                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
KENNETH DICKERSON, et al.,    )
                               )
          Plaintiffs,          )
                               )
          v.                   )    Civil Action No. 09-2213 (RWR)
                               )
DISTRICT OF COLUMBIA, et al., )
                               )
          Defendants.          )
_____________________________ )

                             MEMORANDUM ORDER

       Plaintiffs Kenneth Dickerson and fourteen other principals

and assistant principals1 from the District of Columbia Public

Schools (“DCPS”) brought this putative class action in the D.C.

Superior Court against the District of Columbia, its Mayor, and

the Chancellor of the DCPS, seeking damages in an amended

complaint for race and age discrimination in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et

seq. and the District of Columbia Human Rights Act (“DCHRA”),

D.C. Code Ann. § 2-1401.01 et seq., wrongful discharge,

defamation, civil conspiracy, and violation of the Employee

Retirement Income Security Act (“ERISA”), based upon the

termination of their employment in June 2008.      (Am. Compl. ¶¶ 53-

69.)       The defendants removed the action to this court.



       1
       Wilma Gaines, Janette Johns-Gibson, Charles Harden Jr.,
Harriet Kargbo, Treva Lindsey, Antonia Peters, Andre Roach,
Jacqueline Williams, Donna Edwards, Carol Barbour, Marta Guzman,
Mary Grant, Richard Patterson, and Wellington Wilder.
                                 -2-

The plaintiffs have moved for leave to file a second amended

complaint that would add four new plaintiffs, add new factual

allegations, expand the civil conspiracy count, and add new

claims of violation of 42 U.S.C. § 1981 and breach of employment

contract.   (Pls.’ Mot. for Leave to File Second Amended Compl.

¶¶ 1-2.)    The proposed second amended complaint alleges that

before the termination of their employment, the plaintiffs were

third party beneficiaries of the Union’s collective bargaining

agreement (“CBA”) with the District, and that the defendants

discriminated against the plaintiffs based on race and age by

repeatedly failing to follow the procedures and policies set

forth in the CBA and preventing the plaintiffs from enforcing

their contractual rights.   (Notice of Errata Re Pls.’ Proposed

Second Am. Compl. (“Second Am. Compl.”) ¶¶ 74-78, 93-95.)

     The defendants oppose the plaintiffs’ motion for leave to

file, arguing that the plaintiffs’ proposed amendments would not

survive a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), and therefore would be futile.     However, the defendants

fail to demonstrate that leave to file should be denied.     “The

defendant has the burden of showing why leave to file an amended

complaint should not be granted.”      Smith v. Cafe Asia, 598 F.

Supp. 2d 45, 48 (D.D.C. 2009).   The decision whether to grant

leave to amend a complaint is within the discretion of the court,

but leave “should be freely given unless there is a good reason,
                                 -3-

such as futility, to the contrary.”    Willoughby v. Potomac Elec.

Power Co., 100 F.3d 999, 1003 (D.C. Cir. 1996).    “An amendment is

futile ‘if the proposed claim would not survive a motion to

dismiss.’”   Smith, 598 F. Supp. 2d at 48 (quoting James Madison

Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir. 1996)).    A claim

fails to survive a motion to dismiss filed under Rule 12(b)(6)

when it does not plead sufficient factual detail to state a claim

that is plausible on its face.

     To survive a motion to dismiss, a complaint must
     contain sufficient factual matter, acceptable as true,
     to “state a claim to relief that is plausible on its
     face.” . . . A claim has facial plausibility when the
     plaintiff pleads factual content that allows the court
     to draw the reasonable inference that the defendant is
     liable for the misconduct alleged.

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007)).

     The defendants argue that the plaintiffs’ proposed 42 U.S.C.

§ 1981 count would be futile because it fails to state a claim

since plaintiffs had no right to continued employment beyond

their one-year contracts; the count neither alleges a contractual

relationship with the Mayor or the Chancellor, nor amply alleges

a factual basis for municipal liability (Defs.’ Opp’n at 3-8);

and the claim is barred by the CBA.    (Defs.’ Opp’n at 8-9.)   The

defendants also argue that the plaintiffs’ claim for breach of
                                 -4-

employment contract is barred by the Comprehensive Merit

Personnel Act (“CMPA”).2

                                  I

     Section 1981 of Title 42 of the United States Code serves to

protect the right to make and enforce a contract free of racial

discrimination.   The statute defines making and enforcing

contracts as “the making, performance, modification, and

termination of contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the contractual

relationship.”    42 U.S.C. § 1981(b).   To establish a claim under

§ 1981, plaintiffs must show that (1) they are members of a

racial minority group; (2) the defendant intended to discriminate

on the basis of race; and (3) the discrimination pertained to one

of the activities enumerated in the statute.    Mitchell v. DCX,

Inc., 274 F. Supp. 2d 33, 44-45 (D.D.C. 2003) (citing Morris v.

Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996)); see also

Mazloum v. Dist. of Columbia Metro. Police Dep’t, 522 F. Supp. 2d

24, 37 (D.D.C. 2007).   Here, the proposed second amended


     2
       The defendants also argue that the new facts added to the
plaintiffs’ claim of civil conspiracy in the second amended
complaint do not result in a claim that is plausible on its face.
Since leave to file a second amended complaint is being granted,
thus rendering moot the defendants’ pending motion to dismiss the
first amended complaint, the defendants will be free to resurrect
this argument in any motion to dismiss the second amended
complaint they may choose to file. Even if this argument about
this one amendment has merit, the court will exercise its
discretion to not let one flawed amendment among multiple
amendments bar the filing of the second amended complaint.
                                  -5-

complaint alleges that the plaintiffs are all African-American or

Hispanic males and females (Second Am. Compl. ¶¶ 35, 41), that

the defendants discriminated against them based on race (Second

Am. Compl. ¶¶ 38, 78), and that the enumerated activity pertained

to following contractual evaluation procedures and terminating

the employment contracts (Second Am. Compl. ¶¶ 77-78).    Whatever

limitation may have existed on plaintiff’s right to continued

employment, plaintiffs have amply alleged that while they were

employed, their right to have evaluations and termination

decisions be free from racial discrimination was violated.

                                  II

        The defendants argue that the proposed amended complaint

does not contain a viable cause of action under 42 U.S.C. § 1981

because the second amended complaint does not allege a

contractual relationship between the plaintiffs and the Mayor or

Rhee.    (Defs.’ Mem. at 3-4.)   However, the defendants do not

argue that the second amended complaint fails to allege a

contractual relationship between the plaintiffs and the District

of Columbia.    The lack of a contractual relationship between the

plaintiffs and some of the defendants would not be a reason to

deem the entire second amended complaint futile.    Furthermore,

the authority cited by the defendants, Domino’s Pizza v.

McDonald, 546 U.S. 470 (2006), holds that a plaintiff alleging a

claim under 42 U.S.C. § 1981 must “initially identify an impaired
                                  -6-

‘contractual relationship.’”    Domino’s Pizza, 546 U.S. at 476.

Domino’s Pizza does not support the proposition that a plaintiff

must allege complete privity of contract with all defendants;

instead, it merely requires that a plaintiff have rights under

the existing contract, or be a third party beneficiary of the

contract.   Id.

                                  III

     The defendants also argue that the plaintiffs’ proposed

amended complaint does not allege that a policy or custom of the

District of Columbia was the “moving force” that caused the

discriminatory interference with their contract rights.      (Defs.’

Mem. at 4-5.)     To allege a claim under § 1981 against a

municipality, a plaintiff must allege that the violation of the

right to make and enforce contracts protected by § 1981 was

caused by the municipality’s custom or policy.    See Monell v.

Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690-91 (1978); Smith

v. Janey, 664 F. Supp. 2d 1, 9 (D.D.C. 2009).     The District’s

custom or policy may cause a violation of the right to make or

enforce contracts under several different circumstances.     The

District or one of its policymakers may explicitly adopt a policy

that is the moving force behind a violation.    Warren v. Dist. of

Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004).     Another way to

allege that a policy or custom caused the violation is to allege

that a policymaker knowingly ignored a practice that was
                                 -7-

consistent enough to constitute a custom.   Id.   The

unconstitutional discrimination could also be “so widespread as

to constitute a custom, practice or policy . . . .”     Reed v.

Dist. of Columbia, 474 F. Supp. 2d 163, 168 (D.D.C. 2007).        An

agency practice need not be “authorized by written law,” but may

be “so permanent and well settled as to constitute a 'custom or

usage' with the force of law.”   Monell 436 U.S. at 691.    Here,

the proposed second amended complaint alleges that at all times

relevant to the complaint, the DCPS acted “by and through its

Chancellor, Michelle Rhee,” and that as Chancellor, Rhee had

“authority to make operational decisions for DCPS, inclusive of

personnel matters affecting the DCPS educational service

(including staff, administrative employees, contractors, and

others providing services to DCPS),” and that Rhee engineered the

discriminatory mass firings.   (Second Am. Compl. ¶¶ 26-30.)

Therefore, the proposed second amended complaint alleges that a

policymaker, Rhee, adopted or actually initiated, the repeated

discriminatory practice curtailing the plaintiffs’ contract

rights.

                                 IV

     The defendants assert that the plaintiffs’ § 1981 claims are

barred by the provision in the CBA that states that “any

complaint concerning discrimination as prohibited by the D.C.

Human Rights Law shall be processed under procedures provided in
                                -8-

D.C. Official Code § 2-1403.04.”       (Defs.’ Opp’n at 8-9.)

However, that provision of the CBA does not state that it applies

to claims arising under federal anti-discrimination statutes such

as 42 U.S.C. § 1981, and the defendants have presented no

authority establishing that the CBA provision does bar § 1981

claims.

                                   V

     The defendants maintain that the plaintiffs’ breach of

contract claims would be futile because plaintiffs failed to

pursue their exclusive remedies provided under the Comprehensive

Merit Personnel Act (“CMPA”), D.C. Code § 1-601.01 et seq.      The

CMPA assures “that the District of Columbia government shall have

a modern flexible system of public personnel administration,

which shall . . . [e]stablish impartial and comprehensive

administrative or negotiated procedures for resolving employee

grievances.”   D.C. Code § 1-601.2(a)(5); Robinson v. Dist. of

Columbia, 748 A.2d 409, 411 (D.C. 2000) (stating that “[w]ith few

exceptions, the CMPA is the exclusive remedy for a District of

Columbia public employee who has a work-related complaint of any

kind”).   With the CMPA, the District “sought to create a

mechanism for addressing virtually every conceivable personnel

issue among the District, its employees, and their unions -- with

a reviewing role for the courts as a last resort, not a

supplementary role for the courts as an alternative forum.”
                                  -9-

Alexis v. Dist. of Columbia, 44 F. Supp. 2d 331, 349 (D.D.C.

1999) (internal quotation omitted).     “Based on the CMPA's

administrative scheme, courts in this district have repeatedly

dismissed claims that have not been initially pursued under the

CMPA's procedures.”   Payne v. Dist. of Columbia, 592 F. Supp. 2d

29, 35 (D.D.C. 2008).

     Here, in the proposed second amended complaint, the

plaintiffs allege that they did attempt to exhaust their

administrative remedies under the CBA by raising grievances

through their collective bargaining unit (Second Am. Compl. ¶ 57,

Ex. 2 (Grant Aff.) at 6-7), and proceeding to the Office of

Employee Appeals, the organ the defendants cite as being part of

the CMPA exhaustion process (Defs.’ Opp’n at 10).    It is

premature to conclude from this briefing that the plaintiffs

failed to exhaust their administrative remedies and that

permitting their new claims would be futile.

                               * * * * *

     Therefore, it is hereby

     ORDERED that the plaintiffs’ motion [Docket Entry 4] for

leave to file an second amended complaint be, and hereby is,

GRANTED.    The Clerk is directed to docket as the Second Amended

Complaint the exhibit attached to the Notice of Errata [Docket

Entry 7].   It is further
                               -10-

     ORDERED that the defendants’ motion [Docket Entry 5] to

dismiss the first amended complaint be, and hereby is, DENIED

without prejudice as moot.   It is further

     ORDERED that the plaintiffs’ motion [Docket Entry 13] for an

extension of time to file a motion for class certification be,

and hereby is, GRANTED.   The plaintiffs’ motion shall be filed 90

days after the defendants file an answer.

     SIGNED this 24th day of August, 2011.


                                           /s/
                                RICHARD W. ROBERTS
                                United States District Judge
