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January 23, 1979

Charles R. GAVIN, Plaintiff,

The opinion of the court was delivered by: COHILL

This case is before us on the defendant's Motion to Dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure and Motion for Summary Judgment pursuant to Rule 56.



 Plaintiff, Charles R. Gavin, a Jehovah's Witness, was employed as a "service operator" at the defendant Peoples Natural Gas Company in Monongahela, Pennsylvania, in 1974. One of his job assignments was raising and lowering the company's American flag, but he refused to do so because he asserted that this act was in conflict with his religious convictions. As a result, he was discharged by the company on May 19, 1974. On June 4, 1974, he filed religious discrimination charges with both the Equal Employment Opportunities Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"), alleging, respectively, violations of Title VII of the Civil Rights Act of 1964 and of § 5(a) of the Pennsylvania Human Relations Act.

 The EEOC apparently investigated the charge but did not hold hearings or settlement discussions, simply issuing to the plaintiff a "right to sue" notice on November 21, 1977. The PHRC considered plaintiff's charge more thoroughly, conducting an administrative hearing after attempts at conciliation failed. Following the hearing, the PHRC on August 27, 1976, issued findings of fact and conclusions of law and entered an opinion and order dismissing the plaintiff's complaint. (Defendant's Exhibits in support of Motion for Summary Judgment, D, E, F, and I). The PHRC held that the testimony of an elder of the complainant's congregation established that the complainant's refusal was not required by religious creed, that the belief of plaintiff was therefore not protected under the Pennsylvania Act, and that the complaint would therefore be dismissed.

 Plaintiff sought review of the PHRC's decision in the Commonwealth Court of Pennsylvania, but this appeal was dismissed by the court on February 14, 1977, due to his failure to file the record of his case within the time limit previously set by the court. (Defendant's Exhibits in Support of Motion for Summary Judgment, J and K).

 In the meantime, and within the period of limitations, the plaintiff had filed this suit under Title VII, 42 U.S.C. § 2000e Et seq. He alleged that the defendant discriminated against him because of "his religion, his conscientious convictions, as well as his race."

 The defendant has responded with a Motion to Dismiss the race discrimination claim and a Motion for Summary Judgment on the religious discrimination claim. The Motion to Dismiss is on the grounds that race discrimination had not been asserted in plaintiff's claims before the EEOC. The Motion for Summary Judgment makes two contentions: that the state proceedings raise a bar of Res judicata and that the religious discrimination section of Title VII at 42 U.S.C. § 2000e(j) is unconstitutional.


 The Motion to Dismiss

 As earlier noted, defendant's administrative claim before the EEOC involved only a charge of religious discrimination. That was the charge which the EEOC investigated and on which it issued its determination and invited the defendant to conciliate (Exhibit C to defendant's Motion to Dismiss). Specifically, the EEOC found that the defendant made no effort to reasonably accommodate the plaintiff's religious beliefs.

  Filing of a charge with the EEOC is a well established jurisdictional prerequisite to suit under Title VII, 42 U.S.C. § 2000e-5(e). Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir. 1967), Cert. denied, 389 U.S. 877, 88 S. Ct. 177, 19 L. Ed. 2d 166 (1968). The purpose of this rule is to effectuate the Civil Rights Act's primary goal of voluntary compliance. Therefore, the federal courts may hear only those charges made before the Commission or those which would reasonably be expected to grow out of the original charge. Ostapowicz v. Johnson Bronze Co., 541 F.2d 394 (3d Cir. 1976).

 We agree with defendant that plaintiff's claim of racial discrimination, raised for the first time in his complaint in this court, is not the type of claim which would have naturally grown out of his original religious discrimination charge, and it must therefore be dismissed. In EEOC v. Bailey Co., 563 F.2d 439 (6th Cir. 1977), the United States Court of Appeals for the Sixth Circuit declined jurisdiction over a religious discrimination claim in a complaint brought by the EEOC where the original charge had consisted of claims of racial and sexual discrimination. See also EEOC v. United States Fidelity & Guaranty Co., 420 F. Supp. 244 (D.Md.1976) (EEOC cannot expand sex discrimination charge to race discrimination investigation).

 Since the race discrimination claim was not made before the EEOC, this court is without jurisdiction to hear it now. The defendant's Motion to Dismiss that claim will therefore be granted.


 Defendant's Motion for Summary Judgment

 Defendant's Motion for Summary Judgment presents two questions for resolution: (1) whether plaintiff's federal claim of religious discrimination should be barred by the doctrine of Res judicata because of state adjudication of the same claim, and (2) whether § 701(j) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(j), violates the Establishment Clause of the First Amendment to the United States Constitution.


 In its brief and at oral argument, the defendant has asserted that the plaintiff should not now be permitted to use a federal forum to reargue facts in support of his religious discrimination claim that were heard in state administrative proceedings and could have been heard by the Commonwealth Court had he not failed to pursue his appeal. The employer here has apparently been called upon to defend itself in at least five previous forums, *fn1" and its frustration with this claim is understandable. However, for purposes of determining federal jurisdiction and whether plaintiff is entitled to pursue his claim here, we may consider only his earlier claims to the PHRC and the EEOC.

 Res judicata is the judicially created doctrine that a final judgment on the merits by a court of competent jurisdiction is conclusive of the rights of the parties in any later suit brought on the same cause of action. See, e.g., Burke v. Pittsburgh Limestone Corp., 375 Pa. 390, 395, 100 A.2d 595, 598 (1953).

 The doctrine has been applied by the federal courts in some civil rights actions, barring the federal suit because of an earlier state adjudication on the same issues. In Whitner v. Davis, 410 F.2d 24 (9th Cir. 1969), and in Frazier v. East Baton Rouge Parish School Board, 363 F.2d 861 (5th Cir. 1966), two courts of appeal have expressed the opinion that state court adjudications of teacher dismissals would normally be Res judicata in subsequent suits for violation of constitutional rights under 42 U.S.C. § 1983.

 Both of the parties herein cite Mitchell v. National Broadcasting Company, 553 F.2d 265 (2d Cir. 1977), in support of their differing positions. In Mitchell, the Second Circuit held that a federal civil rights action under 42 U.S.C. § 1981 (the civil rights statute forbidding racial discrimination in making and enforcing contracts) was barred by a final decision by the State Division of Human Rights, affirmed by a state appellate court, rejecting the plaintiff's claim.

 After warning that "(T)he implications of barring a civil rights claim on Res judicata grounds deserve careful consideration," 553 F.2d at 269, the Second Circuit went on to hold that Res ...

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