The opinion of the court was delivered by: John D. Bates United States District Judge
In this case brought pursuant to Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. §2000e et seq., ten plaintiffs allege a pattern and practice of discrimination against African-American and female union members. See Third Am. Comp. ¶ 1. Plaintiffs Jerome B. Treadwell ("Treadwell"); Michael R. Seasay ("Seasay"); Tracy L. Barringtine ("Barringtine"); Anthone L. Hood ("Hood"); Robert H. Major, Jr. ("Major"); Roger Harley, Sr. ("Harley"); Tyrone Hagan ("Hagan"); Terrence Hughes ("Hughes"); Eliza Hunter ("Hunter"); and Lee S. Walker ("Walker") are alleged to be, or to have been, journeyperson plumbers or apprentices in the plumbing and pipefitting industry. The defendants are the Plumbers Local Union No. 5 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO ("the Union"); the Mechanical Contractors District of Columbia Association, the bargaining agent for the mechanical contractors; the Joint Plumbing Apprentice and Training Committee ("JATC"); and six contractors who regularly hire union members, John J. Kirlin, Inc. ("Kirlin"), The Poole & Kent Corp. ("Poole & Kent"), Giant Food Stores, Inc. ("Giant"), Pierce and Associates ("Pierce"), Cornell A.E.C., and Parker-Kirlin Joint Venture, Inc. ("Parker-Kirlin JV") (collectively"contractors"). In the Third Amended Complaint, plaintiffs bring four counts against defendants, alleging disparate treatment"in hiring, assignments, layoffs, pay, discipline, terms of employment, and training," disparate impact from defendants'"facially neutral system of selection," a hostile work environment, and retaliation. See Third Am. Compl. ¶¶ 116-119.
Presently before the Court are defendants' motions brought pursuant to Fed.R.Civ.P. 12(b)(6) seeking dismissal of plaintiffs' claims on a variety of grounds.*fn1 Although each defendant's motion is particular to each plaintiff, defendants raise four common arguments: plaintiffs have failed to exhaust administrative remedies; plaintiffs' claims are time barred; plaintiffs' claims are barred by the equitable doctrine of laches; and plaintiffs have failed to allege facts that state a claim. For reasons of efficiency, the Court will first address the defendants' common arguments before applying them in the specific motions to dismiss. For the reasons that follow, the Court will grant in part and deny in part the motions of Kirlin and the Union, and the Court will grant the motions of Pierce, JATC, Poole & Kent, and Giant.
Plaintiffs allege that defendants have discriminated against them based on their race by maintaining"a pattern and practice of discriminating against African American union members in the area of referral, selection, hiring, pay, assignment, training, discipline, retaliation, maintenance of a hostile work environment, and other terms and conditions of employment practices." Third Am. Compl.¶ 1. Their Complaint follows a 1992 Equal Employment Opportunity Commission ("EEOC") charge of discrimination and a December 1995 EEOC finding of reasonable cause to believe that defendants violated Title VII by maintaining a system of discriminatory employment practices. Id. ¶ 5. Thereafter, EEOC attempted and failed to reached a conciliation agreement with defendants. Id. In March 1996 EEOC sent notices to defendants regarding the failed conciliation. Id. Then the EEOC took the matter under advisement for potential litigation in March 1996, but has never pursued civil litigation against defendants. The EEOC also did not contact the plaintiffs regarding the failure of conciliation. In September 2002, plaintiffs requested and received right to sue letters. Id.
This action was thereafter filed in January 2003 by twenty-five plaintiffs. Subsequently, some defendants moved for a more definite statement pursuant to Fed.R.Civ.P. 8(a) and 12(e). On January 9, 2004 the Court granted that motion and ordered plaintiffs to specify"the precise claims of each plaintiff, including the time of any alleged events, and identif[y] which defendants are subject to those specific allegations and resulting claims." See January 9, 2004 Mem. Op. at 8. On February 9, 2004 nine of the original twenty-five plaintiffs filed an Amended Complaint. Plaintiffs then sought leave of the Court to file another amended complaint that would include plaintiff Hughes. On March 3, 2004 the Court granted leave, and the Third Amended Complaint was filed, in which ten plaintiffs have brought four counts of employment discrimination against nine defendants. Six of the nine defendants now move to dismiss plaintiffs' claims, pursuant to Fed.R.Civ.P. 12(b)(6), on a number of grounds.
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) will not be granted unless"it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987). All that the Federal Rules of Civil Procedure require of a complaint is that it contain"'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, 355 U.S. at 47."Given the Federal Rules' simplified standard for pleading,'[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
Under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. Leatherman v. Tarrant Cty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). Conclusory legal and factual allegations, however, need not be considered by the court. Domen v. Nat'l Rehabilitation Hosp., 925 F. Supp. 830, 837 (D.D.C. 1996) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Presently six of the nine defendants have brought motions to dismiss before the Court. Although each motion addresses the individual claims of each plaintiff against each defendant, there are certain issues common to the motions, determination of which will expedite the resolution of each defendant's motion. The common issues are:*fn2 whether some plaintiffs' claims have been administratively exhausted; whether some claims are barred by the applicable statute of limitations; whether all claims should be dismissed under the defense of laches; and whether paragraph 35 of the Third Amended Complaint is sufficient to state a claim.
Title VII requires that a plaintiff file a charge with the EEOC prior to bringing suit. See Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). Only after the EEOC has had an opportunity to investigate a complaint and plaintiff receives a right to sue letter is a civil action permissible. See 42 U.S.C. § 2000e-5(f)(1). The requirement that a plaintiff first pursue administrative remedies is a mandatory prerequisite to bringing a suit. See 29 C.F.R. § 1614 et seq.; see also Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir.1997); Brown v. District of Columbia, 251 F.Supp.2d 152, 161 (D.D.C. 2003) ("the exhaustion requirement is mandatory").
Typically, a plaintiff will file an EEOC charge, and then pursue civil litigation after receiving a right to sue letter. See 42 U.S.C. §§ 2000e-5(e),(f). In this case, a commissioner of the EEOC, Tony E. Gallegos, filed the administrative charge in 1992. See Third Am. Compl. ¶ 5.
At no time did any of the plaintiffs file a charge with the EEOC. However, individual plaintiffs can obtain a right-to-sue letter after an EEOC charge is filed if they are"any person whom the charge alleges was aggrieved by the alleged unlawful employment practice." 42 U.S.C. § 2000e-5(f)(1); see also 29 C.F.R. § 1601.28(b)(ii) (the Commission will issue a right to sue letter"to any member of the class who is named in the charge [filed by a EEOC commissioner], identified by the Commissioner in a third-party certificate, or otherwise identified by the Commission as a member of the class"). In this case, the amended EEOC charge, filed on September 23, 1993 identifies the aggrieved class as"all Blacks who have been, continue to be, or may in the future be adversely affected by the unlawful employment practices." See Giant Mot., Ex. B.
Plaintiffs allege that they were members of the plumbers' union at the time the EEOC filed its charge, see Third Am. Compl. ¶¶ 6-15, and hence most defendants are not concerned with the threshold question whether there was any exhaustion.*fn3 But defendants do take issue with the scope of the EEOC-initiated charge, and argue that some of the claims by plaintiffs that arose after the EEOC completed its investigation in December of 1995 are barred for failure to exhaust administrative remedies. See, e.g., Poole & Kent Mot. at 8-11; Union Mot. at 6-7. Defendants argue that the exhaustion requirement is meant to put an employer on notice and to give the employer an opportunity to pursue resolution with the employee before a suit is brought. See Johnson v. Albright, 992 F.Supp. 37, 39 (D.D.C. 1998). Therefore, defendants argue that they have not received notice of, nor had an opportunity to seek reconciliation on, plaintiffs' claims that arose after the EEOC completed its investigation in December 1995. See Park v. Howard Univ., 71 F.3d at 907 (a plaintiff can bring claims that"arise from the administrative investigation that can reasonably be expected to follow the charge of discrimination"). Plaintiffs contend that under Loe v. Heckler, 768 F.2d 409, 420 (D.C. Cir. 1985), a plaintiff need not exhaust administrative remedies if the charge identified"a pattern of on-going discrimination." Accordingly, as long as defendants were on notice from the original charge, plaintiffs can pursue all their claims. See Treadwell, et al. Opp. at 19-20.
However, there are two flaws in plaintiffs' arguments. First, the scope of an EEOC charge and investigation is not limitless. From the time the EEOC filed its charge on May 6, 1992 to the EEOC decision that issued on December 7, 1995, it can be said that all defendants were on notice of the charges against them, and had the opportunity to enter into conciliation with EEOC. But the December 7, 1995 decision outlined the various charges of discriminatory employment practices allegedly used by defendants. The subsequent conciliation efforts were unsuccessful, and the EEOC informed defendants as such on March 7, 1996. After that point, defendants were no longer on notice for subsequent complaints, nor given the opportunity to seek conciliation as to any such charges. If the EEOC itself had brought this litigation, it certainly could not pursue allegations of discrete acts of discrimination arising in 2003, for example. See EEOC v. Crown Liquors of Broward, Inc., 503 F.Supp. 330, 333 (S.D. Fla. 1980) ("the Commission may not sue on a complaint broader in scope than the results of its investigation as contained in its reasonable cause determination").
Equally true, when an individual files an EEOC charge and then brings a subsequent civil action, the scope of the civil action is generally limited to those complaints asserted in the EEOC charge. See Johnson, 992 F.Supp. at 39 (an employee cannot maintain an action that was never presented to an agency for consideration); Higbee v. Billington, 246 F.Supp.2d 10, 16 (D.D.C. 2003) (holding that charge for failure to promote in 1993 did not exhaust administrative remedies for claims of failure to promote arising in subsequent years). Only in a rare circumstance can a plaintiff bring new claims in a civil action that were not raised in the initial EEOC charge, or any subsequent EEOC charge. See Webb v. District of Columbia, 864 F.Supp. 175, 184 (D.D.C. 1994) (plaintiff's claims arising after EEOC investigation did not have to be administratively exhausted where plaintiff provided notice to defendant by lodging formal and informal grievances); Nealon v. Stone, 958 F.2d 584, 590 (4th Cir.1992) (noting that in"all other circuits" plaintiffs do not need to file an EEOC charge for a claim of retaliation arising out of the initial EEOC charge). But here plaintiffs have not provided notice to the defendants of the individual charges, nor are plaintiffs bringing retaliation claims arising out of the initial filing of the EEOC charge.
Another problem with plaintiffs' position is that for discrete acts of discrimination the analysis of Loe v. Heckler has been called into question. See Bowie v. Ashcroft, 283 F.Supp.2d 25, 34 (D.D.C. 2003). In particular, the broad language of Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), which prohibits recovery for discrete acts of discrimination outside the statutory time limits, would prohibit a plaintiff from bringing new claims based of discrete acts of discrimination into court without first pursuing administrative remedies. See Bowie, 283 F.Supp.2d at 34; Velikonja v. Mueller, 315 F.Supp.2d 66, 74 (D.D.C. 2004). Therefore, for any claims based on alleged discrete acts of discrimination occurring after the EEOC investigation ended on December 7, 1995, plaintiffs would need to have independently exhausted administrative remedies before asserting those claims in the present suit.
B. Applicable Statute of Limitations
Defendants have argued that many of plaintiffs' claims are time barred because they involve incidents that occurred prior to the statutory time period. See, e.g., JATC Mot. at 3-6. A person who believes that he has been the victim of racial discrimination must file a charge with the EEOC within 180 days of the adverse employment decision if he is in a"non-deferral state," 42 U.S.C. § 2000e-5(e)(1); or within 300 days of the employer's wrongful conduct if he is in a"deferral state," id. However, for the 300-day limit to apply, a plaintiff in a deferral state must first initiate a proceeding with the State or local agency having authority to grant the desired relief. Id.; see also Simpkins v. Washington Metropolitan Area Transit Auth., 1997 WL 70239, *3 (D.C. Cir. Oct. 10, 1997) ("Title VII grants a 300-day filing period only when the would-be plaintiff'has initially instituted proceeding with a State or local agency'") (quoting 42 U.S.C. § 2000e-5(e)(1)). In the present case, the EEOC decision issued on December 7, 1995 indicates that the deferral jurisdictional requirements have been met. See Third Am. Compl., Ex. 1 at 1. Therefore, the Court will apply the 300-day filing period.
Application of the statute of limitations for claims of disparate treatment, disparate impact and retaliation is governed by the Supreme Court decision in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), which held that a plaintiff cannot recover for discrete acts of discrimination that occur outside the applicable statute of limitations, even under a theory of continuous violation. In doing so, the Court noted that each discrete act of discrimination -- i.e.,"termination, failure to promote, denial of transfer, or refusal to hire" -- constitutes"a separate actionable'unlawful employment practice.'" 536 U.S. at 114-15. However, the Court noted that the question of a pattern and practice allegation was not presented to the Court. Id. at 115 n.9.
For hostile work environment claims, Morgan's analysis is inapposite. See id. at 115-18; Singletary v. District of Columbia, 351 F.3d 519, 526-27 (D.C. Cir. 2003). In Singletary, the D.C. Circuit held that a hostile work environment claim is different from the discrete claims of discrimination discussed in Morgan. According to the D.C. Circuit, as long as one act contributing to a hostile work environment claim arises within the filing period, the entire series of acts will be considered in assessing the claim. Id. Therefore, plaintiffs' claim of a hostile work ...