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PINCKNEY v. COUNTY OF NORTHAMPTON

October 12, 1976

BOBBIE RAY PINCKNEY
v.
COUNTY OF NORTHAMPTON ET AL.



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, J.

 In this employment discrimination action, defendants have filed a motion for summary judgment. Asserting jurisdiction under 28 U.S.C. § 1331 and § 1343 and 42 U.S.C. § 2000e-5(f), plaintiff, a black female, charges that defendants violated her employment rights under 42 U.S.C. § 1983 and § 2000e et seq. by discriminatorily failing to promote her to the position of Social Worker III on January 1, 1973, and by causing her discharge in June 1973. She claims that defendants promoted two white persons even though neither, in terms of past performance or ability, was more qualified than plaintiff for the promotion. Defendants are the County of Northampton, the County Commissioners, the Northampton Children's Bureau and its executive director, R. Nancy Haley. We have concluded that defendants' motion must be denied as to the Title VII claim and granted, in part, on the § 1983 claim.

 A summary of the pertinent allegations of the complaint reveals that plaintiff was hired on May 4, 1970, in the capacity of Social Worker II and placed in charge of the Children's Bureau Office in Bethlehem. During absences of defendant Haley, plaintiff was also in charge of the Bureau's Easton office. On October 3, 1971, and June 6, 1972, respectively, defendants hired two white persons in the capacity of Social Worker II, and on January 1, 1973, without notice to plaintiff promoted both to Social Worker III on the recommendation of defendant Haley, which was condoned and ratified by the other defendants. The gravamen of the complaint is that defendants discriminated against plaintiff solely because of her race in failing to promote her to the higher paying position thus violating her civil rights under color of state law and committing an unlawful employment practice under Title VII. Plaintiff, having unsuccessfully attempted to correct the discriminatory practice with defendants, tendered her resignation on March 29, 1973, effective June 29, 1973.

 Plaintiff filed charges of discriminatory practices with the Pennsylvania Human Relations Commission on May 15, 1973, and with the Equal Employment Opportunity Commission on June 20, 1973 (affidavit of Richard A. Heil, Chief Clerk to the Commissioners of Northampton County). The Pennsylvania Human Relations Commission issued a complaint on July 20, 1973, attempted conciliation and finally on October 25, 1973, the County Commissioners offered to promote plaintiff to the position of Social Worker III, effective January 1, 1973, but did not offer to reinstate plaintiff to her position with the Children's Bureau.

 The Children's Bureau Chief Executive Officer received a Notice of Charge of Employment Discrimination from the Philadelphia District Office of the Equal Employment Opportunity Commission (EEOC) on August 13, 1973. (Heil affidavit para. 5). On March 22, 1974, defendants received a copy of the charge plaintiff filed with the EEOC. By letter dated April 18, 1975, the EEOC notified Heil that it had determined there was reasonable cause to believe that a violation of Title VII had been committed and invited conciliation. On August 8, 1975, the EEOC issued a Notice of Right to Sue letter to the plaintiff. This action was timely filed within ninety days.

 Defendants have advanced a number of arguments in their motion for summary judgment on the § 1983 and § 2000e claims. Their first argument is that plaintiff's Title VII claim is barred by the Statute of Limitations, i.e., that the appropriate Statute of Limitations, 12 PS § 34, two years, bars this action since it was commenced more than two years from the date of the allegedly discriminatory practice, January 1, 1973. *fn1"

 We may dispose of this argument quickly for it proceeds on an erroneous premise, i.e., that Title VII is governed by the most analogous state statute of limitation because it establishes no limitations period. Title VII expressly sets forth limitation periods governing the timing of the initial filing of a charge of employment discrimination -- within one hundred eighty days after the employment practice occurred or within three hundred days after the unlawful practice if the person aggrieved has initially commenced proceedings with a state or local agency with authority to grant or seek relief from such practice. 42 U.S.C. § 2000e-5(e). Moreover, Title VII expressly provides that a person claiming to be aggrieved may initiate a civil action in the District Court only if such action is commenced within ninety days after receipt of appropriate notification from the EEOC that conciliation efforts have been unsuccessful, usually accomplished by a notice of right to sue letter. 42 U.S.C. § 2000e-5(f)(1).

 Title VII thus in clear terms delineates the time limitations within which the grievant must initially resort to the administrative machinery of the EEOC (or state employment agency) and, once administrative conciliation has proven ineffective, within which the grievant must commence a civil action in the District Court. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974); Wetzel v. Liberty Mutual Life Insurance Co., 508 F.2d 239 (3d Cir.) cert. denied 421 U.S. 1011, 44 L. Ed. 2d 679, 95 S. Ct. 2415 (1975).

 This extensive and detailed statutory treatment of the timing of Title VII actions is inapposite to the situation prevailing in actions based on 42 U.S.C. § 1983 because § 1983 is silent on the question of the period of limitation. Defendants' argument thus must be rejected on this basis. Moreover, if each state's statute of limitations were engrafted into the already detailed federal statutory framework for the timing of Title VII actions, it is conceivable that Title VII civil actions would be governed by a different statute of limitations in each of the fifty states, a result with amazing and disastrous ramifications.

 Again, we cannot agree with defendants' position, for nowhere does Title VII require exhaustion in the sense of actual attempts at conciliation by the EEOC as a condition precedent to the grievant's right to file an action in the District Court. On the contrary, 42 U.S.C. § 2000e-5(f)(1) provides in pertinent part:

 
"* * * [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, whichever is later * * * 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 ninety days after giving of such notice a civil action may be brought * * *". (Emphasis added.)

 Manifestly, the Act does not require actual conciliation efforts by the EEOC; rather, what is required is that the EEOC be given the opportunity to pursue conciliation. Johnson v. Railway Express Agency, 421 U.S. 454, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975); Johnson v. Seaboard Air Line R. Co., 405 F.2d 645 (4th Cir. 1968) cert. denied, Pilot Freight Carriers v. Walker, 394 U.S. 918, 89 S. Ct. 1189, 22 L. Ed. 2d 451 (1969). Administrative exhaustion is accomplished when the EEOC fails to enter into a conciliation agreement after timely filing of a charge and the expiration of any period of reference provided in § 2000e-5(f)(1). See Bernstein v. National Liberty Intern. Corp., 407 F. Supp. 709, 714 n.4 (E.D.Pa. 1976). If actual attempts at conciliation were required, the language of § 2000e-5(b) would be meaningless. Under § 2000e-5(b), once the EEOC determines after investigation that there is no reasonable cause to believe that a grievant's charge is true, it is required "* * * to dismiss the charge and ...


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