Dickerson v. Dist. of Columbia

Decision Date30 September 2014
Docket NumberCivil Action No. 09–2213 PLF
Citation70 F.Supp.3d 311
PartiesKenneth Dickerson et al., Plaintiffs, v. District of Columbia et al., Defendants.
CourtU.S. District Court — District of Columbia

John F. Mercer, Mercer Law Associates, PLLC, Washington, DC, for Plaintiffs.

Bradford Collins Patrick, Grace Graham, Office of the Attorney General for the District of Columbia, Washington, DC, for Defendants.


PAUL L. FRIEDMAN, United States District Judge

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 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' 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.


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 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.

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.


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.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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; see also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (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, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ; see also Bell Atlantic Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. The complaint “is construed liberally in the [plaintiff's] favor, and [the Court should] grant [...

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