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DIXON v. UNIVERSAL ATLAS CEMENT DIV.

April 7, 1977

Frederick P. DIXON
v.
UNIVERSAL ATLAS CEMENT DIVISION, U.S. Steel Corporation, United Steelworkers of America, District 19, Local 4223



The opinion of the court was delivered by: KNOX

 KNOX, District Judge.

 The plaintiff in this case, Frederick D. Dixon, was formerly employed by the Atlas Cement Division of the United States Steel Corporation as a grinderman in the operations department of a plant located in Universal, Pennsylvania, Allegheny County. The plaintiff's complaint, filed on November 22, 1976, alleges that on August 12, 1972, "plaintiff went to the supervisor's office to request use of his telephone since none was available in his immediate work area and his request was refused. On August 15, 1972, plaintiff was notified that he was suspended. . . ."

 On August 22, 1972, the plaintiff filed a "Charge of Discrimination" with the Equal Employment Opportunity Commission and on August 24, 1976, the EEOC issued a "Notice of Right to Sue." The notice was received by plaintiff on August 26, 1976.

 Pending before the court for decision are three motions. On February 3, 1977, the defendant local union filed a "Motion to Dismiss and Motion for Summary Judgment". This motion will be granted. Also on February 3, 1977, the defendant local union filed a "Motion to Strike from the jury trial list". This motion will also be granted. Finally, on February 18, 1977, defendant United States Steel Corporation filed a "motion to strike, motions to dismiss and in the alternative a motion to compel joinder of additional defendant." The motion to strike will be granted but the other two motions of U.S. Steel Corporation will be denied.

 (1) The Union's Motion to Dismiss and for Summary Judgment.

 A suit based upon Title VII must be filed within 90 days of plaintiff's receipt of his notice of a right to sue from the EEOC. The statute provides that if a charge of employment discrimination is dismissed by the Commission, the Commission:

 
"[Shall] so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought" 42 U.S.C. ยง 2000e-5(f)(1).

 As noted in Black Musicians of Pittsburgh v. Local 60-471, 375 F. Supp. 902 (W.D.Pa. 1974):

 
"[There] is no question that the 90-day limit . . . is a jurisdictional requirement. A suit not brought within the statutory period is barred." 375 F. Supp. at 906.

 The plaintiff's original complaint, filed on November 22, 1976, named the United Steelworkers of America as a defendant. On January 11, 1977, the plaintiff filed an "amendment to complaint" seeking to substitute District 19, Local 4223 for the international union as a defendant.

 It is undisputed that more than 120 days elapsed from the date the plaintiff received notice of the right to sue on August 26, 1976 and the date that the complaint was amended to sue the local union on January 11, 1977. Therefore, the 90-day jurisdictional prerequisite cannot be met unless the court holds that the amendment relates back to the original date of filing.

 Rule 15(c) FRCP provides:

 
(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on ...

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