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WIGGINS v. PHILIP MORRIS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


May 13, 1994

JAMES R. WIGGINS, JR., Plaintiff,
v.
PHILIP MORRIS, INC., and KENNETH NEDIMYER, Defendants.

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

MEMORANDUM OPINION

 This case comes before the court on defendant Philip Morris, Inc.'s motion to dismiss the retaliatory discharge claim in count one, and to dismiss counts two, three, and four of the complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). *fn1" Upon consideration of the filings of counsel and the relevant law, defendant Philip Morris Inc.'s motion to dismiss is GRANTED in part and DENIED in part in accordance with this memorandum opinion. *fn2"

 I. Introduction

 Defendant characterizes plaintiff's complaint as "vague, confusing, contradictory, and inconsistent." Def.'s Mem. Supp. Mot. Dismiss at 4. Defendant is correct. In essence, plaintiff is searching for a legal basis for a wrongful discharge claim. In his complaint, plaintiff seeks to recover damages for civil rights violations, violations of the Maryland Labor and Employment Code and the Fair Credit Reporting Act, and pendent state-law claims. *fn3"

 II. Retaliatory Discharge

 In order to establish a prima facie case of retaliatory discharge under section 704(a) of Title VII, 42 U.S.C. § 2000e-3, *fn4" "a plaintiff must show: 1) that he or she engaged in activity protected by the statute; 2) that the employer . . . engaged in conduct having an adverse impact on the plaintiff; and 3) that the adverse action was causally related to the plaintiff's exercise of protected rights." Berger v. Iron Workers Reinforced Rodmen Local 201, 269 U.S. App. D.C. 67, 843 F.2d 1395, 1423 (D.C. Cir. 1988) (citing Mitchell v. Baldrige, 245 U.S. App. D.C. 60, 759 F.2d 80, 86 (D.C. Cir. 1985); McKenna v. Weinberger, 234 U.S. App. D.C. 297, 729 F.2d 783, 788, 790 (D.C. Cir. 1984)), rehearing en banc 852 F.2d 619 (D.C. Cir. 1988), cert. denied sub nom. International Ass'n of Bridge Structural & Ornamental Ironworkers, AFL-CIO v. Berger, 490 U.S. 1105, 104 L. Ed. 2d 1018, 109 S. Ct. 3155 (1989).

 Title VII protects employees from retaliatory action for involvement in two types of activities. The "opposition" clause of section 704(a) of Title VII prohibits discrimination against a person "because he has opposed any practice made an unlawful employment practice by this subchapter." See supra note 4. This clause prohibits adverse action against an individual who has opposed a practice constituting a violation of Title VII. *fn5"

 Plaintiff engaged in numerous activities protected by the statute, making his opposition to various Philip Morris employment practices well-known. *fn6" Plaintiff was fired. The issue is whether these two prongs of the retaliatory action test are "causally related."

 In count one, plaintiff states that "there was retaliatory action and illegal termination because of plaintiff's numerous reports and notices to Philip Morris' New York City headquarters, between January 1988 through February 9, 1990." Compl. P 66.

 At this stage of the litigation, plaintiff is entitled to the favorable inference that his objections to Philip Morris' employment practices are not wholly unrelated to his termination. *fn7" Defendant's motion to dismiss as to count one is denied.

 III. Inapplicability of 42 U.S.C. § 1981

 Plaintiff claims that he was harassed because of his race during the course of his employment and that this racial animus caused him to be fired. Neither of these claims are cognizable under 42 U.S.C. § 1981.

 Plaintiff's 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. Plaintiff's racial harassment and discriminatory discharge claims under section 1981 are dismissed. *fn8"

 To the extent that Mr. Wiggins argues that the Civil Rights Act of 1991 should apply retroactively to his 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.). *fn9"

 IV. Maryland Labor and Employment Code

 Plaintiff was placed on temporary disability status after he was seriously injured while working on the job for Philip Morris in July 1988. Compl. P 80-81. In count three of his complaint, plaintiff asserts:

 

In violation of the Maryland Code, Title 9-1105 Maryland Employment and Labor [sic], Philip Morris [sic] terminated Plantiff [sic] in March of 1990 with knowledge that Plaintiff had been on temporary partial disability resulting from injuries sustained in 1988 and 1989.

 Id. P 83.

 Plaintiff maintains that Philip Morris wrongfully terminated him in violation of the Maryland statute prohibiting the discharge of an employee who files a claim for workers' compensation. The Maryland Labor and Employment Code ("the Code") provides that "an employer may not discharge a covered employee from employment solely because the covered employee files a claim for compensation under this title." MD. LAB. & EMPL. CODE ANN. § 9-1105 (1991) (emphasis added).

 In his complaint, plaintiff does not allege that he timely filed a claim for worker's compensation. *fn10" Code § 9-709 expressly states:

 

Unless excused by the Commission under paragraph (2) of this subsection, failure to file a claim in accordance with subsection (a) of this section bars a claim under this Title.

 Id. § 9-709(b). Subsection (a) requires a covered employee to report any accidental personal injury to the State Workers' Commission Committee within 60 days after the date of the accident. Id. § 9-709(a).

 In his complaint, plaintiff merely declares that he "reported [his] injury to the Baltimore, Maryland offices of the Worker's Compensation Board and to the Hartford Insurance Company, Worker's Compensation Board's insurance carrier." Id. P 82. In his opposition to the motion to dismiss, plaintiff states:

 

Plaintiff states a valid prima facie case against Philip Morris [sic] for violation of Maryland Labor and Employment Code § 9-1105. The required filing of the claim was made in a timely fashion by Philip Morris [sic] or its carrier, on Plaintiff's behalf in accordance with Maryland State law, and Plaintiff's subsequent discharge was a direct result of such filing of the workers compensation claim.

 Plf.'s Opp'n Def.'s Mot. Dismiss at 2. *fn11"

 However, even if Mr. Wiggins did timely file a workers' compensation claim, he cannot claim that he was fired solely because of any such claim. Kern v. South Baltimore Gen. Hosp., 66 Md. App. 441, 504 A.2d 1154, 1159 (Md. Ct. Spec. App. 1986) ("To sustain a wrongful discharge action under Maryland's workers' compensation statute, an employee must allege that he or she was discharged solely and directly because of filing for benefits under § 39A . . . ."); see Childers v. Chesapeake & Potomac Tel. Co., 881 F.2d 1259, 1264 (4th Cir. 1989) ("A wrongful discharge action lies when an employee is discharged "solely" because he has filed for workers' compensation benefits."). *fn12" Indeed, Mr. Wiggins expressly states in his complaint that he was fired for racially motivated reasons. *fn13"

 Therefore, count three of plaintiff's complaint is dismissed.

 V. The Fair Credit Reporting Act

 Count four alleges that defendant unlawfully obtained a false consumer report from Equifax, Inc. and used this report for impermissible purposes in violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (hereinafter "the Act" or "the FCRA"). Compl. PP 47-50, 84-97. None of plaintiff's specific allegations state a cause of action against Philip Morris under the Act.

 First, plaintiff alleges that defendant requested an "unauthorized" consumer report on January 16, 1990 pursuant to 15 U.S.C. § 1681(a), "without written instruction required by 15 U.S.C. § 1681(b) [sic] and in violation of other provisions of the FCRA." Compl. P 87. Taking all of plaintiff's allegations as true, *fn14" plaintiff fails to state a cause of action under sections 1681(a), 1681a, 1681b, or any other provision of the Act.

 Neither section 1681(a) nor section 1681a contain provisions that create liability under the FCRA. *fn15" In addition, Philip Morris, as an alleged "user" of consumer information, *fn16" is incapable of violating section 1681b of the Act. *fn17" Section 1681b does not impose a duty upon a user to obtain written permission from a consumer prior to requesting a report from a consumer reporting agency. *fn18"

 Next, defendant allegedly made false and fraudulent representations to Equifax, Inc. in order to procure a consumer report in violation of section 1681b. Compl. P 88-90, 96. The Act does create liability for users who obtain a credit report under false pretenses for an impermissible purpose. See 15 U.S.C.A. § 1681q. "Whether a consumer report has been obtained under false pretenses will ordinarily be determined by reference to the permissible purposes for which consumer reports may be obtained, as enumerated in § 1681b." Zamora v. Valley Fed. Sav. & Loan Ass'n, 811 F.2d 1368, 1370 (10th Cir. 1987) (citing Hansen v. Morgan, 582 F.2d 1214, 1219 (9th Cir. 1978); Boothe v. TRW Credit Data, 557 F. Supp. 66, 71 (S.D.N.Y. 1982)).

 In this case, plaintiff insists that defendant fraudulently acquired a consumer report under the guise of requiring the report for "employment purposes," when in actuality Philip Morris solicited the report in order to terminate Mr. Wiggins. Compl. P 89-90. However, "the term 'employment purposes' when used in connection with a consumer report means a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee." 15 U.S.C.A. § 1681a(h) (emphasis added). Under the Act, Philip Morris is entitled to obtain a consumer report relating to its employee for the purpose of determining whether to discharge him.

 Third, plaintiff asserts that defendant "had a duty to furnish any and all consumer reports to him prior to his suspension from his employment on February 9, 1990." Compl. P 95. Under section 1681m(a), "whenever . . . employment involving a consumer is denied . . . either wholly or partly because of information contained in a consumer report from a consumer reporting agency, the user . . . shall so advise the consumer against whom such adverse action has been taken and supply the name and address of the consumer reporting agency making the report." 15 U.S.C.A. § 1681m(a). However, section 1681m(a) does not require a user to "furnish" a copy of the report to the consumer. *fn19"

 Finally, plaintiff claims that defendant violated "§ M" of the FCRA "by requesting and obtaining a report pertaining to Plaintiff at a time when Plaintiff was not employed at Philip Morris." Compl. PP 97, 87. Section 1681m does not prohibit a user from requesting or obtaining a report concerning an individual who is not an employee.

 Defendant's motion to dismiss with respect to count four is granted.

 VI. Other Claims in Count Two

 Within the text of his section 1981 claim, plaintiff makes vague allegations of two counts of tortious interference with plaintiff's employment, defamation, and violations of the Fair Credit Reporting Act, *fn20" the federal wire and mail fraud statutes, 18 U.S.C. §§ 1341, 1343, the D.C. Code, conspiracy under 42 U.S.C. § 1985(3), and civil conspiracy.

 A. Tortious Interference with Contract

 Plaintiff alleges that the defendants "interfered by unlawful means with plaintiff's employment." Compl. P 73. Plaintiff states that he "was employment by and had an employment contract with Phillip Morris [sic]." Id. P 72.

 "Tortious interference with contractual relations arises when a defendant interferes with a contract between the plaintiff and some third party." Weaver v. Gross, 605 F. Supp. 210, 216 (D.D.C. 1985) (citing Donohoe v. Watt, 546 F. Supp. 753, 757 (D.D.C. 1982), aff'd 230 U.S. App. D.C. 70, 713 F.2d 864 (D.C. Cir. 1983)). However, Philip Morris is a party to the current contract and may not be considered a third party for the purposes of Mr. Wiggins' claims. See Sorrells v. Garfinckel's, Brooks Brother, Miller & Rhoads, Inc., 565 A.2d 285, 289-290 (D.C. 1989).

 To the extent that plaintiff attempted to plead tortious interference with his employment with District Cablevision, defendant's motion to dismiss is denied. Plaintiff alleges "that through Bruce Williams, Pettinelli and Hitchens, both his employers conspired and worked together to terminate plaintiff from both jobs . . . with the aid and assistance of Equifax Services, Inc." Compl. P 49. The facts alleged in furtherance of this conspiracy are numerous.

 B. Defamation

 In count two, Mr. Wiggins asserts that "defendants and each of them" "defamed plaintiff" as they engaged in a conspiracy to unlawfully terminate the plaintiff by marking down plaintiff's performance ratings and by disseminating false, criminal record information contained in an Equifax credit report. *fn21" Compl. P 73(2).

 In a common-law defamation case, the court must determine "whether the challenged statement is 'capable of bearing a particular meaning' and whether 'that meaning is defamatory.'" Fleming v. AT&T Info. Servs., 279 U.S. App. D.C. 15, 878 F.2d 1472, 1475 (D.C. Cir. 1989) (quoting Tavoulareas v. Piro, 260 U.S. App. D.C. 39, 817 F.2d 762, 779 (D.C. Cir.) (en banc), cert. denied sub nom. Tavoulareas v. Washington Post Co., 484 U.S. 870 (1987)); Moss v. Stockard, 580 A.2d 1011, 1023 (D.C. 1990) (citations omitted). This statement "must be more than unpleasant or offensive; the language must make the plaintiff appear 'odious, infamous, or ridiculous.'" Howard University v. Best, 484 A.2d 958, 989 (D.C. 1984) (quoting Johnson v. Johnson Publishing Co., 271 A.2d 696, 697 (D.C. 1970)). A statement is defamatory "if it tends to injure the plaintiff in his trade, profession or community standing, or lower him in the estimation of the community." Moss, 580 A.2d at 1023. The plaintiff must prove the defamatory nature of the publication; however, "to accuse one of a crime is libel per se." Weaver v. Grafio, 595 A.2d 983, 988 (D.C. 1991) (citing Johnson, 271 A.2d at 698).

 All averments of defamation must be plead with particularity. See Hoffman v. Hill and Knowlton, Inc., 777 F. Supp. 1003, 1005 (D.D.C. 1991) (quoting Asay v. Hallmark Cards, Inc., 594 F.2d 692, 699 (8th Cir. 1979)) ("The use of in hac verba pleadings on defamation charges is favored in the federal courts because generally knowledge of the exact language used is necessary to form responsive pleadings."); 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1309 (1990) ("In libel and slander suits, the time and place of the publication should be specifically stated in the complaint."). Conclusory allegations are insufficient to state a claim. See Hoffman, 777 F. Supp. at 1005; Ridgewells Caterer v. Nelson, 688 F. Supp. 760, 763 (D.D.C. 1988). A plaintiff should plead the time, place, content, speaker, and listener of the alleged defamatory matter. Id.

 The content of the alleged defamatory consumer report is not in dispute. The report stated that Mr. Wiggins had a felony cocaine conviction. This accusation of conviction of a crime is libelous per se. However, the allegations with respect to the other elements that must be plead with specificity are wholly insufficient.

 Plaintiff's allegations with regards to the performance reports are entirely conclusory and are deficient to state a claim of defamation. See Compl. P 26, 30, 38.

 Even absent plaintiff's insufficient averments of defamation, plaintiff's defamation claim is also barred by the District of Columbia's one-year statute of limitations. D.C. Code § 12-301(4). *fn22" Plaintiff alleges that between 1988 and 1990, defendants published the allegedly defamatory remarks. This lawsuit was not filed until February 27, 1992, making these claims fall well beyond the one-year bar prescription.

 Given the heightened pleading standard in defamation actions and the applicable statute of limitations, any claim by plaintiff averring defamation is dismissed.

 C. Wire Fraud and Mail Fraud

 Plaintiff's federal wire and mail fraud claims must be dismissed because they are criminal offenses that have no corresponding private right of action. See, e.g., Official Publications, Inc. v. Kable News Co., 884 F.2d 664, 667 (2d Cir. 1989) (" 18 U.S.C. §§ 1341 and 1343 . . . do not provide a private right of action.").

 D. Section 1-2530 of the District of Columbia Code

 Plaintiff's allegation of a violation of section 1-2530 of the District of Columbia Code by defendant Philip Morris is without merit. *fn23"

 E. Conspiracy under 42 U.S.C. § 1985(3)

 In order to plead a viable cause of action under 42 U.S.C. § 1985(3), *fn24" 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). "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.

 1. 42 U.S.C. § 1981

 First, plaintiff maintains that 42 U.S.C. § 1981 should be used as a basis for a cause of action under section 1985(3). This court has recognized that 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.) ("[Section] 1981 is clearly a federal source of rights and unlike Title VII, '§ 1981 is not derived from a statutory scheme whose policies would be frustrated by the relitigation under another remedial statute.'" (quoting Hudson v. Teamsters Local Union No. 957, 536 F. Supp. 1138, 1147 (S.D. Ohio 1982)) (footnote omitted)). However, plaintiff fails to allege a violation of section 1981 by Philip Morris. See supra § III. Plaintiff also fails to allege the requisite elements of a conspiracy to violate section 1981. Thus, plaintiff's claim under section 1985(3) must fail.

 2. Title VII

 One claim surviving Philip Morris Inc.'s motion to dismiss is plaintiff's Title VII claim; however, the Novotny court found that Title VII cannot be the basis for a cause of action under section 1985(3). Novotny, 442 U.S. at 378; Thompson, 580 F. Supp. at 667 ("The Supreme Court has expressly removed the guarantees of Title VII from the category of 'designated rights' subject to redress under § 1985(3) . . . .").

 3. Fair Credit Reporting Act

 Plaintiff also charges Philip Morris under section 1985(3) for a conspiracy to violate the Fair Credit Reporting Act. Although plaintiff asserts many violations under the Act, Philip Morris did not violate any of its duties as a potential user of consumer information under the FCRA. See supra § V. However, evidence does exist which could support a finding that Philip Morris participated in a racially motivated conspiracy with Equifax, Inc. and others to violate the FCRA. See infra § VI(F)(1).

 Notwithstanding this evidence, and assuming, without deciding, that private conspiracies to violate subsequently enacted federal statutory law are actionable under section 1985(3), this court does not believe that the FCRA can be used as the basis for a cause of action under section 1985(3) without impairing the overall effectiveness of the FCRA. *fn25"

  In Novotny, the court reviewed several characteristics of Title VII in determining whether use of that statute as the predicate basis for a section 1985(3) claim would impair its overall effectiveness. Those characteristics included:

 

(1) "a detailed administrative and judicial process designed to provide an opportunity for nonjudicial and nonadversary resolution of claims," id. at 372-73;

 

(2) "time limitations for administrative and judicial filing are controlled by express provisions of the statute . . . [as] the statutory plans prevents immediate filing of judicial proceedings in order to encourage voluntary conciliation," id. at 373-74;

 

(3) "the EEOC's power to reinvestigate and prosecute a civil action in a complainant's case," id. at 374;

 

(4) and differing remedies under section 1985(3) and Title VII, such as provisions relating to injunctive relief, general or punitive damages, attorney's fees, and the right to a jury trial, id. at 374-75.

 The Fair Credit Reporting Act does not possess all of these characteristics; however, the Act is sufficiently similar to Title VII to mandate that the Act should not be used as the underlying federal right in a section 1985(3) claim under the Novotny analysis.

 With the enactment of the FCRA, Congress sought to create reasonable procedures regarding the dissemination and use of consumer information. *fn26" In attempting to achieve its goal, Congress emplaced a detailed statutory framework, setting levels of culpability and punishment and numerous procedural devices aimed at nonjudicial resolution of claims under the Act.

 For example, the Act imposes different obligations upon consumer reporting agencies that provide consumer credit information and users of consumer reports. Compare 15 U.S.C.A. §§ 1681c-1681e (1982) with id. § 1681m. Users have a limited responsibility. Under the Act, the primary duty assigned to users of consumer information is mandatory disclosure to a consumer of the name and address of the consumer reporting agency that provided a report when the consumer is adversely affected by the dissemination of information provided for employment purposes. See supra § V. On the other hand, consumer reporting agencies were charged with several responsibilities. The Act requires consumer reporting agencies to maintain and follow a myriad of reasonable compliance and accuracy policies and to follow strict procedures in cases of disputed accuracy. If litigants were allowed to use section 1985(3) to compel users of consumer reports to comply with the duties imposed upon consumer reporting agencies via a federal conspiracy statute (and vice versa), then these litigants would be able to circumvent the intent of Congress and the purpose of the Act. *fn27"

 The FCRA was also designed to provide for nonjudicial and nonadversarial resolution of claims. For instance, once a user of consumer information divulges the name and address of the consumer reporting agency that issued the consumer report upon which an adverse action was taken, section 1681i provides the procedures to be followed by the consumer as well as the consumer reporting agency in cases of disputed accuracy. Not all FCRA claims are subject to mandatory prejudicial process; however, the overall impact on the effectiveness of the statute would be impaired if these procedures could be skirted.

 Furthermore, the express provisions of the FCRA set out varying levels of culpability and sanctions. Section 1681n provides for civil liability for willful noncompliance. This provision provides for actual damages, punitive damages, and costs and attorney's fees. Section 1681o provides for liability for negligent noncompliance. This section only provides for actual damages and costs and attorney's fees. Thus, the FCRA allows awards of punitive damages if tied to a level of culpable behavior. To allow a federal conspiracy theory under the FCRA would create a conflict between the Act's legislated remedial provisions and the accompanying body of interpretive law and the remedial provisions under 1985(3). *fn28"

 Another characteristic shared by both Title VII and the FCRA is agency participation in enforcement of the statute. The FCRA provides for enforcement both by private damages actions and by the Federal Trade Commission. 15 U.S.C.A. § 1681s(a) (1982). The requirements imposed under the FCRA may be enforced under various other federal statutes such as the Federal Deposit Insurance Act, the Home Owners Loan Act, the Federal Credit Union Act, and the Federal Aviation Act when the users of the consumer reports are various agencies. Id. § 1681s(b).

 It appears that Congress was meticulous in its enactment of the FCRA. The culpability, liability, remedy, and enforcement provisions demonstrate Congress's effort at creating a comprehensive statutory scheme. "If a violation of [the FCRA] could be asserted through § 1985(3), a complainant could avoid most if not all of these detailed and specific provisions of the law." Novotny, 442 U.S. at 375-76. "Unimpaired effectiveness can be given to the plan put together by Congress in [the FCRA] only by holding that deprivation of a right created by [the FCRA] cannot be the basis for a cause of action under § 1985 (3)." Id. at 378.

 Plaintiff's federal conspiracy claims are dismissed for failure to successfully plead an underlying, federally protected right required under section 1985(3).

 F. Civil Conspiracy

 Plaintiff charges defendants with two alleged conspiracies. Plaintiff claims that defendants worked with Equifax in a conspiracy to tortiously interfere with plaintiff's contract and to violate the FCRA. Plaintiff's allegations as to defendants' acts in furtherance of the alleged conspiracies are numerous.

 It is well established that "there is no recognized independent tort action for civil conspiracy in the District of Columbia," Waldon v. Covington, 415 A.2d 1070, 1074 n.14 (D.C. 1980); however, District of Columbia law "acknowledges the concept of civil conspiracy." Halberstam v. Welch, 227 U.S. App. D.C. 167, 705 F.2d 472, 479 (D.C. Cir. 1983). "Since liability for civil conspiracy depends on performance of some underlying tortious act, the conspiracy is not independently actionable; rather it is a means for establishing vicarious liability for the underlying tort." Id.

 Under District of Columbia law, the elements of a claim for civil conspiracy are "an agreement to do an unlawful act or a lawful act in an unlawful manner; an overt act in furtherance of the agreement by someone participating in it; and injury caused by the act." Okusami v. Psychiatric Institute of Washington, Inc., 295 U.S. App. D.C. 58, 959 F.2d 1062, 1066 (D.C. Cir. 1992) (citing Halberstam, 705 F.2d at 487). *fn29" Moreover, "to establish liability, the plaintiff also must prove that an unlawful overt act produced an injury and damages." Id. An agreement may be inferred from the underlying facts. Id.30

 1. Conspiracy to Violate the FCRA.

 Plaintiff asserts that defendants, nonparty Equifax Services, Inc., and others deliberately and willfully conspired to violate the FCRA.

 "Plaintiff[] allege[s] that through Bruce Williams, [a District Cablevision employee,] Pettinelli and Hitchens, [and] both [their] employers conspired and worked together to terminate Plaintiff from [two] jobs . . . and that both terminations occurred with the aid and assistance of Equifax Services, Inc." Compl. P 49. Plaintiff argues that "both terminations were effected with the aid and assistance of Equifax Inc. by issuing the false drug conviction report in the District of Columbia, . . . all of which occurred in violation of the Fair Credit Reporting Act, 15 USCA § 1681 (a)(b) and (m) in using and reporting false information in a consumer report." Id. P 50.

 Although plaintiff cites inapplicable sections of the Fair Credit Reporting Act, he does put plaintiff on notice of his contention that Equifax, Inc. agreed with District Cablevision and Philip Morris to distribute a false consumer credit report regarding Mr. Wiggins in order to terminate Mr. Wiggins from his employment.

 If evidence exists suggesting a conspiracy between a consumer reporting agency and a user of consumer information to violate one of the duties imposed under the Act, then either party can be held vicariously liable under a conspiracy theory of liability. Plaintiff has adequately alleged such a conspiracy in this case.

 Plaintiff also has alleged facts that support at least an inference of an agreement to participate in a scheme to deliberately not correct the inaccurate consumer report, causing injury to Mr. Wiggins. See also Wiggins v. District Cablevision, 848 F. Supp. 213, § V(A) (D.D.C. 1994).

 2. Conspiracy to Tortiously Interfere with Employment Contract

 Plaintiff also alleges that defendants conspired together to tortiously interfere with plaintiff's employment. There is an underlying tort under D.C. law for tortiously interfering with an employment contract. Again, plaintiff has alleged facts that support at least an inference of an agreement to participate in a scheme to tortiously interfere with Mr. Wiggins' employment contract. See supra § VI(A).

 Defendant's motion to dismiss with respect to count two is denied.

 VII. Conclusion

  For the reasons set forth herein, defendant Philip Morris Inc.'s motion to dismiss is denied with respect to count one of the complaint and granted with respect to counts three and four of the complaint. Count two is dismissed except for plaintiff's tortious interference with contract, conspiracy to violate the Fair Credit Reporting Act, and conspiracy to tortiously interfere with contract claims.

  A separate order shall issue this date.

  Royce C. Lamberth

  United States District Judge

  DATE: May 13, 1994

  ORDER

  This case comes before the court on defendant Philip Morris Inc.'s motion to dismiss. It is hereby ORDERED:

  1. Plaintiff's motion for an enlargement of time, through and including April 15, 1992, within which to file his opposition to defendant Philip Morris' motion to dismiss is GRANTED nunc pro tunc.

  2. Defendant Philip Morris Inc.'s motion to dismiss the complaint for failure to state a claim upon which relief can be granted is DENIED with respect to count one of the complaint and GRANTED with respect to counts three and four in accordance with the accompanying memorandum opinion. Count two is DISMISSED as to defendant Philip Morris, Inc. except as to plaintiff's tortious interference with contract, civil conspiracy to violate the Fair Credit Reporting Act, and civil conspiracy to tortiously interfere with contract claims.

  3. Defendant Philip Morris Inc.'s motion to stay proceedings pending further developments in related actions is DENIED.

  SO ORDERED.

  Royce C. Lamberth

  United States District Judge

  DATE: 5-13-94


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