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ALDER v. COLUMBIA HISTORICAL SOCY.

May 17, 1988

GALE ALDER, Plaintiff,
v.
COLUMBIA HISTORICAL SOCIETY, PERRY G. FISHER, MARK G. GRIFFIN, Defendants



The opinion of the court was delivered by: BRYANT

 WILLIAM B. BRYANT, SENIOR UNITED STATES DISTRICT JUDGE.

 Plaintiff Gale Alder, a white female, has brought this action against defendants Columbia Historical Society and two of its officers for injury arising out of the termination of her employment by the Columbia Historical Society. Plaintiff alleges she was terminated from her job in retaliation for her opposition to defendants' discriminatory treatment of another employee. The complaint asserts claims under 42 U.S.C. §§ 1981 and 1985(3), D.C. Code §§ 1-2525 and 1-2526 and for wrongful discharge. This matter is before the court on defendants' motion to dismiss.

 BACKGROUND

 Defendant Columbia Historical Society ("the Society") is a private membership organization incorporated under District of Columbia law. Defendant Perry G. Fisher was, at the time these claims arose, the Executive Director of the Society. Defendant Mark G. Griffin was President or President-elect of the Society. Plaintiff was hired by the Society in January 1982 to provide administrative and professional support to its Executive Director, President and Treasurer.

 In December 1983, acting on defendant Fisher's recommendation, the Society's Board adopted a resolution to terminate Mrs. Daisy Jackson, an elderly black woman who since 1974 had been responsible for cleaning the Society's headquarters, and to replace her with a white man who would be paid almost three times the wages earned by Mrs. Jackson. Plaintiff believed that defendants had discriminated against Mrs. Jackson on the basis of race and sex and therefore undertook to obtain documentation from defendant Fisher that would assist Mrs. Jackson should the latter wish to challenge her discharge. On December 21, 1983, plaintiff requested that Fisher prepare a written statement of the reasons for Mrs. Jackson's termination. Later that day, Fisher told Ms. Alder to refrain from any further action regarding Mrs. Jackson. On the following day, Fisher informed plaintiff that he considered her request for a statement of his reasons for firing Mrs. Jackson an act of insubordination and demanded her resignation. Plaintiff refused to resign. On January 3, 1984, plaintiff again refused to resign and was thereupon told she was dismissed, effective December 22, 1983. Plaintiff requested that Fisher provide her with a written statement of the reasons for her termination. The statement of reasons which was received by plaintiff on February 11, 1984, stated that she had been fired for her act of insubordination and for removing Society documents from the premises. When plaintiff subsequently reviewed her personnel file, she found that it had been altered to include new documents which impugned her character and performance and that documents with which she was familiar had been deleted. Plaintiff's termination by the Society and the statements maintained in the defendants' personnel file interfered with plaintiff's ability to obtain new employment.

 On March 12, 1984, plaintiff filed a complaint with the D.C. Office of Human Rights ("OHR"), which alleged that she had been discharged in retaliation for assisting a co-worker who has been the subject of discrimination on the basis of sex, race or age. A "no probable cause" finding, indicating that there was no probable cause to believe that D.C. Code § 1-2525 had been violated by defendants, was issued by OHR on August 8, 1984. *fn1" Plaintiff filed a motion to reconsider this determination with OHR and on November 15, 1984, she was informed that the "no probable cause" determination was upheld on the grounds that plaintiff's actions were not protected under the District of Columbia Human Rights Act ("the Act"). This finding has been interpreted by the plaintiff and District of Columbia as a finding of no jurisdiction. Plaintiff appealed the OHR's findings to the District of Columbia Court of Appeals on December 3, 1984. On August 15, 1985, the District of Columbia moved to remand the case on the grounds that OHR's November 15, 1984 determination that it lacked jurisdiction to consider plaintiff's claim was in error. The Court of Appeals remanded the case to OHR on January 9, 1986. Plaintiff then wrote the Director of OHR requesting information on her options upon remand. On April 29, 1986, the Director of OHR notified Ms. Alder that the election of remedies provision of the Act precluded pursuit of an action at law if plaintiff were to withdraw her complaint from OHR. Plaintiff requested withdrawal of her complaint by letter of May 23, 1986, and the complaint was withdrawn effective June 2, 1986. Plaintiff filed her complaint in this court on November 25, 1986.

 ANALYSIS

 As grounds for the motion to dismiss, defendants contend that plaintiff's claims under 42 U.S.C. §§ 1981 and 1985(3) are barred by the statute of limitations and the doctrine of collateral estoppel and that plaintiff has failed to state a claim for either corporate or private conspiracy under § 1985(3). Defendants also maintain that plaintiff's claim under § 1-2525 of the D.C. Code is barred by the election of remedies and the statute of limitations. Finally, defendants argue that the District of Columbia has not recognized any exceptions to the doctrine of employment-at-will and therefore plaintiff's claim for wrongful discharge must be dismissed. *fn2"

 1. Claim under 42 U.S.C. § 1981

 A. Statute of Limitations

 Defendants argue that plaintiff's claim under 42 U.S.C. § 1981 should be governed by the District of Columbia's one year statute of limitations, D.C. Code § 12-301(4), rather than the three year period relied upon by plaintiff, D.C. Code § 12-301(8). *fn3" In support of this position, defendants claim that the injuries plaintiff has alleged are more closely analogous to the intentional torts enumerated under § 12-301(4) than to the more "general" personal injuries governed by § 12-301(8). *fn4"

 In 1973, the D.C. Circuit held that actions under § 1981 are governed by the § 12-301(8) three year limitations period. Macklin v. Spector Freight Systems, Inc., 156 U.S. App. D.C. 69, 478 F.2d 979 (1973). Since that time, the circuit has had occasion to reconsider its Macklin holding in light of the Supreme Court's decision in Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985), which held that for reasons of "uniformity, certainty and the minimization of unnecessary litigation," all claims under 42 U.S.C. § 1983 should be governed by the state statute of limitations applied to tort actions for personal injuries. 471 U.S. at 275-76. In Banks v. Chesapeake & Potomac Telephone Co., 256 U.S. App. D.C. 22, 802 F.2d 1416 (1986), this circuit held that the reasoning of Garcia applied with equal force to claims under § 1981 and that § 1981 claims brought in the District of Columbia should be governed by the personal injury statute of limitations, rather than the one year limitations period applicable to actions brought under the DCHRA. The court also observed that, although the question was not directly before them, actions under § 1981 should be controlled by the ...


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