the words of Corporation Counsel "no basis, other than speculation, for determining how OHR would resolve the merits [of plaintiff's claim]." Reply by the District of Columbia in Support of Motion to Remand at 2, Alder v. District of Columbia Office of Human Rights, No. 84-1619 (D.C. Sept. 4, 1985). Therefore, because OHR's finding of no jurisdiction throws the status of its earlier action into such uncertain light, this court is unwilling to hold that OHR's finding of no probable cause precludes plaintiff from litigating her § 1981 claim in federal court.
2. Plaintiff's claim under 42 U.S.C. § 1985(3)
A. Statute of Limitations
Defendants contend that plaintiff's claim under § 1985(3) is also barred by the statute of limitations.
In support of this position, defendants cite Hobson v. Brennan, 625 F. Supp. 459 (D.D.C. 1985), in which Judge Oberdorfer undertakes an exhaustive assessment, in light of Wilson, of the Court of Appeals directive in Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1, 32 n.99 (1984), that § 12-301(8) govern claims under § 1985(3). Defendants argue that application of a three year limitations period to the plaintiff's § 1985(3) claims in Brennan was a function of the particular facts of that case which would render application of the one year period inequitable, and that because no such considerations obtain in the present case, this court should interpret Wilson to require application of the one year limitations period set out in § 12-301(4). See 625 F. Supp. at 468-70. Again, this court is not persuaded by defendants' arguments that the facts of this case warrant deviating from the reasoning set out in Wilson, Banks and Brennan in support of application of a three year limitation period. See also Pope v. Bond, 641 F. Supp. 489, 495 (D.D.C. 1986). Judge Oberdorfer's analysis of the difficulties often inherent in bringing a claim for a conspiracy under § 1985(3) and the concern voiced in Wilson that the limitations period chosen fairly "serve the federal interests," 625 F. Supp. at 466, quoting Wilson, 471 U.S. at 279, are compelling reasons to recognize a three year limitation period for plaintiff's § 1985(3) claim. The mere fact that the particular conspiracy alleged in plaintiff's pleadings is relatively simple is no grounds upon which to deviate from this general proposition; to do otherwise would to be to run directly afoul of the Supreme Court's caution regarding fact specific limitation periods. 471 U.S. at 272.
B. Collateral Estoppel
Defendants have also raised the issue of collateral estoppel with respect to plaintiff's claim under § 1985(3). For the reasons set out above in the discussion of plaintiff's § 1981 claim, defendant's motion on this point is denied.
C. Adequacy of Conspiracy Claims
Defendants maintain that plaintiff has failed to establish a valid conspiracy claim under § 1985(3). First, defendants assert that plaintiff's conspiracy claim must be dismissed because a corporation is incapable of a conspiracy; it must act through its agents and therefore the officers and directors of a corporation cannot be held liable for actions taken in concert. This court agrees generally with the position taken in Weaver v. Gross, 605 F. Supp. 210 (D.D.C. 1985) that "because the general rule of corporate law remains that directors, officers and employees are agents of a corporation and may act on its behalf, they generally should not be held to be conspirators." 605 F. Supp. at 214. However, the more relevant inquiry identified in Weaver is whether the actions complained of were taken on behalf of the corporation by those working within the scope of employment or were taken "solely for personal, non-business motivations." Id. at 215. In the present case, plaintiff's complaint, when construed in the light most favorable to her as it must be at this juncture, alleges that she believed that two of the corporation's officers had discriminated against Mrs. Jackson on the basis of race and gender, actions which, when undertaken by only a few employees or officers of the corporation, remove them from the protective shield of corporate structure.
Defendants also argue that plaintiff has failed to allege a class-based animus that would sustain a claim of conspiracy under § 1985(3).
In order to make out a claim under § 1985(3), plaintiff must allege "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' actions." Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971). However, membership in the "target" class is not a prerequisite for invoking the protections of § 1985(3). Novotny v. Great American Federal Savings & Loan Association, 584 F.2d 1235, 1245 (3rd Cir. 1978) (en banc) vacated on other grounds, 442 U.S. 366, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979). See also Weaver, 605 F. Supp. at 213-14. In the present case, plaintiff has alleged that she was fired in retaliation for her objection to what she believed was the discriminatory firing of Mrs. Jackson, a black woman. This allegation is sufficient to withstand defendant's motion to dismiss.
In addition, because § 1985(3) provides no substantive rights itself, plaintiff must show denial of "the equal protection of the laws, or of equal privileges and immunities under the laws." Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 372, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979).
Plaintiff has claimed that she is protected under § 1981 against retaliation by her employer for her actions in aid of a black woman who she believed had been discriminated against. A white person who is injured as a result of his or her efforts to defend the rights of non-whites has standing to sue under § 1981. Des Vergnes v. Seekonk Water District, 601 F.2d 9 (1st Cir. 1979), vacated on other grounds, 454 U.S. 807, 70 L. Ed. 2d 76, 102 S. Ct. 81 (1981); Winston v. Lear-Siegler, Inc., 558 F.2d 1266 (6th Cir. 1977); DeMatteis v. Eastman Kodak Co., 511 F.2d 306 (2d Cir. 1975). Rights created under § 1981 are federal rights that may form the basis of a claim under § 1985(3). Thompson v. International Association of Machinists, 580 F. Supp. 662 (D.D.C. 1984). Therefore plaintiff has stated a colorable claim under § 1985(3).
3. Plaintiff's Claim under D.C. Code § 1-2525
A. Election of Remedies
Defendants challenge plaintiff's claim under § 1-2525 of the D.C. Human Rights Act on the grounds that the election of remedies provision of the Act precludes the initiation of a suit in federal court once OHR has rendered a probable cause finding. In Brown v. Capitol Hill Club, 425 A.2d 1309 (D.C. 1981), the D.C. Court of Appeals interpreted the D.C. Human Rights Act and associated regulations to require that a complainant wishing to retain his or her right to bring a complaint under the Act in court must withdraw any complaint filed with OHR before that office issues its findings. Defendants argue that because OHR issued a finding of "no probable cause" in response to plaintiff's complaint and its subsequent finding of no jurisdiction did not disturb the earlier finding, plaintiff's right to seek redress of her complaint in court has been lost. If the course of plaintiff's complaint had ended with a proper finding of no jurisdiction, defendants might prevail with this argument. In this case however, the status of OHR's initial finding of no probable cause was thrown into question by the August 15, 1985 remand to OHR by the Court of Appeals of the question of OHR's interpretation of § 1-2525. As noted above in the discussion of collateral estoppel, the District of Columbia in support of its motion to remand argued that because of OHR's incorrect finding of no jurisdiction, OHR had not properly reconsidered the merits of plaintiff's claim and the conclusion it would reach once it did so was an open question. Because of this uncertainty as to the viability of OHR's initial finding, this court finds plaintiff has not had a finding on the merits of her claim adequate to invoke the election of remedies bar to the present suit.
B. Statute of Limitations
Defendants argue that even if the election of remedies provision does not foreclose a suit before this court, such action is barred by the one year statute of limitations for suits under the D.C. Human Rights Act. See Davis v. Potomac Electric Power Company, 449 A.2d 278 (D.C. 1982). This argument is unpersuasive. In a portion of Blake v. American College of Obstetricians & Gynecologists, 608 F. Supp. 1239 (D.D.C. 1985), not overruled by the court of appeals decision in Banks, 256 U.S. App. D.C. 22, 802 F.2d 1416, Judge Harris found that the statute of limitations is tolled during the pendency of an action before OHR. Under this analysis, plaintiff's action before this court is timely and will not be dismissed.
4. Wrongful Discharge
Finally, plaintiff maintains that she is entitled to pursue a claim for wrongful discharge in violation of public policy on the theory that defendants terminated her in direct contravention of the District of Columbia's clearly expressed policy against race and gender-based discrimination. Defendants argue that this claim should be dismissed because the District of Columbia courts have not yet recognized any exceptions to the common law doctrine of employment at will. In support of their position, defendants point to Ivy v. Army Times Publishing Co., 428 A.2d 831 (D.C. 1981) (en banc), in which the court denied a petition for a rehearing en banc of a panel decision which held that there was no cause of action for wrongful discharge in the District of Columbia. The court in Parker v. National Corporation for Housing Partnerships, 619 F. Supp. 1061 (D.D.C. 1985), reversed on other grounds, No. 85-5985, slip op. (D.C. Cir. June 2, 1987), apparently relied on Ivy in finding that there was no cause of action for wrongful discharge under D.C. law. 619 F. Supp. at 1067-68.
Plaintiff contends that Ivy is no longer good law and that this court should find that if faced with the particular facts of this case today, the District of Columbia would acknowledge a claim for wrongful discharge. In Newman v. Legal Services Corporation, 628 F. Supp. 535 (D.D.C. 1986), Judge Flannery reviewed the opinions of the judges who dissented in the Ivy decision and undertook a thorough survey of the evolving doctrine of wrongful discharge before concluding that "the District of Columbia would recognize a public policy exception to the at-will employment doctrine." 628 F. Supp. at 539. The more recent case of Wemhoff v. Investors Management Corporation of America, 528 A.2d 1205 (D.C. 1987) lends considerable support to the Newman holding insofar as the court clearly implied that under the proper circumstances it would inquire as to whether a discharge violated "some statutorily declared public policy" and thereby was an exception to the general employment-at-will rule. 528 A.2d at 1208 n.3, quoting Ivy, 428 A.2d at 835 n.9 (Ferren, J., dissenting). Because of this apparent willingness of the D.C. Court of Appeals to recognize that certain discharges may, in fact, fall outside of the cloak of protection given employers by the employment-at-will-doctrine and because plaintiff's claims, if proven, would appear to implicate a statutorily expressed public policy, defendants' motion to dismiss the wrongful discharge claim is denied.
Therefore, for the reasons set out above, defendants' motion to dismiss is denied.
ORDER - May 17, 1988, Filed
Upon consideration of defendants' motion to dismiss, the papers in support thereof and the opposition thereto, it is hereby
ORDERED that defendants' motion to dismiss is denied.