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MILNER v. NATIONAL SCH. OF HEALTH TECH.

March 11, 1976

VICKI MILNER
v.
NATIONAL SCHOOL OF HEALTH TECHNOLOGY and WILLIAM LOBEL



The opinion of the court was delivered by: LORD, III

 Plaintiff has filed this action alleging that she was fired from her job as Director of Personnel and Director of Job Placement at the National School of Health Technology ("National") because she was obtaining a divorce. Plaintiff alleges that National has a policy of firing and refusing to hire divorced women but that divorced men are not similarly discriminated against. Defendants are National and William Lobel, alleged to be the founder, principal, and president of National, a trade school offering courses for medical and dental assistants and technicians.

 Plaintiff asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C. §§ 1981, 1983 and 1985(3). We have jurisdiction under 28 U.S.C. § 1343 and 42 U.S.C. § 2000e-5(f)(3).

 Defendants have moved to dismiss the complaint, alleging the invalidity of all four counts. We shall grant the motion as to the claim based on § 1981 but shall deny it as to all other counts.

 I

 Defendants argue that the Title VII *fn1" claim must be dismissed because of two alleged procedural deficiencies. First, they cite plaintiff's failure to comply with 42 U.S.C. § 2000e-5(c) which mandates that no charge of employment discrimination may be filed with the Equal Employment Opportunity Commission until sixty days after proceedings have been commenced with the comparable state authority. *fn2" Defendants correctly point out that plaintiff filed her charge with the EEOC on December 10, 1974 without first filing any complaint with the state Human Relations Commission. The amended complaint *fn3" asserts, however, that on January 8, 1975 the EEOC forwarded plaintiff's complaint to the Philadelphia Commission on Human Relations and that the EEOC did not assume jurisdiction over plaintiff's claim until the 61st day after the referral letter. This procedure fully complies with the requirements of the act by satisfying the congressional purpose of allowing the state agency to consider the complaint before the EEOC does. The Supreme Court in Love v. Pullman, 404 U.S. 522, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972), specifically approved this procedure, noting that "nothing in the Act suggests that the state proceedings may not be initiated by the EEOC acting on behalf of the complainant rather than by the complainant himself." Therefore, we reject defendants' argument that the complaint was improperly filed with the EEOC.

 Defendants also seek dismissal of the Title VII claim because, they assert, the EEOC issued its "right-to-sue" letter to plaintiff prematurely. Section 706(f) of Title VII, 42 U.S.C. § 2000e-5(f), provides in relevant part:

 
"If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section [requiring sixty days after referral of the charge to the state or local agency], whichever is later, the Commission has not filed a civil action under this section * * * or the Commission has not entered a conciliation agreement to which the person aggrieved is a party, the Commission * * * shall so notify the person aggrieved * * *."

 In this case, the Commission notified plaintiff of her right to sue on August 8, 1975. While this date was well past 180 days after plaintiff first filed her claim with the EEOC, it was only 150 days after the Commission assumed jurisdiction. Defendants argue that this section requires a minimum of 180 days for conciliation between the assumption of jurisdiction by the EEOC and the issuance of the right-to-sue letter.

 We cannot agree with this argument. The statute does not require a minimum of 180 days for conciliation; rather, it requires issuance of a right-to-sue letter within 180 days. Westerlund v. Fireman's Fund Ins. Co., 10 EPD P 10,456 (N.D. Cal. 1975). The purpose of this subsection is to allow the Commission to attempt conciliation or to file its own civil action before allowing plaintiff to proceed in court. If the Commission determines that conciliation is unlikely, it serves no useful purpose to insist on the running of the full 180-day period before issuance of the right-to-sue letter. See id.; Weise v. Syracuse University, 522 F.2d 397 (2d Cir. 1975). The amended complaint in this case alleges that the EEOC had indeed concluded that conciliation was impossible. *fn4"

 II

 Defendants have moved to dismiss plaintiff's claim under 42 U.S.C. § 1983, *fn5" arguing that National has not acted under color of state law. It is clear that National cannot be considered other than a private institution; it is certainly not an agency of the state. This, of course, does not conclude our inquiry since state action may be found if either of two conditions is met: (1) where the state and the private institution have entered into a "symbiotic relationship", Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175, 32 L. Ed. 2d 627, 92 S. Ct. 1965 (1972), in which the state has "so far insinuated itself into a position of interdependence" with the private party "that it must be recognized as a joint participant in the challenged activity," Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961); or (2) "where there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself", Jackson v. Metropolitan Edison Co., 419 U.S. 345, 42 L. Ed. 2d 477, 484, 95 S. Ct. 449 (1975). See also Rackin v. University of Pennsylvania, 386 F. Supp. 992 (E.D.Pa. 1974); Isaacs v. Board of Trustees of Temple Univ., 385 F. Supp. 473 (E.D.Pa. 1974).

 In this case, plaintiff has made no claim that the state has directly involved itself with the alleged discriminatory action. Therefore, state action must be found, if at all, in a symbiotic relationship between the state and National. We have examined the allegations of state-action in the complaint and believe that they do not establish a sufficiently pervasive intrusion of the state into the conduct of National to meet the "symbiotic relationship" test. The fact that National is licensed and regulated by the state as alleged in ...


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