The present lawsuit appears at first blush to be a garden-variety type Title VII action. However, the motions filed by defendants, which, if granted in total would effectively dispose of all of the claims in plaintiffs' complaint, raise a host of complicated issues for the Court to resolve. After careful consideration of the parties' pleadings and the existing legal precedent, the Court concludes that rulings on defendants' motion to dismiss the plaintiffs' class action claims and two of the plaintiffs' District of Columbia Human Right Act claims must be deferred and that defendants' remaining motions should be granted in part and denied in part.
The lawsuit in this matter involves claims by all of the named plaintiffs of racial discrimination, also claims of gender discrimination by three of these plaintiffs and a claim of age discrimination by one plaintiff. The four named plaintiffs - Sheila Quarles, Tammy Rogers, Ebony Thomas, and Anthony Bellamy - allege, inter alia, that the defendants *fn1 have engaged in a practice of racial discrimination against minorities in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2000). These alleged practices include
[f]orcing past and current qualified African American employees  to hold intermediary positions prior to advancement that equally and/or less qualified white individuals are not forced to hold . . .  to meet requirements for promotion that and/or [sic] less qualified white employees are not required to meet . . . failing to promote past and current qualified African American employees . . .  failing to notify past and current qualified African American employees of job openings . . . [and]  otherwise prohibiting, based on their race, qualified past and current qualified African-American employees from advancement in the defendants' corporations. Compl. ¶ 24. *fn2
Defendants have jointly filed four separate motions: (1) Motion to Dismiss Plaintiffs' Class Action Claims; (2) Motion to Dismiss Title VII Claims for Lack of Venue; (3) Motion to Dismiss Counts I, II, V and VI Relating to Title VII Claims; and (4) Motion to Dismiss Claims Based on District of Columbia Human Rights Act. The Court will address each of the defendants' motions in turn.
A. Defendants' Motion to Dismiss Plaintiffs' Class Action Claims
Defendants have moved for the dismissal of plaintiffs' class action allegations pursuant to Federal Rule of Civil Procedure 12(b)(6). To survive a motion to dismiss based on this rule, a complaint need only provide "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957) (citing Fed. R. Civ. P. 8(a)). When reviewing such a motion to dismiss, the court must accept as true all the factual allegations contained in the complaint. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). A motion to dismiss under Rule 12(b)(6) tests not whether a plaintiff will ultimately prevail on the merits, but only whether the plaintiff has properly stated a claim for which she or he is entitled to relief. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C. 2000). Specifically, a complaint in an employment discrimination lawsuit does not need to assert specific facts to establish a prima facie case of discrimination, but need only provide a "short and plain statement of the claim showing that the pleader is entitled to relief." Swierkiewicz v. Sorema, 534 U.S. 506, 508 (2002) (citing Fed. R. Civ. P. 8(a)(2)); Sparrow v. United Airlines, Inc., 216 F.3d 1111, 1115 (D.C. Cir. 2000). Thus, a complaint should not be dismissed for failure to state a claim unless "it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim[s] which would entitle [them] to relief." Conley, 355 U.S. at 45-46.
In Count One of their First Amended Complaint, plaintiffs make allegations on behalf of "all African American persons currently and previously employed by any of the above-named defendants . . .
[,which] includes at least thirty individuals who currently reside and work in various jurisdictions throughout the Eastern United States." Compl. ¶¶ 16-17. Defendants, in their motion to dismiss plaintiffs' class action claims, argue that plaintiffs cannot meet the certification requirements of Federal Rules of Civil Procedure 23(b)(2) or (b)(3). *fn3 First, defendants argue that the plaintiffs do not meet the requirements of Rule 23(b)(2) because they seek to recover compensatory damages, in addition to back-pay, front pay, and punitive damages, which will require individualized evidence regarding damages as to each plaintiff. Defendants' Motion to Dismiss Plaintiffs' Class Action Claims ("Defs.' Class Mot.") at 7, 9. Second, defendants argue that certification of a class is similarly inappropriate pursuant to Rule 23(b)(3) because plaintiffs' attempt to recover compensatory damages would require "extensive review of each [p]laintiff's individual circumstances[, and] [b]ecause of the lack of commonality, the present case will result in the need for numerous separate mini-trials for each of the [p]laintiffs." Id. at 10-11. Plaintiffs counter that other judges of this court have recently ruled that a Title VII class action may be properly certified under Rules 23(b)(2) and (b)(3), despite the fact that the plaintiffs in the class were seeking compensatory damages. Plaintiffs' Opposition to Defendants' Motion to Dismiss Plaintiffs' Class Action Claims at 1. In addition, plaintiffs argue that even if the class could not be wholly certified under Rules 23(b)(2) or (b)(3), another alternative available to the Court would be hybrid certification of the class, i.e., the claims for injunctive and declaratory relief could be certified pursuant to Rule 23(b)(2) and the claims for monetary relief could be certified pursuant to Rule 23(b)(3). Id. at 2-3.
Pursuant to Federal Rule of Civil Procedure 23, before a court can determine whether a class action can be maintained, the court must satisfy itself that the putative class meets the four prerequisites of Rule 23(a). These prerequisites are that the class: (1) is so numerous "that joinder of all members is impracticable"; (2) has common issues of law or fact; (3) that the claims of the class representatives "are typical of the claims . . . of the class"; and (4) that the interests of the class will be "fairly and adequately protect[ed]" by the representative parties. Fed. R. Civ. P. 23(a). It is only when a class has met these four prerequisites that the Court must then determine whether the class may be maintained pursuant to one of the subdivisions of Rule 23(b). See Fed. R. Civ. P. 23(b) ("An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition [one of the subdivisions of Rule 23(b) are established]") (emphasis added).
Although neither party seriously disputes that plaintiffs can satisfy the four prerequisites, the Court must nonetheless ascertain for itself whether the requirements of Rule 23(a) are satisfied. See General Telephone Co. v. Falcon, 457 U.S. 147, 161 (1982) ("we reiterate today that a Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied."). Here, plaintiffs have not yet filed a motion for certification of the class because the Court granted them until ninety days after the issuance of a scheduling order or the date of the initial scheduling conference, whichever occurred later, to file such a motion. See Court Order dated September 5, 2002. The initial scheduling conference in this matter was held on December 10, 2002, but a full scheduling order has not been issued because the case was referred for immediate mediation and the Court wanted to address the defendants' other dismissal motions prior to issuing a scheduling order.
As indicated, before the Court can address the merits of the arguments advanced by the defendants regarding whether certification of the class comports with Rules 23(b)(2) or (b)(3), the Court must determine whether the class meets the prerequisites of Rule 23(a). Although, pursuant to Local Civil Rule 23.1(b), the defendants were permitted to "move at any time to strike the class action allegations or to dismiss the complaint[,]" the pleadings as they now exist do not permit the Court to intelligently determine whether the class, as now comprised, meets the requirements for certification under Rule 23(a). See General Telephone Co., 457 U.S. at 160 ("[s]ometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiff's claim, and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question."). In this case, for example, the complaint alleges that the putative class will, "[o]n information and belief[,] include at least thirty individuals who currently reside and work in various jurisdictions throughout the Eastern United States." Compl. ¶ 17. At this point, however, the actual composition of the ultimate class is unknown to the Court. In addition, defendants raise issues which suggest that the potential class may not meet the prerequisites of Rule 23(a). For example, defendants argue in their motion to dismiss the class action claims that because there is a "lack of commonality, the present case will result in the need for numerous separate mini-trials for each of the [p]laintiffs." Defs.' Class Mot. at 11. In support of this allegation, defendants note:
Mr. Bellamy's situation as a maintenance engineer in Shirlington, Virginia will not be the same as that for a resident manager, such as Ms. Rogers, located in Mechanicsville, Virginia. Similarly, Ms. Quarles, as a senior marketing representative in Rockville, Maryland will not have faced the same circumstances as Ms. Thomas, who worked at a property in Herndon, Virginia. Id.
Commonality is one of the prerequisites for class certification. See Fed. R. Civ. P. 23(a)(2). Indeed, the varying positions and circumstances of the members of the class may make certification unfeasible. See, e.g., Rumpke v. Rumpke Container Service, Inc., 205 F.R.D. 204, (S.D. Ohio 2001) (denying class certification where plaintiff's situation as a route supervisor and former employee of the defendant was not common with the claims of drivers and route supervisors he sought to certify as a class because plaintiff had never been a driver with defendant's company and "the claims of all the route supervisors [did] not seem to be the same."). In fact, the the District of Columbia Circuit has held that plaintiffs "seeking certification of a class cutting across employment status or job categories [must provide] a 'specific presentation' identifying the questions of law or fact common to the class representative and the members of the class proposed." Wagner v. Taylor, 836 F.2d 578, 589 (D.C. Cir. 1987); Hartman v. Duffey, 19 F.3d 1459, 1472 (D.C. Cir. 1994) (quoting Wagner). This has not yet occurred in this matter and plaintiffs have not been afforded the opportunity to do so.
Therefore, while the court "does not possess 'any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action,' . . . it is evident that some inspection of the circumstances of the case is essential to determine whether the prerequisites of Federal Civil Rule 23 . . . have been met." Wagner, 836 F.2d at 587. Although both parties have leaped to the more analytically attractive issue of whether plaintiffs can maintain a class action where they seek compensatory damages, the pleadings as they now stand do not permit the Court to conduct the "rigorous analysis [it must conduct to determine] that the prerequisites of Rule 23(a) have been satisfied." General Telephone Co., 457 U.S. at 161; see also Hartman, 19 F.3d at 1473 (reversing district court's class certification ruling and remanding the case to the district court for a determination of whether the class should be certified because the class representative's "complaint and motions for class certification . . . evince[d] a complete absence of factual allegations regarding the commonality or typicality requirements of Rule 23. This failure is compounded by the fact that prior to entry of the conditional class certification, the trial court apparently did not conduct any evidentiary hearing or other factual determination that would qualify as a rigorous analysis of whether the prerequisites for a class action had been met.").
For the reasons stated above, the Court is compelled to defer reaching the issues raised by the defendants' motion to dismiss the class action claims until it has before it the information necessary for it to determine whether the potential class meets the requirements of Rule 23(a). Accordingly, the Court will order the plaintiffs to file a motion for certification that fully sets forth their factual and legal positions, so that the Court will be in a better position to evaluate whether the Rule 23(a) prerequisites are satisfied. Once all of the pleadings on the issue have been filed, the Court will determine whether an evidentiary hearing is required. The Court will then address defendants' motion to dismiss plaintiffs' class action claims.
B. Defendants' Motion to Dismiss Plaintiffs' Title VII Claims for Lack of Venue
Defendants seek to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(3), because, they argue, venue in this district is improper for several reasons. First, the defendants allege that plaintiffs have failed to allege in the complaint "with any specificity where the alleged instances of employment discrimination occurred." Defendants' Motion to Dismiss Title VII Claims for Lack of Venue ("Defs.' Venue Mot.") at 2. Second, defendants maintain that each of the named plaintiffs must meet the venue requirements and, as verified by the affidavit *fn4 of Patricia Shannon, Affidavit of Patricia Shannon, dated September 13, 2002 ("Shannon Aff."), the regional vice president for the Mid-Atlantic region of defendant Windsor Property Management Company, none of the plaintiffs were employed in the District of Columbia or had any other connection with this district. Id. at 3. In her affidavit, Ms. Shannon states that plaintiff Quarles was "employed exclusively" in Rockville, Maryland; plaintiff Rogers was "employed exclusively" in Mechanicsville, Virginia; plaintiff Thomas was employed in Herndon, Virginia and Elkridge, Maryland, and plaintiff Bellamy "has been employed exclusively in Virginia." Shannon Aff. ¶¶ 3-6. In addition, Ms. Shannon states that the Mid-Atlantic region's headquarters are located in Shirlington, Virginia, although the "overall headquarters for the company is located in Boston, Massachusetts." Shannon Aff. ¶¶ 7-8. Finally, she notes that employment decisions regarding any of the named plaintiffs "would have ultimately been made in the Shirlington office, sometimes in consultation with the office located in Boston, Massachusetts[,]" and the employment records pertaining to the plaintiffs, as well as other employees of the Mid-Atlantic region, "are maintained in Shirlington, Virginia and/or Boston, Massachusetts." Id. ¶¶ 8-9.
In opposition, plaintiffs, although they do not directly refute Ms. Shannon's statements, present several arguments why venue in this district is proper. First plaintiffs argue that there is no requirement that all the named plaintiffs in a Title VII action meet the venue requirements. Plaintiffs' Opposition to Defendant's [sic] Motion to Dismiss Title VII Claims for Lack of Venue ("Pls.' Opp'n") at 2. Second, plaintiffs argue that the allegation in the complaint regarding the defendants' "pattern and practice of discrimination . . . [,including] 'failing to notify past and current qualified African American employees of job openings, concealing those job openings . . .' and 'otherwise prohibiting qualified past and current qualified African American employees . . . from advancement in the defendants' corporation[,]" satisfies Title VII's venue requirement because the practices complained of "occurred in the District of Columbia within the relevant time period." Id. at 4-5. As an example, plaintiffs detail an incident involving plaintiff Sheila Quarles who applied for a position in the defendants' McLean Gardens property, which is located in the District of Columbia. Id. at 5. Ms. Quarles allegedly contacted Heather Mulcahy, the property manager at McLean Gardens, about an announced vacancy and was told that the position had been listed in error only to later learn that a white female had been given the position. Id. at 5; Affidavit of Sheila Quarles ("Quarles Aff.") ¶ 6.
Both parties correctly note that whether this district is a proper venue for this Title VII action is determined by 42 U.S.C. § 2000e-5(f)(3), which provides, in part:
[A]n action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office.
The parties part ways, however, about whether this provision affords plaintiffs the right to pursue this action in this district. Plaintiffs argue that because plaintiff Quarles applied for a position in the District of Columbia, was denied that position, and would have worked here "but for the alleged unlawful employment practice," id., this is the proper venue for the filing of her action. Plaintiffs then opine that because Quarles' case is properly venued here that all of the named class representatives are also properly before this Court because only one of the named plaintiffs must actually meet one of the venue requirements of the statute. Defendants maintain, to the contrary, that all of the named plaintiffs must meet at least one of the venue requirements of the statute for their cases to be filed in this district, but that even if only one named plaintiff is required to meet the statutory requirements, plaintiff Quarles' allegations do not suffice because her affidavit "does not reflect that any of the acts of discrimination actually occurred in the District of Columbia [and] because any decision relating to Ms. Quarles' status would have been made either in the regional office located in Shirlington, Virginia or [at] the overall company headquarters in Boston, Massachusetts." Defendants' Reply to Plaintiffs' Opposition to Motion to Dismiss Title VII Claims for Lack of Venue ("Defs.' Reply") at 3-4.
In ruling upon the defendants' motion to dismiss for lack of proper venue, the Court "accepts the plaintiffs['] well-pled factual allegations regarding venue as true, . . . draws all reasonable inferences from those allegations in the plaintiffs['] favor, and . . . resolves any factual conflicts in the plaintiffs['] favor. . . . The court, however, need not accept the plaintiffs['] legal conclusions ...