which the plaintiff currently receives monthly benefits.
has been recognized in this Circuit as creating a cause of action for alleged employment discrimination. Young v. Intern'l. Telephone & Telegraph Co., 438 F.2d 757, C.A. 3, 1971. Since this statute provides no period of limitations, it is necessary to refer to the appropriate period stated in a statute of local application. Macklin v. Spector Freight Systems, Inc., 156 U.S.App.D.C. 69 at page 84, 478 F.2d 979 at page 994, 1973. Such a cause of action must be brought at least within six years from the date on which such cause accrued. Meyers v. Pennypack Woods Home Ownership Assn., 559 F.2d 894, C.A. 3, 1977.
Similarly, under the terms of 42 U.S.C. § 2000e et seq.,
a plaintiff may not bring suit in a district court unless a charge has been filed with the Equal Opportunity Commission within 180 days of the occurrence of the alleged unfair practice. The timely filing of charges with the EEOC and the timely filing of suit thereafter are "jurisdiction" facts. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, C.A. 3, 1975, cert. den. 421 U.S. 1011, 95 S. Ct. 2415, 44 L. Ed. 2d 679 (1975). Any failure to comply with 42 U.S.C. § 2000e-5(e) deprives a district court of subject matter jurisdiction. DeGideo v. Sperry-Univac Company, 415 F. Supp. 227 (E.D.Pa.1976). See also, Kutska v. California State College Department, 410 F. Supp. 48, 49-50, n.1 (W.D.Pa.1976), aff'd 549 F.2d 795, C.A. 3, 1977; Macklin, supra, 156 U.S.App.D.C. at page 76, 478 F.2d at page 986.
This is settled law and the plaintiff does not challenge it, only its application to the facts at hand.
In regard to the refusal to promote the plaintiff, I find the last date on which the plaintiff could have been illegally refused promotion and discriminated against was on the last day of his employment with the defendant corporation on August 4, 1969. Since the plaintiff failed to institute any action within the six-year statute of limitations (on or before August 4, 1975), and also failed to make this the basis of a timely charge with the EEOC within 180 days of his retirement date, this claim of the plaintiff is barred and must be dismissed.
The plaintiff's second claim alleges that the operation of the defendant's pension system constitutes a continuing violation of both § 1981 and § 2000e et seq. (Title VII) in that the plaintiff is not receiving as much as he would have received if he had not been allegedly discriminated against in promotion, and therefore, that each monthly benefit the plaintiff does receive is the present effect of prior acts of discrimination.
A recent case, United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977) deals with an issue similar to that here being considered. Evans was employed by United as a flight attendant from November, 1966 to February 1968 at which time she married and was forced to resign because United maintained a policy of refusing to allow its female flight attendants to be married (which policy was subsequently found to be in violation of Title VII of the Civil Rights Act of 1964). Evans was rehired in February 1972 and in 1973 filed charges with the EEOC claiming that United had committed an unlawful employment practice by refusing to credit her with seniority for any period prior to February, 1972. No charge had been filed with the EEOC within the appropriate time period after the plaintiff was forced to resign in 1968.
The sole question for decision by the Supreme Court was whether United had committed a second violation of Title VII by refusing to credit her with seniority for any period prior to February, 1972. Evans argued, inter alia, that United's seniority system illegally discriminated against her in that it gave present effect to the past illegal act and therefore perpetuated the consequences of forbidden discrimination.
The majority of seven, through Justice Stevens, agreed with the appellant that the seniority system gave present effect to a past act of discrimination, but held that such a discriminating act must have been based on a timely charge before the Court could have adjudicated the question of remedy. The Court noted:
"A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered. It is merely an unfortunate event in history which has no present legal consequences." 431 U.S. at page 558, 97 S. Ct. at page 1889.
The Court continued:
"Respondent emphasizes the fact that she has an alleged and Continuing violation. United's seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity the critical question is whether any present Violation exists. She has not alleged that the system discriminates against former female employees or that it treats former employees who were discharged for a discriminatory reason any differently than former employees who resigned or were discharged for a non-discriminatory reason. In short, the system is neutral in its operation." 431 U.S. at page 558, 97 S. Ct. at page 1889.