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WEISS v. IBEW

January 24, 1990

ANITA T. WEISS, Plaintiff,
v.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, and ANTHONY J. SALAMONE, Defendants



The opinion of the court was delivered by: HARRIS

 This matter is before the Court on defendants' motion to dismiss Counts II, III, and IV of plaintiff's amended complaint, and on defendant IBEW's motion to strike the class action allegations of Count V of the amended complaint. For the reasons set forth below, defendants' motions are granted and Counts II, III, IV, and V are dismissed.

 Background

 In October 1974, defendant International Brotherhood of Electrical Workers ("IBEW") hired plaintiff as a secretary. On August 24, 1984, plaintiff became the confidential secretary to defendant Anthony Salamone. Plaintiff alleges that from the time she began working for Salamone, he began a pattern of making sexual advances toward her, and that on one occasion, he pushed her against a door jam in their offices, repeating his advances. Salamone retired from his position with IBEW on April 1, 1987. In September 1987, plaintiff filed a claim of sex discrimination with the District of Columbia Office of Human Rights ("OHR"). Plaintiff alleges that the IBEW then retaliated against her by giving her performance ratings below what she previously had been given and below what she deserved, by passing her over for available positions at her proper pay rate and pay, by excluding her from meetings, and by harassing and demeaning her in the presence of other workers. She also alleges that IBEW generally maintained an atmosphere hostile to women. As a result, plaintiff alleges, she suffered mental and emotional distress requiring medical attention. On April 29, 1988, plaintiff took a medical leave of absence from the IBEW. Plaintiff filed this action on February 8, 1989, and her complaint subsequently was amended on March 15, 1989.

 Discussion

 1. The District of Columbia Human Rights Act Claim

 In Count Two of her amended complaint, plaintiff alleges violations of the District of Columbia Human Rights Act, D.C.Code §§ 1-2511, 1-2512 ("HRA"). Defendants have moved to dismiss this claim, contending that it is barred by the statute of limitations.

 The HRA provides at § 1-2544(a) that: "Any complaint under this chapter shall be filed with the Office within 1 year of the occurrence of the unlawful discriminatory practice, or the discovery thereof. . . ." It is well-settled that this one-year statute of limitations is also applicable to judicial actions brought under the HRA. Davis v. Potomac Electric Power Co., 449 A.2d 278, 281 (D.C. 1982); see also Blake v. American College of Obstetricians and Gynecologists, 608 F. Supp. 1239, 1241 (D.D.C. 1985). Because plaintiff filed her complaint on February 8, 1989, the discriminatory conduct alleged must have occurred on or after February 8, 1988. Even under a continuing discrimination theory, a plaintiff must show:

 
a series of related acts, one or more of which falls within the limitation period, or the maintenance of a discriminatory system both before and during the [limitation] period. . . .

 Valentino v. United States Postal Service, 218 U.S. App. D.C. 213, 674 F.2d 56, 65 (D.C.Cir. 1982) (quoting B. Schlie & P. Grossman, Employment Discrimination Law 232 (Supp. 1979)). *fn1" "The emphasis should not be placed on mere continuity; the critical question is whether any present violation exists." United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977) (emphasis in original).

 The individual defendant, Anthony Salamone, left his employment with the IBEW on April 1, 1987. Thus, any allegedly wrongful conduct toward the plaintiff by him must have occurred prior to that date, clearly outside the limitations period. Plaintiff argues, however, that the filing of her claim with the District of Columbia Office of Human Rights ("OHR") on September 24, 1987, tolled the statute of limitations. A recent decision of the District of Columbia Court of Appeals refutes plaintiff's argument. In Anderson v. United States Safe Deposit Co., 552 A.2d 859, 863 (D.C. 1989), the court held that any HRA claim not brought within the one-year statute of limitations is barred, regardless of whether a claim is first filed with the OHR. Unlike Title VII of the Civil Rights Act, the HRA does not require exhaustion of remedies before pursuit of a judicial remedy, but instead "provides for an ab initio election of remedies." Id. Furthermore, a claimant who files a claim with the OHR may still file a lawsuit, but only if the administrative claim is withdrawn prior to completion of the OHR's investigation or if the OHR dismisses the complaint for administrative convenience. D.C. Code § 1-2556. If a claimant were permitted to toll the limitations period by filing an administrative claim, such a claimant could effectively "buy" more time by simply withdrawing the claim according to the statutory requirements, and then filing a lawsuit. The Anderson court concluded that the statute does not provide for this result, and this Court is bound by that holding. *fn2" Thus, plaintiff cannot prevail on her tolling argument, and Count Two must be dismissed as to the individual defendant.

 As to the IBEW, plaintiff argues that she was continually harassed up to the time she took a medical leave of absence on April 29, 1988. Specifically, she alleges that on April 22, 1988, the IBEW failed to select her for a position at her grade level, and instead demoted her. Taking all allegations in the complaint as true, the Court might have been able to sustain plaintiff's argument that the alleged discriminatory conduct on the part of the IBEW continued into the one-year statutory period. However, the Court finds that plaintiff's HRA claim is barred by the election of remedies doctrine, and thus Count One also must be dismissed as to the IBEW.

 "The jurisdiction of the Court and the OHR are mutually exclusive." Parker v. National Corp. for Housing Partnerships, 697 F. Supp. 5, 7 (D.D.C. 1988) (citing Brown v. Capitol Hill Club, 425 A.2d 1309, 1311 (D.C. 1981)). Under § 1-2556 of the D.C.Code, a person who has filed a complaint with the OHR may not then bring a judicial action unless that person has dismissed it prior to the completion of the OHR investigation or the OHR has dismissed it for administrative convenience. In her amended complaint, plaintiff alleges that she filed a complaint with the OHR in September 1987. Nowhere in her complaint, however, does she state that the complaint was withdrawn in timely fashion or dismissed for administrative convenience. In fact, plaintiff never has informed the Court of the ultimate resolution of her administrative complaint. *fn3" The individual defendant does provide the Court with a letter from the OHR to plaintiff dismissing plaintiff's administrative complaint for lack of prosecution on February ...


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