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WATSON v. MAGEE WOMENS HOSP.

October 21, 1977

DORIS M. WATSON, Plaintiff,
v.
MAGEE WOMENS HOSPITAL, Defendant



The opinion of the court was delivered by: COHILL

 Plaintiff, Doris M. Watson, filed this suit on September 7, 1976, alleging that defendant, Magee Womens Hospital, discharged her on June 17, 1973 due to discrimination based on her sex and that the defendant has also discriminated against her by refusing reemployment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended. Jurisdiction is invoked pursuant to 28 U.S.C. § 1343(4), 42 U.S.C. § 2000e-5(f) and 28 U.S.C. §§ 2201 and 2202.

 Presently before this court is defendant's motion to dismiss filed October 4, 1976. Oral arguments were heard, and memoranda have been filed by both parties.

 Defendant has four theories under which its motion to dismiss is premised. We will deal with each separately.

 I

 Failure of Plaintiff to Allege Exhaustion of State Remedies

 Defendant contends, and rightly so, that the complaint fails to allege specifically either that the plaintiff has filed a charge with a local or state agency or that the Equal Employment Opportunity Commission ("EEOC") has referred her charge to a state agency as required by 42 U.S.C. § 2000e-5(c).

 However, in her reply memorandum, plaintiff has attached as Exhibit "B", a copy of a letter from Howard L. Tucker, Jr. of the Governor's Office, Human Relations Commission, stating that the EEOC had deferred plaintiff's charge to the Human Relations Commission on February 6, 1974 and that the Commission lacked jurisdiction because of the expiration of the ninety day statute of limitations. This letter indicates compliance with Section 2000e-5(c). Since the authenticity of this exhibit is not controverted and treating the motion to dismiss as a motion for summary judgment, we hold that regarding this issue, jurisdictional requirements have been met. Baker v. California Land Title Co., 349 F. Supp. 235 (C.D. Cal. 1972), affirmed on other grounds 507 F.2d 895 (9th Cir. 1974); see De Gideo v. Sperry Univac Co., 415 F. Supp. 227 (E.D. Pa. 1976). The Supreme Court in Love v. Pullman, 404 U.S. 522, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972) specifically validated the EEOC policy of deferring to the state agency as complying with the requirements of Section 2000e-5(c).

 II

 Untimely Filing with the EEOC

 According to the complaint, plaintiff was terminated on June 17, 1973 and according to the affidavit of James S. Bukes, District Counsel for the Pittsburgh Office of the EEOC, filed her charge of discrimination with the EEOC on November 16, 1973, within 180 days from date of the alleged discrimination as required by Section 2000e-5(e) of the Civil Rights Act. Defendant suggests that a person cannot "file" a charge with the EEOC until a local or state agency has had sixty days in which to act upon the charge. Defendant reaches the conclusion that plaintiff's charge with the EEOC should not have been "filed" until January 16, 1974, more than 180 days following her discharge.

 Title 29 C.F.R. § 1601.11(b) (1971) provides:

 
"[A] charge is deemed filed when the Commission receives from the person aggrieved a written statement sufficiently precise to identify the parties and to describe generally the action or practices complained of . . ."

 The above regulation is unambiguous, and the Supreme Court held in Love, supra, that for purposes of the Act, a charge is filed with the EEOC prior to exhaustion of state remedies if the EEOC refers it to the ...


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