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DESKINS v. BARRY

December 4, 1989

TANYA DESKINS, Plaintiff,
v.
MARION BARRY, et al., Defendants



The opinion of the court was delivered by: HARRIS

 STANLEY S. HARRIS, UNITED STATES DISTRICT JUDGE

 This matter is before the Court on defendants' motion to dismiss or in the alternative for summary judgment. Upon consideration of defendants' motion, plaintiff's opposition, defendants' reply, and the entire record herein, defendants' motion is granted in part and denied in part.

 Background

 Plaintiff is a black female who was employed by the District of Columbia Fire Department (DCFD) as a fire fighter. She alleges that during her training and probationary period she was sexually harassed by her co-workers and superiors, and that she was discriminated against because of her race and sex. She filed a complaint of discrimination with the District of Columbia Office of Human Rights (OHR) and sought medical treatment. Plaintiff also contends that defendants discriminated against her because she filed an action with the OHR. Plaintiff filed this action on October 7, 1987.

 Title VII Claim

 Plaintiff's attorney received a right to sue letter from the EEOC on July 2, 1987. *fn1" It was delivered by certified mail addressed to plaintiff in care of her then-attorney, Keith B. Grimes. Grimes signed for the letter. However, Grimes did not file a complaint on plaintiff's behalf until October 7, 1987, 96 days after receipt of the right to sue letter. Defendants claim that because plaintiff filed her complaint six days late, her Title VII claim should be dismissed. Plaintiff argues that the time should be tolled. Plaintiff bases her argument on the fact that her attorney never advised her that the right to sue letter had been received, and thus the requirements of the statute were not met. 42 U.S.C. § 2000e-5(f)(1). She further asserts that the Court should allow equitable tolling in this case, since she had to discharge her attorney and obtain new counsel after Grimes failed to properly represent her in this case. The Court notes that the 90-day filing period is subject to equitable tolling in this Circuit in some instances. See Gordon v. National Youth Work Alliance, 218 U.S. App. D.C. 337, 675 F.2d 356 (D.C.Cir. 1982). However, it is also clear that absent compelling circumstances, notice sent to a party's attorney imputes notice to the party. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S. Ct. 1723, 80 L. Ed. 2d 196 (1984); Josiah-Faeduwor v. Communications Satellite Corp. 251 U.S. App. D.C. 346, 785 F.2d 344 (D.C.Cir. 1986). Plaintiff has failed to meet any special exception which would justify equitable tolling. *fn2" Accordingly, her Title VII claim is time-barred.

 §§ 1981 and 1983 Claims

 Plaintiff cites alleged incidents dating from August 22, 1982, in which her white male colleagues openly displayed pornographic materials and made lewd comments and gestures to her, to early 1984, when she alleges she was denied certain positions, which she claims violate § 1981, § 1983, and the District of Columbia Human Rights Act (HRA). Defendants argue that because plaintiff's complaint fails to allege an incident which occurred within three years of the date on which the lawsuit was filed, plaintiff's § 1981 and § 1983 claims are time-barred. Plaintiff makes two arguments: (1) that plaintiff's filing with the OHR tolled the statute of limitations; and (2) that the "discriminations and other practices alleged were of a continuing nature." Plaintiff's Opposition at 4.

 Section 1-2512 of the HRA prohibits discrimination in employment for any meritless reason, including race, color, sex, age, marital status, sexual orientation, and family responsibility. See D.C.Code § 1-2501 et seq. Section 1-2543 states that the Mayor shall establish rules of procedure for the investigation and hearing of complaints filed against District government agencies, officials, and employees alleging violations of the HRA. Complaints based on the HRA must be filed with the OHR within one year of the occurrence of the allegedly unlawful discriminatory practice. D.C.Code § 1-2544. In addition to establishing the right to bring an action before the OHR, § 1-2556 states that "any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of competent jurisdiction for damages and such other remedies as may be appropriate. . . ."

 It has been held, however, that this private right of action is available only to non-District of Columbia government employees. Newman v. District of Columbia, 518 A.2d 698 (D.C. 1986); Williams v. District of Columbia, 467 A.2d 140 (D.C. 1983). Therefore, District of Columbia employees must exhaust their administrative remedies before seeking judicial review. If they exhaust their remedies under the HRA, then they may seek review under § 1-2554 which allows for review of the Human Rights Commission's decision by the District of Columbia Court of Appeals. D.C.Code § 1-2554.

 Plaintiff argues that because D.C. employees do not have a private right of action, she is prevented from bringing her § 1981 and § 1983 actions until she has exhausted her state administrative remedies. Accordingly, plaintiff argues that her § 1981 and § 1983 claims were tolled until she exhausted her administrative action.

 The Supreme Court has stated that the exhaustion of state administrative remedies is not a prerequisite to the bringing of a civil rights action. See, e.g., Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982); Gilliam v. City of Omaha, 459 F.2d 63 (8th Cir. 1972); Blake v. American College of Obstetricians and Gynecologists, 608 F. Supp. 1239 (D.D.C. 1985); Bradley v. Rockland County Community Mental Health Center, 24 Empl.Prac. Dec. 31, 321 (S.D.N.Y. 1980); Fizer v. Adams, No. 78 C 5042, slip op. (N.D.Ill. 1979). Since exhaustion is not a prerequisite to the initiation of a federal claim premised on § 1981 and § 1983, plaintiff cannot toll the three-year statute of limitations. Accordingly, her federal causes of action under § 1981 and § 1983 are barred by the statute of limitations.

 Plaintiff further argues that the discrimination against her was of a continuing nature; therefore, her § 1981 and § 1983 causes of actions should not be barred. Plaintiff submits one sentence to substantiate this argument and supplies the Court with two exhibits. One of the exhibits is a memorandum sent to Theodore Coleman, the Fire Chief, from the defendant, dated September 4, 1985. This memorandum describes an argument plaintiff had with fire fighter T. J. Potter, who was working at the watch desk on August 28, 1985. Allegedly, after not responding to plaintiff's request that he page the on-duty Engine Officer, Potter stated "Look Babs, I don't have to take your s -- t!" Plaintiff responded in kind, and an ...


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