The opinion of the court was delivered by: BECKER
This is a Title VII employment discrimination case
brought by a former "managerial" employee of Bell of Pennsylvania who retired due to illness February 11, 1974, after more than thirty years' service. Plaintiff, a female, claims that her pension checks are discriminatorily small, although the pension plan is fair and sex-neutral on its face, because the pension benefit is determined by a formula based on her five highest years' salaries. These salaries, she claims, were sex discriminatory. Plaintiff's claim was filed with the EEOC on March 12, 1975, some thirteen months after her retirement. Bell moves to dismiss on two grounds: (1) the claim is untimely because plaintiff filed with the EEOC more than 180 days after the occurrence of a discriminatory act; and (2) the claim is barred because the EEOC failed to give Bell notice of the charge.
We address Bell's second contention first because it may quickly be disposed of. No case holds that the EEOC's failure to give the notice required by 42 U.S.C. § 2000e-5(e) bars a later private suit, nor is there any reason why it should. Thus we refuse to dismiss the complaint
as "jurisdictionally defective" because Bell was not served with notice of the charge. We turn then to Bell's primary contention.
It is a jurisdictional prerequisite to a Title VII lawsuit, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), that plaintiff must have filed a timely charge of discrimination with the EEOC within 180 days after the occurrence of the discriminatory act. 42 U.S.C. § 2000e-5(e). Plaintiff concedes that her charge was filed more than 180 days after the occurrence of her last (allegedly) discriminatory paycheck, which is the last relevant discriminatory event during her employment. However, she asserts that her claim is not time-barred because of the existence of "continuing discrimination," i.e. that continuing payments of pension in an amount derived from a sex-discriminatory salary scale is itself a discriminatory act.
After hearing oral argument and receiving supplemental briefs, we reserved judgment as to this contention because we became aware that the Supreme Court had granted certiorari in Evans v. United Airlines, Inc., 534 F.2d 1247 (7th Cir. 1976). Evans had accorded vitality to the plaintiff's continuing discrimination claim by holding: (1) that a female flight attendant who had been rehired after being forced to resign in 1968 pursuant to a discriminatory airline rule,
but whose seniority was not restored pursuant to a facially neutral airline rule calculating seniority on the basis of continuous service, continued to suffer effects of past discrimination; and (2) that her failure to file a complaint with Equal Employment Opportunity Commission within ninety days
after the discriminatory discharge did not bar her action. The court thus held that a facially neutral seniority system is a continuing violation of Title VII if it prolongs the effect of the plaintiff's original discriminatory discharge.
The Supreme Court has now decided Evans, and has reversed, United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977), destroying plaintiff's continuing violation argument. The Supreme Court held that United did not commit a present, continuing violation of Title VII by refusing to credit respondent, after rehiring her in 1972, with pre-1972 seniority, absent any allegation that United's seniority system, which is neutral in its operation, discriminates against former female employees or victims of past discrimination.
In language critical here, Justice Stevens wrote:
431 U.S. at 558, 45 USLW at 4567.
The same principles apply here, leading us to conclude that the receipt by plaintiff of payments received pursuant to a fair and sex neutral pension plan do not constitute a continuing violation tolling the statute even though the amount of pension payments is derived from a sex discriminatory salary scale. The latter fact, which was not made the basis of a timely charge is, however regrettably, "an unfortunate event in history which has no present legal consequences."
Plaintiff has sought to distinguish Evans on the ground that it is a seniority case whereas this is a pension case. We find the distinction untenable in view of the just quoted language. The Court's discussion of § 703(h) of Title VII, which provides that it shall not be an unlawful employment practice to apply different terms of employment pursuant to a bona fide seniority system if any disparity is not the result of intentional discrimination, is discrete and independent from the above stated ground of the Evans decision.
In view of Justice Stevens overriding language, it is plain that the basic holding of Evans is that a current nondiscriminatory policy will not revive a time-barred act of discrimination even though such policy has a continuing impact and gives present effect to a past act of discrimination. That holding is not based on the protection afforded a bona fide seniority system by § 703(h) and it applies directly to the instant case. Plaintiff's claim must be dismissed. An appropriate order follows.
AND NOW, this 26th day of July, 1977, after hearing, IT IS ORDERED as follows:
1. Plaintiff is granted leave to file a second amended complaint and plaintiff's second amended complaint is hereby treated as filed. The motion of the Bell Telephone Company of Pennsylvania to dismiss or, in the alternative, for summary ...