The opinion of the court was delivered by: TEITELBAUM
MEMORANDUM OPINION AND ORDER
Plaintiffs filed the instant lawsuit alleging sex-based employment discrimination. Count One of the complaint is based upon Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Count Two is predicated upon the Equal Pay Act, 29 U.S.C. § 206(d). Defendant has now filed a motion for summary judgment as to both Counts of the complaint.
Defendant contends that it is entitled to judgment on Count One because plaintiffs' action is barred by Section 706(f)(1) of Title VII. Section 706(f)(1) provides:
"If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge. . . ." (emphasis added)
It is undisputed that the 90 day period commences upon receipt by the aggrieved party of the "right to sue" letter. It is also undisputed that the right to sue letter was received on July 5, 1977 and the complaint filed on October 5, 1977 -- 92 days after notice of the right to sue. Apparently, the suit sub judice was not timely filed. Plaintiffs, however, summon to the Court's attention Federal Rule of Civil Procedure 6(e).
Rule 6(e) of the Federal Rules of Civil Procedure provides:
"Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or another paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period." (emphasis added)
In discussing Rule 6, Professor Moore has written that it is a procedural rule that governs the computation of time for doing some act in the course of the proceeding, but cannot be said to expressly apply to a statute of limitations. 2, Moore's Federal Practice para. 6.06. While not expressly referring to subsection e, the obvious corollary would be that no part of a procedural rule should be permitted to affect substantive consequences. The underlying premise of such a position is that if Congress had wanted to allow an aggrieved party 93 days to file suit, it would have explicitly so stated.
On the other hand, there are a number of cases where Rule 6 has been invoked to preserve actions which might otherwise have been held untimely brought.
The result in some instances is achieved by applying Rule 6 by analogy. Whether or not Rule 6 should be analogously applied depends, in part, upon whether or not there is anything in the statute of limitations or decisions construing it which warrants its application. 2, Moore's Federal Practice para. 6.02.
The pervading atmosphere sought to be created by Congress relative to Title VII litigation is one of liberal construction. The United States Court of Appeals for the Third Circuit has recently stated "that the jurisdictional requirements for bringing suit under Title VII should be liberally construed." GLUS v. G. C. Murphy Company, 562 F.2d 880, 887-888 (3d Cir. 1977). Considering the expressed desire of Congress and the judiciary that Title VII claimants be accorded ready access to litigate their charges, the instant action will be considered timely filed in view of the application of Federal Rule of Civil Procedure 6(e).
Defendant next contends that it cannot be considered an employer covered by Title VII for any conduct prior to March 24, 1972 inasmuch as Section 701 of the Civil Rights Act of 1964 excluded school districts from the definition of the term "employer" prior to such date. Defendant's position is well established and this Court so holds. Hazelwood School District v. United States, 433 U.S. 299, 97 S. Ct. 2736, 53 L. Ed. 2d 768 (1977); Mitchell v. Board of Trustees of Pickens County School District "A," 415 F. Supp. 512 (D. S.C. 1976); Weldon v. Board of Education of City of Detroit, 403 F. Supp. 436 (E.D. Mich. 1975); Hutchison v. Lake Oswego School District, 374 ...