AMERICAN F EDERATION OF

STATE , COUNTY, AND MUNIC IP AL EMP LOYEE S LO CAL 2401, et al.,

P laintif fs,

v. DISTRICT OF COLUMBIA,

Defendan t. UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action 09-01804 (HHK )

MEMORAN DUM OP INION AND ORDER Plaintiffs, a g roup of Af

rica n-Amer ican a

nd L atino employ ees a

nd former employ ees of the District of Columbia Depa rtment of He alth Care F inance (“D HCF” ), and the union that repr esents them, bringthis action ag ainst the District of Columbia under 42 U.S.C. § 1981; 42 U.S.C. § 1983; t he District’s municipal pe rsonnel re gulations, D.C. M U N . R E G S . tit. 6, § 2400 et seq .; and the D.C. Human Rig hts Act, D.C. C O D E § 2-1401 et seq. Plaintiffs alleg e that whe n the District reor g anized DHCF in 2008 a nd 2009, it selectively

terminated olde r minority employ ees while it simul taneously

protec ted less senior, less e x perie nced, pr edominantly Whit e employees from ter mination. Bef

ore the Court is the District’s motion t o dismiss for f ailure to state a

claim upon which re lief may

be g rante d [#39] . Upon consider ation of the motion, the opposition there to, and the re cord of this case, the Court c oncludes that the motion must be g rante d in part and denie d in part.I. BACKG ROUND

On Octobe r 1, 2008, the D.C. De partment of H ealth wa s officia lly rede signa

ted the Depa rtment of He alth Care F inance , which the District de scribed a s an “e ntity that would improve hea lth outcomes by providingacc ess to compre hensive, c ost-eff ective, a nd quality healthca re se rvice s for the r esidents of the D istrict of Columbia.” 3d Am. Compl. ¶ 3 (quoting L etter f rom DHCF D irec tor J ulie Hudman to DHCF employ ees ( Aug . 31, 2009)) ( internal quotation marks omitted). As par t of the re org anization that followed, DHCF c onducted a reduc tion-in-forc e (“ RI F” ) that re sulted in the termination of seve nty -eight DHCF e mploy ees, the vast majority

of whom we re A frica

n-American. 3d Am. Compl. ¶ 16. Plaintiffs alleg e that a “spec ifically

identified g roup of Cauc asian e mploy ees,” predominantly youngrec ent hires, wa s deliberately

excluded from the RI F. 3d Am. Compl. ¶¶ 10, 23–26. DH CF also cr eate d a new set of positions with qualifications differe nt from those of the jobs fr om which plaintiffs we re terminated, but whic h, plaintiffs ave r, involve almost identical wor k. Plaintiffs alleg e that DHCF had no leg itimate business reason to unde rtake the RI F. The y further asser t that DHCF “ intentionally and maliciously

employ ed ra cially

biased a nd ag ed biase d criter ia to deter

mine the extent to which then exis ting longterm employees w ere now qualified for ‘ new’ positions i n which they would be doingessentially the same e x act wor

k.” 3d Am. Compl. ¶ 21. As a result of these criter ia, “a number of w ell-educ ated a nd experience d [p] laintiffs wer e unable to qualify for the ne wly

adver tised and re written positions . . . . Further , sever al [p] laintiffs wer e re quired to take new jobs in which they ear ned less pay .” 3d Am. Compl. ¶ 22.

2Plaintiffs filed this action on September 21, 2009. The ir complaint, as ame nded, includes

four c ounts: (1) rac e and a g e discrimination in violation of the Equal Protec tion Cl ause, pur suant to 42 U.S.C. § 1983; (2) r ace discrimination in violation of 42 U.S.C . § 1981; (3) violations of the D.C. personne l regulations that gove rn municipal RI Fs; and ( 4) ra ce a nd ag e discrimination in violation of the D.C. Human Rig hts Act. The District now move s to dismi ss the complaint on the g round that none of

these c ounts states a cla im upon which relief may be grante d.

II. ANALYSIS A. Bell Atl

antic Corp. v. Twom blyand Ashcroft v. Iqbal Gove rn Here Be fore turningto the merits of the District’s motion, the Court will briefly addre ss a contention that plaintiffs have repe atedly put forth in this case. Plaintiffs ar gue that the Supre me Court’s decisions in Bell Atlantic Corp. v. Tw ombly , 550 U.S. 544 (2007), and Ashcroft v. Iqbal , —U.S.—, 129 S. C t. 1937 (2009), ar e limited to their specific fac ts or doctrinal c ontext s and do not provide the plea ding sta ndard by which their r ace and ag e discrimination claims ar e to be g aug ed. Plaintiffs are wrong . Twombly and Iqbal are universally rec og nized as havingmodified the basic ple adingstandard in all fede ral c ivil cases. See I qbal , 129 S. Ct . at 1953 (statingthat Twombly construed F eder al Rule of Civil P roce dure 8, which “g overns the ple adingstandard ‘ in all civil actions’” ( quoting F E D . R. C I V . P. 1)). Prec isely how fa r Twombly and Iqbal depar t from the pre exis ting standa

rd, ar ticulated in Conley v. G ibson , 355 U.S. 41, 45–46 (1957), is open to debate , but courts and c ommentators alike unde rstand them to have supplanted it. 1

See, e .g. , Jones v . Horne , 634 F.3d 588, 596 n.4 ( D.C. Cir. 2011) (desc ribingthe 1 now-de funct Conley standard a s “somewhat more lenient” than the Twombly/ Iqbal standard) ; Swanson v. Citi bank, N.A. , 614 F.3d 400, 403 ( 7th Cir. 2010) (noting the tension betwee n the new “ plausibilit y” standa rd and the Supreme Court’s a dmonition that “f act plea ding” is not 3Consequently , plaintiffs’ ability to state a c laim upon which re lief may be grante d will be judge d with refe renc e to the standa rd ar ticulated in Twombly and Iqbal

. That standar d does not 2 call for detailed f

actua l alleg ations, but it does require a complaint to rec ite fac ts sufficient to at least “r aise a

right to relief a

bove the spe culative leve l . . . on the assumption that all the alleg ations in the complaint are true (e ven if doubtful in fa ct).” Twombly , 550 U.S. at 555. A “plea ding that offer s ‘labels a nd conclusions’ or ‘ a for

mulaic re citation of the e lements of a c ause of ac tion will notdo.’” Iqbal , 129 S. Ct . at 1949 (quoting Twombly , 550 U.S. at 555). “N or does a complaint suff

ice if it tende rs ‘naked asse rtion[s ]’ devoid of ‘fur ther fa ctual enha

nceme nt.’” Id . (quoting Twombly , 550 U.S. at 557) (a lterations in orig inal). At bottom, a complaint must contain suff

icient fa ctual matter

that, acc epted a s true, would allow the Court “ to draw the

rea sonable infe renc e that the de fenda nt is li able f

or the misconduct a lleg ed.” Id . The Court will now addr ess whethe r such a n infere nce is possible her e. B. The Mer its of the District’ s Motion 1. Count I: 42 U.S.C. § 1983 “To state a

claim for r elief in a

n action brought under § 1983, [plaintiffs] m ust establish that they wer e depr ived of a

rig ht secure d by

the Constitut ion or laws of the United States, and that the alleg ed depr ivation was committed under c olor of state la w.” Am. Mfrs. Mut. Ins. Co. v. require d); see ge nerally Arthur R. Miller, From Conley to Twombly to I qbal: A Double Play on the Fede ral Rules of Civil Procedure , 60 D U K E L

. J . 1 (2010).

Acc ording ly , the Court will not evaluate plaintiffs’ claims, as they urg e, under

the 2 prima fa cie standa

rd established in McD onnell Douglas Corp. v. Green , 411 U.S. 792, 802–05 (1973). “ McD onnell Douglas . . . sets forth an e videntiary standard, not a

pleadingrequire ment.” Amiri v. Hilton W

ash. Hotel , 360 F. Supp. 2d 38, 41 (D.D .C. 2003) (citing Swierkiewicz v. Sorema , 534 U.S. 506, 510 (2002)); see Bry ant v. Pepc o , 730 F. Supp. 2d 25, 28–29 (D.D .C. 2010) (c ollectingcase s holding that Swierkiewicz survived Twombly and Iqbal). 4Sullivan , 526 U.S. 40, 49–50 (1999). Her e, plaintiffs a lleg e that DHCF ’s re org anization 3 violated their right to the equal prote ction of the law s as enshrine d in the Four teenth Amendme nt, which applies to the D istrict of Columbia via the Fifth Ame ndment’s Due Proc ess Clause. See Bolling v. Sharpe , 347 U.S. 497, 499 (1954). “T he ce ntral purpose of the Equa l Protection Clause . . . is the preve ntion of officia l conduct discriminatingon the basis of ra ce,” W ashington v. Dav is , 426 U.S. 229, 239 (1976), but the Clause r eac hes any g overnme nt action that trea ts g roups of pe ople diffe rently on the basis of a

rbitrar y or irrational classifica

tions. Engquist v. Or. Dept. of Agr. , 553 U.S. 591, 601 (2008). It does not, howeve r, prohibit g overnme nt action that has a dispropor

tionate ef fec t on a discre te g roup but lacks a “discriminatory

purpose.” Davis , 426 U.S. at 240. Thus, to plead a via ble equa l protection cla im, a plaintiff must alleg e that “a decisionmake r[] undert[ook] a cour se of a ction ‘bec ause of , not merely

in spite of, [t he ac tion’s] adver se ef

fec ts upon an identifiable group.’” Iqbal , 129 S. Ct . at 1948 (quoting Pers. Adm’r of Mass. v. Fe eney , 442 U.S. 256, 279 (1979)) ( third altera tion in original). Plaintiffs’ § 1983 claim alleg es that the District “ reor g anized DHCF in such a way as to selec tively

terminate more senior Af rica n-American e mploy ees while simult aneously protec ting and excluding le ss senior, inexperience d, predominantly Cauca sian employ ees.” 3d Am. Compl. ¶ 29. Plaintiffs bolster this claim by pointing to the disparate impact of the RI F on Af ricanAmeric an employees, see 3d Am. Compl. ¶¶ 8–16, and to an e mail appende d to the complaint that descr ibes a sy stematic ef fort to alter

personne l rating s in favor of young , rec ently

hired Whit es. See 3d Am. Compl. Ex . B ( email from Candic e Gr aham to Iy anam Eyo (Jan. 5, 2010)).

The District doe s not dispute that DHCF’s re org anization occurr ed “unde r color 3 of state law ” for

§ 1983 purposes. 5The District a rgues that plaintiffs have failed to plea d an equa l protection violation beca use they have not a lleg ed any

fac ts showing that DH CF’s re org anization had a discriminatory purpose, rathe r than a

discriminatory

impact. The D istrict further argues that many

of plaintiffs’ alleg ations are too conclusory to warr ant an a ssumption of truth. The District’s arguments are unavailing

. Read in toto and in conjunction with the docume nts attache d to it, plainti ffs’ a mended complaint states a plausible c laim of purposef ul discrimination. First, althoug h the disparate impact that plaintiffs desc ribe is not, by itself, sufficie nt to establish an equal pr otection violation, see D avis , 426 U.S. at 240, it is probative of purpose ful discrimination. See id. at 242 (“[A]n invi dious discriminatory purpose may

often be inferr ed fr om the totality of the re levant fac ts, including [a disparate impact].”); accord Vill. of Arlington Heights v. Metro. Hous. De v. Corp. , 429 U.S. 252, 266 (1977). Second, the documents appe nded to the complaint, which the Court may

proper ly consider when rulingon a motion to dism iss, Stewart v. Nat’l Educ. Ass’n , 471 F.3d 169, 173 ( D.C. Cir. 2006), descr ibe in detail a sy stematic ef fort by DHCF pe rsonnel to modify personne l rating s in favor of y oung , rec ently

hired Whites. See 3d Am. Compl. Ex . B. Considered tog ether , these a lleg ations are “sug g estive of illeg al conduc t.” Twombly , 550 U.S. at 563 n.8; see Arlington Heights , 429 U.S. at 267 (statingthat “[d] epar tures fr om the normal proce dur[e]” can a ffor d evidenc e that a de cision was motivated by discriminatory

purpose)

. 4

In relying on the email attac hed to plaintiffs’ c omplaint, the Court does not treat 4 that email as c onclusively establishing the events de scribed the rein; rather, the Court simply treats the email as pre sentingfac tual alleg ations that must, for the purposes of this mot ion only , be ac cepte d as true. It is thus i rre levant that the e mail is “un-sworn he arsa y , without evidentiary value.” Def

.’s Opp’n to Pls.’ Mot. to File 3d Am. Compl. [ #31] at 2. 6Fur ther, the Court c annot identify an “obvious a lternative e x planation” f or the a lleg ed conduct that would r ender an infe renc e of discr imination im plausible. See I qbal , 129 S. Ct . at 1951 (quotingTwombly , 550 U.S. at 567) (inter nal quotation marks omitted); cf. Davis , 426 U.S. at 242 (“ [D] iscriminatory impact . . . may

for a ll practica l purposes demonstra te unconstitutionalit y

beca use in [certain] circumstanc es the discr imination is very difficult to explain on nonracial grounds.”) . This case is thus dis tinguishable from Iqbal , wher e the Supreme Court held that the c ase ha d to be dismissed beca use the “ complaint d[i d] notcontain any fac tual alleg ation sufficie nt to plausibly sug g est [the defenda

nts’] di scriminatory

state of mind.” Iqbal , 129 S. Ct . at 1952. The Iqbal Court rea ched that conclusion afte r dete rmining that the def endants’ c onduct could ea sily be explained by

leg itimate law enf

orce ment conce rns, which g reatly decr ease d the plausibility of I qbal’s cla ims of discrimination. See id . at 1951–52 (“ As betwee n that ‘obvious alternative explanation’ for the [challeng ed conduc t] , and the pur poseful, invidious di scrimination [t he plaintiff] asks us to infer, discr imination is not a plausible conclusion.” ( internal c itation omit ted) (quoting Twombly , 550 U.S. at 567)). He re, by contra st, the District’s explanation for plaintiffs’ terminations — that DHCF ha d adopted a new struc ture and re quired a

workfor ce w ith commensurate a biliti es — ca

nnot plausibly

acc ount for the a lleg ed prac tice of a lteringpersonne l rec ords in favor of young , newly

hired White employees at the expense of long er- tenure d Afric an Americans. In the words of Iqbal , this ex planation does not allow the Court to conclude , on the fa cts alleg ed by plaintiffs, that DHCF’ s actions wer e “likely lawful.” Iqbal , 129 S. Ct . at 1951. Additionally , plaintiffs’ complaint provide s as much or more detail and “ fac tual heft,” W inston v. Clough , 712 F. Supp. 2d 1, 13 (D.D .C. 2010), as have others that have been he ld to

7state a c laim of discrimination under Twombly and Iqbal . For example, in Hamilton v. District of Columbia , 720 F. Supp. 2d 102 (D.D .C. 2010), the cour t held that the plaintiffs, a group of Afric an-America

n firef ighte rs, had state d a valid § 1983 cla im by alleg ing that the fire depar tment had “c ompiled a list of Africa n Americ an F irefighters that it wanted to ter minate.” Id. at 113. The c ourt found that the plaintiffs ha d stated a c laim, albeit “only by a hair ’s brea dth,” id ., notwithstanding the f act that “ the complaint include[d] no further information about when, by

whom or how the a lleg ed list was compiled or subse quently discovere d” and “d[id] not alleg e explicitly that the fire fig hters on this list were include d because they wer e Afric an Amer ican.” Id . at 113 n.7. Her e, plaintiffs’ c omplaint and the attac hed docume nts provide sig nificantly

more de tail about the def endant’ s alleg edly

discriminatory

prac tices, including the identities of some of the pe rsonnel involved and de scriptions of some of the ste ps taken to disadva

ntag e older

Afric an-America

n worke rs. See 3d Am. Compl. Ex . B. 5 Finally , the Court cannot a gree with the District that plaintiffs have not stated a c laim beca use they have f ailed to spec ify

which par

ticular a lleg ations in the complaint apply to which plaintiffs. Contrary

to the District’s asser

tion, the complaint does not simply list t he thirty individual plaintiffs; rather, it identifies those plaintiffs who wer e “te rminated for purposes of Counts Iand I I I ” and those plaintiffs who we re “ terminated a nd rehire d.” 3d Am. Compl. ¶ 2.

Plaintiffs’ alleg ations are also more substantial than those in Atherton v. D.C. 5 Office of May or , 567 F.3d 672 ( D.C. Cir. 2009), on which the District r elies. Ther e, the D.C. Circuit held that the plaintiff had f ailed to state a

§ 1983 rac ial and/or e thnic discrimination claim wher e he ha d alleg ed only that he had be en re moved from a g rand jury

afte r re vealingthat he spoke Spanish fluently

. See id. at 688. The D .C. Circuit ex plained that those a lleg ations “d[id] ‘not permit the cour

t to infer more than the mer e possibility of misconduct.’” Id . (quoting Iqbal , 129 S. Ct . at 1950). The complaint inAtherton was e ntirely speculative and involved no spec ific descr iptions of mis conduct like those c ontained in the plea dings he re. 8Read in conjunc tion with the rest of the c omplaint, these descr iptions, although terse , make c lear

which plaintiffs we re a lleg edly subjected to whic h unlawful pra ctices. N o more is re quired at this stage

. I t is true, as the District points out, that plaintiffs’ § 1983 claim is set forth amidst a barr ag e of c onclusory

asser tions and adver

bs. See, e .g. , 3d Am. Compl. ¶ 47 (“De fenda nt . . . intentionally , calc ulatedly and maliciously

eliminated older a

nd predominantly

Afric an-A merica

n worke rs . . . .”) . But “ many well-plea ded complaints ar e conc lusory” to some degree . HolmesMartin v. Leavitt , 569 F. Supp. 2d 184, 191 (D.D .C. 2008). Plaintiffs’ complaint contains just enoug h non-conc lusory

fac tual matter to “nudg e[] [pl aintiffs’] claim[] acr oss the line from

conce ivable to plausible.” Twombly , 550 U.S. at 570. Whether plaintiffs ca n preva il on that claim is a sepa

rate question, but one that is not curre ntly befor e the Court; plaintiffs have “said enoug h to continue past this stag e of the proce eding s.” Ali v. D.C. Gov’ t , 697 F. Supp. 2d 88, 92 (D.D.C. 2010). A ccor dingly , the District’s motion is denied as to Count I

. 2. Count II: 42 U.S.C. § 1981 6

There is a circ uit spli t as to whether a plaintiff a lleg ing a

violation of § 1981 by 6 state or municipal a ctors has a cause of ac tion under § 1981 itself, or must instead sue unde r § 1983. Compare Fed’n of African Am. Contractors v. City of Oakland , 96 F.3d 1204, 1210–14 (9th Cir. 1996), with McGove rn v. City of Philadelphia , 554 F.3d 114, 116–121 ( 3d Cir. 2009). The only differ ence , if any , betwee n these two interpr etations is that a § 1981 ca use of a ction might allow for respondeat superior municipal liability , wher eas § 1983 de finitely does not. See Felton v. Polles , 315 F.3d 470, 482 ( 5th Cir. 2002); but see Ev ans v. City of Houston , 246 F.3d 344, 358 (5th Cir. 2001) (no respondeat superior liability under e ither theory

). He re, be cause the District does not dispute that plaintiffs’ complaint satisfies the municipa l liabilit y require ment, this dist inction is unimportant. More over, the D.C. Circuit has assumed, albe it without s quare ly deciding , that a § 1981 plaintiff, like a § 1983 plaintiff, must show a g overnme ntal policy or custom to establish municipal liabili ty

. See B ush v. District of Columbia , 595 F.3d 384, 286 (D.C. Cir. 2010). 942 U.S.C. § 1981 “has a spe cific f unction: I t protects the e qual rig ht of ‘[a]ll persons within the jurisdiction of the United States’ to ‘make and enf orce contra cts’ without respe ct to

rac e.” Domino’s Pizza, Inc. v . McD onald, 546 U.S. 470, 474 (2006) (quoting42 U.S.C. § 1981(a) ) (a lteration in orig inal). L ike the Equa l Protection Clause, § 1981 rea ches only 7 purposef ul discrimination. See G en. Bldg. Contractors Ass’n, Inc. v . Pennsylv ania , 458 U.S. 375, 386–89 (1982). He re, pla intiffs alleg e that the discr iminatory behavior that underpins their § 1983 claim also depr ived them of the be nefit of their collective ba

rg ainingagree ment with the District. See 3d Am. Compl. ¶¶ 34–39. The District c halleng es plaintiffs’ § 1981 c laim on two gr ounds. First, the District points out that although § 1981 ba rs only rac ial discrimination, plaintiffs’ § 1981 claim appe ars to alleg e both ra ce- and ag e-ba sed discrimination. See 3d Am. Compl. ¶¶ 35–36. Second, as a bove, the District ar gues that plaintiffs have not alleg ed fa cts sufficie nt to sugg est purposef ul discrimination. The District’s fir st point i s well taken; § 1981 prote cts the rights of persons “ to ‘make and enf

orce contra cts’ without

respec t to race .” McD onald , 546 U.S. at 474 (quoting42 U.S.C. § 1981(a)) ( emphasis adde d). Thus, to the extent that plaintiffs alleg e an a g e-ba sed impairment of their a

bility to make or e nforc e a c ontrac t, their § 1981 claim may not proce ed. As

The statute de fines “make and e nforc e contr acts” to “include[] t he making , 7 perf ormanc e, modification, and termination of contr acts, a nd the enjoy

ment of all bene fits, privileg es, terms, a

nd conditions of the contra ctual re lationship.” 42 U.S.C. § 1981(b). This broad la nguag e wa s intended to reve rse Patterson v. Mc Lean Credit Union , 491 U.S. 164 (1989), which held that, in the e mploy ment context, § 1981 reac hed only rac e-ba sed re fusals to enter into contra cts and not any

thing that ha

ppened the rea fter. See id. at 176–77.

10descr ibed above , howeve r, plaintiffs have alleg ed fa cts sufficie nt to state a cla im of purposeful

racial discrimination. Accor dingly , the District’s motion is denied as to Count I I

. 8 3. Count III: Violation of D.C. Re duction-in -F orce Regulations Plaintiffs’ third claim cha rg es that DHCF ’s re org anization was unlawful be cause the newly hired White employ ees w ere excluded from the RI F, whic h, plaintiffs ave r, wa s require d by D.C. personne l regulations to be ag ency-wide. The District argues that this claim is deficient beca use plaintiffs do not explain how the District’s re gulations were violated and f ail to alleg e that they have r aised this claim bef ore the D.C. Offic e of Employee A ppeals, whic h has exclusive orig inal jurisdiction over RI F- related claims. The Court a gree s. The Of fice of Employee A

ppeals (“ OEA” ) is an indepe ndent ag ency of the District g overnme nt cre ated by

the Comprehensive Merit Personnel Ac t (“CMPA”), D.C. C O D E § 1-601.01 et seq . The OEAis empowere d to “[h] ear and adjudicate appe als rec eived f rom District ag encie s and fr om employ ees,” id . § 1-606.02(a )(2) , reg ardingfinal ag ency decisions, including RI Fs. Id . § 1-606.03(a ). The D .C. Court of Appeals ha s expl ained that the O EA’s orig inal jurisdiction over CMPA claims — including c laims reg arding the compliance of RI Fs with applicable r egulations — is normally exclusive. See W

ash. Teachers’ U

nion, Local No. 6 v. D.C. Pub. Schs. , 960 A.2d 1123, 1130–35 (D.C. 2008). “ As a re sult, numerous courts in this Circuit have c oncluded that they lack jurisdiction to enter tain employ

ment-re lated cla ims brought

Be cause the District does not dispute plaintiffs’ a bility to identify

an impaire d 8 contra ctual re lationship, see M cDonald, 546 U.S. at 476, the Court does not addre ss whether plaintiffs’ collec tive barg ainingagree ment qualifies. See id. at 476 n.3 (de clining to a pprove or disapprove of

§ 1981 suits by

plaintiffs who have rig hts under, but ar e not par ties to, an impaired contra ct). The Court notes, howeve r, that § 1981 applies to employ ment relationships. See CBOCS W

., Inc. v . Humphries , 553 U.S. 442, 450 (2008); Johnson v. Ry . Exp. Age ncy, I nc. , 421 U.S. 454, 459–60 (1975). 11by

District employ ees tha

t fall within the province of the CMPA.” McM

anus v. District of Columbia , 530 F. Supp. 2d 46, 78 (D.D .C. 2007) (collec ting c ases) . Be cause plaintiffs do not respond to the District’ s jurisdictional argument — let alone pr ovide a r eason why they wer e not require d to raise their

complaint befor e the OE A — the Court dee ms that argument conce ded. See Lewis v. District of Columbia , 2011 WL321711, at *1 (D.C. Cir. Fe b. 2, 2011). Acc ording ly , the District’s motion is gra nted as to Count I I I

. 4. Count IV: Violations of the D.C. Hum an Rights Act The D.C. Human Rig hts Act, D.C. C O D E § 2-1401 et seq. , is designe d to end discrimination “for a

ny rea son other than that of

individual merit, including, but not limit ed to, discrimination by

rea son of ra ce . . . [and] ag e.” Id . § 2-1401.01. The A ct spec ifically prohibits a rang e of e mploy

ment actions that ar e take n “wholly or par tially ” bec ause of

those traits (among others). Id . § 2-1402.11. Unlike the Equa l Protection Clause, the Ac t rea ches not only purposef ul discrimination but also any prac tices that “be ar dispropor tionately on a prote cted c lass and ar e not independe ntly justified for some nondiscr iminatory rea son.” Gay Rights Coal. of George town Univ. Law C tr. v. George town Univ. , 536 A.2d 1, 29 (D.C. 1987) ( en banc ) (c iting D.C. C O D E § 1-2532 (1987) , now codified at D.C. C O D E § 2-1402.68 (2001) ); accord Este nos v. PAHO/W HO Fe d. Credit Union , 952 A.2d 878, 887–88 (D.C. 2008). The Act thus incorpor ates “the c oncept of

disparate impact discrimination.” Gay Rights Coal. , 536 A.2d at 29 (c iting Griggs v. DukePower Co. , 401 U.S. 424 (1971)). 9

Some decisions in this di strict have stated that the Human Rig hts Act, like § 1981, 9 prohibits only

intentional discrimination. E.g. , Lemmons v. G eorgetown Univ. Hosp. , 431 F. Supp. 2d 76, 86 (D.D.C. 2006) (c iting Fox v . Giaccia , 424 F. Supp. 2d 1, 6–7 (D.D .C. 2006)). To the extent that those decisions contra dict the D.C. Court of Appea ls’s description of the Act’s scope, the Court must di sreg ard the m. See I ndep. Pe trochem. Corp. v. Ae tna Cas. & Sur. Co. , 12Plaintiffs have plainly stated a c laim for re lief under the Human Rig hts Act. Be cause the Act re ache s “unintentional discrimination as well as intentional,” Ramirez v. D istrict of Columbia , 2000 WL517758, at *3 n.9 (D.D .C. 2000), plaintiffs have stated a c laim thereunde r either through a disparate treatment theory , as desc ribed a bove with re g ard to § 1981 a nd § 1983, or via a disparate impact theory

. See 3d Am. Compl. ¶¶ 8–16 (desc ribingthe disparate impact of DCHF’ s RI F) . Indeed, the District does not seriously dispute — and appe ars a t times to concede , see Def .’s Mem. in Supp. of Def

.’s Mot. to Dismis s at 7–8; Def.’ s Reply to Pl.’s Opp’n at 8 — that plaintiffs have plead a plausible disparate impact cla im. Accor dingly , the District’s motion is denied as to Count I V.

III. CONCLUSION For the fore g oing r easons, the Court c oncludes that plaintiffs have stated c laims for re lief under § 1981, § 1983, a

nd the D.C. Human Rig hts Act; howeve r, they have not state d a cla im under the District’s municipal per sonnel regulations. Acc ording ly , it is t his 12 day of Jul y 2011 here by t h ORDERED that defe ndant’s motion to dism iss [ #39] i s GR ANTED as to Count I I Iof plaintiffs’ third ame nded complaint, and DENIED in all other re spects.

Henr y H. Kenne dy , J r. United States District J udg e 944 F.2d 940, 944 ( D.C. Cir. 1991). Moreove r, other f eder al dec isions have re cognized that the Act “pr ohibits uni ntentional discrimination as well as intentional.” Ramirez v. D istrict of Columbia , 2000 WL517758, at *3 n.9 (D.D .C. 2000); accord 2922 She rman Ave . Tenants’ Ass’n v. District of Columbia , 444 F.3d 673, 685 ( D.C. Cir. 2006); Mitchell v. D CX, Inc. , 274 F. Supp. 2d 33, 47 (D.D .C. 2003). 13