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August 4, 1978


The opinion of the court was delivered by: SNYDER


 The Hospital was originally chartered through the efforts of the Reverend Doctor William Passavant in 1850 to provide health care "without distinction of color, creed or country". Prior to 1964, it operated a Hospital and Convalescent Home at Reed and Roberts Streets in Downtown Pittsburgh, Pennsylvania. In 1964, the Hospital was moved to a facility in the North Hills, a suburban location, and the Convalescent Home was closed on September 30, 1969.

 The pretrial statement of the parties sharply focus their positions. The EEOC points out that the Hospital opened the new North Hills facility in 1964 with only a minimum number of employees and gradually staffed it while continuing to operate at the Reed and Roberts Street location. In staffing during this period, the Hospital gave preference to applicants for employment at the North Hills facility who lived within a 20 minute travel distance, thus eliminating employees who had worked at the Downtown location. The percentage of the Hospital's Black employees was reduced from 90% At its old facility, to a total of 18.6% In 1967 and 1.3% In 1973. The EEOC calls our attention to a disparity between the 1973 percentage and the general 10% Figure for Black employment in the Pittsburgh area in the health services industry, 16% For hospitals and 12% For health services industry nationally, and 14% For hospitals and 9% For health services in Pennsylvania. It charges that the Hospital, by moving from Downtown Pittsburgh to the White suburbs, "ran away from both its Black patients and its Black employees" (Plaintiff's Brief at 4), and the motivation was racial discrimination and/or the move had a racially discriminatory impact.

 The Hospital contends it will demonstrate that its work force consists of representative numbers of minorities from the communities from which it draws its employees and that the basic explanation for the number of minority employees is the fact that there are so few minorities applying for employment, which can be explained by (1) the geographic location of the Hospital at a point distant from concentrations of minority populations in the Pittsburgh Metropolitan Area, (2) the difficulty of commuting to the Hospital by private car, (3) the lack of public transportation from concentrations of minority populations, and (4) availability of jobs at other hospitals more accessible to concentrations of minority populations. Further, the Hospital intends to establish that there is no requirement of the so-called "20 minute travel time", but that the rule is used only in comparing "two equally qualified applicants" and is applied only to those "services required on a short term basis in case of disaster or emergency."


 The Hospital contends that United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977), stands for the proposition that Black employees at the former location who were terminated prior to the applicable period of 180 days would now be barred from consideration "for a relief which arose prior" to the calculated time. In Evans, an airline flight attendant was forced to resign in 1968 due to the then existing no-marriage rule for flight attendants. In February, 1972, she was rehired as a flight attendant and United refused to give her credit for her past service although the no-marriage rule was declared to be violative of Title VII. In March, 1973, she filed a charge with the EEOC and the Supreme Court held her claim barred because she had failed to file a timely charge when she was forced to resign in 1968. The fact that the present seniority system gave effect to past discriminatory practices did not persuade the Court:

"Respondent is correct in pointing out that the seniority system gives present effect to a past act of discrimination. But United was entitled to treat that past act as lawful after respondent failed to file a charge of discrimination within the 90 days then allowed by § 706(d). 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 558, 97 S. Ct. at 1889.)

 Evans had made no allegation that the seniority system was not bona fide and was implemented for discriminatory purposes, so she had suffered no timely discriminatory act for which relief could be granted. See Teamsters v. United States, 431 U.S. 324, 348-55, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977).

 The Hospital argues that assuming for the purpose of the instant Motion that the Black employees at the previous location were terminated due to their race and that Black applicants were denied employment prior to October 21, 1971, under Evans these acts would be unfortunate events of the past having no present legal significance.

 The EEOC contends that Evans is inapposite, for there the employer had committed no unlawful employment practice during the four years preceding the filing of the charge. They point to the language in Evans (431 U.S. at 559, 97 S. Ct. at 1889):

"In the case now before us we do not reach any remedy issue because respondent did not file a timely charge based on her 1968 separation and she has not alleged facts establishing a violation since she was rehired in 1972."

 It urges that in the pending case there was a timely charge filed by Pope and that Evans did not reach the remedies that are available once there is a viable charge, citing Acha v. Beame, 570 F.2d 57 (2nd Cir. 1978), which held that Evans did not change the well settled practice of courts under Title VII to reach back and provide remedies for injuries ...

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