule could apply to the plaintiffs’

defamation claims, which would permit the OEA’s jurisdiction. See Caudle, 942 F. Supp. at 641.



                                                 10
The plaintiffs offered no other support to find a “clear and positive showing of futility.” Winter,

569 F.2d at 149.

         Although the plaintiffs argue that the defendants did not explicitly raise a lack of subject

matter jurisdiction under 12(b)(1), Pls.’ Opp’n 6, that does not effect this Court’s decision

because courts “may dispose of the motion on the basis of the complaint alone or may consider

materials beyond the pleadings.” Holman, 436 F. Supp. 2d at 73. Therefore, because the

plaintiffs’ defamation claims “land[] squarely within the CMPA’s jurisdiction,” and the plaintiffs

failed to show that any exceptions apply, the Court grants the defendants’ motion to dismiss the

defamation claims on these grounds. See Owens, 923 F. Supp. 2d at 251.

    C. The Defendants’ Motion to Dismiss Regarding the Plaintiffs’ Due Process Violation
       Claim is Granted

         The second issue raised by the defendants’ motion to dismiss is whether the plaintiffs’

procedural due process claim is barred by the applicable three-year statute of limitations. 4 As set

forth below, the Court concludes that the plaintiffs’ due process claims are time-barred.

         A procedural due process claim is “brought pursuant to 42 U.S.C. § 1983, which provides

a cause of action for remedying constitutional violations by state actors generally.” Morris v.

Carter Global Lee, Inc., CV 12-01800(CKK), 2013 WL 5916816, at *4 (D.D.C. Nov. 5, 2013).

Because § 1983 does not contain its own statute of limitations, courts apply the applicable state’s

general or residual statute of limitations for personal injury tort actions. Id. (citing Wallace v.

Kato, 549 U.S. 384, 387 (2007); Owens v. Okure, 488 U.S. 235, 249-50 (1989)). This Court has

applied “the District of Columbia's three-year residual statute of limitations for tort claims to §

1983 claims.” Id. (citing Earle v. District of Columbia, 707 F.3d 299, 305 (D.C. Cir. 2012)).

The moment of accrual for a § 1983 claim, however, is governed by federal law and begins when

4
 It is unclear why the defendants have not argued that this claim is also barred by the CMPA, at least for those
plaintiffs that never pursued a challenge before the OEA.

                                                         11
a plaintiff has “a complete and present cause of action” and can “file suit and obtain relief.” Bay

Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201

(1997); Morris, 2013 WL 5916816, at *4 (holding that a plaintiff learning of the reasons for his

employment termination after the actual termination was irrelevant to the accrual of the

plaintiff’s claim that the dismissal procedure violated his due process rights, so the claim accrued

at the moment of the plaintiff’s termination).

       The defendants argue that the plaintiffs’ due process claims are time-barred, because the

claims accrued on November 2, 2009, “the day that the reduction-in-force which ended their

employment with the [defendants] went into effect,” which is more than three years before the

complaint was filed in January of 2013. Defs.’ Mot. to Dismiss 7. Similar to the plaintiff in

Morris, the plaintiffs argue that accrual did not begin until early 2012, when the plaintiffs

learned of the CLRSC narratives used as reasoning for their terminations. Pls.’ Opp’n 10-11.

       The plaintiffs claim that the defendants violated their due process right by denying the

plaintiffs an opportunity to respond to or rebut the statements in the CLRSCs, which were used

in selecting the plaintiffs for termination as part of the RIF. Compl. ¶ 18. The plaintiffs claim

that they did not receive notice that such narrative would be part of the RIF’s determination

process before or at their terminations in November of 2009. Compl. ¶¶ 17-18. Additionally,

the plaintiffs claim that they did not become aware of the CLRSCs’ content until early 2012,

when they received copies of the CLRSCs in the mail. Pls.’ Opp’n 5. According to this Court in

Morris, however, these facts are irrelevant, because they do not affect the fact that plaintiffs

claim that the defendants violated their due process rights at the moment they were denied an

opportunity to respond to their terminations as part of the RIF, which took place in November of

2009. 2013 WL 5916816, at *5 (“What matters [in a procedural due process claim] is that



                                                 12
Plaintiff was allegedly deprived of notice and an opportunity to be heard at the time of his

deprivation. His cause of action became complete at the moment of his alleged deprivation

without due process.”)

        Even if the plaintiffs’ claims that they did not know of the CLRSCs’ narrative until early

2012 is accepted as true, as required at the motion to dismiss stage, that fact is “irrelevant” to the

accrual of a procedural due process claim. Because the plaintiffs were deprived of an

opportunity to respond to their CLRSCs prior to their terminations in November of 2009, the

plaintiffs had “a complete and present cause of action” at that point, more than three years before

the plaintiffs filed their complaint in January of 2013. Bay Area Laundry, 522 U.S. at 201.

Because the plaintiffs’ due process claim is barred by the applicable three-year statute of

limitations, the plaintiffs did not provide “sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

at 570). Therefore, the Court grants the defendants’ motion to dismiss as to the plaintiffs’ due

process claims.

    D. The Defendants’ Motion to Dismiss Regarding the Plaintiffs’ Discrimination Claims
       is Denied

        The defendants argue that all ten plaintiffs’ discrimination claims should be dismissed

according to three separate arguments. First, the defendants argue that six plaintiffs failed to

exhaust their administrative remedies. Second, the defendants argue that three plaintiffs did not

face adverse action by their employer when they retired. Third, the defendants argue that this

court lacks jurisdiction over one plaintiff’s claims due to res judicata. For the reasons set forth

below, all three arguments fail.

            1. Six Plaintiffs “Vicariously Exhausted” Their Administrative Remedies




                                                  13
         The defendants argue that six of the ten plaintiffs’ discrimination claims should be

dismissed because those six plaintiffs “failed to meet the procedural requisites to bring their

ADEA claims before this Court.” Defs.’ Mot. to Dismiss 7. The plaintiffs do not deny that the

six plaintiffs failed to meet procedural requirements, but argue, instead, that under Title VII 5

they were not required to do so, because they are joining their identical claims to those of the

initially filing plaintiff, Cynthia Hill, who properly completed all procedural requirements. Pls.’

Opp’n 13.

         Both the Age Discrimination in Employment Act (ADEA) and Title VII require that,

“[b]efore suing under either the ADEA or Title VII, an aggrieved party must exhaust his

administrative remedies by filing a charge of discrimination with the EEOC within 180 days of

the alleged discriminatory incident.” Washington v. Washington Metro. Area Transit Auth., 160

F.3d 750, 752 (D.C. Cir. 1998) (citing 29 U.S.C. § 626(d)(1) (1994)); 42 U.S.C. § 2000e-5(e)(1)

(1994)). To maintain a civil suit, a plaintiff has ninety days to file once the Equal Employment

Opportunity Commission (EEOC) issues a right-to-sue letter to the plaintiff. See Nkengfack v.

Am. Ass’n of Retired Persons, 818 F. Supp. 2d 178, 180 (D.D.C. 2011); 42 U.S.C. § 2000e–

5(f)(1); 29 U.S.C. § 626(e). The ninety-day period begins to run “the day after the right-to-sue

letter was received.” Akridge v. Gallaudet University, 729 F. Supp. 2d 172, 178 (D.D.C. 2010)

(citing Fed. R. Civ. P. 6(a)(1)). “No matter how slight the tardiness, a court is not at liberty to

disregard the 90-day deadline out of a vague sympathy for any particular plaintiff.” Turner v.

Afro-Am. Newspaper Co., 572 F. Supp. 2d 71, 73 (D.D.C. 2008) (citing Baldwin County

Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984)).



5
  Despite the plaintiffs raising age discrimination claims pursuant to the ADEA, their opposition brief couches all of
their discrimination claims pursuant to Title VII. This difference is irrelevant to this Court’s decision, because in the
context of this case, the procedural requirements are the same for both Title VII and the ADEA.

                                                          14
       However, this Court has recognized the “single-filing exception” pursuant to the doctrine

of vicarious exhaustion. See Peters v. District of Columbia, 873 F. Supp. 2d 158, 181-82

(D.D.C. 2012) (holding that the “single-filing” exception did not apply to five plaintiffs trying to

“piggy-back” on one plaintiff’s properly filed complaint); Moore v. Chertoff, 437 F. Supp. 2d

156, 163 (D.D.C. 2006) (finding that plaintiffs could rely on the vicarious exhaustion doctrine to

join a properly pleading plaintiff). “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.’” Peters, 873 F. Supp. 2d at 181-82 (quoting Brooks v. Dist. Hosp. Partners,

L.P., 606 F.3d 800, 804 (D.C. Cir. 2010)). A plaintiff may invoke this exception “only if one

plaintiff actually has exhausted his claims and if the exhausted claims are so similar to the

unexhausted claims that ‘it can fairly be said that no conciliatory purpose would be served by

filing separate EEOC charges.’” Moore, 437 F. Supp. 2d at 163 (quoting Foster v. Gueory, 655

F.2d 1319, 1322 (D.C. Cir. 1981)). To determine whether the exhausted claims and unexhausted

claims are “‘so similar that it can fairly be said that no conciliatory purpose would be served by

filing separate administrative charges’ . . . courts have examined the original EEOC filing of the

party with the perfected EEOC charge to evaluate whether it provided sufficient notice of all

charges by the plaintiffs who claim to be similarly situated . . .” Peters, 873 F. Supp. 2d at 182-

83 (quoting Cook v. Boorstin, 763 F.2d 1462, 1466 (D.C. Cir. 1985)); see also Byrd v. District of

Columbia, 807 F. Supp. 2d 37, 64 (D.D.C. 2011) (holding that similarities of legal claims and

overlapping facts were not enough to show that unexhausted claims were “so similar” to an

exhausted claim and invoke the single-filing exception).




                                                 15
        The six plaintiffs at issue 6 did not properly follow administrative procedures. 7 To survive

their procedural missteps, these six plaintiffs are relying on the perfected filing of Ms. Hill by

invoking the single-filing exception. Pls.’ Opp’n 13. Ms. Hill’s EEOC complaint alleges that

she was discriminated against based on race, in violation of Title VII, and based on age, in

violation of the ADEA. ECF Doc. 8, Ex. B. Ms. Hill’s EEOC complaint, therefore, put the

defendants on notice of racial discrimination claims under Title VII and age discrimination

claims under the ADEA, in relation to the RIF.

        In the amended complaint, each of the six plaintiffs’ amendments begin by “accept[ing]

all allegations made in paragraphs 1 through 48 insofar as they describe the ‘One Round of

Lateral Competition’ and all activities, policies action matters [sic] therein related including the

wrongs, violations, discrimination, torts losses of properties, rights created, caused by and

connected to all Defendants and DCPS.” See e.g., Pls.’ Compl. ¶ 56. All six plaintiffs accept Ms.

Hill’s allegations against the defendants, but also provide individual accounts of their own RIF

experiences. Pls.’ Compl. ¶¶ 49-97. While there is some variation among specific schools the

plaintiffs were assigned to at the time of the RIF, the defendants failed to file a reply to the

plaintiffs’ opposition to address the variations between Ms. Hill and the six plaintiffs attempting

to “piggy-back.” It is possible, therefore, that the six plaintiffs’ claims are too dissimilar to Ms.

Hill’s claim, but because the defendants did not take the opportunity to raise those arguments,

this Court will not reach an argument that was not raised.




6
  The six plaintiffs are Carol Carter, James Lightfoot, Roland Ashby-Rier, Phyllis Lovett, Adele LaFranque, and
Jerelyn Jones. Pls.’ Opp’n 11; Defs.’ Mot. to Dismiss 8.
7
  Carol Carter did not file with the EEOC; James Lightfoot did not file with the EEOC; Roland Ashby-Rier was
added to the complaint 111 days after his right-to-sue letter; Phyllis Lovett’s amended EEOC claim did not mention
age discrimination; Adele LaFranque was added to the complaint 158 days after her right-to-sue letter; Jerelyn Jones
was added to the complaint 111 days after her right-to-sue letter. Defs.’ Mot. to Dismiss 8.

                                                        16
         The possibly significant dissimilarities, however, could be insignificant. The plaintiffs

argue that the six plaintiffs are all similarly situated to Ms. Hill, because they each “suffered and

alleged the identical harm as” Ms. Hill. Pls.’ Opp’n 13. Although all the plaintiffs are employed

by the defendants, Compl. 14, each plaintiff likely had a unique narrative written about him or

her by the corresponding school’s administrator or principal in the CLDFs. The plaintiffs point

out, however, that each narrative was passed to and accepted by DCPS as the primary

justification for removal, Compl. 23, meaning that the individual schools likely did not make

direct RIF decisions, but instead the decisions were left to DCPS. If this were true, then it is

plausible that the six plaintiffs’ discrimination claims would be “so similar” to Ms. Hill’s claim

that “‘it can fairly be said that no conciliatory purpose would be served by filing separate EEOC

charges.’” Moore, 437 F. Supp. 2d at 163 (quoting Foster, 8 655 F.2d at 1322).

         Because the later-added plaintiffs argue that their discrimination claims are “similarly

situated” to Ms. Hill’s discrimination claims, and because the defendants did not take the

opportunity to raise any counter-arguments, this Court will apply the single-filing exception

pursuant to the doctrine of vicarious exhaustion and allow these six plaintiffs to join Ms. Hill’s

properly filed complaint, despite their procedural missteps. This Court, therefore, finds the

discrimination claims of Carol Carter, James Lightfoot, Roland Ashby-Rier, Adele LaFranque,

and Jerelyn Jones are properly before this Court, and therefore, denies this portion of the

defendants’ motion to dismiss.

             2. Three Plaintiffs Faced Possible Constructive Discharge



8
  The plaintiffs correctly rely on Foster, where the court found that the claims were “so similar” and allowed the
plaintiffs’ motion to intervene pursuant to the doctrine of vicarious exhaustion. 655 F.2d at 1323. One distinction
from Foster, and this case, however, is that in Foster none of the intervening plaintiffs had filed with the EEOC, and
in this case, out of the six plaintiffs attempting to “piggy-back” on Ms. Hill’s claims, two never filed with the EEOC
and four filed with the EEOC, but failed to file in this Court within ninety days. The parties have not briefed,
therefore, the Court does not reach, whether this difference is significant.

                                                         17
       The defendants argue that three plaintiffs failed to state actionable discrimination claims

because they “were not subject to an adverse personnel action” when they voluntarily retired.

Defs.’ Mot. to Dismiss 9. The plaintiffs argue, in response, that while the three plaintiffs “may

appear on paper as if they voluntarily retired,” they were actually constructively discharged,

which qualifies as an adverse action. Pls.’ Opp’n 14.

       “Under 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, age, or disability.” Baloch v. Kempthorne,

550 F.3d 1191, 1196 (D.C. Cir. 2008). A constructive discharge can serve as an adverse action.

Joyce v. Office of Architect of Capitol, 2013 WL 4758186, at *7 (D.D.C. Sept. 5, 2013). A

finding of constructive discharge requires “a finding of discrimination and the existence of

certain ‘aggravating factors.’” Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1558 (D.C.

Cir. 1997) (quoting Clark v. Marsh, 665 F.2d 1168, 1174 (D.C. Cir. 1981)).

       An employee’s resignation or retirement is presumed to be voluntary and not an adverse

action, unless the employee overcomes the presumption by showing that the resignation or

retirement was involuntary, and therefore qualifies as a constructive discharge. See Aliotta v.

Bair, 614 F.3d 556, 566-67 (D.C. Cir. 2010) (citing Veitch v. England, 471 F.3d 124, 134 (D.C.

Cir. 2006) (Rogers, J., concurring)). An employee’s resignation or retirement, when the only

other available option for the employee is removal by the employer for valid reasons, does not

qualify as constructive discharge. See Keyes v. Dist. Of Columbia, 372 F.3d 434, 439-40 (D.C.

Cir. 2004) (explaining that when faced with the choice of retirement or for-cause termination,

choosing retirement is a difficult choice for the employee, but not an involuntary choice). “Mere

uncertainty due to the threat of a RIF layoff does not translate into a constructive discharge.”



                                                  18
Aliotta, 614 F.3d at 567 (distinguishing between an employee being faced with the risk for

termination and the absolute certainty of termination). A plaintiff can overcome the presumption

of voluntariness, however, by showing that the defendants created “aggravating factors . . . [and]

deliberately made [the plaintiff’s] working conditions intolerable.” Clark, 665 F.2d at 1176

(holding that a plaintiff’s retirement qualified as a constructive discharge because of the history

of discrimination against the plaintiff by the defendant).

         Three plaintiffs, 9 Curtise Woodward, Sandra Williams, and Francis Simmons, retired

before the RIF went into effect on November 2, 2009. Pls.’ Opp’n 1. While the defendants

argue that the retirements were voluntary, the plaintiffs argue that while it “may appear on paper

as if they voluntarily retired . . . this is a fact in dispute.” Pls.’ Opp’n 14. In order to overcome

the presumption of voluntariness that accompanies retiring, the plaintiffs distinguish their

experiences by arguing that “[i]f they had not retired they would have certainly [been] subject to

the RIF.” Pls.’ Opp’n 14 (emphasis added). In support of this, the plaintiffs allege that they

“received clear information about what would happen if they did not retire. . . . A reasonable

person would have felt no other choice other than to retire . . .” Pls.’ Opp’n 14. Again, because

the defendants failed to submit a reply brief, the Court has no response to this argument.

         If the plaintiffs allegations are taken as true, then the plaintiffs distinguished their case

from Aliotta, where the employees only faced a risk of termination, but not certainty. 614 F.3d

at 567. Based on the plaintiffs’ allegations that they retired only after being told they would lose

their jobs, it is, therefore, “plausible on its face” that the plaintiffs’ retirements were involuntary

and qualify as constructive discharge. Twombly, 550 U.S. at 570. The plaintiffs, therefore,

provided “sufficient factual matter, accepted as true, to ‘state a claim to relief.’” Iqbal, 556 U.S.

9
  The total number of plaintiffs that retired is four, but the defendant grouped one of those four plaintiffs into the
failure to exhaust administrative remedies argument instead of the adverse action argument. Defs.’ Mot. to Dismiss
3, 8.

                                                          19
at 678 (quoting Twombly, 550 U.S. at 570). The Court denies the defendants’ motion to dismiss

on these grounds. However, the defendants can explore this issue during discovery and perhaps,

if the facts merit, raise it again at the summary judgment stage.

           3. This Court Does Not Lack Subject Matter Jurisdiction Over Ms. Hill’s
              Discrimination Claims

       The defendants argue that this court lacks subject matter jurisdiction over Ms. Hill’s

discrimination claims pursuant to res judicata. Defs.’ Mot. to Dismiss 9-10. The defendants

argue that Ms. Hill “can only prevail on her [discrimination] claim if she can show that the

reduction-in-force regulations were not followed . . . [and] this was already adjudicated by the

OEA.” Defs.’ Mot. to Dismiss 10. Ms. Hill argues, in response, that her discrimination claim is

not precluded, and she is entitled to jurisdiction in this Court.

       The defendants correctly state that, “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.’” Drake v. F.A.A., 291 F.3d 59, 66 (D.C. Cir. 2002) (quoting Allen v.

McCurry, 449 U.S. 90, 94 (1980)). However, “‘unreviewed determinations by state agencies

stand on a different footing.’” Davis v. Joseph J. Magnolia, Inc., 815 F. Supp. 2d 270, 274-75

(D.D.C. 2011) (quoting Univ. of Tennessee v. Elliott, 478 U.S. 788, 792 (1986)). Specifically,

“Congress did not intend unreviewed state administrative proceedings to have preclusive effect

on Title VII claims.” Univ. of Tennessee, 478 U.S. at 792; see also Davis, 815 F. Supp. 2d at

274-75 (allowing the plaintiff’s Title VII claim to move forward, because a state court had not

yet issued a final ruling on the agency’s decision, leaving the agency decision unreviewed).

Agency decisions related to claims under the ADEA follow the same principle. See Astoria Fed.

Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 106 (1991) (holding that “judicially unreviewed




                                                  20
findings of a state administrative agency made with respect to an age-discrimination claim . . .

have no preclusive effect on federal proceedings”).

         In response to Ms. Hill’s allegations about the legality of the RIF, the OEA issued a final

order on whether the defendants’ actions “pursuant to a RIF [were] done in accordance with all

applicable laws, rules, or regulations.” Defs.’ Mot. to Dismiss, Ex. A. The OEA did not address

Ms. Hill’s discrimination claim under either Title VII or the ADEA. Defs.’ Mot. to Dismiss, Ex.

A. Furthermore, there is nothing in the record that shows that a state court reviewed the OEA’s

final order holding that the defendants’ RIF proceedings were upheld. The OEA’s final order is,

therefore, “judicially unreviewed.” Solimino, 501 U.S. at 106. While the defendants’ argument

that Ms. Hill’s previous claim about the legality of the RIF is “[t]he linchpin” of her

discrimination claim may be true, Defs.’ Mot. to Dismiss 9, this does not preclude Ms. Hill’s

discrimination claim from being litigated by this Court, because they are two separate claims. 10

         Because the OEA did not address Ms. Hill’s discrimination claim under Title VII or the

ADEA, and because the OEA’s final order is “judicially unreviewed,” there is no preclusive

effect on Ms. Hill’s discrimination claims. This Court finds that it has subject matter jurisdiction

over Ms. Hill’s discrimination claims and therefore, denies the defendants’ motion to dismiss

regarding Ms. Hill’s discrimination claims.




10
   Ms. Hill may face issue preclusion regarding the legality of the RIF process, but this is distinguished from claim
preclusion. “Issue preclusion establishes in a later trial on a different claim identical issues resolved in an earlier
trial, if certain conditions are met. First, the issue must have been actually litigated . . . Second, the issue must have
been ‘actually and necessarily determined by a court of competent jurisdiction’ in the first trial. . . . Third, preclusion
in the second trial must not work an unfairness.” Otherson v. Dep't of Justice, I.N.S., 711 F.2d 267, 273 (D.C. Cir.
1983) (quoting Montana v. United States, 440 U.S. 147, 153 (1979)).

                                                           21
                                      IV. CONCLUSION

       For the foregoing reasons, the defendants’ motion to dismiss is granted as to the

defamation and due process claims and denied as to the discrimination claims. An order

consistent with this Memorandum Opinion is separately and contemporaneously issued.


Dated: March 21, 2014                                            RUDOLPH CONTRERAS
                                                                 United States District Judge




                                               22
