standard Pennsylvania Commission form, the plaintiff claimed that the alleged discriminatory practice occurred on or about February, 1972, and was of a continuing nature which had persisted up to the time of the filing of the complaint.
The Pennsylvania Commission requires that all complaints must be filed within 90 days of the alleged discriminatory act. 43 P.S. § 959 (Supp. 1974). Plaintiff's allegation on the face of the Pennsylvania Commission complaint that the defendant's alleged discriminatory practices had continued up to the filing of the complaint satisfies the above-stated statutory requirement. With respect to plaintiff's claim of discrimination of a continuous nature, it is important to note that the complaint filed in this Court alleges that in May of 1972 a male with considerable less academic qualifications than the plaintiff was interviewed and considered by the college for the position held by the plaintiff. Whether such is in fact the case is not relevant here. The significance of the allegation lies in the complainant's contention that the interviewing of a male candidate for the very position that she held constituted a discriminatory act. Hence, the alleged discriminatory act occurred within 90 days of the filing of the complaint with the state agency, and the complaint must be deemed to have been timely filed.
In addition, the withdrawal of the complaint from the state commission approximately 23 months after it was filed does not preclude the invocation of Federal jurisdiction. Section 2000e-5(c) provides that no charge may be filed with the Federal Commission before the expiration of 60 days after proceedings have been commenced under state law. As previously discussed, plaintiff filed her complaint with the state commission on June 2, 1972. There can be no question that the required 60 days had elapsed prior to the filing of the charge of sex discrimination with the EEOC. The withdrawal of the state commission complaint in May of 1974 does not support a finding that the plaintiff has failed to exhaust her state administrative remedies, particularly in light of the fact that the state commission had almost two years to consider the discrimination complaint.
In sum, the Court concludes that plaintiff has satisfied the jurisdictional prerequisites for the filing of a civil action under Title VII. The appropriate state remedies have been exhausted, a timely charge was filed with the EEOC, and the plaintiff has received a right to sue notice. McFadden v. Baltimore Steamship Trade Association, 352 F. Supp. 403 (D. Md. 1973); Rouse v. Gulf Oil Corporation, supra 350 F. Supp. at 179. In that the Court has jurisdiction under 42 U.S.C. § 2000e et seq., it is unnecessary at this time to determine whether plaintiff has a valid cause of action under 42 U.S.C. §§ 1981, 1983, and 1985(3). See, Johnson v. University of Pittsburgh, supra 359 F. Supp. at 1007. Accordingly, defendants' motion to dismiss the complaint under Fed. R. Civ. P. 12 will be denied.
AND NOW, TO WIT, this 13th day of December, 1974, upon consideration of the defendants' motion to dismiss the complaint in the within action, it is
ORDERED that said motion is denied.
LOUIS C. BECHTLE, J.