or (3) after the passage of 180 days from the date of the plaintiff's charge being filed with the EEOC. The "right to sue" letter explains to the plaintiff that a civil action may be commenced within 90 days. It is at this point that the plaintiff is allowed to file a complaint in a United States District Court. 42 U.S.C. 2000e-5(f).
Plaintiff, Mary Smith, was first employed by the defendant department store in 1965. Plaintiffs, Carol DiMaio and Howard Watts, began working for the defendant in 1970. At the time in question, all three were employed in defendant's wig department. On June 29, 1972, Smith and DiMaio filed charges with the EEOC, alleging discrimination by the defendant on the basis of sex in that the defendant was paying Watts (who later was to become a co-plaintiff) more than it was paying Smith and DiMaio for essentially the same work.
On July 8, 1972, Watts was laid off. He alleged that the store let him go to remove the primary male basis of comparison with Smith and DiMaio and also in retaliation for the filing of charges with the EEOC by Smith and DiMaio. On July 8 and 15, 1972, Smith and DiMaio, respectively, filed additional charges with the EEOC, alleging retaliation based on the layoff of Watts. For reasons not apparent from the record, the three plaintiffs subsequently filed the joint complaint in this matter.
On February 28, 1973, the EEOC issued a determination letter that there was reasonable cause to believe that defendant had violated Title VII by failing to pay equal wages to male and female employees performing substantially similar work and that defendant's actions taken against plaintiff Watts constituted a reprisal for the charges filed with the EEOC. On June 10, 1975, the EEOC notified the plaintiffs of their right to institute suit within 90 days therefrom, and on August 4th this suit was commenced.
On February 18, 1975, plaintiff Smith filed another charge with the EEOC alleging retaliation against her for the earlier discrimination charge which she had filed. Smith left the employ of defendant on August 9, 1975. The EEOC did not issue any determination letter regarding Smith's February 18, 1975 charge but on May 18, 1976, the EEOC notified Smith of her right to sue within ninety days.
Nowhere is there an allegation that any of the plaintiffs sought relief from the Pennsylvania Human Relations Commission before coming to the EEOC. The Pennsylvania Human Relations Commission is the state authority established by the Commonwealth of Pennsylvania to seek or grant relief in such matters.
Motion to Amend
The plaintiffs have moved to amend their complaint as follows:
1. Plaintiffs moved to amend paragraphs, 6, 7 and 8 of the complaint to characterize their job classification as that of "Wig Stylist" and to amend their complaint further by adding a third count to plead hypothetically that if defendant classified the individual plaintiffs differently by job classification, such job classifications were not bona fide but were artificially created to permit defendant to compensate the male plaintiff Watts at a higher rate than female plaintiffs Smith and DiMaio, or alternately that defendant's failure to permit the female plaintiffs to function in the same job classification as the male plaintiff was a discriminatory job classification.
This portion of the motion will be granted.
Plaintiffs also moved to amend paragraph 6 of their original complaint to show that Smith is no longer employed by defendant, because of an alleged constructive discharge.
This portion of the motion will be denied.
2. Plaintiffs also moved to amend the complaint by adding a fourth count to state that on February 18, 1975 plaintiff Smith filed with EEOC additional charges averring retaliation against her by the defendant and also to allege that her leaving the employ of defendant on August 9, 1975 was a constructive discharge.
This portion of the motion will be denied.
3. Plaintiffs also wish to attach to the amended complaint certain documentary exhibits which they aver were inadvertently not attached to the original complaint.
This part of the motion will be granted.
4. Not raised by the parties, but on our own suggestion, pursuant to Fed. R. Civ. P. 12(h)(3), we question whether this court has present jurisdiction over this matter in view of the possible failure of the plaintiffs to have filed charges with the Pennsylvania Human Relations Commission prior to filing with the EEOC.
1. Job Classifications
Plaintiffs want to amend the complaint to characterize plaintiffs' job classification as "wig stylist" and to plead hypothetically that if defendant classified plaintiffs differently by job classifications these were artificially created to allow the defendant to compensate the male plaintiff at a higher rate than the female plaintiffs, or alternatively, that the defendant's failure to permit the female plaintiffs to function in the same job classification as the male plaintiff was a discriminatory job classification in violation of Title VII.
Defendant avers that such an amendment should not be permitted, arguing that it goes beyond the scope of judicial inquiry in this case since the proposed amendment was not part of the plaintiffs' EEOC charge, investigation, or determination.
The United States Court of Appeals for the Third Circuit has discussed the approach to be adopted when entertaining motions to amend a complaint in civil rights cases. In Rotolo v. Borough of Charleroi, 532 F.2d 920 (3rd Cir. 1976), the court stated:
". . . To accomplish the dual objectives of weeding out frivolous cases in keeping the federal courts open to legitimate civil rights claims, courts should allow liberal amendment of civil rights complaints under Fed. R. Civ. P. 15(a)."
In the present case, this philosophy must be limited to some extent by the scope of judicial inquiry permitted in Title VII cases.
The scope of the judicial inquiry is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-399 (3rd Cir. 1976), Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). King v. Georgia Power Company, 295 F. Supp. 943 (N.D. Ga. 1968) held that allegations in a court complaint filed pursuant to Title VII "may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the commission." 295 F. Supp. at 947. King was approved in a 6th Circuit case, Tipler v. E.I. DuPont de Nemours and Co., 443 F.2d 125 (6th Cir. 1971).
Judge Rosenberg of this district in Equal Employment Opportunity Commission v. Greyhound Lines, 411 F. Supp. 97 (W.D. Pa. 1976) followed Sanchez, supra and also cited Equal Employment Opportunity Commission v. E.I. DuPont de Nemours and Co., 373 F. Supp. 1321 (D.C. Del. 1974) affirmed on other grounds, 516 F.2d 1297 (3rd Cir. 1975) which put emphasis on the general character of the grievances to which the charge alludes and not to the specific charge.
An examination of the statutory scheme of Title VII makes it apparent that the purpose of filing a charge of discrimination with the EEOC is to trigger the investigatory and conciliatory procedures of that agency and not to function as a lawsuit itself. Sanchez, supra. It is only after investigation and failure in an attempt to obtain voluntary compliance with the law that the matter may become the subject of a court action. The subject matter of the civil action is more intimately related to the EEOC investigation than to the original charges filed with EEOC. Sanchez, supra. The prime objective of Title VII is to accomplish compliance with the law through conciliation. Obviously only charges investigated can be the subject of such conciliation. The federal courts cannot be used to bypass the EEOC machinery. What happens at the EEOC level is of the utmost importance. The court action is limited to that range of issues that would have been the subject matter of the conciliation efforts between EEOC and the employer. King, supra 947. Hence, two of the jurisdictional prerequisites to a federal court action under Title VII are (1) the filing of a timely charge with the EEOC and (2) receipt and action upon the commission's statutory notice of the right to sue. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).
The plaintiffs' charge with the EEOC did not allege specifically that defendant discriminated in job classifications, nor did the EEOC's determination letter refer specifically to job classifications. We believe, however, that plaintiffs' proposed amendments alleging discriminatory job classifications are so intimately related to the formal charges that they are well within the scope of what could reasonably be expected to have been investigated by the EEOC. Job classifications are within the general character of the grievances in the plaintiffs' EEOC charge. If it is assumed that plaintiffs Smith and DiMaio were victims of sex discrimination in their employment with the defendant as charged, it is also reasonable to assume that job classifications may have been used as a means of furthering this discrimination or that the alleged discrimination may have been reflected in plaintiffs' job classification, and it is not unreasonable to assume that this aspect of the case would have been included in the EEOC inquiry.
The court in Scott v. The University of Delaware, 385 F. Supp. 937 (D.Del. 1974) in a case involving racial discrimination stated:
"Given these considerations, the 5th Circuit in Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Circuit 1970) held that the allowable scope of an individual lawsuit is not defined by the allegations in the EEOC charge, but rather by the scope of the EEOC investigation which can reasonably be expected to grow out of that charge. Id. at 466. Under this test a plaintiff may seek redress for the grievance described in his EEOC charge as well as related incidents or policies of discrimination which are reasonably the subject of the EEOC's relatively broad investigatory and remedial power.