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KELLY v. PHILADELPHIA GAS WORKS

November 15, 1977

Franklin KELLY, Plaintiff,
v.
PHILADELPHIA GAS WORKS, Defendant



The opinion of the court was delivered by: HIGGINBOTHAM

 HIGGINBOTHAM, Circuit Judge, Sitting by Designation.

 Plaintiff alleged that he was "constructively discharged" from employment on August 2, 1971, and that he was discriminatorily denied reemployment on May 24, 1973. After his termination, plaintiff filed a charge with the Philadelphia Commission on Human Relations (hereinafter "PCHR"). *fn1" After he was denied reemployment he filed a charge with EEOC which was received on July 25, 1973. (Affidavit of Robert F. Stewart, Jr., Exhibit C, filed May 24, 1977).

 Defendant filed a motion for summary judgment on May 10, 1977, stating:

 
1) The Court lacks jurisdiction over plaintiff's Title VII claim regarding the August 2, 1971 termination because
 
(a) PGW, as an agency of the City of Philadelphia, was immune from Title VII liability prior to the March 24, 1972 amendment to that act, and
 
(b) plaintiff failed to satisfy the jurisdictional prerequisite of filing a timely charge with the PCHR and the EEOC.
 
2) The Court lacks jurisdiction over plaintiff's 42 U.S.C. § 1981 and § 1985 claims because
 
(a) PGW is not a "person" liable under § 1981,
 
(b) the complaint is barred by the statute of limitations and
 
(c) the § 1985 claim is not sufficiently pleaded.

 Defendant raises no jurisdictional objection regarding plaintiff's allegation under Title VII that his application for reemployment in 1973 was discriminatorily denied. Thus, there is no question before me regarding the propriety of raising that claim.

 Plaintiff has denied all the defendant's claims in PGW's motion for summary judgment in his answer, filed June 1, 1977, except defendant's statement that no claim under 42 U.S.C. § 1985 can be brought. *fn2" ...


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