The opinion of the court was delivered by: HARRIS
The plaintiff is a black female who was employed by the defendant in August 1981 as a secretary. Following her suspension on June 30, 1982, and her ultimate termination on July 13, 1982, she filed charges of racial discrimination and retaliation with both the Equal Employment Opportunity Commission (EEOC) and the District of Columbia Office of Human Rights (OHR). She alleges that the termination was a result of her absences from work which she characterizes as substantial but legitimate due to major surgery, illness, and a family death. On August 24, 1984, the OHR issued a determination in which it found that there was probable cause to believe that the defendant had committed unlawful discriminatory employment practices. The plaintiff thereafter withdrew her complaint from the OHR and elected to seek redress through the judicial process. See D.C. Code § 1-2556 (1981). A right-to-sue notice was issued by the EEOC on January 20, 1984.
This suit was filed on April 13, 1984. The plaintiff seeks declaratory and equitable relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; compensatory and punitive damages based on Title I of the Civil Rights Act of 1866, 42 U.S.C. § 1981; and relief under the District of Columbia Human Rights Act (DCHRA), D.C. Code § 1-2556. A common law claim of breach of contract also is asserted.
The defendant has filed a somewhat simplistically styled "Motion To Strike Jury Demand." It is predicated on the contention that plaintiff's claims under the DCHRA and § 1981 are time-barred. The Court next is urged to decline to exercise pendent jurisdiction over the local law claim for breach of contract, since the sole federal claim at issue would be under Title VII. Title VII carries no right to a jury trial, so the plaintiff would have no remaining claim by which she is entitled to a jury trial.
II. STATUTE OF LIMITATIONS
A. DISTRICT OF COLUMBIA HUMAN RIGHTS ACT
The plaintiff's complaint was filed in this court one year and nine months following her discharge, well beyond the statutory period. She argues, however, that the mere existence of a one-year limitation period does not foreclose her claims under the DCHRA. She contends that tolling principles should be read into the Act to suspend the running of the statute of limitations during the pendency of her administrative action, which she began four months after her discharge.
The Supreme Court read tolling principles into Title VII, the federal counterpart to DCHRA,
when it held that compliance with the filing period was not a jurisdictional prerequisite to filing a Title VII suit, but rather was subject to tolling when equity required. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982). Although Zipes involved the time limit for filing a charge of discrimination with the EEOC under Title VII, its reasoning extends to the limitation for filing suit after withdrawing from the administrative process under the DCHRA. By plaintiff's filing of charges with the OHR, the particular purpose of filing, i.e., prompt notice to the defendant employer, was satisfied. Similarly, the other purposes of statutes of limitation in discrimination cases would not be frustrated by tolling. Statutes of limitations are designed to ensure fairness to defendants by protecting against "stale claims in which the defense is hampered by lost evidence, faded memories, and disappearing witnesses, and to avoid unfair surprise." Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 473, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975) (Marshall, J., concurring in part and dissenting in part). See also Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 89 L. Ed. 1628, 65 S. Ct. 1137 (1945). Here the defendant had an opportunity to -- and did -- defend at the agency level against the same discrimination claims now asserted in this litigation. Furthermore, relevant evidence was compiled and preserved by both parties through administrative records, thereby mitigating the danger of impermanent evidence which is characteristic of discrimination cases.
The situation of a withdrawn timely administrative complaint and a subsequent attempt to sue after the expiration of the one-year limitation period was dealt with in Jones v. Management Partnership, Inc., 32 FEP Cases 639 (D.D.C. 1983). There, Judge Flannery found that the employee's suit was not barred by her previous administrative filing with the OHR where it was withdrawn after the OHR found probable cause but before a hearing could be held. Id. at 640-41. That did not help the plaintiff in Jones, however, for without considering the possibility of tolling the statute during the pendency of the administrative action, Judge Flannery found that her action at law was barred for untimely filing. Under that ruling, a plaintiff alleging discrimination who wished to preserve her judicial remedy would either have to withdraw her administrative complaint within one year regardless of its stage of resolution, which would be a waste of resources, or would have to look solely to the courts since the two remedial procedures cannot run concurrently.
The policy in support of conciliation and voluntary compliance through administrative proceedings in the DCHRA would be short-circuited by excessive technicality. Therefore, although the DCHRA statute of limitations is applicable, the Court concludes that it was suspended during the pendency of the plaintiff's administrative action and that portion of plaintiff's claim is not time-barred.
"Since there is no specifically stated or otherwise relevant federal statute of limitations for a cause of action under § 1981, the controlling period would ordinarily be the most appropriate one provided by state law." Johnson v. Railway Express Agency, Inc., 421 U.S. at 462. In other words, "the applicable period of limitations is derived from that which the State would apply if the action had been brought in a state court." Id. at 469 (Marshall, J., concurring in part and dissenting in part). In this case, the plaintiff's claims of employment discrimination under § 1981 are identical to those presented under the DCHRA. Once the one-year period was extended to actions at law under Davis, it became applicable to actions at law under § 1981 as the most analogous limitations period.
Previous decisions have held that the general residuary statute of limitations would apply. D.C. Code § 12-301(8).
The first case to so hold, Macklin v. Spector Freight Systems, Inc., 156 U.S. App. D.C. 69, 478 F.2d 979 (D.C. Cir. 1973), was decided prior to the enactment of any specifically analogous limitations period under District of Columbia law. After the enactment of the DCHRA, the United States Court of Appeals for the District of Columbia Circuit noted that the three-year residuary limitations period applied to § 1981, but it did ...