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CAP v. LEHIGH UNIV.

June 3, 1977

BIRUTA CAP
v.
LEHIGH UNIVERSITY



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 Presently before the Court is defendant's motion to dismiss the plaintiff's complaint. In its motion the defendant contends that (1) the claim of plaintiff under Title VII, 42 U.S.C.§ 2000e et seq. must be dismissed for lack of subject matter jurisdiction because the plaintiff has failed to comply with the procedural prerequisites required by the Act for filing such a complaint; (2) the plaintiff has failed to state a cause of action under 42 U.S.C. § 1983 because there is no "state action"; (3) this Court does not have jurisdiction with respect to plaintiff's claim under Executive Order 11246, as amended by Executive Order 11375 because these Orders do not create a private right of action; (4) plaintiff has alleged a conspiracy under 42 U.S.C. § 1985(3) but has failed to state a cause of action under that statute because (a) an institution cannot conspire with itself; (b) there is no "state action"; (c) the claim is barred by the Statute of Limitations; (5) plaintiff's claim under the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. is barred because (a) plaintiff has no standing to sue under that act; (b) the claim is barred by the Statute of Limitations; (c) the Court should not take pendent jurisdiction over this claim; (6) plaintiff's claim under the Equal Pay Act of 1963, 29 U.S.C. § 206(d) is barred by the Statute of Limitations; (7) plaintiff's claim under the Pennsylvania Equal Pay Act, 43 P.S. § 336.1 et seq. is barred by the Statute of Limitations, and the Court should not take pendent jurisdiction over this claim; (8) plaintiff's state law tort claim is barred by the Statute of Limitations and the Court should not take pendent jurisdiction over this claim. Plaintiff opposes defendant's motion.

 Title VII

 The defendant has moved to dismiss the Title VII claim pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the ground that the plaintiff has failed to file a timely claim of sex discrimination with the EEOC, thereby depriving the Court of subject matter jurisdiction. Defendant's 12(b)(1) challenge to subject matter jurisdiction appears to present an attack on the existence of subject matter in fact, rather than an attack on the allegations of subject matter in the complaint. See Mortensen v. First Federal Savings & Loan Association, 549 F.2d 884, 891-92 (3d Cir. 1977). In response to defendant's motion, plaintiff filed a memorandum of law and the deposition of Howard Gurmankin, an equal opportunity employment specialist with the EEOC. Defendant in its supplementary memorandum in support of its motion does not contest any of the factual allegations based upon this deposition, but argues that even when all the facts alleged by plaintiff are considered (including the facts contained in the deposition), they are insufficient to establish plaintiff's compliance with the jurisdictional prerequisites of Title VII. In a motion which challenges the substance of jurisdictional allegations, either side may introduce extra-pleading material. Wright & Miller, Federal Practice & Procedure, § 1350 at 549-550. For the purposes of this motion, we will accept as true all the facts alleged by plaintiff in her complaint and the deposition of Howard Gurmankin.

 There are two jurisdictional prerequisites to the maintenance of an action in the district court pursuant to the provisions of Title VII. The first is the timely filing of charges of employment discrimination with the Equal Employment Opportunity Commission (EEOC), 42 U.S.C. § 2000e-5(e). The second is receipt of a right to sue letter from the EEOC and the institution of suit within the time period mandated by 42 U.S.C. § 2000e-5(f)(1). Alexander v. Gardner-Denver Co., 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974); Wetzel v. Liberty Mutual Insurance Company, 511 F.2d 199 (3d Cir. 1975); rev'd on other grounds 424 U.S. 737, 96 S. Ct. 1202, 47 L. Ed. 2d 435 (1976); Jones v. United Gas Improvement Corporation, 383 F. Supp. 420 (E.D. Pa. 1974). The time limits for filing charges with the EEOC are found in Section 706(e) of Title VII, 42 U.S.C. § 2000e-5(e), which provides:

 
(e) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred . . . except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier . . . .

 The defendant contends that the plaintiff did not file a charge within one hundred and eighty days after the alleged unlawful employment practice occurred. In her complaint, plaintiff alleges that on April 16, 1973 the EEOC assumed jurisdiction over her charges of sex discrimination and thereafter deferred the matter to the Pennsylvania Human Relations Commission. She further alleges that after deferral to the State agency, the EEOC again assumed jurisdiction and on May 12, 1976 issued a right to sue letter. The present action was commenced on June 10, 1976.

 In connection with this motion we have considered the following facts as alleged by the plaintiff in her complaint, as well as the facts in the deposition of Howard Gurmankin. In May, 1972, plaintiff received a one year terminal contract from Lehigh University which, in effect, constituted a denial of tenure. On March 5, 1973, plaintiff wrote to the EEOC stating that Lehigh University had given her a terminal contract which she believed was discriminatory against women and explaining why she believed this action in denying her tenure constituted sex discrimination. The EEOC responded by letter of April 12, 1973 stating that the facts she presented were insufficient to determine a violation of Title VII. A blank charge form was enclosed, along with instructions for plaintiff to complete, sign, date and notarize the charge form if she felt that her complaint was based on a Title VII violation. On April 16, 1973, plaintiff received a letter from the President of Lehigh stating that Lehigh had re-evaluated her status and affirmed the decision to give her a terminal contract. The EEOC sent a letter to plaintiff on May 31, 1973, which letter was identical to its response of April 12, 1973. On July 18, 1973, the EEOC again wrote to plaintiff stating that it had received her communication alleging unlawful employment practices in violation of Title VII, and that in accordance with regulations it had assumed jurisdiction over her charge as of June 18, 1973. On May 31, 1973, plaintiff filed a charge of employment discrimination with the Pennsylvania Human Relations Commission. The Commission found that plaintiff had not established cause for her charge of sex discrimination and closed her case on August 7, 1974. On February 21, 1975, plaintiff filed with the EEOC a charge on the form provided by the EEOC. The EEOC issued a right to sue letter on May 12, 1976, and plaintiff instituted this action on June 10, 1976. The EEOC assumed jurisdiction over plaintiff's case on June 18, 1973, deferred its investigation while plaintiff's complaint was being investigated by the Pennsylvania Human Relations Commission, and began its investigation after February 21, 1975.

 The defendant argues that this Court lacks jurisdiction because plaintiff did not file a timely charge with the EEOC. It is the defendant's contention that the date plaintiff received the terminal contract from defendant, May, 1972, is the date on which the unlawful discrimination occurred and from which the 180-day period begins to run. Since plaintiff's letter of March 5, 1973 was filed more than 180 days from the time she received the terminal contract in May 1972, defendant contends that her charge was not filed within 180 days. Plaintiff, however, claims that the period begins to run from the time she received the terminal contract and continues until the last day she worked, May of 1973, or the date she received notice that the re-evaluation procedure had been completed, April 16, 1973. In Egelston v. State University College at Geneseo, 535 F.2d 752 (2d Cir. 1976), plaintiff, a professor, was notified on May 15, 1972 that her teaching contract, which expired in June 1973, would not be renewed. Defendant contended that plaintiff's charge, filed on January 24, 1973, was not timely. The Second Circuit reversed the District Court's holding that Title VII's time limit was triggered when plaintiff was notified in May of 1972 that her contract would not be renewed. The Second Circuit held that plaintiff's discharge was consummated only when she left the university or possibly when a replacement was hired. In Silverman v. Lehigh Univ., 19 Fair Pempl. Prac. CAs. (BNA) 983, C.A. No. 75-3490 (July 30, 1976, E.D. Pa.), the plaintiff, a professor, received a letter from the Department of Mathematics advising her that she would be offered a one year contract. She sought a review of the decision, and several months later received a letter from the Provost advising her that the recommendation of the Department of Mathematics would be upheld. The Court stated that the 180-day period began to run when the plaintiff received the final decision letter from the University.

 The plaintiff in this case received a contract in May 1972, which contract expired in June of 1973. Plaintiff sought a review of the decision and on April 16, 1973 received a letter from the President of Lehigh stating that the matter had been reviewed and the decision affirmed. It is clear that the alleged discrimination continued at the very least from the time she received her terminal contract until she was informed that the matter had been reviewed and the decision affirmed. Mindful of the interpretations which have been given to Title VII's procedural requirements, e.g., Love v. Pullman, 404 U.S. 522, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972), Wetzel v. Liberty Mutual, 511 F.2d 199 (3d Cir. 1975), rev'd on other grounds, 424 U.S. 737, 96 S. Ct. 1202, 47 L. Ed. 2d 435 (1976), on the basis of the facts which we have heretofore considered, we will deny the defendant's motion to dismiss plaintiff's Title VII claim for lack of subject matter jurisdiction.

 Defendant further contends that plaintiff's letter of March 5, 1973 to the EEOC is not a "charge". 29 C.F.R. § 1601.11(b) provides:

 
(b) Notwithstanding the provisions of paragraph (a) of this section, a charge is deemed filed when the Commission receives from the person making a charge a written statement sufficiently precise to identify the parties and to describe generally the action or practices complained of. A charge may be amended to cure technical defects or omissions, including failure to swear to the charge, or to clarify and amplify allegations made therein, and such amendments alleging additional acts which constitute unlawful employment practices directly related to or growing out of the subject matter of the original charge will relate back to the original filing date. *fn1"

 Plaintiff's letter of March 5, 1973 meets these standards. *fn2" Furthermore, the EEOC's letter of July 18, 1973 states that it assumed jurisdiction over her charge as of June 18, 1973 in response to her letter. We find, therefore, that ...


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