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April 28, 1976

Merdell Beamon, Plaintiff
W. B. Saunders Company et al., Defendants

Fullam, D.J.

The opinion of the court was delivered by: FULLAM


Mrs. Merdell Beamon, the plaintiff herein, is a 53-year old Black woman. From April 1969, through June 20, 1972, Mrs. Beamon was employed by W. B. Saunders Company (Saunders) as an "office cleaner." On June 20, 1972, Mrs. Beamon's employment with Saunders was terminated, apparently for excessive absenteeism.

 On the date of her discharge, Mrs. Beamon filed a complaint with the Philadelphia Regional Office of the Equal Employment Opportunity Commission (EEOC or Commission), alleging that Saunders had "discriminated against [me] because of my race, Negro." The EEOC investigated the charge, and made a determination that reasonable cause existed to believe that Saunders had violated the applicable provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII) Thereafter, EEOC attempted conciliation between Mrs. Beamon and her employer, but those efforts were unsuccessful.

 On February 6, 1975, the Commission wrote to Mrs. Beamon, informing her that its conciliation efforts had failed. In pertinent parts, the letter stated that:

"This is to advise you that our efforts to settle your case have been unsuccessful. The respondent has failed to make a good faith effort to resolve the following issues: This charge, reinstatement and lost wages.
"If you wish to pursue the matter further, you have the right to sue the Respondent in the United States District Court in Philadelphia. If you decide to sue, you must submit a written request to this office for a Notice of Right to Sue." (Emphasis supplied.)

 However, the February 6, 1975, letter did not end EEOC's involvement in Mrs. Beamon's case. Pursuant to EEOC's internal operating procedures, Mrs. Beamon's complaint was referred to the Commission's Philadelphia Regional Litigation Center, for review as a possible case for EEOC-initiated litigation against Saunders. On April 21, 1975, the Commission determined that Mrs. Beamon's charge was an "inappropriate" case for Commission litigation. After receiving notice of EEOC's decision, plaintiff requested her "Notice of Right to Sue" letter, which was issued by the Commission on May 12, 1975, and received on May 15, 1975. This notice provided, in pertinent part that:

"The Commission has determined that it will not bring a civil action against the (respondents) and accordingly is issuing this Notice of Right to Sue. The issuance of this notice terminates the Commission's processing of your charge, except that the Commission may seek status as an intervenor if you decide to sue on your own behalf as described below.
"If you want to pursue your charge further, you have the right to sue the respondent named in this case in the United States District Court for the area where you live. If you decide to sue, you must do so within ninety (90) days from the receipt of this notice; otherwise your right is lost."

 On August 5, 1975, plaintiff initiated this employment discrimination suit against W. B. Saunders Company, on behalf of all Blacks and women similarly situated as Saunders employees. The Complaint alleges that Saunders engaged in employment discrimination on the basis of race and sex. Also named as defendants are the corporate defendant's President, T. van den Beemt, the company's Personnel Director, Dale Cummings, and one of the company's foremen and supervisors, Donald Bryson. Jurisdiction over the cause of action asserted is based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Equal Pay Act, 29 U.S.C. § 206(d); the Thirteenth and Fourteenth Amendments to the United States Constitution; and 28 U.S.C. §§ 2201 and 2202. The defendant has filed a motion to dismiss, arguing that: (1) this Court lacks subject matter jurisdiction; and (2) the Complaint fails to state a claim upon which relief may be granted. The defendant's motion to dismiss raises various complex legal issues, which will be discussed separately.

 I. Was This Action Commenced within the Time Period Prescribed by Title VII of the 1964 Civil Rights Act?

 This exact issue has been the subject of extensive analysis in numerous decisions filed over the last several years. The problem of interpretation arises in the context of attempts to square EEOC's internal operating procedures with the mandate of § 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1), which provides, inter alia :

"If a charge filed with the Commission . . . is dismissed by the Commission, or if within 180 days from the filing of such charge . . . the Commission has not filed a civil action under this section . . ., or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, . . . shall so notify the person aggrieved and within 90 days after giving such notice a civil action may be brought against the respondent named in the charge by the person claiming to be aggrieved. . . ."

 The defendant argues, and submits extensive case law in support of the proposition, that the 90-day period for the commencement of a civil action under Title VII, as provided for in § 706(f)(1), commences with receipt of the first letter which notifies the charging party that conciliation efforts have been unsuccessful. *fn1" If this legal theory is correct, Mrs. Beamon's Title VII claim would be barred, since more than 90 days have elapsed between her receipt of the notice of failure of conciliation (February 6, 1975) and her filing of this civil action (August 5, 1975). The plaintiff counters by arguing, and citing an equally impressive line of cases in support of the proposition that, § 706(f)(1)'s 90-day limitation period should be measured from the date the "notice of right to sue" letter is received, rather than the date of receipt of the "notice of failure of conciliation." *fn2" The plaintiff's argument in this respect is supported by the EEOC, which ...

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