JOSEPH S. LORD, III, CH. J.
Plaintiffs, three black females and two black males, were employed by the Marine Corps Supply Activity ("MCSA") located in Philadelphia, Pennsylvania.
They bring this proposed class action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging race and sex discrimination in employment opportunities at the MCSA. Two of the plaintiffs, Mrs. Myles and Mrs. Robinson, filed separate class action administrative complaints and three of the plaintiffs, Mrs. Grimes, Mr. Ewell and Mr. Hibbler, filed a joint class action administrative complaint. The three administrative complaints were rejected as untimely by the EEOC and plaintiffs later joined together to file this suit.
The Government filed a motion to dismiss on the ground that this court lacks subject matter jurisdiction. The Government contends that all named plaintiffs filed untimely administrative complaints, that plaintiffs Grimes, Ewell and Hibbler filed untimely civil actions, and that plaintiff Robinson failed to exhaust her administrative remedies before joining in this civil suit.
The Civil Service regulation controlling the filing of an agency complaint, 5 C.F.R. § 713.214, states that an agency may accept a complaint only if the "complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe he had been discriminated against within 30 calendar days of the date of that matter * * *." Id. at (a)(i). This regulation provides for a mandatory extension in certain cases:
"(a)(4) The agency shall extend the time limits in this section: (i) When the complainant shows that he was not notified of the time limits and was not otherwise aware of them, or that he was prevented by circumstances beyond his control from submitting the matter within the time limits; or (ii) for other reasons considered sufficient by the agency."
Plaintiffs claim that this regulation is not jurisdictional and that, regardless, the regulation is void since it is inconsistent with the intent of Congress in promulgating Title VII. Plaintiffs also offer three theories under which they have complied with § 713.214. First, plaintiffs state that they were not aware of the 30-day time limit and therefore fall within the (a)(4) exceptions. Second, plaintiffs claim that they did not realize they were discriminated against within 30 days of the allegedly discriminatory incidents and thus fall within the (a)(4) exceptions. Third, plaintiffs allege that their complaints were timely since the discrimination which they alleged was of a continuous nature.
Title 42 U.S.C. § 2000e-16(c) confers jurisdiction on federal district courts where an aggrieved employee appeals a decision of the Civil Service Commission within 30 days of receiving notice of final Commission action. Plaintiffs Grimes, Ewell and Hibbler apparently allege that they are excused from filing timely civil actions because they were not told of their right to appeal. See Allen v. United States, 542 F.2d 176 (3d Cir. 1976). These plaintiffs also argue that they filed this civil suit timely. They assert that their complaint of January 3, 1974 was improperly rejected as a reactivation of their November 2, 1973 complaint and that, therefore, no final action was taken on the 1974 complaint. They contend that this civil action is timely under that portion of 42 U.S.C. § 2000e-16(c) which provides for federal district court jurisdiction when, after 180 days from the filing of the initial charge, the agency has not taken final action. Since the complaint was filed before 180 days had expired, plaintiffs seek to amend the complaint to comply with this provision.
Where a court might find jurisdiction by resolving certain factual disputes, it should attempt to do so before facing unresolved questions of law.
In conformity with Ettinger v. Johnson, 518 F.2d 648 (3d Cir. 1975), and at the request of plaintiffs, we ordered a trial de novo restricted to the question of jurisdiction. This Memorandum Opinion is intended to clarify the issues to be tried.
We find that final action was taken on the 1974 complaint of plaintiffs Grimes, Ewell and Hibbler upon their receipt of the January 16, 1974 letter rejecting their complaint, if not before. The administrative record includes a copy of a notice allegedly sent to these plaintiffs advising them of their right to appeal within 30 days. Since plaintiffs seem to deny that they received notice of their right to appeal, we believe they should have an opportunity to present evidence to that effect. If these plaintiffs can satisfy the court that they were not notified of their right to appeal, they will be permitted to present evidence that they filed their administrative complaint in a timely fashion or were excused from doing so.
We believe that plaintiff Robinson's failure to exhaust her administrative remedies before joining in this action does not bar her from filing this suit since she subsequently exhausted all her administrative remedies. Cf. Liberty Alliance of the Blind v. Mathews, Civil Action No. 76-74 (E.D.Pa. Sept. 28, 1976)(Weiner, J.). Plaintiffs Robinson and Myles, having filed timely civil actions, will have an opportunity to present evidence for the purpose of proving that they filed their administrative complaints in a timely fashion or were excused from doing so.
Determining whether plaintiffs complied with 5 C.F.R. § 713.214 will be limited to three issues. First, plaintiffs will be permitted to show that they were excused from lodging an administrative complaint within 30 days because they did not know of the requirement. We will want to know when they learned of the 30-day requirement and what action plaintiffs took after becoming aware of it. The Government has submitted a number of exhibits to support its contention that notice was widely distributed at the MCSA and we will expect plaintiffs to address themselves to this Government claim. Second, plaintiffs will be permitted to show that they did not realize they had been discriminated against until some time after the allegedly discriminatory events. We will want to know when they came to believe that they had been the victims of discrimination and what action plaintiffs took upon realizing this. Third, plaintiffs will be permitted to allege specific incidents of discrimination, including the dates these incidents occurred, which they feel show that they suffered continuous discrimination. Of course, the Government will have an opportunity to rebut plaintiffs' jurisdictional claims by presenting and cross-examining witnesses and introducing evidence.
JOSEPH S. LORD, III, CH. J.