                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
KENNETH DICKERSON et al.,                 )
                                          )
            Plaintiffs,                   )
                                          )
      v.                                  )                   Civil Action No. 09-2213 (PLF)
                                          )
DISTRICT OF COLUMBIA et al.,              )
                                          )
            Defendants.                   )
_________________________________________ )


                                             OPINION

               This matter is before the Court on the District of Columbia’s motion to dismiss

the plaintiffs’ Third Amended Complaint. 1 The twenty-two plaintiffs are former principals and

assistant principals of public schools in the District of Columbia who challenge their non-

reappointment to these positions in 2008 and 2009, during the tenure of former Chancellor

Michelle Rhee. 2 The plaintiffs also allege that after they lost their positions, Chancellor Rhee




       1
                 The papers reviewed in connection with the pending motion include: plaintiffs’
Third Amended Complaint (“3d Am. Compl.”) [Dkt. No. 24]; the District’s motion to dismiss
the Third Amended Complaint (“Defs.’ MTD”) [Dkt. No. 25]; plaintiffs’ opposition (“Pls.’
Opp.”) [Dkt. No. 27]; the District’s reply (“Defs.’ Reply”) [Dkt. No. 30]; the District’s notice of
supplemental authority (“Defs.’ Not. of Supp. Auth.”) [Dkt. No. 35]; the District’s supplemental
memorandum concerning ERISA claims (“Defs.’ ERISA Supp.”) [Dkt. No. 39]; the District’s
supplemental memorandum concerning CMPA preemption (“Defs.’ CMPA Supp.”) [Dkt. No.
42]; plaintiffs’ supplemental memorandum concerning CMPA preemption (“Pls.’ CMPA
Supp.”) [Dkt. No. 44]; the District’s motion to dismiss the First Amended Complaint (“Defs.’
MTD 1st Am. Compl.”) [Dkt. No. 5]; D.C. Superior Court Documents (“Superior Court Docs.”)
[Dkt. No. 1-1]; Notice of Removal [Dkt. No. 1]; Agreement Between the Board of Education of
the District of Columbia and the Council of School Officers (“CBA”) [Dkt. No. 25-1].
       2
              The plaintiffs purport to be a putative class. See 3d Am. Compl. ¶¶ 1, 40; Pls.’
Opp. at 1. But they never have filed a motion for class certification. Although the plaintiffs did
defamed them by making statements to the press that attributed the poor state of the District’s

schools to their allegedly ineffective performance as administrators.

               In their Third Amended Complaint, the plaintiffs assert a number of claims under

both federal and District of Columbia law. Count One alleges discrimination on the basis of race

and age, in violation of the District of Columbia Human Rights Act. 3d Am. Compl. ¶¶ 70-73.

Count Two alleges a violation of 42 U.S.C. § 1981, which protects against racial discrimination

in the making and enforcement of contracts. Id. ¶¶ 74-78. Count Three alleges a claim for

wrongful discharge, id. ¶¶ 79-83, while Count Four alleges claims for defamation and business

defamation. Id. ¶¶ 84-86. Count Five alleges civil conspiracy, “including conspiracy to defame

and tortious interference with prospective advantage.” Id. ¶¶ 87-89. Count Six alleges violations

of the Employee Retirement Income Security Act (“ERISA”). Id. ¶¶ 90-91. Count Seven

alleges breach of contract. Id. ¶¶ 92-95. The plaintiffs also purport to advance claims for racial

discrimination in violation of Title VII of the Civil Rights Act of 1964 and for age discrimination

in violation of the Age Discrimination in Employment Act, although the complaint fails to set

forth these claims in distinct counts. See id. ¶¶ 70-95. These two federal statutes are referenced

only in introductory sections of the complaint, see id. ¶¶ 1, 26, although the plaintiffs discuss

them at length in their opposition to the District’s motion to dismiss. See Pls.’ Opp. at 25-30.

               The District has moved to dismiss the plaintiffs’ Third Amended Complaint on

several grounds. With respect to the majority of plaintiffs’ D.C. law claims, it maintains that this

Court lacks subject matter jurisdiction over these claims because the District of Columbia’s

Comprehensive Merit Personnel Act provides the sole avenue for resolving disputes between the

District and its employees. The District further contends that under a provision of the parties’


once seek an extension of time within which to file such a motion, see Dkt. No. 13, no class
certification motion was ever filed.
                                                  2
Collective Bargaining Agreement, the plaintiffs’ D.C. Human Rights Act claims could be

pursued only by filing a complaint with the D.C. Office of Human Rights. The District also

raises timeliness defenses to the plaintiffs’ claims under D.C. law, and it argues for dismissal of

the plaintiffs’ various federal claims on a number of other grounds. The Court will grant in part

and deny in part the District’s motion to dismiss.


                                       I. BACKGROUND

               The twenty-two plaintiffs are former principals and assistant principals of the

District of Columbia Public Schools (“DCPS”). 3d Am. Compl. ¶ 42. All of the plaintiffs are

either African American or Hispanic, and all were over the age of forty years when they lost their

positions. Id. ¶ 41. Because DCPS’s principals and assistant principals are appointed for one-

year terms without tenure, see 5-E D.C.M.R. § 520.1, none of the plaintiffs was “terminated”

from employment; rather, each complains of his or her “non-reappointment” to a previously held

position. See 3d Am. Compl. ¶¶ 53-54. Eighteen of the plaintiffs were notified of their non-

reappointments in 2008 (at the close of the 2007-08 academic year), while four of the plaintiffs

were notified in 2009 (at the close of the 2008-09 academic year). Id. ¶¶ 45-46.

               The plaintiffs’ non-reappointments occurred on the watch of defendant Michelle

Rhee, who in 2007 was appointed as the Chancellor of DCPS. Plaintiffs’ basic theory of the case

is that Rhee entered the Chancellorship with a premeditated plan to rid the District’s schools of

many existing administrators, so that they could be replaced with her preferred choices for those

positions. See 3d Am. Compl. ¶¶ 30, 34-35, 55, 65. 3 Furthermore, the plaintiffs allege that they

were replaced by people who were younger and white, rather than African American or



       3
               The Third Amended Complaint features two paragraphs labeled “55”; all citations
in this Opinion refer to the first of these paragraphs.
                                                 3
Hispanic. Id. ¶¶ 35, 55, 72. These differences in personal characteristics, the plaintiffs contend,

demonstrate that Rhee acted in a discriminatory manner with respect to their non-

reappointments. See id. ¶¶ 71-73, 76, 78; Pls.’ Opp. at 29-30.

               In addition, the plaintiffs maintain that although the official reason for their non-

reappointments was the allegedly poor performance of their schools, in fact Rhee simply desired

to bring in her own “cronies” to help her run the District’s school system. See 3d Am. Compl.

¶¶ 47-55, 65. And to the extent that genuine performance issues did exist, the plaintiffs argue

that they should have been given opportunities to improve, in accordance with the procedures set

forth in their Collective Bargaining Agreement. Id. ¶ 33. Moreover, the plaintiffs contend that

they did the best they could do in tough circumstances, given inadequate budgets and other

impediments to success. See id. ¶ 52.

               The plaintiffs’ complaints do not end with their non-reappointments as principals

and assistant principals. They further argue that the District interfered with their “retreat rights,”

which should have enabled them to take up preferred alternative positions within the District’s

school system and to enjoy higher levels of retirement benefits. 3d Am. Compl. ¶¶ 68-69, 91.

Although some of the plaintiffs did elect to work in different positions within DCPS after their

non-reappointments as principals or assistant principals, see id. ¶ 69, others contend that the

District’s actions effectively forced them to retire early. Id. ¶ 67. Finally, the plaintiffs argue

that Chancellor Rhee and her administration engaged in a media campaign that defamed the

plaintiffs by labeling them as poor performers who had been dismissed from their positions for

cause. Id. ¶¶ 59, 85-86. This alleged defamation, in turn, has made it nearly impossible for the

plaintiffs to find new work as school administrators. Id. ¶ 63.




                                                  4
               The plaintiffs filed their original complaint in the Superior Court of the District of

Columbia on June 30, 2009; shortly thereafter, they filed an amended complaint in that court.

See Superior Court Docs. The District then removed the case to this Court on the basis of

federal question jurisdiction. See Notice of Removal. Since removal, the plaintiffs have twice

further amended their complaint; the operative pleading is now the Third Amended Complaint.

See 3d Am. Compl. 4 The District has moved to dismiss this complaint under Rules 12(b)(1) and

12(b)(6) of the Federal Rules of Civil Procedure. Defs.’ CMPA Supp. at 3-5; Defs.’ MTD at 1.


                                    II. LEGAL STANDARDS

               Federal courts are courts of limited jurisdiction, with the ability to hear only cases

entrusted to them by a grant of power contained either in the Constitution or in an act of

Congress. See, e.g., Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939, 945 (D.C. Cir.

2005); Sierra Club v. Jackson, 813 F. Supp. 2d 149, 154 (D.D.C. 2011); Tabman v. FBI, 718 F.

Supp. 2d 98, 100 (D.D.C. 2010). On a motion to dismiss for lack of subject matter jurisdiction,

the plaintiff bears the burden of establishing that the Court has jurisdiction. See Tabman v. FBI,

718 F. Supp. 2d at 100; Brady Campaign to Prevent Gun Violence v. Ashcroft, 339 F. Supp. 2d

68, 72 (D.D.C. 2004). In determining whether to grant such a motion, the Court must construe

the complaint in the plaintiff’s favor and treat all well-pled allegations of fact as true. See Ord v.

Dist. of Columbia, 587 F.3d 1136, 1140 (D.C. Cir. 2009); Jerome Stevens Pharms., Inc. v. FDA,

402 F.3d 1249, 1253-54 (D.C. Cir. 2005). But the Court need not accept unsupported inferences

or legal conclusions cast as factual allegations. See Primax Recoveries, Inc. v. Lee, 260 F. Supp.

       4
                The plaintiffs were granted leave to file their Second Amended Complaint over
the District’s opposition, as explained in Dickerson v. Dist. of Columbia, 806 F. Supp. 2d 116
(D.D.C. 2011). That Memorandum Order was issued when this matter was before now-Chief
Judge Richard W. Roberts. On August 29, 2013, the case was transferred to the undersigned by
consent under Local Civil Rule 40.6(a).
                                                  5
2d 43, 47 (D.D.C. 2003). Under Rule 12(b)(1), the Court may dispose of the motion on the basis

of the complaint alone or it may consider materials beyond the pleadings as it deems appropriate

to resolve the question whether it has jurisdiction to hear the case. Al-Owhali v. Ashcroft,

279 F. Supp. 2d 13, 21 (D.D.C. 2003); Scolaro v. D.C. Board of Elections and Ethics, 104 F.

Supp. 2d 18, 22 (D.D.C. 2000); see also Coalition for Underground Expansion v. Mineta, 333

F.3d 193, 198 (D.C. Cir. 2003).

                Rule 12(b)(6) of the Federal Rules of Civil Procedure allows dismissal of a

complaint if a plaintiff fails “to state a claim upon which relief can be granted.” FED. R. CIV. P.

12(b)(6). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)

motion to dismiss, to provide the “grounds” of “entitle[ment] to relief,” a plaintiff must furnish

“more than labels and conclusions” or “a formulaic recitation of the elements of a cause of

action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Papasan v. Allain,

478 U.S. 265, 286 (1986). On such a motion, the Court “must accept as true all of the factual

allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also

Bell Atlantic Corp. v. Twombly, 550 U.S. at 555. The complaint “is construed liberally in the

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

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

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

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

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

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

statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic

Corp. v. Twombly, 550 U.S. at 555).



                                                   6
                                          III. DISCUSSION

                             A. Claims Against Individual Defendants

                The named defendants in this case are the District of Columbia, former D.C.

Mayor Adrian Fenty, and former Chancellor Michelle Rhee. With respect to the individual

defendants, Mayor Fenty and Chancellor Rhee, the plaintiffs fail to specify in their complaint

whether these parties are sued only in their official capacities or, instead, in both their official

and individual capacities. “If a complaint does not specify whether an official is being sued in

his individual or official capacity, ‘[t]he course of proceedings’ . . . typically will indicate the

nature of the liability sought to be imposed.” Bradley v. DeWine, No. 14-110 (JDB), 2014 WL

3056513, at *3 (D.D.C. July 8, 2014) (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14

(1985)) (alteration and omission in original, and quotation marks omitted). The plaintiffs’

opposition memorandum clarifies that former Chancellor Rhee is sued in her individual capacity

with respect to the claim that she made defamatory statements about the plaintiffs to the media.

                With regard to former Mayor Fenty, however, the plaintiffs’ only apparent theory

of individual liability concerns purported constitutional deprivations pursued under 42 U.S.C.

§ 1983. See Pl.’s Opp. at 14-15. The plaintiffs’ complaint, however, is devoid of constitutional

claims and, in any event, they allege no personal involvement on the part of Mayor Fenty with

respect to any of the alleged harms that they do identify. Accordingly, the Court will dismiss

Adrian Fenty from this case to the extent that he is sued in his individual capacity. The Court

also will dismiss the plaintiffs’ claims against the individual defendants in their official

capacities, which are, in effect, claims against the District government itself. See Holmes-

Ramsey v. Dist. of Columbia, 747 F. Supp. 2d 32, 42-43 (D.D.C. 2010). What remains, then, are




                                                   7
claims against the District of Columbia, as well as a defamation claim brought against Michelle

Rhee in her individual capacity.


                                      B. Common Law Claims

               At an earlier stage of the litigation of this case, the District raised the argument

that the District of Columbia’s Comprehensive Merit Personnel Act of 1978 (“CMPA”)

preempted many of the plaintiffs’ common law claims. See Defs.’ MTD 1st Am. Compl. at

9-14. The Court at that time ruled, in considering the plaintiffs’ motion for leave to file a Second

Amended Complaint, that it was “premature to conclude from this briefing that the plaintiffs

failed to exhaust their administrative remedies [under the CMPA] and that permitting their new

claims would be futile.” Dickerson v. Dist. of Columbia, 806 F. Supp. 2d 116, 121 (D.D.C.

2011). As a consequence, the District did not raise this argument again in its motion to dismiss

the Third Amended Complaint. See Defs.’ Reply at 2 n.1. But upon review of the pending

motion to dismiss, this Court concluded that the CMPA might implicate the Court’s jurisdiction

over the plaintiffs’ common law claims and therefore directed the parties to submit supplemental

memoranda addressing the issue. See Dickerson v. Dist. of Columbia, Dkt. No. 41, Civil Action

No. 09-2213, Memo. Op. and Order (D.D.C. Nov. 7, 2013).

               The District contends that this Court lacks jurisdiction to entertain nearly all of

the plaintiffs’ common law claims, arguing that the CMPA “provides the exclusive remedies for

Plaintiffs’ defamation, breach of contract, and conspiracy claims,” as well as for the wrongful

termination claims of some of the plaintiffs. Defs.’ CMPA Supp. at 2. The plaintiffs respond

that their common law claims do not fall within the CMPA’s ambit, see Pls.’ CMPA Supp. at

4-5, or, in the alternative, that they have “satisfied all administrative procedures necessary for

this Court to have proper jurisdiction over all claims.” Id. at 1-2; see also id. at 5-7.

                                                   8
                                 1. Scope of CMPA Preemption

               It is an unresolved question in the D.C. Circuit whether the CMPA deprives

federal courts of jurisdiction over common law claims brought by District employees against

their employer, or whether, instead, exhaustion of CMPA remedies is merely prudential. See

Johnson v. Dist. of Columbia, 552 F.3d 806, 810 n.2 (D.C. Cir. 2008); see also Thompson v.

Dist. of Columbia, 428 F.3d 283, 288 (D.C. Cir. 2005). But the D.C. Court of Appeals has long

held that CMPA preemption implicates a court’s jurisdiction over the subject matter of such

claims. Coleman v. Dist. of Columbia, 80 A.3d 1028, 1030 n.2 (D.C. 2013) (“This court has

consistently understood the question whether claims are foreclosed by the CMPA to go to the

subject-matter jurisdiction of the Superior Court.”); see also Johnson v. Dist. of Columbia, 552

F.3d at 810 n.2 (“The [CMPA] exhaustion doctrine is jurisdictional as applied by the D.C. Court

of Appeals.”). 5 Likewise, members of this Court have almost universally considered the issue to

be jurisdictional. See, e.g., Bowers v. Dist. of Columbia, 883 F. Supp. 2d 1, 9-10 (D.D.C. 2011);

Payne v. Dist. of Columbia, 773 F. Supp. 2d 89, 101 (D.D.C. 2011) (Friedman, J.). But see

Mpoy v. Fenty, 870 F. Supp. 2d 173, 178-79 (D.D.C. 2012) (electing to treat the issue as

prudential rather than jurisdictional). This Court will follow its own prior practice and the

dominant trend by treating the question whether the CMPA preempts plaintiffs’ common law

claims as implicating the Court’s subject matter jurisdiction over these claims.

               “With few exceptions, the CMPA is the exclusive remedy for a District of

Columbia public employee who has a work-related complaint of any kind.” Robinson v. Dist. of

Columbia, 748 A.2d 409, 411 (D.C. 2000). The statute has been recognized as establishing a

       5
               The plaintiffs cite one case to the contrary. See Pls.’ CMPA Supp. at 3 (citing
Burton v. Dist. of Columbia, 835 A.2d 1076, 1079 (D.C. 2003)). But Burton appears to be the
lone aberration within the D.C. Court of Appeals’ jurisprudence on this issue. See Johnson v.
Dist. of Columbia, 368 F. Supp. 2d 30, 40 n.3 (D.D.C. 2005).
                                                 9
“‘comprehensive merit personnel system’ intended to create a system of ‘efficient

administration’ that would give courts ‘a reviewing role . . . as a last resort, not a supplementary

role . . . as an alternative forum.’” Coleman v. Dist. of Columbia, 80 A.3d at 1033 (quoting Dist.

of Columbia v. Thompson, 593 A.2d 621, 632-34 (D.C. 1991)) (omissions in original).

“[P]ermitting parties to ‘seek relief outside of the CMPA . . . would frustrate the [CMPA]’s aim

to achieve order and efficiency.’” Id. (quoting Dist. of Columbia Metro. Police Dep’t v.

Fraternal Order of Police/Metro. Police Labor Comm., 997 A.2d 65, 77 (D.C. 2010)) (omission

and second alteration in original). The D.C. Court of Appeals therefore routinely has concluded

that this statutory regime preempts District employees from bringing their work-related claims to

court in reliance on other sources of District law. See, e.g., White v. Dist. of Columbia, 852

A.2d 922, 925-27 (D.C. 2004) (CMPA preempts D.C. employee’s misrepresentation claim);

Baker v. Dist. of Columbia, 785 A.2d 696, 698 (D.C. 2001) (CMPA preempts D.C. employee’s

emotional distress and defamation claims); Dist. of Columbia v. Thompson, 593 A.2d at 635

(same). “[T]he sweeping nature of this exemption [encompasses] nearly all employee claims

arising out of workplace activity.” Robinson v. Dist. of Columbia, 748 A.2d at 411.

               Lying outside the scope of CMPA preemption, however, are claims of workplace

discrimination, including sexual harassment, brought under the D.C. Human Rights Act.

Robinson v. Dist. of Columbia, 748 A.2d at 411; King v. Kidd, 640 A.2d 656, 664 (D.C. 1993);

see also Lewis v. Dist. of Columbia Dept. of Motor Vehicles, 987 A.2d 1134, 1137 n.2 (D.C.

2010). In addition, some common law claims may be sufficiently intertwined with allegations of

discrimination that those claims can be brought to the judicial forum in the first instance. See

Robinson v. Dist. of Columbia, 748 A.2d at 411-13; King v. Kidd, 640 A.2d at 664. And the

CMPA does not — indeed, could not — preclude District employees from pursuing judicial



                                                 10
relief for claims pursued under federal law. See Kelley v. Dist. of Columbia, 893 F. Supp. 2d

115, 119 n.1 (D.D.C. 2012). 6 Because the plaintiffs in this case bring discrimination-based

claims under both D.C. and federal law, as to which the CMPA is inapplicable, these claims are

addressed infra at 17-21.


                                       2. Breach of Contract

               With this framework in mind, the Court turns to consider each of the plaintiffs’

common law claims. First, the plaintiffs assert a claim for breach of contract. Although their

complaint is less than pellucid regarding the source of their asserted contractual rights, it appears

that this claim rests on the theory that the District failed to abide by the terms of the Collective

Bargaining Agreement (“CBA”) between it and the plaintiffs’ bargaining unit, the Council of

School Officers (“CSO”). See 3d Am. Compl. ¶¶ 33 n.5, 64, 92-95. The plaintiffs specifically

contend that prior to any decision not to reappoint them as school administrators, they should

have been provided with job performance evaluations and, if their performances were deemed

inadequate, to the opportunity to make improvements in accordance with procedures defined by

the CBA and by prior practice. See id. ¶¶ 33, 93, 95. The plaintiffs also appear to maintain that

the District’s alleged breach of the CBA interfered with their retreat rights. See id. ¶ 94.

               The Court concludes that it lacks jurisdiction over the plaintiffs’ claim for breach

of contract, which falls squarely within the preemptive scope of the CMPA. “Generally, a

District employee, subject to the [CMPA] or to a CMPA-sanctioned collective bargaining

agreement, may not maintain a common law action in court to remedy a grievance against the



       6
               The D.C. Court of Appeals has also recognized that some claims arising from
tortious conduct in the public workplace, such as claims for assault and battery, may not be
preempted by the CMPA, although the scope of this exception has been left undefined. See
Stockard v. Moss, 706 A.2d 561, 565 n.9 (D.C. 1997).
                                                  11
employer cognizable under CMPA, or under such an agreement, unless the employee has

exhausted the administrative procedures provided in that agreement.” Bd. of Trustees, Univ. of

Dist. of Columbia v. Myers, 652 A.2d 642, 645-48 (D.C. 1995). “[T]he applicable principles of

preemption — of exclusiveness of remedy — are the same whether an employee’s rights and

obligations are governed by a collective bargaining agreement or by the provisions

of CMPA itself.” Dist. of Columbia v. Thompson, 593 A.2d at 627; see also Wilson v. Dist. of

Columbia, 608 A.2d 161, 161 (D.C. 1992) (per curiam) (claim for breach of collective

bargaining agreement preempted by CMPA). Accordingly, judges of this Court have held that

they lacked jurisdiction over claims for breach of contract asserted by public employees against

the District. See Bowers v. Dist. of Columbia, 883 F. Supp. 2d at 9-10; Payne v. Dist. of

Columbia, 592 F. Supp. 2d 29, 36-37 (D.D.C. 2008). In the present case, Article VIII of the

CBA between the Board of Education and the plaintiffs’ bargaining unit defines a “grievance” as

“an unsettled complaint concerning any alleged violation, misinterpretation, or misapplication of

any of the provisions of this Agreement.” CBA, Art. VIII(A). Plaintiffs’ claim for breach of

contract, therefore, would have been cognizable as a grievance under the CBA; consequently,

they were obligated to pursue this claim under the grievance mechanisms provided to them by

their Collective Bargaining Agreement. See id. Art. VIII(B).

               The plaintiffs argue that the District should be estopped from relying on the CBA

as a defense to their claims, asserting that the District’s alleged breach of that agreement amounts

to a repudiation of its procedures. Pls.’ Opp. at 23-24. But of course, the CBA defines a

grievance as a complaint concerning an alleged violation of the agreement itself. See CBA, Art.

VIII(A). The plaintiffs’ theory would contravene the plain import of the procedures for which




                                                12
their union bargained and to which it agreed. This argument, therefore, does not alter the Court’s

conclusion that it lacks jurisdiction over their claim for breach of contract.


                                     3. Wrongful Termination

               Next, the plaintiffs assert that they were wrongfully terminated from their

positions as principals and assistant principals, “in violation of public policy.” 3d Am. Compl.

¶ 83. Under District of Columbia law, a claim for wrongful termination will lie where a plaintiff

identifies a public policy recognized as supporting such a claim, and demonstrates “a close fit

between [that] policy . . . and the conduct at issue in the allegedly wrongful termination.” Davis

v. Community Alternatives of Washington, D.C., Inc., 74 A.3d 707, 709-10 (D.C. 2013) (quoting

Fingerhut v. Children’s Nat’l Med. Ctr., 738 A.2d 799, 803 n.7 (D.C. 1999)) (alteration and

omission in original, and quotation marks omitted). The D.C. Court of Appeals has held that a

claim for wrongful termination brought by a District employee, like most any other work-related

complaint, is subject to preemption by the CMPA. See Lewis v. Dist. of Columbia Dept. of

Motor Vehicles, 987 A.2d at 1137.

               The conclusion of the D.C. Court of Appeals in Lewis, however, rested on the fact

that the complaining employee had an administrative remedy available to him under the CMPA.

See Lewis v. Dist. of Columbia Dept. of Motor Vehicles, 987 A.2d at 1137; see also Robinson v.

Dist. of Columbia, 748 A.2d at 411 (“[G]overnment employees only lose common law rights of

recovery if the statute provides redress for the wrongs they assert.” (quoting Newman v. Dist. of

Columbia, 518 A.2d 698, 704-05 (D.C. 1986))). In this case, it is not clear that the plaintiffs

would have such an administrative remedy available to them, as Chancellor Rhee’s decision not

to reappoint a term appointee may not be challengeable under CMPA procedures. See 5-E

D.C.M.R. § 1400.2(a) (exempting “[t]he termination of a temporary appointment upon the

                                                 13
expiration of the stated term of appointment,” from procedures for disputing removals and

similar actions); 5-E D.C.M.R. § 801.5(d), (f) (providing similar exemptions from Educational

Service’s definition of “grievance”); see also Coleman v. Dist. of Columbia, 80 A.3d at 1032 n.6

(recognizing that member of Career Service “would not be permitted to file a grievance

challenging his ‘nonselection from among a group of properly ranked and certified candidates,’”

as D.C. Municipal Regulations exempted such action from definition of “grievance” (quoting 6-

B D.C.M.R. § 845.4)). 7

               Even assuming that the District’s failure to reappoint a school administrator to a

new one-year term constitutes a “termination” — an issue on which the Court need not pass —

the only public policy identified by the plaintiffs as having been violated is the purported age and

race discrimination on which Chancellor Rhee allegedly relied in deciding not to reappoint them.

See Pls.’ Opp. at 47-48. But the public policy prohibiting discrimination cannot ground a claim

for wrongful termination, as this policy is vindicated by statutes such as the D.C. Human Rights

Act. See McManus v. MCI Commc’ns Corp., 748 A.2d 949, 957 (D.C. 2000) (court will not

recognize additional public policy exceptions that are based on policies for which legislature has

provided a remedy). Accordingly, the Court will dismiss the plaintiffs’ claim for wrongful

termination in violation of public policy.




       7
               Neither party has addressed in their briefing the significance of the District’s
regulations concerning educational employees, located at Title 5E of the Code of D.C. Municipal
Regulations.


                                                14
                               4. Defamation and Civil Conspiracy

               Finally, the plaintiffs assert common law claims of defamation, “business

defamation,” and civil conspiracy. 8 The defamation claim arises from their allegations that

Chancellor Rhee made numerous public statements subsequent to the plaintiffs’ non-

reappointments, which placed the blame for the District’s educational troubles upon them, thus

making it nearly impossible for the plaintiffs to find new positions in their professional field.

See 3d Am. Compl. ¶¶ 59, 63, 85-86. Courts often have concluded that District employees’

work-related claims of defamation are preempted by the CMPA. See, e.g., Baker v. Dist. of

Columbia, 785 A.2d at 698; Dist. of Columbia v. Thompson, 593 A.2d at 635. The plaintiffs

argue, however, that Chancellor Rhee’s statements were made after their non-reappointments,

and in circumstances sufficiently separate from the workplace — such as in interviews given to

national media outlets — to carry their defamation claims outside the preemptive scope of the

CMPA. See Pls.’ CMPA Supp. at 4-5.

               This Court previously has held, in a case involving factual circumstances

analogous to those alleged here, that the CMPA divested it of jurisdiction over a District

employee’s common law claim of defamation. In Holman v. Williams, 436 F. Supp. 2d 68

       8
                The precise nature of the plaintiffs’ civil conspiracy claim is not clear from their
complaint. Count Five of the complaint is titled “civil conspiracy, including conspiracy to
defame and tortious interference with prospective advantage.” The Court construes this claim as
resting essentially on the underlying allegations of defamation, which, according to the plaintiffs,
have damaged their future career prospects. Moreover, “[i]n the District of Columbia, civil
conspiracy ‘is not an independent tort but only a means for establishing vicarious liability for an
underlying tort.’” Rawlings v. Dist. of Columbia, 820 F. Supp. 2d 92, 103 (D.D.C. 2011)
(quoting Nader v. Democratic Nat’l Comm., 567 F.3d 692, 697 (D.C. Cir. 2009)). The plaintiffs
also appear to cast the alleged discrimination involved in their non-reappointments as part of a
“predetermined plan” — thus, a “conspiracy” — but this characterization does not add anything
of substance to their discrimination claims. See 3d Am. Compl. ¶ 88. And in the final paragraph
of Count Five, the plaintiffs refer vaguely to the District’s having “tamper[ed]” or “interfere[d]”
with their annual performance evaluations and other personnel records, see id. ¶ 89, but this
conclusory claim is never substantiated with any specific factual allegations.
                                                 15
(D.D.C. 2006), a former employee of the District of Columbia Office of Human Rights brought a

defamation claim against the District’s Mayor, arguing that in conjunction with the Mayor’s

termination of the plaintiff’s employment, the Mayor’s office provided statements to The

Washington Post asserting that the termination was for cause. Id. at 71-72. This Court held that

it lacked subject matter jurisdiction over this claim, which, it concluded, was preempted by the

CMPA. Id. at 74-76. It was of no moment that the allegedly defamatory statements were made

after the plaintiff’s termination from employment, and in the public sphere rather than in the

workplace itself. See id. Accordingly, the CMPA deprives this Court of subject matter

jurisdiction over the claim for defamation asserted by the plaintiffs here, as well as over their

civil conspiracy claim, which, as indicated supra 15 at n.8, is effectively derivative of their

defamation claim.


                       5. Asserted Exhaustion of Administrative Remedies

               The plaintiffs argue that they already have exhausted their administrative options

under the CMPA, thus enabling them to come directly to court. Pls.’ CMPA Supp. at 1-2, 5-7.

Specifically, they assert that their union representatives did initiate administrative proceedings on

their behalf, but that the union ultimately elected not to pursue these claims. See 3d Am. Compl.

¶¶ 39, 57. As both the D.C. Court of Appeals and the United States Court of Appeals for the

District of Columbia Circuit have held, however, one cannot escape CMPA preemption by

blaming one’s union for not having pursued a work-related complaint to its endpoint. Rather, a

District employee in the plaintiffs’ position must instead bring an unfair labor practices claim

against the union itself; and the proper forum for such a claim is the District of Columbia’s

Public Employee Relations Board. See, e.g., Johnson v. Dist. of Columbia, 552 F.3d at 810-13;

Pitt v. Dist. of Columbia Dep’t of Corrections, 954 A.2d 978, 985-86 (D.C. 2008); Bd. of

                                                 16
Trustees, Univ. of Dist. of Columbia v. Myers, 652 A.2d at 646; Dist. of Columbia v. Thompson,

593 A.2d at 628 n.15.

               Thus, the union’s declination to follow through on the plaintiffs’ complaints does

not alter this Court’s conclusion that the CMPA prevents its exercise of jurisdiction over the

plaintiffs’ claims for breach of contract, defamation, and civil conspiracy. Nor does the

plaintiffs’ argument that these claims are “sufficiently linked” to their claims of discrimination

brought under the D.C. Human Rights Act. Pls.’ CMPA Supp. at 4. None of the plaintiffs’

common law claims would require a finding of discrimination as a predicate to their successful

prosecution. See Robinson v. Dist. of Columbia, 748 A.2d at 411-13. The Court therefore

dismisses for lack of subject matter jurisdiction the plaintiffs’ claims for breach of contract,

defamation, and civil conspiracy, and dismisses their wrongful termination claim for failure to

state a claim on which relief can be granted.


                            C. Claims of Race and Age Discrimination

                                    1. D.C. Human Rights Act

               “The D.C Human Rights Act requires complainants to choose between an

administrative or a judicial forum in which to pursue their claims.” Carter v. Dist. of Columbia,

980 A.2d 1217, 1223 (D.C. 2009). The administrative forum provided under the Human Rights

Act is the D.C. Office of Human Rights (“OHR”). See D.C. CODE § 2-1403.04. “The

jurisdiction of the court and OHR are mutually exclusive in the first instance. Thus, where one

opts to file with OHR, he or she generally may not also file a complaint in court.” Carter v. Dist.

of Columbia, 980 A.2d at 1223 (quoting Brown v. Capitol Hill Club, 425 A.2d 1309, 1311 (D.C.

1981)) (alteration omitted).




                                                 17
               In this case, the parties’ Collective Bargaining Agreement provides that “[a]ny

complaint concerning discrimination as prohibited by the D.C. Human Rights Law shall be

processed only under procedures provided in the D.C. Official Code § 2-1403.04.” CBA, Art.

VII(E) (emphasis added). The statutory provision cited in Article VII(E) establishes the

procedures for filing complaints of discrimination with OHR. Under the terms of the parties’

Collective Bargaining Agreement, therefore, the plaintiffs have opted for the administrative

rather than the judicial forum for the pursuit of claims arising under the Human Rights Act. This

does not mean, however, that the CBA precludes access to a judicial forum, as “OHR’s

determination that there is no probable cause to believe that the Human Rights Act has been

violated is subject to judicial review.” Smith v. Dist. of Columbia Office of Human Rights, 77

A.3d 980, 990 (D.C. 2013). Article VII(E) of the CBA simply requires that the plaintiffs pursue

these claims through the pathway administered by the Office of Human Rights, rather than

bringing them to the judicial forum in the first instance, as they have done here.

               The plaintiffs offer no persuasive reason why this Court should not hold them to

the bargain struck by the Council of School Officers. They argue only that because, in their

view, the District breached the CBA by failing to provide them with appropriate process prior to

their non-reappointments, the District therefore should be estopped from relying on Article

VII(E)’s election of OHR as the exclusive forum for bringing Human Rights Act claims. See

Pls.’ Opp. at 23-24. The plaintiffs rely on Drake Bakeries, Inc. v. Local 50, American Bakery &

Confectionary Workers Int’l, AFL-CIO, 370 U.S. 254 (1962). But this decision, if anything,

supports the opposite view. There, Drake Bakeries asserted that the union had violated the no-

strike clause of their collective bargaining agreement, and the company brought an action in

federal court. Id. at 255. The Supreme Court held that the union’s alleged breach did not excuse



                                                18
Drake Bakeries of its commitment to arbitrate all disputes arising under the agreement. See id. at

260-67. Similarly here, the plaintiffs have offered no reason to conclude that the District’s

alleged breach of CBA provisions regarding performance evaluation somehow excuses the

plaintiffs from following the procedures set forth in Article VII(E) of the agreement.

Accordingly, the Court will dismiss the plaintiffs’ claims for discrimination on the basis of race

and age brought under the District of Columbia Human Rights Act.


                     2. Title VII and Age Discrimination in Employment Act

               The plaintiffs purport to advance claims for racial discrimination in violation of

Title VII of the Civil Rights Act of 1964 and for age discrimination in violation of the Age

Discrimination in Employment Act. See Pls.’ Opp. at 25-30. But as the District points out, see

Defs.’ MTD at 18; Defs.’ Reply at 3-5, none of the seven distinct counts set forth in the

plaintiffs’ complaint actually references either of these statutes. The title of the complaint does

mention Title VII, and United State Code references for both statutes are provided somewhat

cryptically in the paragraph citing the jurisdictional bases for the action. See 3d Am. Compl. ¶ 1.

In addition, the plaintiffs note that DCPS “is an ‘employer’ pursuant to [Title VII].” Id. ¶ 26.

And the complaint states that three of the plaintiffs have received “right-to-sue” letters from the

Equal Employment Opportunity Commission, which indicates that these plaintiffs have

attempted to pursue remedies for alleged discrimination under federal law. See id. ¶¶ 13, 16,

31 n.2. The plaintiffs also have attached these letters as exhibits to their complaint.

               The Court agrees with the District that the plaintiffs have failed to state claims

under Title VII or the ADEA, given the mere passing references to these two statutes in their

Third Amended Complaint. See Smith v. Janey, 664 F. Supp. 2d 1, 8 (D.D.C. 2009) (plaintiff

failed to state claim under 42 U.S.C. § 1981 where complaint’s introductory paragraph cited the

                                                 19
statute in passing, but did not mention it again). The Court therefore will dismiss these claims,

but it will do so without prejudice, as the complaint makes evident the plaintiffs’ intention to

pursue claims of race- and age- based discrimination under federal law. Moreover, despite the

careless drafting of the complaint, attached to it are EEOC right-to-sue letters of three of the

plaintiffs, which indicate that these plaintiffs — though none of the other nineteen plaintiffs —

pursued both Title VII and ADEA claims at the administrative level. See Dkt. No. 24-1 at ECF

pages 28, 70, 72. Indeed, although the District now contends that the complaint fails to give fair

notice of the nature of the plaintiffs’ discrimination claims under federal law, in its motion to

dismiss the First Amended Complaint, the District responded to the Title VII claim on its merits.

See Defs.’ MTD 1st Am. Compl. at 17-19. Accordingly, as the complaint in its present form

fails to assert claims under either Title VII or the ADEA, the Court will dismiss those claims,

although without prejudice to the plaintiffs’ attempting to cure these defects in by seeking to file

yet another amended complaint. 9


                                          3. Section 1981

               The plaintiffs also bring a claim under 42 U.S.C. § 1981, which prohibits racial

discrimination with respect to “mak[ing] and enforc[ing] contracts.” The District argues for

dismissal of this claim, see Defs.’ MTD at 8-9; Defs.’ Reply at 11-12; Defs.’ Not. of Supp. Auth.

at 1-2, but the viability of the plaintiffs’ Section 1981 claim already has been recognized. In

ruling on the plaintiffs’ earlier motion to amend their complaint, Chief Judge Roberts concluded

that the addition of a claim for violation of Section 1981 would not be futile. Specifically, he



       9
                As noted, only three of the twenty-two plaintiffs have indicated that they received
right-to-sue letters from the EEOC. The Court notes, therefore, that there may be serious
questions regarding exhaustion of administrative remedies if and when the plaintiffs seek leave
to file a newly amended complaint.
                                                 20
determined that the “plaintiffs have amply alleged that while they were employed, their right to

have evaluations and termination decisions be free from racial discrimination was violated.”

Dickerson v. Dist. of Columbia, 806 F. Supp. 2d at 119. Thus, the Court already has held that

the plaintiffs’ claim under Section 1981 is sufficient to withstand a motion to dismiss for failure

to state a claim. See Payne v. Dist. of Columbia, 773 F. Supp. 2d at 95 (“Amendment of a

complaint is futile . . . where the complaint as amended would ‘not survive a motion to dismiss

or for judgment on the pleadings.’” (quoting Jung v. Ass’n of Am. Med. Colleges, 226 F.R.D.

7, 9 (D.D.C. 2005))).

               The District argues, in its reply brief and in a notice of supplemental authority,

that because Section 1981 itself does not provide a cause of action against state actors — as such

claims must be pursued through the cause of action provided in 42 U.S.C. § 1983 — the Court

should dismiss this claim. See Defs.’ Reply at 11-12; Defs.’ Not. of Supp. Auth. at 1-2. The

Court agrees with the District’s statement of the law. See Onyeanusi v. Dist. of Columbia, Civil

Action No. 08-1172 (PLF), 2014 WL 4724304, at *1 (D.D.C. Sept. 24, 2014). The Court

disagrees, however, that reconsideration of Chief Judge Roberts’ earlier ruling is required here.

To be sure, the plaintiffs have failed to cite Section 1983 in their complaint, and Chief Judge

Roberts did not explicitly address this issue. But he did fully address the substance of the matter,

concluding that the plaintiffs had alleged that Chancellor Rhee — a “policymaker” within the

District’s educational apparatus — had engineered the allegedly discriminatory non-

reappointments of the plaintiffs. See Dickerson v. Dist. of Columbia, 806 F. Supp. 2d at 120

(citing Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690-91 (1978)). Accordingly,

the Court will deny the District’s motion to dismiss the plaintiffs’ claim under 42 U.S.C. § 1981.




                                                 21
                           D. Employee Retirement Income Security Act

                The plaintiffs contend that the District has caused them to lose valuable retirement

benefits, in violation of the Employee Retirement Income Security Act of 1974, as amended, 29

U.S.C. § 1001 et seq., (“ERISA”). The District, in a supplemental memorandum, argues that

ERISA does not apply with respect to government employees. See Defs.’ ERISA Supp. It

points to language in the statute stating that, “the provisions of this subchapter shall not apply to

any employee benefit plan if [] such plan is a governmental plan.” 29 U.S.C. § 1003(b)(1).

ERISA defines “governmental plan” to include “a plan established or maintained for its

employees . . . by the government of any State or political subdivision thereof, or by any agency

or instrumentality of any of the foregoing.” 29 U.S.C. § 1002(32). And “[t]he term ‘State’

includes . . . the District of Columbia.” 29 U.S.C. § 1002(10).

                The plaintiffs did not file a response to the District’s supplemental memorandum.

In any event, the District’s position is correct: ERISA unequivocally exempts governmental

benefit plans — like those of District of Columbia employees — from the scope of its coverage.

Accordingly, the plaintiffs do not enjoy any rights under the statute, and their ERISA claim must

be dismissed.




                                                 22
                                       IV. CONCLUSION

               For the reasons explained in this Opinion, the Court will deny the District’s

motion to dismiss with respect to the plaintiffs’ claim under 42 U.S.C. § 1981, and will grant the

motion in all other respects, although the Court’s dismissal of the plaintiffs’ Title VII and ADEA

claims is without prejudice to their seeking leave to file another amended complaint that attempts

to cure the present deficiencies with respect to these two claims. A separate Order, issued this

same day, accompanies this Opinion.

               SO ORDERED.



                                                             /s/______________________
                                                             PAUL L. FRIEDMAN
                                                             United States District Judge
DATE: September 30, 2014




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