The opinion of the court was delivered by: HIGGINBOTHAM, JR.
A. LEON HIGGINBOTHAM, Jr., Circuit Judge, sitting by designation.
Plaintiff, Wilbur Collier, presently a resident of Orangeburg, S.C., brought this action individually and on behalf of others similarly situated against Philadelphia Gas Works (hereinafter "PGW") alleging employment discrimination based on race. Specifically, plaintiff claimed violations of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000d and 42 U.S.C. § 2000e et seq., of the Civil Rights Acts, 42 U.S.C. § 1981, 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3) and of the First, Thirteenth and Fourteenth Amendments.
In February, 1972, while in the employment of PGW, plaintiff went out on sick leave and remained on the payroll until August 1, 1972. On the latter date, Collier's employment with PGW was terminated due to his retirement on psychiatric disability.
On March 9, 1972, Collier wrote to then Chairman of the EEOC, William Brown, who deferred the letter to the Philadelphia District Office. Defendant's brief, p. 36. Subsequently, on March 30, 1972, the letter was referred to the Pennsylvania Human Relations Commission and plaintiff received a notice regarding this deferral. Exhibits B and C, Affidavit of Robert F. Stewart, Jr., filed May 24, 1977. The Pennsylvania Commission on Human Relations did not docket the case because, as they said in their letter of October 30, 1972, the complaint had either been filed untimely or Collier had failed to contact the Commission. Affidavit of Robert F. Stewart, Jr., Exhibit D. The Philadelphia District EEOC Office sent Collier a notice of his right to sue within 90 days on June 4, 1972.
Plaintiff filed an original complaint on August 4, 1976, and and amended complaint on November 10, 1976. In respect to his individual action, plaintiff maintains that PGW engaged in the following unlawful employment practices:
(1) harassed plaintiff because he opposed PGW's unlawful employment practices,
(2) caused plaintiff to be retired on the pretext of a psychiatric disability,
(3) caused plaintiff to be retired because of his opposition to PGW's unlawful employment practices, and
(4) refused to permit plaintiff's advancement to the position of senior machinist because of his race.
In regard to the class action, plaintiff maintains that PGW engages in unlawful employment practices in the area of recruiting, hiring, transferring, promoting, compensation, conditions of employment and discharging of blacks.
Defendant filed a motion to dismiss the amended complaint for lack of jurisdiction and for failure to state a claim for which relief can be granted.
Plaintiff agreed that the 42 U.S.C. § 1985 claim should be dismissed, but he opposed all of the other grounds raised in PGW's motion to dismiss. The 42 U.S.C. § 1983 and § 1985 claims are dismissed. Except for his claim regarding discrimination in his retirement all other claims of plaintiff under Title VII are dismissed.
PGW's motion raises several issues which can be outlined as follows:
A. Plaintiff's Title VII claim
1. Is PGW an agency of the City of Philadelphia and, therefore, not liable under Title VII before March 24, 1972?
2. Did plaintiff terminate his employment before March 24, 1972 making him incapable of raising a Title VII claim against PGW?
3. Did the plaintiff fail to meet the jurisdictional prerequisites of Title VII?
(a) Did plaintiff's March 9, 1972 letter to the Chairman of the EEOC ...