The opinion of the court was delivered by: Judge Beryl A. Howell
Plaintiffs are nine current and former employees of the District of Columbia's Child and Family Services Agency ("CFSA"), who assert that the CFSA "discriminated against them and similarly situated employees on the basis of their race, national origin, age, and/or in retaliation for complaining about discriminatory practices." Second Amended Complaint ("Compl."), ECF No. 17, at 2. As a consequence of CFSA's alleged discriminatory and retaliatory actions, plaintiffs claim that they are entitled to damages under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 633a(a), the District of Columbia Human Rights Act ("DCHRA"), and 42 U.S.C. §§ 1981 and 1983.
Pending before the Court are (1) the defendant's motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss plaintiffs' Second Amended Complaint, and (2) two motions, pursuant to Rule 24 of the Federal Rules of Civil Procedure, for leave to permit nine additional current and former employees of CFSA to intervene as plaintiffs in this action. All together, the plaintiffs' Complaint and proposed intervenors' Complaints-in-intervention amount to over one hundred pages and over one thousand numbered paragraphs. They have alleged such a plethora of facts that they have made clear their success on the merits is impossible. For the reasons set forth below, the Court finds that the claims of six plaintiffs are barred by res judicata or failure to meet the procedural prerequisites for bringing this action, and the claims of the three remaining plaintiffs fail to state cognizable causes of action. Consequently, the defendant's motion to dismiss is granted and the motions to intervene are denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
Two plaintiffs, Angella Peters*fn1 and Larry McCall, initiated this lawsuit on October 28, 2009, alleging that the District of Columbia violated their rights under the Due Process Clause of the Fifth Amendment to the United States Constitution, for which they sought damages under 42 U.S.C. §§1981 and 1983. Shortly thereafter, the plaintiffs filed an amended complaint adding four plaintiffs - Maria Dyson, Augustine Ekwem, Jacqueline Moore and Katherine Washington - as well as claims under Title VII of the Civil Rights Act of 1964, the ADEA, and the DCHRA. On March 16, 2010, the Court granted the plaintiffs' unopposed motion for leave to file a Second Amended Complaint,*fn2 which added three more plaintiffs: Joan Simpson, Melva Meade, and Cynthia Courts-Marshall.*fn3 See Minute Order (Mar. 16, 2010) (Sullivan, J.).*fn4
The plaintiffs have continued to seek leave to add plaintiffs to this action. On July 23, 2010, and again on April 22, 2011, the plaintiffs moved, pursuant to Federal Rule of Civil Procedure 24, to allow a total of nine additional putative plaintiffs to intervene. These motions to intervene are opposed by the defendant and have been denied by Order entered on March 30, 2012. This Memorandum Opinion sets forth the reasons for that Order.
B. Allegations in Second Amended Complaint
The nine plaintiffs named in the Second Amended Complaint are black women and men who have worked as caseworkers and supervisors at the CFSA for varying lengths of time, ranging from three to eighteen years. Four of the plaintiffs are current or former caseworkers and the other five plaintiffs are current or former supervisors. The four caseworker plaintiffs (Angella Peters, Larry McCall, Maria Dyson and Katherine Washington) complain primarily about the allegedly abusive and discriminatory conduct directed at them by a single supervisor. Three of these caseworker plaintiffs apparently remain employed at CFSA: both Maria Dyson and Katherine Washington remain caseworkers in Child Protective Services ("CPS"), a component of CFSA, and Larry McCall's current assignment is not identified. The five management plaintiffs (Cynthia Courts-Marshall, Jacqueline Moore, Joan Simpson, Augustine Ekwem and Melva Meade), complain about the conduct of at least eight other managers at CFSA, including the CFSA Deputy Director of Operations, for allegedly creating a hostile work environment, and discriminatory and retaliatory conduct. Two of the management plaintiffs (Augustine Ekwem and Melva Meade) remain employed at CFSA, while the other three management plaintiffs (Cynthia Courts-Marshall, Jacqueline Moore and Joan Simpson) are no longer employed at CFSA.
The Second Amended Complaint asserts two core allegations against CFSA: first, "[f]rom as early as 2001, the Child and Family Services Agency had a custom of allowing its supervisors to bully older, black social workers, particularly those from Africa or the Caribbean Islands," and this conduct created a hostile work environment that management condoned. Compl. at 2. Second, CFSA, from as early as 2003, "had a custom of allowing its supervisors to retaliate against social workers who complain about discriminatory practices." Id. The alleged retaliatory actions against the plaintiffs took different forms, ranging from re-assignment of duties to demotion in position to the unfair assignment of an overwhelming caseload. Specifically, the four caseworker plaintiffs complain that, following the tragic discovery, in January 2008, of the deaths of Banita Jacks' four young daughters in a Washington, D.C. row house, there was a "surge in [the number of] child abuse and neglect reports." Id. ¶¶ 75-89 (Peters), ¶¶ 125-33 (McCall), ¶¶ 166-93 (Dyson), ¶¶ 213-28 (Washington). While acknowledging this across-the-board increase in workload, the caseworker plaintiffs complain that they were assigned an unfair number of cases, which resulted in backlogs and prompted adverse employment actions, ranging from being "written up" to reprimands. Id. Two supervisor plaintiffs also allege retaliation: Jacqueline Moore alleges that after she complained to human resources about her treatment by a supervisor, she was retaliated against, id. ¶¶ 267-310, and Cynthia Courts-Marshall alleges that she was retaliated against after she refused to fire employees as instructed by her supervisor, id. ¶¶ 605-10, 617-18. The allegedly retaliatory actions against these two supervisors included poor job performance evaluations, which resulted in a denial of pay increases, id. ¶¶ 272-81, 293 (Moore); demotion to a caseworker position to help with the post-Jacks tragedy surge in cases, id. ¶¶ 284-86 (Moore); and re-assignment or removal of duties, id. ¶¶ 308-10 (Moore), id. ¶¶ 630-35 (Courts-Marshall).*fn5
Discrimination based upon: Race National (Black) Origin Age Gender
All nine plaintiffs claim that they were discriminated against on the basis of race and subjected or exposed to a hostile work environment during at least some portion of their employment at CFSA between 2001 and 2009.*fn6 Four plaintiffs (Ekwem, Moore, Peters and Simpson) also claim discrimination on the basis of national origin. Six plaintiffs (Dyson, Ekwem, McCall, Moore, Peters and Washington) claim age discrimination, even though the three plaintiffs who do not make this claim are also over 40 years of age and two of them are older than some of the plaintiffs who do claim age discrimination. Finally, six plaintiffs (Courts-Marshall, Dyson, McCall, Moore, Peters and Washington) claim retaliation.*fn7
The Title VII and ADEA discrimination claims asserted by each plaintiff are summarized in the chart below.
Courts- Marshall -- Administrator
The factual allegations underlying the claims of discrimination, hostile work environment and retaliatory actions vary among the plaintiffs, as described in more detail below. Detailed review of these claims, viewing the claims in the light most favorable to the plaintiffs, is necessary to assess their sufficiency and whether they "plausibly give rise to an entitlement to relief," as required by Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1941, 173 L. Ed. 2d 868 (2009).
1. Allegations of CFSA-CPS Caseworker Plaintiffs Supervised by the Same Supervisor
Four of the plaintiffs served as caseworkers in CFSA's Child Protective Services and complain about the allegedly discriminatory and retaliatory conduct of the same supervisor.
Plaintiff Angella Peters is a 51-year old, black woman of Jamaican origin, who worked as a CPS caseworker for approximately 12 years until her resignation in October, 2009. Compl. ¶¶ 24, 25, 93. On November 9, 2009, she filed a complaint against the CFSA with the Equal Employment Opportunity Commission ("EEOC"), which issued a right-to-sue letter on March 2, 2010. Id. ¶ 2. Peters claims racial, national origin and age discrimination, a hostile work environment and retaliation based upon allegations that (1) a white woman supervisor ("Supervisor A"),*fn8 to whom Peters was assigned in 2005, "treated black caseworkers from Africa and the Caribbean Islands in a demeaning fashion," id. ¶ 40, apparently prompting three other employees from Jamaica and Nigeria to transfer out of the supervisor's group, id. ¶¶ 40-46, 48; (2) Supervisor A complained about, and punished Peters for, "alleged transgressions of other caseworkers," id. ¶¶ 50-51; "screamed at, talked down to, and pointed her finger at [Plaintiff] Peters," as well as yelled at her in front of others, id. ¶¶ 52-53, and made "intimidating comments" that the supervisor did not make to her "African American co-workers," id. ¶¶ 54-55; (3) Supervisor A took other actions against Peters, such as blocking her from leaving her cubicle, stopping colleagues from talking to her, and following Peters "into the bathroom and instruct[ing] her to get back to her typing as she used the bathroom stall," id. ¶¶ 56-58; (4) Supervisor A "bullied" white caseworkers, id. ¶ 37; (5) Supervisor A retaliated after Peters and her co-workers complained to the Program Manager, Supervisor B,*fn9 about Supervisor A's "abusive behavior" and race discrimination, prompting Supervisor B to hold a meeting in 2007 with Supervisor A and members of the unit, to discuss "racial sensitivity" and "assure the group that there would be no retaliation," id. ¶¶ 68-72; and (5) following the Jacks tragedy, Peters was "assigned an overwhelming number of cases," resulting in a case backlog for which she was given warnings, a reprimand and proposed suspension in October, 2009, while other members of Supervisor A's unit with similar backlogs were not written up, id. ¶¶ 75-87 (under caption "Retaliation"). Peters' complaints to two program managers, Supervisors C and D, "to end the abuse" were not addressed. Id. ¶ 88.*fn10 In October 2009, Peters resigned from CFSA "due to intolerable working conditions." Id. ¶¶ 93-94.
Plaintiff Larry McCall is a 57-year old black man, who also worked as a CPS caseworker under Supervisor A. He filed a complaint with the EEOC against the CFSA but at the time of filing the complaint had not received a right-to-sue letter. Id. ¶ 3.*fn11 McCall claims racial and age discrimination, a hostile work environment and retaliation based upon allegations that (1) he was subjected to Supervisor A's intimidating comments such as "I am going to write you up," id. ¶ 115; (2) he "watch[ed] [Supervisor A] mistreat his foreign born co-workers," and was part of the group who complained in 2007 to Supervisor B about Supervisor A's abusive behavior and race discrimination, id. ¶¶ 114, 119, 121; (3) following the Jacks tragedy, he was assigned new cases resulting in a case backlog for which he was written up and "threatened . . . with the possibility of termination," even though his backlog "was similar to those of other members of [the supervisor's] unit, who had not been written up," id. ¶¶ 123-37 (under the caption "Retaliation"); and (4) McCall transferred out of CPS to a position with lower take-home pay because he believed he would otherwise be terminated, id. ¶¶ 138-41. McCall appears to remain employed at CFSA.
Plaintiffs Maria Dyson and Katherine Washington are 49 and 50-years old, respectively, black women, who both worked as CPS caseworkers under the same supervisor as Peters and McCall. Id. ¶¶ 147, 164, 202, 209. They both claim racial and age discrimination, a hostile work environment and retaliation based upon allegations that (1) Dyson and Washington witnessed Supervisor A abusing foreign-born employees, including Peters; Dyson "felt abused as well," id. ¶¶ 154-61, 211-12; (2) following the Jacks tragedy and the surge in new cases, Dyson and Washington's backlog of cases grew, resulting in Supervisor A writing up "Ms. Washington for having a backlog," id. ¶¶ 171, 215, 225; (3) after Washington complained to management and filed a grievance with the union against Supervisor A, Washington was transferred to a new unit, where she was again "written up" in early January, 2010, after becoming a plaintiff in this lawsuit, id. ¶¶ 225-33; (4) Dyson complained to her supervisor ("Supervisor E")*fn12 that she was not being treated fairly after noticing that both "she and an older Indian caseworker [in her group] were being assigned a lot more cases than their three co-workers, one [of whom] was white and two [of whom] were younger." Id. ¶¶ 176, 185, 187; (5) in retaliation, Supervisor E wrote up Dyson for her backlog, accused her of abusing overtime and ordered an audit of her timesheets, prompting Dyson to transfer to a different group in late 2009. Id. ¶¶ 192-94. Both Dyson and Washington appear to remain employed at CFSA.
2. Allegations of CFSA Supervisor Plaintiffs
Plaintiff Jacqueline Moore is a 66-year old black woman of Trinidadian origin, who was a CFSA supervisor from 1995 until her resignation in November, 2009, except for a one-year period from February, 2008 until February, 2009, when she was detailed to work as a CPS hotline caseworker. Id. ¶¶ 236, 242, 284-85, 311. She filed a complaint with the EEOC, which issued a right-to-sue letter on March 19, 2010. Pls.' Opp'n. to Def.'s Mot. to Dismiss ("Pls.' Mem."), ECF No. 22, at 11; Compl. ¶ 4. Moore claims racial, age and national origin discrimination, a hostile work environment and retaliation based upon allegations that (1) from 2000 to 2008, her black Program Administrator ("Supervisor F")*fn13 "singled [her] out for abusive treatment," since Moore was the "only black foreign born supervisor" and "the oldest supervisor on [Supervisor F's] staff," by "isolat[ing]" her, excluding her from meetings, becoming "hostile when Ms. Moore made a comment," never inviting her to lunch with the Program Administrator and the staff, making disparaging remarks about her in the presence of other social workers, screaming at her, and "regularly threaten[ing] to write up Ms. Moore, and on an occasion [writing] up Ms. Moore for 'borderline insubordination,'" Compl. ¶¶ 246-63; (2) from 2004 to 2008, her immediate supervisor ("Supervisor G")*fn14 "was openly abusive," "screamed at Ms. Moore during a meeting," and wrote in an evaluation that he gave her a poor job performance evaluation because "Ms. Moore had filed complaints against him with human resources," id. ¶¶ 268-69, 280; (3) following the Jacks' tragedy, Moore was the only supervisor demoted to caseworker and detailed to CPS, where she received a "very good job performance evaluation" and was "officially reinstated to the position of supervisor," id. ¶¶ 284-92 (under caption "Retaliation"); (4) for approximately three months in Spring 2009, when Supervisor D was her immediate supervisor, he was "abusive," "regularly shouted at Ms. Moore in the presence of her staff," and "threatened Ms. Moore with disciplinary action," id. ¶¶ 297-300; and (5) following an unapproved four month leave under the Family Medical Leave Act, Moore discovered that her staff and duties had been reassigned to a younger employee, who was native born, id. ¶¶ 308, 310. "Feeling that she would be officially terminated, Ms. Moore submitted her resignation, effective January 1, 2010, in November 2009." Id. ¶ 311.
Plaintiff Joan Simpson is a 52-year old black woman of Jamaican origin, who was a CPS supervisor from 2005 until 2008, when she was "terminated as a result of the Jacks tragedy." Id. ¶¶ 315, 32-21, 325. Simpson claims racial and national origin discrimination and a hostile work environment based upon allegations that (1) management did not express a policy of intolerance for the use of racial/ethnic slurs when, in 2005, a Nigerian employee and an African American employee were suspended for having a physical altercation during which the African American employee called the Nigerian an "African monkey," and other employees used "racial and ethnic slurs," including complaining about working for an Asian supervisor, id. ¶¶ 333, 344-48; (2) she witnessed Supervisor A engage in harsh treatment of Peters and Jamaican and Nigerian caseworkers, id. ¶¶ 352-69; (3) Simpson and Ekwem were the "only supervisors to be regularly assigned more than five caseworkers," but her complaints to Plaintiff Courts-Marshall about the "disparity between the number of caseworkers assigned to her and Mr. Ekwen and their American born counterparts," were not remedied, id. ¶¶ 380, 387, 390; (4) Supervisor B refused to write a recommendation for Simpson although she did so for an Asian co-worker, id. ...