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WIGGINS v. HITCHENS

May 13, 1994

JAMES RUSSELL WIGGINS, JR., and LESLIE R. COATES, III, Plaintiffs,
v.
WILLIAM HITCHENS, et al., Defendants.



The opinion of the court was delivered by: ROYCE C. LAMBERTH

 This matter comes before the court on defendants Pettinelli and Hitchens' joint motion to dismiss the complaint *fn1" and defendant Williams' motion to dismiss the complaint, or in the alternative, for summary judgment. *fn2" Upon consideration of the filings of counsel and the relevant law, defendants Hitchens and Pettinelli's motion to dismiss will be granted in part and denied in part in accordance with this memorandum opinion. Defendant Williams' motion to dismiss, or alternatively, for summary judgment will be granted.

 I. Introduction

 Plaintiffs bring this lawsuit against three managers of District Cablevision and Philip Morris, Inc., for alleged violations of the plaintiffs' civil rights, 42 U.S.C. §§ 1981, 1983, and 1985, for violations of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq., and numerous other federal and state causes of action. In addition, both plaintiffs, African-American men, claim to be the objects of elaborate conspiracies to suspend or discharge their employment. Compl. PP 7, 10, 12-13, 16-18. *fn3"

 II. Fair Credit Reporting Act

 Plaintiff Wiggins asserts that he was terminated from employment with District Cablevision and Philip Morris, Inc. because of the dissemination and use of an erroneous consumer report from Equifax Services, Inc. indicating that Mr. Wiggins had been convicted for felony possession of cocaine in the District of Columbia in 1989. Id. P 12. *fn4" Plaintiff Wiggins now seeks to hold defendants Hitchens and Pettinelli responsible for his termination.

 The FCRA imposes different obligations upon consumer reporting agencies that provide consumer credit information and users of consumer reports. Compare 15 U.S.C. §§ 1681(b), 1681c-1681e with id. § 1681m. It is clear that defendants are not "consumer reporting agencies" as defined by the Act, id. § 1681a(f); however, defendants may qualify as "users" of the Equifax report. In Austin v. Bank America Serv. Corp., 419 F. Supp. 730, 733-34 (N.D. Ga. 1974), the court found that employees of a bank carrying out their responsibilities within the scope of their employment were not "users" of consumer reports under the FCRA. The bank, not the employees of the bank, was found to be a "user" under the Act. Thus, defendants Hitchens and Pettinelli could only be considered "users" under the Act if they were acting outside the scope of their employment. See Yohay v. City of Alexandria Employees Credit Union, 827 F.2d 967, 973 (4th Cir. 1987); Austin, 419 F. Supp. at 734. Plaintiff alleges facts that could support such a finding.

 Notwithstanding this classification, defendants Hitchens and Pettinelli have not violated any of the user provisions of the FCRA. Plaintiffs' complaint fails to allege any facts constituting the elements of a violation of the user provisions under the Act.

 Although the complaint mentions violations of section 1681k and 1681e(b) of the Act, those sections of the statute would hold "a consumer reporting agency" responsible for any inaccuracies or errors in a consumer report. See Compl. P 18(c). Equifax, the consumer reporting agency, would be liable for any inaccuracies if it were determined that Equifax bad failed to follow reasonable procedures to assure maximum possible accuracy of the information. 15 U.S.C. § 1681e(b). Equifax, the consumer reporting agency, is required to provide the consumer notice or to maintain strict procedures to insure the report was up to date if the report was a matter of public record and likely to have an adverse effect upon the consumer's ability to obtain employment under section 1681k.

 To the extent that Mr. Wiggins has attempted to allege violations of any sections of the FCRA, his claim is insufficiently pled as a matter of law, and the FCRA claims against all defendants are dismissed with prejudice. *fn5"

 III. Section 1981

 Plaintiffs claim that they were harassed because of their race during the course of their employment and that this racial animus caused them to be fired. None of these claims are cognizable under 42 U.S.C. § 1981. See Compl. P 16(c); 19.

 Plaintiffs' allegations were not viable under section 1981 prior to the enactment of the Civil Rights Act of 1991. As the Supreme Court stated in Patterson v. McLean Credit Union, section 1981 "does not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations." Patterson v. McLean Credit Union, 491 U.S. 164, 171, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989).

 Section 1981 does not protect an employee against discriminatory treatment during the course of his employment, including the imposition of discriminatory working conditions. See Patterson, 491 U.S. at 177; Gersman v. Group Health Ass'n, 289 U.S. App. D.C. 332, 931 F.2d 1565, 1570-72 (D.C. Cir. 1991), vacated and remanded 112 S. Ct. 960 (1992). Furthermore, section 1981 does not apply to breach-of-contract or contract-termination claims. See Gersman, 931 F.2d at 1571. Plaintiffs' racial harassment and discriminatory discharge claims under section 1981 are dismissed.

 To the extent that plaintiffs argue that the Civil Rights Act of 1991 should apply retroactively to their case, the claim is denied. Rivers v. Roadway Express, Inc., 114 S. Ct. 1510-6, 128 L. Ed. 2d 274, 1994 U.S. LEXIS 3294, *5 (April 26, 1994); Gersman v. Group Health Ass'n, 298 U.S. App. D.C. 23, 975 F.2d 886, 889-900 (D.C. Cir 1992) (adopting the decision in Gersman v. Group Health Ass'n, 289 U.S. App. D.C. 332, 931 F.2d 1565 (D.C. Cir. 1991), vacated and remanded, 112 S. Ct. 960 (1992)), cert. denied, 114 S. Ct. 1642 (1994); Van Meter v. Barr, 778 F. Supp. 83 (D.D.C. 1991); Allen v. McEntee, 1993 U.S. Dist. LEXIS 4122 (D.D.C. Apr. 2, 1993) (Lamberth, J.).

 IV. Section 1983

 In paragraph 16(c) of the complaint, plaintiff Wiggins suggests that defendants violated the provisions of 42 U.S.C. § 1983 by "circulating, and discussing, and aiding and assisting Equifax, Inc. and Equifax Services, Inc. [in] distribut[ing]" an erroneous Equifax consumer report relating to Mr. Wiggins. However, section 1983 requires that the action taken to deprive plaintiff of equal protection of the laws involve some state action. No state action is alleged in this case. Plaintiff Wiggins' 1983 claim is without merit. *fn6"

 V. Civil Rights Conspiracy

 In order to plead a viable cause of action under 42 U.S.C. § 1985(3), a plaintiff must allege (1) an act in furtherance of (2) a conspiracy (3) to deprive any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws. Great American Fed. Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 372, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979); see Wiggins v. Philip Morris, Inc., C.A. No. 92-493 (D.D.C. May 13, 1994) (denying and granting in part defendant Philip Morris, Inc.'s motion to dismiss). "Section 1985(3) provides no substantive rights itself; it merely provides a remedy for violation of the rights it designates." Novotny, 442 U.S. at 372. Therefore, this court must determine whether violations of the federal laws asserted in this case equate to a deprivation of "'the equal protection of the laws, or of equal privileges and immunities under the laws' within the meaning of § 1985 (3)." Id. There can be no recovery under section 1985(3) absent a violation of a substantive federal right.

 Mr. Wiggins alleges that he had "racially motivated problems" with defendants Hitchens and Pettinelli during his employment with Philip Morris from 1988 to 1990. These problems prompted these managers, along with Philip Morris, to fire plaintiff on the basis of concerted efforts with Equifax, Inc., and District Cablevision. Compl. P 8, 15. *fn7" On the other hand, Mr. Coates only pleads that defendants Hitchens and Pettinelli, along with another Philip Morris employee, engaged in "conspiratorial acts" to violate his civil rights. Id. PP 16-19.

 The Fair Credit Reporting Act cannot be used as the underlying federal cause of action for a section 1985(3) claim. See Wiggins v. Philip Morris Inc., CA. No. 92-493, § VI(E)(3) (D.D.C. 1994) (granting and denying in part defendant Philip Morris, Inc.'s motion to dismiss). Plaintiff Wiggins' claim in this respect is dismissed. Mr. Coates' conspiracy theory has nothing to do with the use of an Equifax report. *fn8"

 To the extent that plaintiffs maintain that 42 U.S.C. § 1981 should be used as a basis for a cause of action under section 1985(3), plaintiffs' claims are dismissed. Compl. P 16(c). Federal statutory rights such as those protected under section 1981 may provide a substantive basis for a section 1985(3) claim; see Alder v. Columbia Historical Soc., 690 F. Supp. 9, 15 (D.D.C. 1988) (Bryant, J.); Thompson v. International Assoc. of Machinists and Aerospace Workers, 580 F. Supp. 662, 668 (D.D.C. 1984) (Green, Joyce Hens, J.); however, plaintiffs fail to allege a violation of section 1981 by any of the defendants. See supra § III Plaintiffs also fail to allege the requisite elements of a conspiracy to violate section 1981.

 Likewise, plaintiffs fail to allege a violation of section 1983 or the requisite elements of a conspiracy ...


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