equivalent to termination of state proceedings).
On the other hand, if the provisions of § 2000e-5(c) are nonjurisdictional, OHR can waive its right of review entirely under the worksharing agreement. Accord, Douglas v. Red Carpet Corp. of America, 538 F. Supp. 1135 (E.D. Pa. 1982). Under either theory, the same result is reached and the operation of § 2000e-5(c) will not mandate dismissal of plaintiff's claim.
3. The § 1985(3) Claim
Defendants raise a three-part challenge to plaintiff's claims under 42 U.S.C. § 1985(3), which makes available damages for certain civil rights violations resulting from discriminatory conspiracies.
Briefly summarized, defendants' arguments are that plaintiff lacks a substantive basis to support the purely remedial provisions of § 1985(3), that defendants cannot form a conspiracy within the meaning of § 1985(3), and that even if a § 1985(3) claim could lie against these defendants, plaintiff has not met the pleading requirements of the statute. These arguments are addressed in turn below.
Defendants correctly state, and plaintiff acknowledges, that § 1985(3) provides no substantive rights to plaintiff; it merely provides a remedy for violation of the rights it designates. Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 372, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979). The Supreme Court has expressly removed the guarantees of Title VII from the category of "designated rights" subject to redress under § 1985(3), holding that if a violation of Title VII could be asserted through § 1985(3), the complainant could avoid Title VII's detailed and specific remedial provisions and the administrative process which plays a critical role in that scheme. Novotny at 376. If plaintiff's § 1985(3) claim rested solely upon alleged violations of Title VII rights, Novotny would preclude her action; however, as plaintiff also asserts substantive violations outside of Title VII, the § 1985(3) claim may be otherwise cognizable.
Plaintiff states in her opposition to defendants' motion to dismiss that violations of the D.C. Human Rights Act can provide the substantive basis for a 1985(3) claim, relying on Life Insurance Co. of North America v. Reichardt, 591 F.2d 499 (9th Cir. 1979), for the proposition that the remedial provisions of § 1985(3) apply with equal force to deprivations of state and federal rights. Plaintiff's reliance on Reichardt is rejected here, as Novotny, which postdates Reichardt by several months, described § 1985(3) as a remedial statute "providing a civil cause of action when some otherwise defined federal right -- to equal protection of the laws or equal privileges and immunities under the laws -- is breached by a conspiracy." Novotny at 376 (emphasis supplied). See also National Conservative Political Action Committee v. Kennedy, 563 F. Supp. 622, 626 (D.D.C. 1983) ("That section [1985(3)] provides a remedy, in the form of a civil action for damages, for the deprivation of various federal rights.") Plaintiff's argument can also be rejected on the ground that neither the original nor the amended complaint incorporates plaintiff's allegations under the D.C. Human Rights Act as part of the § 1985(3) claim.
Apart from the Title VII and D.C. Human Rights Act claims, plaintiff alleges, in Count I of the Amended Complaint, that her discharge by defendants was an act of racial discrimination in violation of 42 U.S.C. § 1981. The obstacles discussed above barring plaintiff's use of § 1985(3) remedies are not present here, as § 1981 is clearly a federal source of rights
and, unlike Title VII, "§ 1981 is not derived from a statutory scheme whose policies would be frustrated by the relitigation under another remedial statute." Hudson v. Teamsters Local Union No. 957, 536 F. Supp. 1138, 1147 (S.D. Ohio 1982). Therefore, this Court will follow those courts of other jurisdictions holding that the rights created by § 1981 are cognizable under § 1985(3). Hudson at 1147; Witten v. A.H. Smith & Co., 567 F. Supp. 1063 (D. Md. 1983).
Defendants next argue that plaintiff's § 1985(3) claim should be dismissed because the individual defendants are employees and/or agents of defendant IAM and as such cannot conspire either among themselves or with the IAM. Although the intra-corporate conspiracy doctrine, which precludes a conspiracy between or among a corporate entity and its officers, employees or agents, see Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972), would support defendants' conclusion if the IAM enjoyed corporate status, that doctrine is utterly inapplicable here. Defendant IAM is an unincorporated labor union, and its officers or agents, unlike the officers or agents of a corporation, can be recognized as individual actors capable of entering a conspiracy within the meaning of § 1985(3). See Bailey v. Boilermakers Local 667, 480 F. Supp. 274 (N.D. W.Va. 1979) (denial of motion to dismiss § 1985(3) claim against union).
Finally, defendants contend that plaintiff has failed to plead the specific factual allegations necessary to establish a conspiracy under § 1985(3). Under Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1970), plaintiff's complaint must allege a concerted effort on the part of defendants to deprive plaintiff of her civil rights based on a class-based discriminatory animus, and must allege an act in furtherance of the object of the conspiracy. See Morgan v. District of Columbia, 550 F. Supp. 465, 470 (D.D.C. 1982); Mundy v. Weinberger, 554 F. Supp. 811, 823 n. 37 (D.D.C. 1982).
Defendants' contention that plaintiff's complaint asserts only a broad conclusory allegation of conspiracy is unfounded. The § 1985(3) claim (Count IV of the Amended Complaint), read in conjunction with the factual allegations of paragraphs 9 to 40 which are incorporated by reference within Count IV, amply plead concerted action to discriminate against plaintiff on the basis of her race, and allege that defendants impeded plaintiff's work performance and discharged her from her employment in furtherance of the alleged conspiracy. At this stage of the litigation, plaintiff need not prove her claim but must only plead it, as she has done. Her claim of conspiracy under § 1985(3) is therefore properly before the Court.
4. Actions Against Individual Defendants Winpinsinger, Poulin, Kourpias and Johnson
In addition to the IAM, plaintiff names as defendants to her complaint four individual officers who allegedly either recommended her discharge or made the final discharge decision. The four officers move for dismissal of the claims against them, arguing that they are not "employers" subject to Title VII litigation, and three of the officers further argue that they were not named in plaintiff's charge of discrimination filed with the EEOC and therefore cannot be sued.
Title VII defines the term "employer" to include
a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person. . ." 42 U.S.C. § 2000e(b)(1974) (emphasis added);