filed: November 4, 1976; As amended Nov. 22, 1976.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 75-890)
Before SEITZ, Chief Judge, ALDISERT and GIBBONS, Circuit Judges
The Equal Employment Opportunity Commission (EEOC) appeals from an order granting summary judgment in favor of the defendant, North Hills Passavant Hospital (North Hills), in an EEOC suit charging North Hills with employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Because the district court erred in granting summary judgment we reverse.
I. PROCEEDINGS IN THE DISTRICT COURT
In its complaint, filed on July 22, 1975, the EEOC alleged that more than 30 days prior to the institution of the action a person claiming to be aggrieved by unlawful employment practices filed a Title VII charge with it against North Hills, and that all conditions precedent to the institution of a suit by the EEOC have been fulfilled. The complaint alleged that North Hills has engaged in unlawful employment practices including: (a) refusing to hire qualified applicants for employment on account of race, and (b) maintaining a policy and practice of job classifications which discriminates against blacks on the basis of race. The prayers for relief requested injunctive relief with respect to future employment practices, and appropriate back pay and other relief for past unlawful employment practices. North Hills denied the charge of unlawful employment practices and pleaded affirmatively the defenses, inter alia, of statute of limitations and laches. On September 2, 1975, North Hills made a motion pursuant to Fed. R. Civ. P. 56 to dismiss the EEOC's action; the district court granted this motion on November 3, 1975. From the pleadings, interrogatories, and other papers on file, it may fairly be said that there is no material dispute as to the foregoing facts or those set out hereafter.
The EEOC's suit arose from a complaint filed with the EEOC on January 18, 1972, by Arthur Pope, a black male. Pope's complaint alleged that he had been denied a job at North Hills as a medical storeroom clerk because of his race, and that North Hills discriminated against blacks as a class. The EEOC investigated the charge and on April 26, 1974, issued to Pope and North Hills a determination letter, pursuant to 29 C.F.R. § 1601.19b(b) (1974), that there was reasonable cause to believe that North Hills had discriminated in its hiring practices against Pope and against blacks as a class. The reasonable cause determination with respect to blacks as a class was based on statistical information, referred to in the determination letter, which tended to show that blacks were a disproportionately small percentage of North Hills' work force when compared with the available minority labor force. Thereafter, as the statute,*fn1 and regulations*fn2 require, the EEOC undertook conciliation efforts, looking toward a voluntary resolution of North Hills' allegedly unlawful employment practices. Those efforts proved unavailing. On September 20, 1974, pursuant to 29 C.F.R. § 1601.25 (1974), the EEOC informed North Hills' attorney that conciliation had failed. On September 25, 1974, the EEOC wrote to Pope, advising him that efforts to settle his case had been unsuccessful, and informing him of his right to file a civil action against North Hills in federal court. The EEOC letter to Pope said in part:
In order to proceed in this matter you must make a written request for a Right to Sue letter from this office. You must file your action in the United States District Court within ninety (90) days of your receipt of the Notice of Right to Sue.*fn3
Following this advice, Pope requested a Notice of Right to Sue and on December 6, 1974, the EEOC issued such a notice. On January 10, 1975, within 34 days of receipt of the Notice of Right to Sue, but 107 days after receipt of the letter notifying him of the failure of conciliation, Pope filed a civil complaint against North Hills in the district court. Pope's civil complaint alleged both a Title VII violation and a violation of 42 U.S.C. § 1981, and sought class action relief on behalf of similarly situated blacks.
Meanwhile, the EEOC files concerning Pope's charges were forwarded to the EEOC's Philadelphia Regional Litigation Center for consideration for litigation by the EEOC pursuant to § 706f(1), 42 U.S.C. § 2000e-5f(1). The EEOC's Litigation Center received a copy of Pope's civil complaint on January 31, 1975. While the Litigation center was reviewing the case to determine whether to intervene in Pope's civil action North Hills, on March 20, 1975, filed a motion in the district court to dismiss the Title VII count of Pope's civil complaint for lack of jurisdiction. North Hills' motion argued that Pope was time barred from bringing his private Title VII suit because he had failed to file his complaint within 90 days of receipt of the notice of failure of conciliation.*fn4 Noting the problems of intervening in a private suit which might be dismissed, the Litigation Center, on April 29, 1975, requested from the EEOC authority for the filing of an independent EEOC civil suit in regard to Pope's charges. On May 27, 1975, the district court dismissed the Title VII count of Pope's civil complaint as untimely filed, but denied a motion to dismiss the § 1981 count.*fn5
Two weeks after the Title VII count in Pope's case was dismissed, and before the EEOC authorized its General Counsel to file an independent EEOC suit, the respective attorneys for Pope and North Hills called an EEOC attorney at the Litigation Center, inviting him to participate in settlement negotiations regarding Pope's civil complaint. They were informed that the EEOC attorney could not participate in the settlement discussions until the EEOC approved the filing of a civil action. The instant suit was filed on July 22, 1975, 56 days after Pope's Title VII claim was dismissed.
Meanwhile, on July 9, 1975, Pope and North Hills entered into a settlement agreement concerning Pope's outstanding civil claim against North Hills. The agreement provided that North Hills was to pay Pope $1,500 and Pope's attorney $4,000 in exchange for Pope's unconditional release of North Hills from all claims alleged in Pope's civil complaint. It provided no relief for the class of blacks on whose behalf Pope had brought the suit. The settlement was contingent upon Pope's obtaining the consent of the EEOC to withdraw the charge of employment discrimination that Pope had filed with the EEOC.*fn6 Pope requested such consent by letter dated July 9, 1975. The EEOC rendered no immediate response to this request. On July 23, 1975, one day after the EEOC's civil suit was filed, Pope and North Hills filed a joint motion in district court for an order compelling the EEOC to advise them, and the court, whether the EEOC would approve withdrawal of Pope's charges. By letter dated July 25, 1975, the EEOC advised the district court that it would not consent to the withdrawal of Pope's charges, as the settlement agreement did not resolve the class issues raised in Pope's EEOC complaint. After being informed of the EEOC's decision, Pope and North Hills, on September 30, 1975, entered into a "Supplemental Stipulation and Settlement Agreement," the operative provisions of which are quoted in the margin.*fn7 The Supplemental Stipulation and Settlement Agreement is expressly contingent on the outcome of the EEOC suit, and thus of this appeal. When North Hills moved for summary judgment in this case, Pope's Title VII claim had been dismissed by an interlocutory order and his § 1981 claim had been contingently disposed of by a settlement agreement and was still pending in the district court.
The district court described the issues tendered by North Hills' motion for summary judgment as follows:
The question for this court's determination is whether or not the delay in filing the action by the EEOC coupled with its failure to intervene in the private suit involving the same charge (Civil Action No. 75-60) and its unwillingness to participate in the settlement of Civil Action No. ...