The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs, ten black current and former special agents of the United States Secret Service, filed this employment discrimination action individually and on behalf of a putative class of black special agents against the Treasury Secretary alleging that the Secret Service has engaged in a pattern and practice of racial discrimination against black agents dating back to 1974. In a Memorandum Opinion and Order issued on October 24, 2004 ("the October 24 Opinion"), defendant's motion to dismiss the complaint was denied with respect to the individual non-promotion claims of several agents and granted with respect to all other claims, both individual claims and class claims. On November 5, 2004, plaintiffs filed a motion for clarification of the October 24 Opinion, seeking guidance on whether they were entitled to refile all of the dismissed claims after administratively exhausting them. Plaintiffs also have filed a motion to amend their complaint in order to add previously dismissed and new claims and supplemental facts. They assert that the defendant is equitably estopped from opposing as untimely any new or refiled claims. Defendant opposes the motions, arguing futility and prejudice with respect to all claims except the non-promotion class claim.
Defendant has not been equitably estopped from asserting the untimeliness of new or dismissed claims. After having taken discovery, plaintiffs have not demonstrated any affirmative misconduct by the defendant relied upon by the plaintiffs that prevented or discouraged plaintiffs from timely filing their pre-1999 claims with the Secret Service. Because the doctrine of vicarious exhaustion with respect to a timely class claim of non-promotion is broad enough to encompass forms of discrimination that affect the building blocks of promotion, plaintiffs' class claims regarding discriminatory performance evaluations; discriminatory transfers, assignments, and other career-enhancing opportunities; discriminatory assignment to undercover work; discriminatory hiring practices; discriminatory testing; discriminatory disciplinary policies and practices; and discriminatory awards and bonuses can be deemed vicariously exhausted by their now properly exhausted non-promotion class claim. Therefore, plaintiffs' motion to amend the complaint will be granted in part and denied in part. Plaintiffs' pre-1999 class claims may not be pled as they are untimely, but plaintiffs' class allegations that can be deemed vicariously exhausted may be pled. The Department of Treasury will not be added as a defendant. Plaintiffs are directed to refile an amended complaint in accord with this Memorandum Opinion and Order no later than May 1, 2006.
Plaintiffs allege enduring and systematic discrimination dating back to 1974 by the Secret Service against black agents, recounting a history of non-selections, desultory recruitment efforts, exclusion from choice assignments, and general harassment. (See Compl. ¶¶ 12, 21-25, 34.) In addition, plaintiffs maintain that the Service engaged in a two-decade long game of cat and mouse, consistently promising to address the concerns of black agents when confronted with their concerns, but never doing so. With regard to the Service's many unfulfilled promises, plaintiffs allege the following.
In 1974, black agents sent Director H.S. Knight a memorandum outlining numerous concerns about the treatment of black agents in the Service. (Id. ¶¶ 6-9.) Plaintiffs do not allege they received any responses to this communication from Knight or any other representative of the Service. In 1977, the agents sent a letter to Knight in which they outlined largely the same concerns and recounted two instances of white agents using racial slurs in the presence of black agents. (Id. ¶¶ 10-13.) Knight responded by sending a letter to all Service employees urging them to refrain from using racial slurs and charging supervisors with dealing with racist comments promptly and firmly. (Id. ¶ 14.)
In 1987, representatives of black agents met with Assistant Director of the Office of Investigations Kevin Houlihan and Acting Assistant Director of Protective Operations George Opfer and reiterated the concerns of racial discrimination they spelled out in their 1977 letter. (Id. ¶¶ 15-21.) Houlihan responded by letter to Special Agent Donald Tucker, one of the representatives of the black agents. In the letter, Houlihan agreed to address and intensify efforts at recruiting and hiring, recognized the need for "consultations with minority agents" and agreed to meet on a regular basis, agreed to raise the issue of assignments to the Special Agent in Charge, mentioned that the Service was reconsidering its agent career tracking, and assured the agents that each SAC had a mandate to deal with his personnel fairly. (Id. ¶¶ 22-24.) Houlihan did not offer any concrete proposals. (Id. ¶ 25.) Later that year, Tucker received a low performance evaluation that he felt was retaliation for his earlier efforts to raise issues of racial discrimination with Houlihan and Opfer. Tucker then wrote to Houlihan that he intended to file a complaint against the Service, and responded to Houlihan's letter summarizing it as "basically stat[ing] that [Houlihan] will back the supervisor -- right or wrong -- against the employee." (Id. ¶ 26-27.)
In 1989, representatives of the black agents sent a memorandum to Director John Simpson detailing the same concerns as in previous correspondences. (Id. ¶ 28.) Plaintiffs do not allege any responses to this communication from Simpson or any other representative of the Service. In 1992, John Magaw became the director of the Service and the black agents sent a "statement to [him] outlining concerns about recruitment and hiring, promotions, assignments, training and discrimination/disparate treatment." (Id. ¶ 35.) Plaintiffs do not allege they received any responses to this communication from Magaw or any another representative of the Service.
In their proposed amended complaint, plaintiffs offer two additional communications between management of the Service and the black agents in support of their claim of equitable estoppel. In the early 1990s, plaintiffs allege that Magaw attended the National Organization of Black Law Enforcement convention, appeared receptive to minority concerns, and promised Special Agent Alonzo Webb that he would investigate the treatment of black agents. (Am. Compl. ¶ 63.) Then, in 1998, Deputy Director Bowen met with Webb and expressed concern about the number of minorities enrolled in Special Agent Training Classes. Bowen stated that "something has to be done" and indicated that he intended to address the problem. (Id. ¶ 64.)
The defendants moved to dismiss plaintiffs' complaint. The October 24 Opinion denied defendant's motion to dismiss with respect to the individual non-promotion claims of several agents and granted the motion with respect to all other claims. (October 24 Opinion at 2-3.) On November 5, 2004, plaintiffs filed a motion for clarification, seeking guidance on whether they were entitled to amend their complaint here to reallege "all*fn1 claims alleged in [their] initial complaint [filed] in [this] court" after refiling with the EEOC and exhausting the claims dismissed on October 24, 2004. (Pls.' Mot. For Clarif'n at 1, 5.) After refiling and exhausting their class claims with the EEOC in accordance with Martini v. Fed. Nat'l Mortgage Ass'n, 178 F.3d 1336 (D.C. Cir. 1999), plaintiffs moved to amend their complaint in order to reallege all of the previously dismissed class claims, add facts supporting existing claims, add claims of discrimination occurring after May 2000, and add the Department of Treasury as a defendant. (Pls.' Mot. to Amend at 1; Pls.' Reply at 14-17.) Plaintiffs argue that the October 24 Opinion held that defendant was equitably estopped from arguing that new or refiled claims should be barred as untimely, and that plaintiffs may re-raise all of the dismissed claims and any claims that were not included in the original complaint upon exhaustion of administrative remedies. (Pls.' Reply at 4.)
Defendant opposes the motions, disputing that any finding of equitable estoppel was made, and arguing futility and prejudice. Specifically, defendant contends that (I) the addition of the previously dismissed class claims, except the non-promotion class claim, would be futile because they were previously dismissed with prejudice by the court, (ii) the addition of claims predating the filing of the complaint would be futile because no contact was made with an EEO counselor within 45 days of each alleged incident, (iii) the addition of claims postdating the original complaint would be futile because no contact was made with an EEO counselor within 45 days of each alleged incident, (iv) the Department of Treasury is not a proper defendant, and finally (v) the government would be prejudiced by the late addition of pre-lawsuit claims and the class claim filed two months after plaintiff indicated to the court that it would file the claim. (Def.'s Opp'n to Pls.' Mot. to Amend at 7-23; Def.'s Surreply in Supp. of Opp'n to Pls.' Mot. to Amend at 15-17.) Defendant does not dispute that the non-promotion class claim of Agent John Turner is properly before the court.
Plaintiffs' November 2004 motion to clarify the October 24 Opinion will be granted principally to address issues raised ...