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.
B. SECTION 1981
"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 so without explicit consideration of the DCHRA. Gordon v. National Youth Work Alliance, 218 U.S. App. D.C. 337, 675 F.2d 356, 358 n.1 (D.C. Cir. 1982).
On the district court level, two judges have held that the general three-year limitation period applied. In the first case, Judge Flannery rejected the trend of authority in other jurisdictions and declined to apply the one-year period. Jones v. Management Partnership, Inc., 32 FEP at 641. The decision was based on a New York case, Seymore v. Reader's Digest Ass'n., Inc., 493 F. Supp. 257 (S.D.N.Y. 1980). This Court respectfully concludes that such reliance was inappropriate. While the New York court could characterize the one-year period found in their local statute as part of a "comprehensive administrative scheme" and therefore inapplicable to the judicial remedy of § 1981, the one-year period of the DCHRA already has been held to apply to the DCHRA's judicial remedy, which is a remedial measure not available in New York. Furthermore, the New York court distinguished its local statute as dealing only with employment discrimination, in contrast to the broader purposes of § 1981. Id. at 266. Here, the DCHRA's measures extend beyond employment discrimination in § 1-2512, to real estate transactions in § 1-2515, to public accommodations in § 1-2519, and to educational institutions in § 1-2520.
The next opinions, written by Judge June L. Green, adopted Judge Flannery's reasoning. See Hughes v. Chesapeake & Potomac Telephone Co., 33 FEP 1648 (D.D.C. 1983); Covert v. Washington Hilton Hotel, 33 FEP Cases 660 (D.D.C. 1983). For the same reasons, this Court respectfully concludes that those decisions are not persuasive.
One judge on this court has taken the contrary view. In Parker v. B & O Railroad Co., 555 F. Supp. 1182, 1187-88 (D.D.C. 1983), decided immediately after the District of Columbia Court of Appeal's opinion in Davis v. Potomac Electric Power Co., Judge Harold Greene found that the one-year period should apply to § 1981 once it had been held applicable to judicial proceedings under the DCHRA. The trend of authority in other jurisdictions has been to apply the limitations period of state anti-discrimination statutes to Civil Rights Act claims rather than general limitation statutes.
This is in keeping with the Supreme Court's opinion in Runyon v. McCrary, 427 U.S. 160, 180, 49 L. Ed. 2d 415, 96 S. Ct. 2586 (1976), which implied that the limitation period of a state statute which specifically governed civil rights suits should apply, rather than a more general provision.
Finally, in the Supreme Court's most recent consideration of the applicable state statute of limitations period for § 1981, it was held that Maryland's general three-year statute of limitations, rather than its six-month provision for filing administrative complaints, governs § 1981 claims in Maryland. See Burnett v. Grattan, 468 U.S. 42, 104 S. Ct. 2924, 2933, 82 L. Ed. 2d 36 (1984). That decision, however, explicitly was based on the lack of a private cause of action under Maryland law and the inherent differences between administrative actions and actions at law. Once the District of Columbia Court of Appeals held that a one-year period is proper for both types of action, the differences which were present in Burnett v. Grattan no longer may be deemed to be controlling.
Thus, this Court concludes that the plaintiff's § 1981 claim, like her DCHRA claim, is subject to the local one-year statute of limitations. In contrast to the tolling of the statute of limitations to which the plaintiff is entitled for her DCHRA claim pending her administrative proceeding, her § 1981 claim is not subject to tolling. In Johnson v. Railway Express Agency, Inc., supra, the Supreme Court held that the plaintiff's untimely filed § 1981 claims were time-barred despite the timely filing of a Title VII complaint based on the same facts. The Court found that the plaintiff had slept on his § 1981 rights since he could have filed his § 1981 action at any time after his cause of action accrued, it being a remedy separate and independent of Title VII. 421 U.S. at 466. Section 1981 is similarly separate from the DCHRA and, unlike the judicial remedy provided in the DCHRA, a claim under it could have been filed at any time and could be pursued concomitantly with the administrative remedy under DCHRA. Therefore, the plaintiff's § 1981 claim is time-barred.
III. PENDENT JURISDICTION AND RIGHT TO A JURY TRIAL
On January 25, 1985, the plaintiff's motion for leave to amend the complaint was granted, thereby adding 28 U.S.C. § 1332 as an independent jurisdictional basis (diversity) for the plaintiff's common law breach of contract claim. Therefore, the case will go forward on this claim as well as on the claims under Title VII and the DCHRA. Pendent jurisdiction over the state law claims need not be exercised.
Common law claims for breach of contract carry with them a right to a jury trial. See Eller v. Houston's Restaurants, 35 FEP Cases 1801, 1802 (D.D.C. 1984). The plaintiff is entitled to a jury trial on this claim.
The plaintiff's claim under the DCHRA is not time-barred. Her claim under § 1981 must be dismissed as untimely. Diversity jurisdiction has been established for the plaintiff's claims under the DCHRA and the common law of the District of Columbia. Therefore, there is an independent basis for a jury trial.
In accordance with the foregoing and upon consideration of the defendant's motion to strike jury demand, the opposition thereto, the supplemental memoranda, and the plaintiff's amended complaint, it hereby is
ORDERED, that the motion is denied. It hereby further is
ORDERED, that the plaintiff's claim under 42 U.S.C. § 1981 is dismissed.