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UNITED STATES v. PHILADELPHIA ELEC. CO.

December 8, 1972

United States of America, Plaintiff
v.
Philadelphia Electric Company et al., Defendants


Bechtle, D.J.


The opinion of the court was delivered by: BECHTLE

On July 27, 1972, the United States of America filed a complaint under the provisions of Title VII of the Civil Rights Act of 1964 (the Act), 42 U.S.C. § 2000e et seq. alleging a pattern and practice of unlawful discrimination in employment on the part of defendant, Philadelphia Electric Company (the Company). The jurisdiction of this Court to hear the action is based on 42 U.S.C. § 2000e-6(b) and 28 U.S.C. § 1345.

 On September 14, 1972, service of the complaint was made upon the Company. Thereafter, on October 4, 1972, without filing an answer, the Company filed a Motion to Dismiss the complaint or, alternatively, for Summary Judgment in its favor, pursuant to Fed. R. Civ. P. 12(b). It is this motion that is now before the Court.

 The Company contends that this Court lacks jurisdiction over the subject matter and that the United States has failed to state a claim upon which relief can be granted. The grounds of its contention are:

 (1) The present law suit is premature and should be dismissed or stayed because there was no attempt by the Equal Employment Opportunity Commission (EEOC) to conciliate the matter that forms the basis of this law suit prior to its referral to the Attorney General of the United States for litigation purposes;

 (2) The matters raised herein have previously been made the subject of proceedings before the Philadelphia Human Relations Commission, acting as an agent of the United States, and an agreement settling such matters has been entered into by that Commission and the Company;

 (3) The United States should not be permitted to maintain an action in equity because it is guilty of unclean hands;

 (4) Significant changes occurred in the complexion of this matter between the time the complaint was approved by Attorney General Richard G. Kleindienst and the time it was actually filed, raising doubts that the approval to file the complaint was properly obtained.

 For the reasons stated below, the Court finds that the Company's motion is without sufficient merit to warrant the granting of the relief sought.

 I. No Attempt at Conciliation

 In enacting Title VII of the Act, Congress intended to deal with two separate kinds of employment discrimination: the isolated acts of unlawful employment discrimination; and, the "pattern or practice" of employment discrimination. To redress the first type of discrimination, Congress created the EEOC through § 706 of the Act, 42 U.S.C. §§ 2000e-4 and 5. The basic functions of the EEOC are: (1) to investigate charges of employment discrimination; (2) to determine whether there is reasonable cause to believe such charges are true; and if so, (3) to attempt to eliminate the unlawful employment practice through conference, conciliation, and persuasion; (4) to bring a civil action against the respondent if it is unable to secure an acceptable conciliation agreement. *fn1"

 The second, and more grievous, type of employment discrimination, dealt with in Title VII, is that of a "pattern or practice" of discrimination. This type of discrimination represents a denial of rights "repeated, routine, or of a generalized nature." *fn2"

 In § 707 of the Act, Congress empowered the Attorney General to bring a civil action against a respondent "whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described." 42 U.S.C. § 2000e-6. *fn3" In this section, in contrast to § 706, there is no conciliation requirement.

 The unlawful employment action in the case before the Court is one brought by the Attorney General pursuant to § 707 following a referral of charges from the EEOC. *fn4" In support of its motion to dismiss for lack of jurisdiction or to have the matter stayed indefinitely until the EEOC complies with its regulations, the Company cites certain of the ...


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