                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


  RONDA L. DAVIS, et al.,

  and

  CYNTHIA DUDLEY, et al.
                                                     Civil Actions 10-1564, 10-1718 (RC)
                          Plaintiffs,

                        v.

  DISTRICT OF COLUMBIA, et al.,

                          Defendants.


                                  MEMORANDUM OPINION

        In June 2010, the Child and Family Services Agency of the District of Columbia

conducted a reduction in force. The plaintiffs were among those who lost their jobs. They

allege that they were laid off because of their age and race. The defendants have moved to

dismiss the case or, in the alternative, for summary judgment prior to discovery.

                                        I. BACKGROUND

        In their complaint, the plaintiffs allege that they were employed by the District of

Columbia’s Child and Family Services Agency (“CFSA” or “the agency”) until June 11, 2010,

when a reduction in force took effect. Am. Compl. ¶ 1. The agency had announced the layoff

the previous month, emphasizing that “[t]his action in no way reflects adversely on your

performance of your . . . official duties.” Id. ¶ 23 (quoting Letter from Roque Gerald, Director,

CFSA (May 6, 2010)). One hundred and ten employees lost their jobs, id. ¶ 37, including the

forty-five plaintiffs, id. ¶¶ 9, 23, who have brought these consolidated actions as the
representatives of the putative class of all employees who were laid off in the reduction in force,

id. ¶ 1.

           Most of the plaintiffs are African-American, as were at least ninety-three percent of the

employees who lost their jobs in the reduction in force. Id. ¶ 26. The plaintiffs allege that there

is a statistically significant difference between the racial composition of the employees who were

laid off and those who were retained by the agency. Id. ¶¶ 49–50. Many of the plaintiffs had

been employed as Social Service Assistants. Id. ¶ 27. Those positions, which did not require a

college degree, id. ¶ 29, were eliminated and replaced by fewer Family Social Worker positions,

which required a bachelor’s degree in social work or a related field, id. ¶¶ 31–32. Other

plaintiffs had been employed as Associate Social Workers or Program Monitors before they were

laid off. Id. ¶¶ 54–55, 76. The complaint implies that a master’s degree was required for the

former position, and a bachelor’s degree for the latter. Id. ¶¶ 71–72. It is not clear whether those

requirements were pre-existing or imposed at the time of the reduction in force.

           The plaintiffs allege that the requirement of a bachelor’s or master’s degree can have a

disparate impact upon African-Americans, who hold such degrees in smaller numbers than

members of other racial groups, and that the defendants knew or should have known this fact.

Id. ¶¶ 42–44. The plaintiffs further allege that, although the two positions were responsible for

essentially identical duties, id. ¶ 51, several plaintiffs who held bachelor’s degrees and had been

employed as Social Service Assistants were not retained as Family Social Workers, id. ¶ 52.

           All but one of the plaintiffs was at least forty years old on the date of the reduction in

force, id. ¶ 35, as were approximately three-quarters of the employees who lost their jobs, id.

¶ 25. (The remaining plaintiff was thirty-six, id. ¶ 35; more than nine-tenths of the laid-off


                                                     2
employees were at least thirty-seven, id. ¶ 25.) The plaintiffs allege that the agency hired or

promoted many younger, less-experienced employees to fill the new Family Social Worker

positions, instead of the older, more-experienced plaintiffs. Id. ¶ 53.

        On the plaintiffs’ account, the Child and Family Services Agency has offered inaccurate

or conflicting explanations of the reduction in force and the imposition of educational

requirements. The plaintiffs allege that, before the reduction was announced, high-ranking

agency officials incorrectly claimed that the federal government requires or encourages the

imposition of minimum educational requirements on employees who assist or work alongside

licensed social workers. Id. ¶¶ 67–68. They further allege that, several days before the

reduction took effect, the Council of the District of Columbia restored some funding to the

agency’s budget, thereby lessening the need for layoffs. Id. ¶ 69. If the agency had not hired

any new employees from the date that it announced the reduction in force until the end of

September 2010, the plaintiffs claim, it could have afforded to retain all of the employees that it

laid off. Id. ¶¶ 64, 70. Instead, it hired many employees who were younger than those it laid off;

the plaintiffs allege that the “great majority” of the new hires were thirty-four or younger. Id.

¶ 63.

        One plaintiff challenged the reduction in force through the agency’s Office of Employee

Appeals, arguing that there was no reason for the layoffs. Id. ¶¶ 73–74. In rejecting her

challenge, the agency director offered two explanations. First, he said, “I . . . made a

management decision to effect an agency-wide realignment, which resulted in the Reduction-In-

Force of some positions.” Id. ¶ 74. And “[a]dditionally the . . . Agency, like most District of




                                                 3
Columbia Government Agencies, had its agency’s . . . budget cut, which added additional

pressures to reduce staff . . . .” Id. (ellipses in complaint).

        After the reduction in force took effect, the plaintiffs allegedly notified the Mayor and the

Attorney General of the District of Columbia of their claims that the District discriminated

against them on the basis of age and race in conducting the layoffs. Id. ¶ 77. At least two

plaintiffs filed charges with the Equal Employment Opportunity Commission, alleging race

discrimination, and received right to sue letters. Id. ¶¶ 78–80. The plaintiffs now bring suit

against the District of Columbia and its Mayor, alleging age discrimination in violation of the

Human Rights Act of the District of Columbia, D.C. Code § 2-1401.01 et seq., and race

discrimination in violation of both that Act and Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e et seq. The defendants have moved to dismiss the suit or, in the

alternative, for summary judgment without discovery.

                                     II. LEGAL STANDARDS

        A. Motion to Dismiss

        A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Such

motions allege that a plaintiff has not properly stated a claim; they do not test a plaintiff’s

ultimate likelihood of success on the merits. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The

complaint is only required to set forth a short and plain statement of the claim, in order to give

the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic

Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing FED. R. CIV. P. 8(a)(2) and

Conley v. Gibson, 355 U.S. 41, 47 (1957)).


                                                    4
        A court considering this type of motion presumes the factual allegations of the complaint

to be 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 may also consider “any documents

either attached to or incorporated in the complaint.” St. Francis Xavier, 117 F.3d at 624. The

court need not accept as true inferences unsupported by facts set out in the complaint or legal

conclusions cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 39 (D.C.

Cir. 2004); Browning, 292 F.3d at 242.

        It is not necessary for the plaintiff to plead all elements of his prima facie case in the

complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14 (2002), or to plead law or match

facts to every element of a legal theory, Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000)

(internal citations omitted). Nonetheless, “[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) (internal quotation marks omitted); Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 562 (2007). A claim is facially plausible when the pleaded

factual content “allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “The

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

possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556).

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

statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).




                                                   5
       B. Motion for Summary Judgment

       Summary judgment may be granted when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED.

R. CIV. P. 56(a). A fact is “material” if it is capable of affecting the substantive outcome of the

litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if

sufficient evidence exists such that a reasonable jury could return a verdict for the non-moving

party. See Scott v. Harris, 550 U.S. 372, 380 (2007).

       The principal purpose of summary judgment is to streamline litigation by disposing of

factually unsupported claims or defenses and determining whether there is a genuine need for

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The moving party bears the initial

responsibility of identifying those portions of the record which demonstrate the absence of any

genuine issue of material fact. Id. at 323; FED. R. CIV. P. 56(c)(1)(A) (noting that the movant

may cite to “depositions, documents, electronically stored information, affidavits or declarations,

. . . admissions, interrogatory answers, or other materials”). In response, the non-moving party

must similarly designate specific facts in the record that reveal a genuine dispute that is suitable

for trial. Celotex, 477 U.S. at 324.

       On a motion for summary judgment, the court must “eschew making credibility

determinations or weighing the evidence,” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.

2007), and all underlying facts and inferences must be analyzed in the light most favorable to the

non-moving party, Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered

without any evidentiary support do not establish a genuine issue for trial. Greene v. Dalton, 164

F.3d 671, 675 (D.C. Cir. 1999).


                                                  6
                                         III. ANALYSIS

       A. The Proper Defendant

       The plaintiffs have brought this suit against both the District of Columbia and its Mayor

in his official capacity. A suit against one “amounts to the same thing” as a suit against the

other. Evangelou v. District of Columbia, 2012 WL 5383034, at *6 (D.D.C. Nov. 5, 2012); see

also Robinson v. District of Columbia, 403 F. Supp. 2d 39, 49 (D.D.C. 2005) (“Based upon the

understanding that it is duplicative to name both a government entity and the entity’s employees

in their official capacity, courts have routinely dismissed corresponding claims against

individuals in their official capacity as ‘redundant and an inefficient use of judicial resources.’”

(quoting Cooke-Seals v. District of Columbia, 973 F. Supp. 184, 187 (D.D.C. 1997)));

Cooke-Seals, 973 F. Supp. at 187 (“A suit against an individual in her official capacity is one

method of bringing suit against the employer and is distinct from an individual capacity suit.

Where the suit has been filed against the employer (here the District of Columbia) and one or

more employees [in their official capacities], however, the claims against the employees merge

with the claim against the employer.”). The court will therefore dismiss the claims against the

Mayor in his official capacity “as identical to and therefore duplicative of the claims against the

District itself.” Evangelou, 2012 WL 5383034, at *6 n.4.

       The District construes the amended complaint to name the Child and Family Services

Agency as a separate defendant, and moves to dismiss all claims against the agency on the

grounds that it is non sui juris. The amended complaint has abandoned all claims against the

CFSA and in any event the agency is, as the District argues, not susceptible to suit. Hunter v.




                                                  7
D.C. Child & Family Servs. Agency, 710 F. Supp. 2d 152, 157 (D.D.C. 2010). The District of

Columbia is the only proper defendant in this case.

       B. The Sufficiency of the Allegations

       The plaintiffs allege age discrimination in violation of the D.C. Human Rights Act; they

also allege race discrimination in violation of both the Human Rights Act1 and Title VII of the

Civil Rights Act of 1964. Although the amended complaint could be read to suggest otherwise,

and indeed they have sometimes read it that way, see Pls.’ Opp. [Dkt. # 26] at 4, the plaintiffs

have made clear that “there is no separate claim under [42 U.S.C.] § 1981 in the . . . Amended

Complaint,” Pls.’ Resp. to Def.’s Supp. Mem. [Dkt. # 48], 2. To the extent that there ever was

such a claim, it has therefore been abandoned.

               i. The Unnamed Plaintiffs

       The District first argues that some of the plaintiffs have failed to state a claim for age or

race discrimination because they have not alleged their age or their race. Indeed, the amended

complaint does not even allege the names of certain plaintiffs. The amended complaint names

thirteen plaintiffs, each of whom is African-American and the youngest of whom was forty years

old when the reduction in force took effect. Am. Compl. ¶¶ 10–18, 20. It also alludes to the

existence of thirty-two other plaintiffs, who were joined before the amended complaint was filed,

see Minute Order of December 16, 2010, but neither names them nor specifies their precise age

or their race. The names of these additional plaintiffs appear in an attachment to their motion for



       1
          In their amended complaint, the plaintiffs cite a superseded version of the Human
Rights Act, but that technical failing is not grounds for dismissal. As the plaintiffs suggest, Pls.’
Opp at 4 n.1, the court construes the references to scattered provisions of D.C Code as a failed
attempt to cite that Act.

                                                  8
joinder, Mot. for Joinder [Dkt. # 9], Ex. 2, which suggests that they challenge “the same kind of

age and/or race discriminatory conduct” as the plaintiffs who first brought suit, id., Ex. 1 at 1.

Even if these documents are incorporated into the amended complaint by reference, see Am.

Compl. ¶¶ 21, 40, they do not make clear which of the thirty-two plaintiffs—not all of whom are

African-American, see Pls.’ Opp. at 1—are alleging race discrimination. The amended

complaint does suggest that they all allege age discrimination, that all but one plaintiff was at

least forty years old when he was laid off, and that the remaining plaintiff was thirty-six. Am.

Compl. ¶¶ 35, 65. Because the amended complaint does not specify which of the later-joined

plaintiffs allege that they were discriminated against on the basis of their race, those plaintiffs

have failed to state a claim on which relief can be granted. All claims of race discrimination

brought by plaintiffs not named in the amended complaint will therefore be dismissed. Because

this failure could easily be remedied by amending the complaint once more, the dismissal will be

without prejudice and with leave to amend granted.

               ii. Race Discrimination

                       a. Title VII

       Title VII of the Civil Rights Act makes it unlawful for an employer to “to fail or refuse to

hire or to discharge any individual . . . because of such individual’s race.” 42 U.S.C.

§ 2000e-2(a)(1). The statute therefore bars “both intentional discrimination and artificial,

arbitrary, or unnecessary barriers to equal opportunity.” Segar v. Smith, 738 F.2d 1249, 1258

(D.C. Cir. 1984). A Title VII plaintiff can prove that he was fired or was not hired “because of”

his race either by proving his employer’s discriminatory intent, or by showing that the decision

resulted from a process that was “fair in form, but discriminatory in operation,” Griggs v. Duke


                                                  9
Power Co., 401 U.S. 424, 431 (1971). That is, he can prove discrimination by disparate

treatment or by disparate impact. See 42 U.S.C. § 2000e-2(k) (codifying disparate impact

theory). As the D.C. Circuit has explained,

       Disparate treatment occurs when ‘[t]he employer simply treats some people less
       favorably than others because of their race, color, religion, sex, or national origin.’
       ‘Proof of discriminatory motive is critical’ for such claims. Disparate impact claims,
       on the other hand, “involve employment practices that are facially neutral in their
       treatment of different groups but that in fact fall more harshly on one group than
       another and cannot be justified by business necessity.’ ‘Proof of discriminatory
       motive . . . is not required under a disparate-impact theory.’

Anderson v. Zubieta, 180 F.3d 329, 338 (D.C. Cir. 1999) (quoting Int’l Brotherhood of

Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977) (citations omitted)).

       Even in disparate treatment cases, however, a plaintiff need not present direct evidence of

discriminatory intent. Instead, the evidence of intent can be circumstantial—and indeed, that

circumstantial evidence can be “entirely statistical in nature.” Palmer v. Schultz, 815 F.2d 84, 90

(D.C. Cir. 1987) (citing Segar, 738 F.2d at 1278–79). Although this is equally true in single-

plaintiff cases, see Davis v. Califano, 613 F.2d 957, 962–63 (D.C. Cir. 1980), purely statistical

proof of discriminatory intent is a more common feature of disparate treatment cases premised

on “allegations of a ‘pattern or practice’ of discrimination affecting an entire class of

individuals.”2 “Pattern or practice” plaintiffs can make a prima facie showing of intentional


       2
          Palmer, 815 F.2d at 90. Although “[t]he phrase ‘pattern or practice’ appears only once
in Title VII—in a section that authorizes the government to pursue injunctive relief against an
employer ‘engaged in a pattern or practice of resistance to the full enjoyment of any of the rights
secured by’ the statute,” Chin v. Port Authority of N.Y. & N.J., 685 F.3d 135, 147 (2d Cir. 2012)
(quoting 42 U.S.C. § 2000e-6), it is commonly used “to refer not to an element of a § 2000e-6
claim, but to the method of proof that the Supreme Court endorsed in [International Brotherhood
of] Teamsters [v. United States, 431 U.S. 324 (1977)] for the adjudication of such claims,” Chin,
685 F.3d at 148, which has been widely applied to private class actions, see, e.g., Palmer, 815
F.2d at 90; Segar, 738 F.2d at 1265–68.

                                                 10
discrimination by “providing evidence—often in statistical form—of a disparity in the position

of members of the plaintiff class and comparably qualified” members of another class. Segar,

738 F.2d at 1267 (emphasis deleted). Disparate impact plaintiffs can similarly use statistical

evidence to prove that “observed, nonrandom disparities” in hiring, firing, or other significant

employment decisions “were caused by a ‘facially neutral’ selection criterion that disadvantaged

[the plaintiff class] more than [another class].” Palmer, 815 F.2d at 114; see also Aliotta, 614

F.3d at 565 (“To establish a prima facie disparate impact claim . . . a plaintiff . . . need only offer

statistical evidence of a kind and degree sufficient to show the employment decision

disproportionately impacts” members of the plaintiff’s class.).

       Doctrinally speaking, then, the central distinction between a disparate impact case and a

“pattern or practice” disparate treatment case is that only the latter requires proof of

discriminatory intent. See Anderson, 180 F.3d at 338; Palmer, 815 F.2d at 115 n.23 (“[A]

disparate treatment claim must prove both a disparity and discriminatory intent—even if proof of

intent is circumstantial and the disparity itself raises an inference of intent.”). But if intent can

be inferred from observed statistical disparities, the more practical distinction is that disparate

impact plaintiffs identify particular employment practices that are allegedly responsible for those

disparities, while “pattern or practice” plaintiffs do not. See Palmer, 815 F.2d at 115 (“Because

appellants have specifically identified the [employment practice], and not the [employer’s

discriminatory] intent, as causing the disparity . . . we will treat their claim concerning this

disparity as relying solely on the disparate impact theory.”).3 Instead, the theory of a “pattern or


       3
          The D.C. Circuit has also suggested that the theories may not be “mutually
inconsistent,” that “it may . . . be possible to claim that both discriminatory intent and a facially
neutral, although disadvantageous, selection criterion simultaneously caused a particular

                                                  11
practice” case is that the observed disparities were caused by intentional discrimination. But an

employer can respond to that allegation by pointing to a facially neutral employment practice

that arguably accounts for the disparities. When an employer makes that argument, it becomes

hard to distinguish a pattern-or-practice case from one based on a theory of disparate impact.

See Palmer, 815 F.2d at 114 n.21 (“As this court has previously recognized, a disparate

treatment claim can turn into a disparate impact claim if a defendant rebuts an allegation of

discriminatory intent by claiming that a facially neutral selection criterion caused a disparity in

selections.”); Segar, 738 F.2d at 1270 (explaining that “when an employer defends a disparate

treatment challenge by claiming that a specific employment practice causes the observed

disparity, and this defense sufficiently rebuts the plaintiffs’ initial case of disparate treatment”

then “[t]he only difference between this situation and the traditional disparate impact case is that

in the latter the plaintiff articulates the employment practice causing the adverse impact and

forces the employer to defend it, while in the former the employer articulates the employment

practice and must then go on to defend it”). In either case, the employer can prevail by showing

the business necessity of a facially neutral employment practice that caused the observed

disparity. Segar, 738 F.2d at 1270.

       The plaintiffs argue that they have adequately alleged race discrimination both by

disparate impact and through a “pattern or practice” of intentional discrimination. Their

argument jumbles the theories somewhat. For example, the plaintiffs say that the reduction in

force had an illegally disparate impact because it was not actually the product of budgetary



disparity, each contributing to the end result.” Palmer, 815 F.2d at 114 n.21. But the court
found that it “need not decide any of these complex questions about partial causality” where an
identifiable employment practice accounted for all of the observed statistical disparity. Id.

                                                  12
pressure and so must have been motivated by animus towards African-Americans. This confuses

disparate impact, which does not require any proof of animus, and intentional discrimination,

which does. But the District does not make any substantive argument against the adequacy of

the disparate impact allegations, which seem to focus on the criteria for the reduction in force

and the educational requirements for the new Family Social Worker positions. Instead, the

District argues that both the reduction and the increased requirements were business necessities.

That is an affirmative defense on which the District bears the burden of proof, see Segar, 738

F.2d at 1298, and therefore inappropriate on a motion to dismiss unless “the facts that give rise

to the defense are clear from the face of the complaint.” Smith-Haynie v. District of Columbia,

155 F.3d 575, 578 (D.C. Cir. 1998). The plaintiffs’ complaint does not allege facts establishing

the business necessity of the challenged employment practices, and so the court will not dismiss

their disparate impact claims.

        The District does, however, argue that the plaintiffs have not adequately alleged

intentional race discrimination. The plaintiffs respond first that they have made a

straightforward disparate treatment allegation: that racial discrimination and not budgetary

pressure was the real reason that the District conducted layoffs in the first place. They allege

that several days before the reduction took effect, the Council of the District of Columbia

restored some funding to the budget of the Child and Family Services Agency, thereby lessening

the need for layoffs. Am. Compl. ¶ 69. They further allege that if the agency had not hired any

new employees from the date that it announced the reduction in force until the end of September

2010, it could have afforded to retain all of the employees that it laid off. Id. ¶¶ 64, 70. None of

this amounts to “sufficient factual matter, accepted as true, to state a claim to relief that is


                                                  13
plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). All the

plaintiffs have said is that the District faced real budgetary pressures on the date of the reduction

in force, but those pressures had lessened somewhat and could have been completely eliminated

through a temporary hiring freeze. To choose a reduction in force over a hiring freeze in

response to budgetary pressures does not suggest racial animus. Nor does the District’s alleged

failure to cite budgetary pressures in various communications. See, e.g., Am. Compl. ¶ 60.

          The plaintiffs next argue that the District’s discriminatory intent can be inferred from its

knowing use of employment practices with a disparate racial impact. They label this a “pattern

or practice” claim. But, as explained above, when plaintiffs ascribe statistical disparities to

identifiable and facially neutral employment practices, they state a disparate impact claim; it is

only when plaintiffs argue that observed disparities were instead caused by intentional

discrimination that they articulate a “pattern or practice” claim. The plaintiffs here point to two

facially neutral practices: the reduction in force, id. ¶¶ 49–50, and the requirement that Family

Social Workers hold bachelor’s degrees, id. ¶¶ 31–32, 42–44. At this stage of their argument,

the plaintiffs aren’t really asserting that racial disparities in hiring and firing were caused by

intentional discrimination rather than those facially neutral policies, as the usual “pattern or

practice” case would have it. Instead, the plaintiffs now argue that the disparate racial impact of

the facially neutral policies was so obviously foreseeable that it must have been intended. That

is, they claim that it is possible to deduce intentional discrimination from evidence of disparate

impact.

          The plaintiffs’ argument would have been pointless when Title VII was first adopted,

because nothing turned on whether plaintiffs proved discrimination by disparate impact or


                                                   14
instead established a “pattern or practice” of intentional discrimination—or both. The same

equitable remedies were available under either theory. Taylor v. D.C. Water & Sewer Auth., 205

F.R.D. 43, 46–47 (D.D.C. 2002) (“Prior to the passage of the 1991 [amendments to Title VII],

injunctive and declaratory relief were . . . available to litigants who successfully prosecuted

either disparate treatment or disparate impact Title VII claims.”); see also Watson, 487 U.S. at

987 (“The distinguishing features of the factual issues that typically dominate in disparate impact

cases do not imply that the ultimate legal issue is different than in cases where disparate

treatment analysis is used.”). Once a disparate impact case had been established, it would have

been a waste of time to argue about whether or not a reasonable person should have foreseen that

impact, whether a facially neutral policy could be taken as evidence of discriminatory intent.

When Congress amended Title VII, however, it provided that compensatory (and, in some cases,

punitive) damages would be available to plaintiffs who proved intentional discrimination, but not

to those who proved discrimination by disparate impact. See 42 U.S.C. § 1981a(a)(1), (b). So it

now matters whether plaintiffs who have proven discrimination by disparate impact have also

proven disparate treatment. And it may therefore be possible to argue—as the plaintiffs here

have argued—that a particular facially neutral employment practice is so widely known to cause

a disparate impact as to suggest that the employer who used it must have intended that disparate

effect. The question, then, is whether the plaintiffs have plausibly made such an allegation.

       The plaintiffs allege that the District knew or should have known that requiring Family

Social Workers to hold bachelor’s degrees would have a disparate impact upon African-

Americans. Their allegations regarding the reduction in force are somewhat harder to unpack,

since the plaintiffs do not discuss the criteria on which the reduction in force was based, nor


                                                 15
make allegations about its structure. The court cannot tell what foreseeably discriminatory

policy the District allegedly adopted, and a conclusory allegation that the reduction in force was

(or contained) such a policy does not “allow[] the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. By contrast, the

allegation that the degree requirement had a foreseeably disparate impact unjustified by business

necessity is specific enough to permit the court to infer liability on the facts pled.

       The court will therefore preserve the plaintiffs’ Title VII claims of disparate racial

treatment in hiring Family Social Workers, but dismiss the disparate treatment claims based on

the reduction in force.

                          b. The District of Columbia Human Rights Act

       Like Title VII, the D.C. Human Rights Act makes it “an unlawful discriminatory

practice” for an employer “[t]o fail or refuse to hire, or to discharge[ ] any individual” “wholly or

partially for a discriminatory reason based upon the actual or perceived[ ] race” of that person.

D.C. Code § 2-1402.11(a), (1). And because “[a]ny practice which has the effect or consequence

of violating any of the provisions of this chapter shall be deemed to be an unlawful

discriminatory practice,” id. § 2-1402.68, the Human Rights Act authorizes discrimination

claims based on a theory of disparate impact. Gay Rights Coalition of Georgetown Univ. Law

Center v. Georgetown Univ., 536 A.2d 1, 29 (D.C. 1987) (en banc) (“As the legislative history

demonstrates, the Council imported into the Human Rights Act, by way of the effects clause, the

concept of disparate impact discrimination developed by the Supreme Court in Griggs v. Duke

Power Co., 401 U.S. 424 (1971).”); accord Estenos v. PAHO/WHO Federal Credit Union, 952

A.2d 878, 887–88 (D.C. 2008).


                                                  16
         The D.C. Court of Appeals “follow[s] cases construing Title VII in interpreting and

applying the provisions of the [Human Rights Act] . . . to the extent that the acts use similar

words and reflect a similar purpose.” Estenos, 952 A.2d at 887; see also Benefits

Communication Corp. v. Klieforth, 642 A.2d 1299, 1301 (D.C. 1994). Neither party suggests

that Title VII and the Human Rights Act differ in ways that would affect the pleading standards

for the race discrimination claim at issue here, so the court will dismiss only the plaintiffs’

disparate treatment claims based on the reduction in force. The disparate impact claims based on

both the reduction in force and the educational requirements for Family Social Workers will go

forward under the Human Rights Act, as they did under Title VII, as will the disparate treatment

claim based on those degree requirements.

               iii. Exhaustion

       The District also argues that the plaintiffs have not adequately alleged the exhaustion of

their administrative remedies, by submission of their Title VII claims to the Equal Opportunity

Employment Commission and their Human Rights Act claims to the local Office of Employee

Appeals.

       Although “Title VII ‘[c]omplainants must timely exhaust the[ir] administrative remedies

before bringing their claims to court,’” Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010)

(quoting Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (alteration in original)),

“Title VII’s exhaustion requirements are not jurisdictional,” Artis v. Bernanke, 630 F.3d 1031,

1034 (D.C. Cir. 2011) (citing Menominee Indian Tribe of Wis. v. United States, 614 F.3d 519,

527 (D.C. Cir. 2010)). The failure to timely exhaust administrative remedies “is an affirmative

defense, [which] the defendant bears the burden of pleading and proving” in a Title VII case.


                                                 17
Bowden, 106 F.3d at 437. And “there is no categorical answer to the question whether failure to

exhaust administrative remedies counts as failure to state a claim for Rule 12(b)(6) purposes.”

Thompson v. Drug Enforcement Admin., 492 F.3d 428, 438 (D.C. Cir. 2007). Instead, as

mentioned above, the rule is that “an affirmative defense may be raised by pre-answer motion

under Rule 12(b) when the facts that give rise to the defense are clear from the face of the

complaint” but not when they are not. Smith-Haynie, 155 F.3d at 578; accord Jones v. Bock, 549

U.S. 199, 215 (2007) (“Whether a particular ground for opposing a claim may be the basis for

dismissal for failure to state a claim depends on whether the allegations in the complaint suffice

to establish that ground, not on the nature of the ground in the abstract.”); see also Thompson,

492 F.3d at 438 (commenting that when “failure to exhaust is treated as an affirmative defense

and appears nowhere on the face of the complaint, the defense will not be raised on a Rule

12(b)(6) motion”). The District suggests that the plaintiffs bear the burden of plausibly alleging

exhaustion, but that is not the law. See Mondy v. Sec’y of the Army, 845 F.2d 1051, 1058 n.3

(D.C. Cir. 1988) (holding that “failure to exhaust administrative remedies is an affirmative

defense, and therefore [the plaintiff] was not required to anticipate it in his complaint”). And the

District does not argue that the plaintiffs’ failure to exhaust is “clear from the face of the

complaint.” Smith-Haynie, 155 F.3d at 578. Indeed, read in the light most favorable to the

plaintiffs, the amended complaint alleges that at least two plaintiffs—and perhaps others—filed

timely charges of race discrimination and received right to sue letters from the EEOC. See Am.

Compl. ¶¶ 78–80. The complaint does not make it clear that any plaintiff failed to exhaust his




                                                  18
administrative remedies before filing a Title VII claim, and so the court will not dismiss those

claims.4

       The District also argues that the Comprehensive Merit Personnel Act (“CMPA”), D.C.

Code § 1-601.01, et seq., requires its employees who are alleging discrimination under District

law to seek review from the Office of Employee Appeals before filing suit. But, as the plaintiffs

point out, the CMPA does not apply to allegations of discrimination. See Robinson v. District of

Columbia, 748 A.2d 409, 411 (D.C. 2000) (noting that “an employee seeking relief for

discrimination must pursue the remedies provided under the District of Columbia Human Rights

Act rather than the CMPA” (emphasis added)). Although the D.C. Human Rights Act formerly

required employees of the District government to exhaust their administrative remedies before

filing suit, see, e.g., Williams v. District of Columbia, 467 A.2d 140, 142 (D.C. 1983), the law

has since been amended to remove that requirement, see D.C. CODE § 2-1403.03. The District

has offered nothing to support its argument that a different legal framework applies to allegations

of discrimination involving a reduction in force. An employee alleging discriminatory layoffs is

still “seeking relief for discrimination,” Robinson, 748 A.2d at 41, and his claims are therefore

governed by the Human Rights Act.




       4
          The District has attached two of the EEOC charges to its reply brief, in an apparent
attempt to argue that, on the basis of those letters, the District should be granted summary
judgment on its failure-to-exhaust defense. The court will not consider that argument on this
motion. See Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008); Jones v.
Mukasey, 565 F. Supp. 2d 68, 81 (D.D.C. 2008) (both refusing to consider arguments first raised
in a reply brief).

                                                19
       C. Pre-Discovery Motion for Summary Judgment

       The District makes two other arguments that the court should dispose of the plaintiffs’

claims immediately. The District argues that a union contract bars the unexhausted claims of

any union member, and that the reduction in force and educational requirements imposed in June

2010 had no disparate impact and were in any case business necessities.5 What these arguments

have in common is that, to consider them, the court would be forced to refer to materials outside

of the complaint and therefore to treat a portion of this motion “as one for summary judgment

under Rule 56.” FED. R. CIV. P. 12(d).

       “[S]ummary judgment is premature unless all parties have ‘had a full opportunity to

conduct discovery.’” Convertino v. U.S. Dep’t of Justice, 684 F.3d 93, 99 (D.C. Cir. 2012)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)); accord Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986) (summary judgment appropriate only “after adequate time for

discovery”); Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997)

(“[S]ummary judgment ordinarily ‘is proper only after the plaintiff has been given adequate time

for discovery.’” (quoting First Chicago Int’l v. United Exchange Co., 836 F.2d 1375, 1380 (D.C.

Cir. 1988))). Rule 56(d) therefore provides for the party opposing summary judgment to

“show[ ] by affidavit or declaration that, for specified reasons, it cannot present facts essential to


       5
          A third argument—that the plaintiffs have failed to provide notice of their Human
Rights Act claims as required by D.C. Code § 12-309—was also raised for the first time in the
District’s reply brief and so will not be considered on this motion. See supra note 4. Suffice it
to say that, regardless of their compliance with D.C. Code § 12-309, the plaintiffs can still pursue
claims for liquidated damages. See Caudle v. District of Columbia, 2008 WL 3523153, at *2
(D.D.C. Aug. 13, 2008). This argument therefore seems focused on the available remedies
should the plaintiffs prevail, and so need not be addressed now. Moreover, compliance with
D.C. Code § 12-309 would have no impact on the plaintiffs’ Title VII claims. See Brown v.
United States, 742 F.2d 1498, 1500 (D.C. Cir. 1984).

                                                  20
justify its opposition.” FED. R. CIV. P. 56(d). The plaintiffs have submitted an affidavit in which

they allege that, without discovery, they do not have enough data to conduct a disparate impact

analysis, nor enough information to know how (if at all) the District attempted to determine

whether the reduction in force and imposition of educational requirements were business

necessities. See Pl.’s Opp., Ex. 1. That is enough to prevail on this motion. See Convertino,

684 F.3d at 99 (noting that requests for additional time for discovery pursuant to Rule 56(d)

“should be granted almost as a matter of course unless the non-moving party has not diligently

pursued discovery of the evidence”).

       Finally, the District suggests that a union contract bars any unexhausted claims of union

members. The plaintiffs argue that it does no such thing, but do not suggest that it is too soon to

consider the issue. Nonetheless, the court will put the question off until discovery has made

clear which plaintiffs (if any) were union members, which plaintiffs (if any) exhausted their

administrative remedies before what administrative bodies, and what the scope of any such

exhaustion was. Without that information, the court cannot grant summary judgment to the

District any more than it could dismiss the plaintiffs’ claims for failure to exhaust.




                                                 21
                                      IV. CONCLUSION

       For the reasons set out above, the court will dismiss all claims of intentional race

discrimination, and also dismiss the claims of race discrimination by disparate impact brought by

plaintiffs who are not named in the amended complaint. The latter dismissal will be without

prejudice. The court will also dismiss all claims against the Mayor. The remainder of the

District’s motion to dismiss will be denied, and the court will deny the District’s motion for

summary judgment and allow adequate time for discovery.

                                                             Rudolph Contreras
                                                             United States District Judge

Date: February 27, 2013




                                                22
