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MCADAMS v. THERMAL INDUS.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


March 10, 1977

SANDRA McADAMS, Plaintiff,
v.
THERMAL INDUSTRIES, INC., Defendant

The opinion of the court was delivered by: SNYDER

SNYDER, J.

 Plaintiff Sandra McAdams complained under 42 U.S.C. § 2000e that Defendant Thermal Industries, Inc., discriminated against women in employment and in firing her because of her sex. Defendant has moved for summary judgment on the basis that the Court lacks subject matter jurisdiction because the EEOC failed to notify the Defendant of the charges within 10 days as required by § 2000e-5(b); *fn1" that the Plaintiff failed to file this suit within 270 days of filing charges with the EEOC in accordance with § 2000e-5(f)(1); *fn2" or that the Plaintiff did not timely file the charges with the EEOC under § 2000e-5(c) and (e). *fn3"

  The issue arises in a peculiar factual context. On or about April 18, 1973, *fn4" the EEOC received from Plaintiff her charges of sex discrimination and discriminatory layoff alleged to have occurred on March 16, 1973. Because the Pittsburgh Human Relations Commission has authority to seek or grant relief from such discriminatory practices within the city limits, *fn5" the EEOC deferred the case to the city commission pursuant to § 2000e-5(c) and 29 C.F.R. § 1601.12. *fn6" The Pittsburgh Human Relations Commission failed to act on the charges within 60 days, and in accordance with 29 C.F.R. § 1601.12(b)(1)(iv) the EEOC automatically assumed jurisdiction on June 22, 1973. Thermal Industries asserts that its first notice of the charges was a phone call from the EEOC on December 24, 1974, and a written notice on January 10, 1975 (1-1/2 years after the EEOC received the charges). *fn7" On May 12, 1975, the EEOC deferred the case a second time -- this time to the Pennsylvania Human Relations Commission, requesting them to act on the matter quickly. Shortly thereafter the case was returned to the EEOC, and, having determined that reasonable cause existed to believe that Thermal Industries unlawfully discriminated against Sandra McAdams, the EEOC sent her a "notice of failure of conciliation and right to sue" letter on November 25, 1975. On February 17, 1976, Plaintiff commenced this suit.

 The Defendant admits that if the Plaintiff's charges were properly filed with the EEOC on June 22, 1973 (when the EEOC purported to assume jurisdiction after the Pittsburgh Human Relations Commission failed to act within 60 days after deferral) they were timely under § 2000e-5(e). It also admits that the suit was initiated within 90 days of the EEOC's right to sue letter as required by § 2000e-5(f)(1). But the Defendant contends that even so, Plaintiff's failure to sue within 270 days from June 22, 1973, as mandated by § 2000e-5(f)(1) and the EEOC's failure to notify Thermal Industries of the charges within 10 days of that filing date, as required by § 2000e-5(b) would be fatal to her right to sue.

 Alternatively, the Defendant argues that the charges were not "filed" with the EEOC on June 22, 1973, or at any time within 300 days of the date of discrimination as required by § 2000e-5(c) and (e). It maintains that the EEOC deferred the case a second time to the Pennsylvania Human Relations Commission because the discrimination did not occur within Pittsburgh City limits, so the Pittsburgh Commission lacked authority over the matter. Since § 2000e-5(c) provides that charges may not be filed with the EEOC until 60 days after deferral to the state or local authority, and here the proper authority was the Pennsylvania Commission, the charges were not filed until after the second deferral. Under these facts, such filing would be more than 300 days after the date of discrimination, and the Court therefore lacks jurisdiction.

 I. Failure of the EEOC to Timely Notify Defendant of the Charges

 The § 2000e-5 prerequisites to individual employment discrimination suits are the timely filing of charges with the EEOC and the receipt of and timely acting upon a right to sue notice from the EEOC. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir. 1976). Thus, Courts have uniformly held that, if these requirements are met, an individual is not jurisdictionally barred from suit in federal court merely because the EEOC failed to notify the employer of the charges against it within the time schedule proscribed in § 2000e-5(b). This conclusion is based on sound rationale that the purpose of the notice is to give the employer opportunity to voluntarily comply with § 2000e ( Thompson v. Board of Education of Romeo Community Schools, 71 F.R.D. 398, 413 (S.D. Mich. 1976) and cases therein cited) and such purpose does not warrant the inequitable result of precluding from suit an aggrieved person who has done everything required of him to exhaust his administrative remedy. When the individual has no control over the EEOC conciliation process, he should not be denied access to the courts because of omissions by the EEOC in implementing that process. Thornton v. East Texas Motor Freight, 497 F.2d 416, 424 (6th Cir. 1974), quoting Quarles v. Philip Morris, Inc., 271 F. Supp. 842 (E.D. Va. 1967); Clark v. Morgan's Austintown Foods, Inc., 405 F. Supp. 1008, 1010 (N.D. Ohio 1976). Furthermore, although neither the employer nor the employee was at fault concerning the notice failure, the prejudice caused the aggrieved employee by forever precluding a judicial remedy would, in the overwhelming number of cases, be much greater than any prejudice caused the employer by the delay or lost opportunity to conciliate. *fn8"

 II. Plaintiff's Failure to Sue Within 270 Days of Filing Charges with the EEOC

 Defendant similarly contends that for federal court jurisdiction § 2000e-5(f)(1) in effect requires the Plaintiff to commence suit within 270 days of filing charges with the EEOC (180 days to obtain a right to sue letter and 90 days thereafter to sue), even though the EEOC did not issue her a right to sue letter until well after the 180-day period. It argues that in this instance the Plaintiff herself was at fault for not demanding a right to sue letter after the 180-day conciliation period expired.

 Although it might at first appear that the burden placed on a plaintiff to request a right to sue letter after 180 days would be insubstantial, this time period was not intended as part of the jurisdictional requirement of receipt of a right to sue notice. The § 2000e-5(f)(1) 180-day period does not create a fixed time limitation beyond which an individual can no longer rely on the administrative process without forfeiting his remedy in the courts; it affords the individual an open-ended choice of whether to continue to rely on EEOC representation or to sue immediately. EEOC v. E.I. duPont deNemours & Co., 516 F.2d 1297, 1299-1301 (3d Cir. 1975) (holding that the EEOC is not confined by a 180-day limitation). The aggrieved person is thereby not compelled to endure lengthy administrative delays that may arise, but after 180 days may abandon the EEOC process if he perceives it to be too sluggish or ineffective. Id. at 1300, quoting 118 Cong. Rec. 7168 (1972). If he chooses to continue with EEOC representation and the administrative process, he does not prejudice his right to sue individually at a later time.

 To hold otherwise would compel the individual to interfere with EEOC conciliation efforts at the expiration of 180 days, a clearly undesirable result not intended by Congress. Although the EEOC is not precluded from suing on behalf of the individual if no right to sue letter was issued after 180 days, id., to avoid the risk of being excluded from any remedy in the courts by an adverse EEOC determination of reasonable cause, or any other reason which could cause the EEOC not to seek enforcement in the courts, the individual is forced to demand a right to sue letter. This interference would be counterproductive by frustrating "'the congressional mandate that conciliation efforts be fully undertaken before resort to the courts.'" Id. at 1301, quoting EEOC v. Kimberly-Clark Corp., 511 F.2d 1352 (6th Cir. 1975) (also holding that the EEOC is not limited by a 180-day restriction). Many discrimination cases are complex, and productive conciliation stages may only be reached after 180 days even with due diligence by the EEOC and the aggrieved employee. Moreover, as a matter of general policy, courts should encourage conciliation rather than the lawsuit as a means to resolve these disputes. We therefore hold that a plaintiff may rely on EEOC representation and the conciliation process without fear of being deprived of his remedy in the courts, and only when the EEOC notifies the plaintiff of failure of conciliation and his right to sue is he subject to a statutory time limitation of 90 days within which he must sue.

 III. Deferral to State Authorities and Timely Filing With the EEOC

 Defendant's final contention that the discrimination charges were not timely filed with the EEOC would, if true, raise a jurisdictional bar to suit. Section 2000e-5(b) provides that if a state or other local agency has authority to grant or seek the requested relief, the aggrieved person must first give that state agency an opportunity to resolve the matter before he may file charges with the EEOC. If the local authority fails to act within 60 days or earlier determines the matter, then charges may be filed with the EEOC. To give the individual ample time to exhaust the state remedy before filing with the EEOC in such situations, the requirement of filing charges with the EEOC within 180 days of the date of the discriminatory act is extended to 300 days. § 2000e-5(e). In Love v. Pullman, 404 U.S. 522, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972), the Supreme Court held that this state exhaustion requirement is satisfied if upon receipt of charges that first should have been brought before a local authority the EEOC defers the case to the local authority and pursuant to 29 C.F.R. 1601.12 automatically assumes jurisdiction if the local agency fails to act within 60 days or earlier makes a determination. Defendant here would narrowly interpret Love v. Pullman to compel the Plaintiff to bear the burden of any EEOC mistakes in deferral when she relies on the EEOC to defer the case instead of implementing the state procedures herself.

 The purpose of deferral to state authorities is to permit as a matter of comity local authorities to work out their own problems. See 110 Cong. Rec. 13087 (1964). By creating this state exhaustion requirement, Congress did not intend to saddle individuals with burdensome legal technicalities or jurisdictional pitfalls. In a scheme in which aggrieved persons untrained in the law very often initiate the administrative process pro se, see Love v. Pullman, supra, at 527, and in which the only enforcement power is vested in the federal courts, the individual's access to the courts must be vigorously protected. See Davis v. Valley Distributing Co., 522 F.2d 827, 832 (9th Cir. 1975); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460-61 (5th Cir. 1970). Thus, when an individual makes a good faith effort to comply with the administrative process by filing charges with the EEOC and relies on the special expertise of the EEOC to implement proper procedures, including deferral to the proper state agency, he should not be barred from suit. This result in no way permits circumvention of the conciliation process, since the EEOC must proceed with the matter after deferral to the state anyway. Consequently, the charges were filed with the EEOC on June 22, 1973, even if deferral might have been to the wrong local authority, and such filing was timely under § 2000e-5(e).

 Defendant's motion for summary judgment must therefore be denied; an appropriate order will be entered.

 DANIEL J. SNYDER, JR. / United States District Judge

 ORDER

 AND NOW, to-wit, this 10th day of March, 1977, after due consideration of briefs and arguments of counsel and for the reasons stated in the Opinion filed simultaneously herewith,

 IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment be, and the same is, denied.

 DANIEL J. SNYDER, JR. / United States District Judge


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