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FLESCH v. EASTERN PENNSYLVANIA PSYCHIATRIC INST.

June 23, 1977

DR. REGINA FLESCH
v.
EASTERN PENNSYLVANIA PSYCHIATRIC INSTITUTE PENNSYLVANIA STATE EMPLOYEES RETIREMENT BOARD FRANK S. BEAL, Secretary Commonwealth of Pennsylvania Department of Public Welfare ROBERT M. DALY, M.D., Deputy Secretary for Mental Health Commonwealth of Pennsylvania Department of Public Welfare DR. ULYSSES E. WATSON, Director Eastern Pennsylvania Psychiatric Institute RICHARD L. WITMER, Secretary State Employees Retirement Board BERNARD BORISLOW, Director of Research and Training, Eastern Pennsylvania Psychiatric Institute



The opinion of the court was delivered by: LUONGO

 This is an action under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1871, and the Fourteenth Amendment by Dr. Regina Flesch against Eastern Pennsylvania Psychiatric Institute (EPPI), EPPI Director and Chief Executive Officer Ulysses E. Watson, EPPI Director of Research and Training Bernard Borislow, the Pennsylvania Department of Public Welfare, *fn1" Pennsylvania Secretary of Public Welfare Frank S. Beal, Deputy Secretary for Mental Health Robert M. Daly, the State Employees Retirement Board (SERB), and SERB Secretary and Chief Administrative Officer Richard L. Witmer. Jurisdiction over the Title VII claims is bestowed by § 706(f)(3) of the Act, 42 U.S.C. § 2000e-5(f)(3). Plaintiff also asserts jurisdiction under 28 U.S.C. §§ 1331(a) and 1343(3)-(4), and pendent jurisdiction as to state law claims. The action is before me on defendants' motion to dismiss for lack of jurisdiction, Fed. R. Civ. P. 12(b)(1), and failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6).

 The complaint alleges: From September 12, 1966 to September 14, 1976, plaintiff was employed as a medical research scientist at EPPI, a psychiatric hospital and research institution operated as a part of the Pennsylvania Department of Public Welfare. During that time, EPPI, Watson, and Borislow discriminated against plaintiff by denying her adequate supporting staff, facilities, and equipment because of her sex. In addition, EPPI, with the agreement of SERB, wrongfully classified plaintiff as a part-time employee, causing her to lose a portion of the seniority and retirement credits which should have accumulated while she was working under a federal grant program. Toward the end of plaintiff's tenure, EPPI, acting primarily through Dr. Borislow, gave plaintiff low performance ratings, partly because of her sex and partly because of the inadequate supporting staff, facilities, and equipment which had been provided to her.

 On September 26, 1975, plaintiff filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC). The factual allegation in the charge, which named only EPPI as respondent, stated:

 
"I have been deprived, over a long period of time, of retirement benefits, adequate office space (in the past) and adequate secretarial help, in a way that no other scientist in my position has experienced. I feel that this has happened because of my sex, female."

 On September 14, 1976, plaintiff was furloughed by EPPI, in part because of her low performance ratings. The complaint alleges that she has remained unemployed since that time and that EPPI has refused to recall her to work, although it can afford to do so. *fn2"

 On September 16, 1976, the EEOC issued a letter of determination concluding that the facts revealed in its investigation of plaintiff's charge did not show reasonable cause to believe that EPPI had violated Title VII of the 1964 Civil Rights Act. This determination was forwarded to plaintiff on September 22, 1976, along with a notice of her right to sue.

 On December 21, 1976, plaintiff filed this suit against the above-named defendants, alleging the discriminatory conduct already described and, in addition, asserting that defendants' discriminatory actions during the last year of her tenure, including the continued denial of help, the furlough, and the refusal to call her back to work, were in retaliation for filing the EEOC charge. She avers that defendants' actions were taken in furtherance of a conspiracy to discriminate against her because of her sex. The five-count complaint alleges violations of Title VII, the First and Fourteenth Amendments to the Constitution, two sections of the Civil Rights Act of 1871, and the Pennsylvania State Employees Retirement Code. Plaintiff seeks a judgment declaring defendants' actions unconstitutional (see Declaratory Judgment Act, 28 U.S.C. §§ 2201-02); a permanent injunction prohibiting defendants from engaging in such actions and requiring EPPI to reinstate plaintiff with full seniority and credit for benefits which would have accrued since her furlough; and an award of back pay and compensatory and punitive damages, costs of suit, and attorney's fees.

 I. Claims under Title VII

 A. Exhaustion of Administrative Remedies

 Defendants move to dismiss some of the Title VII claims for lack of jurisdiction because plaintiff has not exhausted administrative remedies.

 Title VII provides that before a discriminatee may bring a judicial action against an employer for violation of the Act, a charge must have been filed with the EEOC *fn3" and the EEOC must have then notified the discriminatee of the right to sue. *fn4" Civil Rights Act of 1964, Title VII, § 706(f)(1), 42 U.S.C. § 2000e-5(f)(1). These prerequisites are jurisdictional. 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, 798-99, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Canavan v. Beneficial Finance Corp., 553 F.2d 860 (3d Cir. 1977); Gibson v. Kroger Co., 506 F.2d 647 (7th Cir. 1974), cert. denied, 421 U.S. 914, 43 L. Ed. 2d 779, 95 S. Ct. 1571 (1975); Richardson v. Miller, 446 F.2d 1247, 1248-49 (3d Cir. 1971). Plaintiff did file charges before the EEOC. The EEOC dismissed the charges and notified plaintiff of her right to sue. Plaintiff's complaint, however, sets forth allegations not included in the EEOC charge and asserts claims against defendants not named as respondents before the EEOC. Defendants' motion is addressed to extension of this case to those additional claims and parties.

 1. The Additional Claims

 The matters presented to the EEOC did not include the allegation, now set forth in plaintiff's complaint, that defendants retaliated against her for filing the EEOC charge. Defendants therefore contend that I do not have jurisdiction over the claim of retaliatory action.

 Courts which have considered this issue have held that jurisdiction may be exercised over all claims encompassed within the EEOC charge and like or related matters which might reasonably be expected to be subject to an EEOC investigation growing out of the charge. Gamble v. Birmingham Southern R.R., 514 F.2d 678, 687-89 (5th Cir. 1975) (recognizing jurisdiction over claims not included in EEOC charge and not actually investigated by EEOC so long as they were of same type and character of discrimination as originally charged and involved the same plaintiffs); Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973); Tipler v. E. I. duPont deNemours and Co., 443 F.2d 125, 131 (6th Cir. 1971); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 464-67 (5th Cir. 1970). The Third Circuit has intimated agreement with this view. See Wetzel v. Liberty Mutual Insurance Co., 511 F.2d 199, 202-03 (3d Cir. 1975), vacated on other grounds, 424 U.S. 737, 96 S. Ct. 1202, 47 L. Ed. 2d 435 (1976). This rule is broad enough to include claims arising from new acts occurring during pendency of the EEOC charge and reasonably related to or growing out of acts alleged in the charge. Oubichon, supra, 482 F.2d at 571. Claims of retaliation for filing the charge are within this category. Bernstein v. National Liberty International Corp., 407 F. Supp. 709, 713 (E.D. Pa. 1976); Held v. Missouri Pacific R.R., 373 F. Supp. 996, 1000-02 (S.D. Tex. 1974); Van Hoomissen v. Xerox Corp., 368 F. Supp. 829, 832-34 (N.D. Cal. 1973). Applying this rule, I reject defendants' contention that I do not have jurisdiction over plaintiff's claim of retaliatory conduct.

 2. The Additional Defendants

 EPPI was the only party named in the charge filed by plaintiff with the EEOC. All of the defendants other than EPPI therefore contend that I do not have jurisdiction over the claims against them because plaintiff has not exhausted administrative remedies as to them.

 Section 706(f)(1) of the Act, 42 U.S.C. § 2000e-5(f)(1), provides that after administrative remedies have been exhausted, "a civil action may be brought against the respondent named in the charge . . . by the person claiming to be aggrieved." The Act does not provide for a civil action against persons not named in the charge before the EEOC. This statutory scheme is designed to assure that the defendant has notice of the alleged violation and an opportunity to voluntarily enter into a conciliation agreement under EEOC auspices. As a result, courts firmly adhere to the exhaustion requirement and refuse to exercise jurisdiction over defendants not named in the EEOC charge except in very narrow exceptional situations. See, e.g., Le Beau v. Libby-Owens-Ford Co., 484 F.2d 798, 799 (7th Cir. 1973); Bernstein, supra, 407 F. Supp. at 714-16; Scott v. University of Delaware, 385 F. Supp. 937, 940-42 (D. Del. 1974); Van Hoomissen, supra, 368 F. Supp. at 834-35.

 Plaintiff contends that her claims against defendants Watson and Borislow and possibly defendants Beal, Daly, and Witmer should fall within an exception of § 706(f)(1) because of the agency relationship which those defendants have to EPPI, the respondent named in the EEOC charge. Courts have generally rejected an agency exception unless there is a strong identity of interests between the EEOC respondent and the newly named defendant. Scott, supra, 385 F. Supp. at 941; Van Hoomissen, supra, 368 F. Supp. at 834-35; McDonald v. American Federation of Musicians, 308 F. Supp. 664, 669 (N.D. Ill. 1970); cf. Jackson v. University of Pittsburgh, 405 F. Supp. 607, 615-18 (W.D. Pa. 1975). Generally, such an identity exists if the violation notice and the EEOC negotiations and conciliation efforts with the charged party can reasonably be said to apply to that party's agents as well. See McDonald, supra, 308 F. Supp. at 669; cf. Bernstein, supra, 407 F. Supp. at 715-16. *fn5" The complaint alleges that defendant Watson is the director and chief executive officer of EPPI, and plaintiff argues that the agency exception should apply to Watson because he had notice of the EEOC charge and was involved in its investigation. Plaintiff makes a similar argument with regard to defendant Borislow, EPPI's director of research and training. Neither Watson nor Borislow were mentioned in the EEOC charge, however, and it is not clear whether their administrative positions at EPPI provide a sufficient identity of interest for application of the agency exception. Application of the exception is even more attenuated as to defendants Beal, Daly, and Witmer. According to plaintiff's own complaint, these defendants are not even agents of EPPI; Beal and Daly are associated with the Department of Public Welfare, and Witmer is an administrative officer of SERB. It appears unlikely, therefore, that the exception will apply to them.

 Plaintiff contends that SERB, and possibly the Department of Public Welfare, are within an exception to § 706(f)(1) because they are "indispensable parties." *fn6" Federal Rule 19(a) provides:

 
"A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if . .. in his absence complete relief cannot be accorded among those already parties."

 In Evans v. Sheraton Park Hotel, 164 U.S. App. D.C. 86, 503 F.2d 177, 180-84 (D.C. Cir. 1974), the District of Columbia Court of Appeals held that a party could be joined under Rule 19(a) in a Title VII action even though that party was not named before the EEOC because absence of such a party would thwart the purpose of Title VII to provide complete relief from discrimination. Since Rule 19(a) does not allow joinder of parties who will deprive the court of jurisdiction, *fn7" the Court of Appeals' holding was contrary to the rule that exhaustion of administrative remedies is a jurisdictional requirement in Title VII actions. Cf. Le Beau, supra. Nevertheless, other courts have allowed joinder of parties not named before the EEOC if necessary for the effective enforcement of Title VII. See, e.g., Equal Employment Opportunity Commission v. McLean Trucking Co., 525 F.2d 1007, 1011-12 (6th Cir. 1975); Torockio v. Chamberlain Manufacturing Co., 51 F.R.D. 517 (W.D. Pa. 1970) (Weis, J.). Assuming the validity of this exception, I seriously doubt that SERB, which administers the state retirement system in accordance with information about state employees provided by other state agencies (see State Employees Retirement Code, 71 Pa. C.S.A. §§ 5902 et seq.), and the Department, which apparently was joined merely because it has supervisory authority over EPPI (Public Welfare Code § 302, 62 P.S. § 302), are necessary parties under Rule 19(a).

 Recently a panel of the Third Circuit surveyed some of the cases applying the agency and necessary party exceptions to the exhaustion rule. Although it did not intimate a view as to the validity of these exceptions, the Court stated that if a plaintiff claims that the exceptions are applicable, the district court should not consider a motion to dismiss for failure to exhaust administrative remedies until the plaintiff has had an opportunity to discover facts pertinent to the possible application of the exceptions. Canavan, supra, slip op. at 8-10. Abiding by this directive, I shall deny the motion of the additional defendants to dismiss for lack of jurisdiction, without prejudice to the right of those defendants who remain in this case to file an appropriate motion after a record has been made as to pertinent jurisdictional facts.

 B. Exhaustion of Contractual Remedies

 Defendants contend that I should not exercise jurisdiction over plaintiff's Title VII claims because plaintiff has not exhausted her contractual remedies for discrimination.

 In their brief, defendants assert that plaintiff has instituted arbitration proceedings pursuant to an agreement between the Commonwealth of Pennsylvania and the Pennsylvania Association of State Mental Hospital Physicians and that, although a hearing has been held, no decision has been rendered on that grievance. Memorandum in Support of Defendants' Motion to Dismiss, Doc. No. 5, at 11. Counsel for plaintiff has agreed with this assertion. Defendants recognize that plaintiff's recourse to arbitration does not bar her action in this court since federal courts are vested with the primary role in Title VII enforcement actions. Title VII judicial remedies and any contractual arbitration remedies available to a discriminatee under a collective bargaining agreement are separate and independent of each other, allowing a discriminatee to resort to either or both of them. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974). See also Electrical Workers Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 236-40, 50 L. Ed. 2d 427, 97 S. Ct. 441 ...


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