S. Ct. 791, 39 L. Ed. 2d 52. The court in each case concluded that the 1972 Amendments to Title VII did not apply. The cases are distinguishable from the matter sub judice. In Jones, supra, it was uncontroverted that the alleged discriminatory acts occurred prior to March 24, 1972, and in Cleveland Board of Education, supra, it was also clear that the teacher-plaintiffs were protesting their local school's mandatory maternity rule during the 1970-71 school year. The court does not find defendants' first contention advanced in support of their motion persuasive.
Defendants' second argument for dismissal is that certain persons named as defendants in this count were not named as respondents by plaintiff when she filed her charge with the EEOC. In the charge filed with the EEOC on May 1, 1972, the plaintiff named only the University of Pittsburgh as a respondent. The plaintiff has named in her complaint Chancellor Wesley Posvar, certain trustees and members of the University's Executive Committee and a defendant class of all members of the Executive Committee from February 17, 1969 until the present.
Defendants maintain that the court lacks jurisdiction over those persons not named as respondents before the EEOC, and argue that the Title VII action should be dismissed against all persons except the University because plaintiff has failed to comply with the procedural and jurisdictional prerequisite set out in 42 U.S.C. § 2000e-5(f)(1).
This jurisdictional prerequisite serves two important functions: first, it notifies the charged party of the asserted violation. Secondly, it brings the charged party before the EEOC and permits effectuation of the Act's primary goal, the securing of voluntary compliance with the law. Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1969).
The conciliation process of Title VII generally and, more particularly, of § 2000e-5(f)(1), provides the respondent with an informed atmosphere in which it may explain, or justify its conduct before the formal litigation attracts widespread notoriety. Very often the complainant and the respondent may amicably reach an agreement without the animosities sometimes formed by filing of the civil suit. Voluntary compliance efforts are also preferred because they are less time-consuming and, quite frequently, broader, more flexible forms of relief are available. Bowe v. Colgate-Palmolive Co., supra; Johnson v. Seaboard Air Line Railroad Co., 405 F.2d 645, 651 (4th Cir. 1968), cert. denied sub nom., Pilot Freight Carriers, Inc. v. Walker, 394 U.S. 918, 89 S. Ct. 1189, 22 L. Ed. 2d 451 (1969).
An actual attempt by the EEOC to eliminate an unlawful employment practice is not a jurisdictional prerequisite to the institution of a civil suit. Rather, the policy of the Act is satisfied as long as the EEOC has been given the opportunity to negotiate and conciliate an unlawful employment practice charge in order that voluntary compliance may be obtained without the filing of a civil suit. Stebbins v. Nationwide Mutual Ins. Co., 382 F.2d 267, 268 (4th Cir. 1967), cert. denied, 390 U.S. 910, 88 S. Ct. 836, 19 L. Ed. 2d 880 (1968); Miller v. International Paper Co., 408 F.2d 283, 288-91 (5th Cir. 1969).
Defendants refer the court to a uniform line of cases beginning with Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir.), cert. denied, 389 U.S. 877, 88 S. Ct. 177, 19 L. Ed. 2d 166 (1967), for the proposition that a person or entity who was not named as a respondent in a charge before the EEOC cannot later be made party to a civil suit arising out of that charge. Bowe v. Colgate-Palmolive Co., supra; LeBeau v. Libbey-Owens-Ford Company, 484 F.2d 798, 799-800 (7th Cir. 1973); Jamison v. Olga Coal Co., 335 F. Supp. 454, 460-461 (S.D.W.Va.1971); Butler v. Local No. 4 and Local No. 269, Laborers' International Union, 308 F. Supp. 528, 530-531 (N.D.Ill.1969).
Plaintiff does not dispute the rule of law enunciated in this line of cases. Rather, plaintiff contends that the rule stated above does not apply to the present factual situation because of the agency relationship that exists between the unnamed Chancellor and the members of the Executive Committee, and the named University. Plaintiff's counsel argues that the policy behind the filing requirements of 42 U.S.C. § 2000e-5(b) and (f)(1) was satisfied as to those individuals unnamed in the EEOC charge because when the University was named as a respondent, the Chancellor and the trustees as members of the University's Executive Committee would have been likely notified of the plaintiff's EEOC charge. Whether these unnamed persons were in fact notified of the filing of plaintiff's charge with the EEOC is not shown in the materials presented by plaintiff. There is, furthermore, no evidence in the record that these unnamed persons and class of persons had the opportunity to meet with the EEOC representatives in any conciliatory conferences.
To support her agency proposition, plaintiff relies on the case of Chastang v. Flynn and Emrich Co., 365 F. Supp. 957 (D.Md.1973), and Hairston v. McLean Trucking Co., 62 F.R.D. 642 (M.D.N.C.1973). In Chastang v. Flynn and Emrich Co., supra, the plaintiff named the company, his employer, as respondent in his charge before the EEOC. However, in the subsequent civil suit, plaintiff also named as defendants the five members of Flynn & Emrich Company's Profit Sharing Trust Committee. The Trust Committee members claimed that the court lacked jurisdiction over them because they were not named as respondents before the EEOC. The district court rejected their contention because of the substantial identity of parties before the EEOC and the court. The facts in Chastang reveal that three of five Trust Committee members were also officers and/or directors of Flynn and Emrich Company. The court concluded that these three persons, although they acted in different capacities as trustees and officer-directors, were undoubtedly among the persons with whom the EEOC would have had to deal with to obtain voluntary compliance. The court concluded that "it would require an unnecessarily technical and restrictive reading of 42 U.S.C. § 2000e-5 to hold that this court lacks jurisdiction over the members of the Trust Committee because they were not named before the Commission . . . ." 365 F. Supp. at 964.
In Hairston v. McLean Trucking Co., supra, the court rejected a similar argument proposed by Modern Automotive Services, Inc. (MAS). MAS was McLean Trucking Company's wholly-owned subsidiary which serviced McLean's trucks and equipment. MAS claimed that it was not within the jurisdiction of the court because it was not named as a respondent before the EEOC. The plaintiff in Hairston named as respondent "McClean [sic] Trucking Company (MAS)." Noting that complaints filed before the EEOC are to be construed liberally, the court found that (1) an agency relationship in fact existed between McLean and MAS, and (2) the EEOC had actually investigated both MAS and McLean.
On the other hand, defendants refer the court to several cases wherein the agency theory proposed by plaintiff was rejected and the statutory language of § 2000e-5(f)(1) was strictly construed to permit the filing of a civil suit only against those named as respondents in the EEOC charge. In Jamison v. Olga Coal Company, supra, 335 F. Supp. at 460-461, the plaintiff desired to name three union entities as defendants (Local Union No. 6026, District Union No. 29, and the national union, United Mine Workers of America), and Olga Coal Company, although plaintiff's charge with the EEOC had named only Local 6026 and Olga Coal as respondents. In Jamison, the court felt that the language of the statute was clear and unequivocal and therefore ordered the dismissal of plaintiff's Title VII claims insofar as they related to District 29 and to the U.M.W. The court reasoned that if, as plaintiff alleged, Local 6026 was a mere instrumentality or agent of District 29 or the U.M.W., then any efforts by the EEOC to resolve the dispute between Local 6026 and the plaintiff would be futile because the parties with apparent power to voluntarily alleviate the grievances would not be before the EEOC. 335 F. Supp. at 461.
Similarly in Butler v. Local No. 4 and Local No. 269, Laborers' Int. Union, supra, 308 F. Supp. at 530-531, the court rejected plaintiff's attempt to name the District Council of Local Unions as a defendant in the civil suit because the Council had not been named as a respondent before the EEOC. The plaintiff had named only the local unions as respondents before the EEOC. The unnamed District Council was composed of delegates from each of the union's locals in the Chicago area. The members of the District Council in turn elected officers, whose duty was to bargain for and bind the locals to agreements with the employers in that industry. The district court granted the District Council's motion to dismiss, noting:
"It is the position of the plaintiff . . . that the statute's definition of labor organization to include any agent of such organization, 42 U.S.C. § 2000e(d), extends jurisdiction in this Court to any agent of a party charged before the Commission. This Court does not agree. Defining a labor organization to include its agents delineates the scope of application of the sections of Title VII prohibiting unlawful employment practices. It does not suggest that the term 'respondent' as used in 42 U.S.C. § 2000e-5(e) has the same meaning. According to the definition, the activities of agents of labor organizations are subject to the provisions of Title VII. However, the charging of one before the EEOC does not make a respondent of the other." 308 F. Supp. at 531.
It cannot be said that the mere allegation of an agency relationship does, without more, constitute sufficient notice to comply with the statutory mandate of § 2000e-5(f)(1) except where there is a "substantial, if not complete, identity of parties before the EEOC and the court," (cf. Chastang v. Flynn and Emrich Co., supra), or except where the EEOC actually had the opportunity to meet and attempt to conciliate with the party unnamed in the EEOC charge yet named as a defendant in court. Hairston v. McLean Trucking Co., supra. Although we find the agency theory discussion in these four cases illuminating, the court does not feel that the holding of any one of these cases is controlling in the instant proceeding since it appears self-evident that the very nature of the agency issue in a 2000e-5(f)(1) context is one that turns on the specific facts of the case.
The authority of two other cases persuades us to adopt defendants' contention and to hold that we have no jurisdiction over those persons and that class of persons unnamed in plaintiff's EEOC charge. In Johnson v. University of Pittsburgh, Civil Action No. 73-120 (filed June 4, 1974), Judge Knox confronted with the identical issue and nearly the same factual setting, dismissed Chancellor Posvar, individual members of the Executive Committee of the Board of Trustees of Pitt, and the Board of Trustees as defendants from plaintiff's Title VII count because of her failure to name these persons in her charge before the EEOC. Judge Knox held in as defendants under the Title VII count only those persons named as respondents in the plaintiff's EEOC charge. Thus, Judge Knox strictly construed the statutory requirement of § 2000e-5(f)(1).
Judge Schwartz in Scott v. University of Delaware, supra, was confronted with the same issue in a similar factual context. In Scott, 385 F. Supp. 937, plaintiff, a black assistant professor at the University of Delaware, named only the University in his charge filed with the regional EEOC office. The EEOC provided notice of the charge only to the executive officer of the University. In his complaint filed with the district court, Scott named the University, the Board of Trustees, the members of that Board in their official and individual capacities, and various officers and faculty members of the University as defendants in his Title VII count. The plaintiff sought to overcome his failure to name all the defendants in his EEOC charge by referring the court to familiar notions of the law of agency and by stating that "notification to a university, etc., under agency principles, is sufficient to alert the individuals vested with responsibility for its operation." 385 F. Supp. at 937. The court rejected plaintiff's argument and dismissed the Title VII action with respect to each named defendant except for the University. In Scott, the court, while recognizing that liberality in construction should be favored especially where a layman files the charge, Sanchez v. Standard Brands, Inc., 431 F.2d 455, 461 (5th Cir. 1970), concluded that because minimum standards of statutory compliance were necessary to comport with the statutory emphasis on voluntary compliance and conciliation in § 2000e-5 and because there was nothing in the record to indicate that persons unnamed in the EEOC charge knew of the EEOC proceeding or that they had been the subject of an EEOC inquiry, they would be dismissed. Id. at 942.
The court concludes that Count VI -- based on Title VII should be dismissed as to all those defendants who were not named in plaintiff's charge filed with the EEOC.
An appropriate order will be entered.
Plaintiff's original complaint was filed on January 3, 1972. On January 28, 1972, plaintiff filed a motion under Rule 23(c)(1) that the court rule on the issue of maintaining this case as a class action. On the same day, defendants filed their answer, averring inter alia that the court lacked jurisdiction of the subject matter of the action. Defendants also requested a preliminary hearing.
On February 28, 1972, the court ordered briefs and scheduled oral argument on the outstanding motions for March 28, 1972. Several days later, on March 3, 1972, defendants filed a motion requesting that the court postpone the Rule 23(c)(1) class action determination and that the court proceed to first dispose of the jurisdictional defenses raised by the defendants. On March 28, 1972, the argument scheduled for that date was continued to a future date at the request of plaintiff's counsel, with the consent of defendant's attorney. The March 28, 1972 oral argument was rescheduled on May 8, 1972 for May 25, 1972. This date was inconvenient for plaintiff's counsel, so pursuant to another motion for continuance filed by the plaintiff and consented to by defense counsel, the hearing was continued on May 23, 1972 until a future date. Thereafter, the oral argument was rescheduled for September 11, 1972.
On September 7, 1972, the parties jointly moved to stay all proceedings in this case "pending the Third Circuit Court of Appeals' ruling on the jurisdictional issue" (the "state action" issue) raised in Braden v. University of Pittsburgh, supra. This court entered an order staying the proceedings on the same day. On April 24, 1973, the Court of Appeals in Braden vacated the trial court's dismissal of the 42 U.S.C. § 1983 claim and remanded the case for the development of a more extensive record. Id. 477 F.2d 1.
The court, on June 11, 1973, scheduled the case for a status conference on June 21, 1973. This date was inconvenient for plaintiff's counsel, and therefore the court pursuant to plaintiff's motion, consented to by defense counsel, continued the conference to a future date.
On October 17, 1973, the court approved the parties' stipulation which provided that interrogatories or depositions taken in the case of Johnson v. University of Pittsburgh, supra, or in Braden v. University of Pittsburgh, supra, on the issue of Pitt's state involvement may be introduced as evidence in this case because, of course, the relationship of the University to the Commonwealth of Pennsylvania is identical in all three cases. A similar stipulation, which proposed to permit the introduction into evidence in this case on the issue of state action of depositions taken of certain individual defendants
in the Johnson and Braden cases was approved by the court on October 15, 1974.
On December 27, 1973, this court scheduled a status conference for January 9, 1974. This date was inconvenient for plaintiff's counsel, so on the motion of plaintiff, consented to by defendants, the court rescheduled the conference for January 16, 1974. Plaintiff's Philadelphia counsel was unable to come to Pittsburgh on the 16th of January because of inclement weather and the status conference was rescheduled for January 18, 1974. At the status conference, plaintiff indicated a desire to amend the complaint. Defendants indicated an intent to approve the effort to amend. The court suggested that plaintiff file a motion to amend the complaint accompanied by a brief within thirty days, that defendants file a responsive brief within thirty days thereafter, and that plaintiff was to file a supplemental and responsive brief fifteen days after the filing of defendant's brief. Plaintiff's counsel was unable to prepare the motion and the accompanying brief within thirty days. The court, upon motion of plaintiff for an extension of time, consented to by defendants, granted plaintiff an additional ten days to file the motion. The motion to amend, the amended complaint and a supporting brief were filed by plaintiff's counsel on March 1, 1974. One month later, defendants filed a motion in opposition to plaintiff's motion to amend the complaint, supported by an appropriate brief. This court granted plaintiff's motion to amend the complaint on October 15, 1974.
Defendants, on January 31, 1975, responded to the amended complaint by filing a motion to dismiss each of the six counts of plaintiff's complaint. A brief accompanied defendants' motion to dismiss. On February 4, 1975, this court ordered plaintiff to file a brief in support of her position within thirty days. On March 6, 1975, pursuant to plaintiff's motion for more time, which motion was consented to by defendants, the court permitted plaintiff to have additional time until March 11, 1975 to file her brief in response to defendants' motion. The brief was filed on March 11, 1975.