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SHELTON v. BENEFICIAL FIN. CO.

August 1, 1977

David W. SHELTON
v.
BENEFICIAL FINANCE COMPANY



The opinion of the court was delivered by: ROSENBERG

 ROSENBERG, District Judge.

 This matter is before me on the motion of the defendant, Beneficial Consumer Discount (misnamed in the Complaint as Beneficial Finance Co.), to dismiss the complaint of the plaintiff, David W. Shelton, a black man and former employee of the defendant from August 28, 1973 through December 13, 1974. The defendant is engaged in the business of making personal loans and collections. Suit was brought under § 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Civil Rights Act of 1870, 42 U.S.C. § 1981, and the Pennsylvania Human Relations Act of 1955, 43 P.S. § 951 et seq.

 The plaintiff alleges that (1) he was discharged from the defendant's employ because of his race, his bad debts and the repossession of his automobile; (2) certain other employees who also had bad debts were not discharged; and (3) the defendant's policy of firing employees with bad debts and repossession is discriminatory because a large proportion of blacks make up that class. The plaintiff claims these actions violate the above statutes and prays for: (1) a declaratory judgment that the defendant's practices are discriminatory and unlawful; (2) an injunction to enjoin the defendant from continuing such practices; (3) reinstatement; (4) compensatory and punitive damages; and (5) costs and attorney's fees.

 The defendant moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6) and contends that (1) the cause of action based on Title VII is barred by the applicable State Statute of Limitations, 12 P.S. § 34 which is two years in personal injury actions; (2) the cause of action based on 42 U.S.C. § 1981 is barred by the same statute of limitations; and (3) the pendent cause of action based on 43 P.S. § 951 et seq. should be dismissed because there is no substantial federal claim nor compliance with conditions precedent and it is barred by the same statute of limitations.

 The defendant argues that because the last act of discrimination occurred on the plaintiff's day of discharge, December 13, 1974, a suit filed April 4, 1977 is barred by the applicable Pennsylvania Statute of Limitations of two years for none of the statutes concerning jurisdiction in this matter expressly places any limitation on any action.

 The chronological order of events referred to by the plaintiff is that (1) within 180 days of the actions of the defendant, December 30, 1974, the plaintiff filed a charge with the Equal Employment Opportunity Commission (EEOC); (2) on February 6, 1975 the EEOC referred the charge to the Pennsylvania Human Relations Commission; (3) on November 1, 1976, the EEOC determined that the defendant violated Title VII; (4) on January 5, 1977 the EEOC issued to the plaintiff a right to sue letter actionable within ninety days; and (5) on April 4, 1977 this action was filed.

 Thus, the defendant argues that the plaintiff filed suit two years and one hundred thirteen days after he was discharged while the plaintiff could have requested his "right to sue letter" at any time after the expiration of 180 days from the date of filing the charge (29 CFR, § 1601.25b(c)) and that when federal statutes contain no overall statute of limitations, the federal courts have applied the most analogous state statute.

 While the defendant relies on several cases, some even within this district, the Supreme Court has just recently ratified the overall liberal approach that the lower courts must take when dealing with Title VII actions. In Occidental Life Insurance Company of California v. Equal Employment Opportunity Commission, 432 U.S. 355, 97 S. Ct. 2447, 53 L. Ed. 2d 402, June 20, 1977, the Court held: (page , 97 S. Ct. page 2452)

 
In short, the literal language of § 706(f)(1) simply cannot support a determination that it imposes a 180-day time limitation on EEOC enforcement suits. On the contrary, a natural reading of § 706(f)(1) can lead only to the conclusion that it simply provides that a complainant whose charge is not dismissed or promptly settled or litigated by the EEOC may himself bring a lawsuit, but that he must wait 180 days before doing so. After waiting for that period, the complainant may either file a private action within 90 days after EEOC notification or continue to leave the ultimate resolution of his charge to the efforts of the EEOC."

 The Court went on to hold that:

 
"When Congress has created a cause of action and has not specified the period of time within which it may be asserted, the Court has frequently inferred that Congress intended that a local time limitation should apply. E.g., Runyon v. McCrary, 427 U.S. 160, 179-182, [96 S. Ct. 2586, 49 L. Ed. 2d 415] (Civil Rights Act of 1866); Autoworkers v. Hoosier Cardinal Corp., 383 U.S. 696, [86 S. Ct. 1107, 16 L. Ed. 2d 192] (Section 301 of the Labor Management Relations Act); O'Sullivan v. Felix, 233 U.S. 318, [34 S. Ct. 596, 58 L. Ed. 980] (Civil Rights Act of 1871); Chattanooga Foundry & Pipe Works v. Atlanta, 203 U.S. 390, [27 S. Ct. 65, 51 L. Ed. 241] (Sherman Antitrust Act); Campbell v. Haverhill, 155 U.S. 610, [15 S. Ct. 217, 39 L. Ed. 280] (Patent Act). This 'implied absorption of State statutes of limitation within the interstices of . . . federal enactments is a phase of fashioning remedial details where Congress has not spoken but left matters for judicial determination.' Holmberg v. Armbrecht, 327 U.S. 392, 395, [66 S. Ct. 582, 90 L. Ed. 743]. But the Court has not mechanically applied a state statute of limitations simply because a limitations period is absent from the federal statute. State legislatures do not devise their limitations periods with national interests in mind, and it is the duty of the federal courts to assure that the importation of state law will not frustrate or interfere with the implementation of national policies. 'Although state law is our primary guide in this area, it is not, to be sure, our exclusive guide.' Johnson v. Railway Express Agency, 421 U.S. 454, 465, [95 S. Ct. 1716, 44 L. Ed. 2d 295]. State limitations ...

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