most definitely "made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a).
In addition, it is clear that by filing their complaint in this court, plaintiffs were engaged in the process of enforcing their rights under Title VII. Moreover, they were doing so according to the orderly procedures established by Congress and the Commission. I hold that retaliation against them for such an act is prohibited by § 2000e-3(a). See Hicks v. ABT Associates, Inc., 572 F.2d 960, 969 (3d Cir. 1978); Hochstadt v. Worcester Foundation For Experimental Biology, 425 F. Supp. 318, 324 (D.Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).
The fact that I have decided plaintiffs' underlying charge of racial discrimination in defendant's favor is of no consequence to the retaliation claim. It is well established that even when a charge of discrimination is without merit, an employee or applicant is still protected by Title VII in making the charge, and he may not be retaliated against. Hicks v. ABT Associates, Inc., supra, 572 F.2d at 969; United States v. University of Maryland, 438 F. Supp. 742, 758 (D.Md.1977); Bradington v. International Business Machines Corp., 360 F. Supp. 845 (D.Md.1973), aff'd, 492 F.2d 1240 (4th Cir. 1974).
Defendant CCP argues, however, that even if section 2000e-3(a) does cover the facts of this case, plaintiffs cannot obtain relief under Title VII because they have failed to exhaust their administrative remedies. There is no dispute about the fact that Sokolsky and Coward never filed complaints with the EEOC regarding their charge of retaliation. Stipulation of Facts, P 34. CCP argues that plaintiffs' failure to bring their retaliation claim to the Commission bars them from seeking relief on that claim in this court. I do not agree.
In dealing with virtually the same issue as that now before me, my learned colleague Judge Luongo reasoned that this court may exercise jurisdiction over all claims which were included in the EEOC charge "and like or related matters which might reasonably be expected to be subject to an EEOC investigation growing out of the charge." Flesch v. Eastern Pennsylvania Psychiatric Institute, 434 F. Supp. 963, 970 (E.D.Pa.1977). He went on to hold that "(this) rule is broad enough to include claims arising from new acts occurring during pendency of the EEOC charge and reasonably related to or growing out of acts alleged in the charge. Claims of retaliation for filing the charge are within this category." Id. (citation omitted). Obviously, there is considerable wisdom in Judge Luongo's reasoning. To require a return to the Commission by the complaining employee or applicant with each new act of discrimination would hopelessly complicate the procedure and run counter to the remedial purposes of the statutory scheme. See Shehadeh v. Chesapeake and Potomac Telephone Company of Maryland, 193 U.S.App.D.C. 326, 332 n. 20, 595 F.2d 711, 717 n. 20 (D.C.Cir. 1978); Weise v. Syracuse University, 522 F.2d 397, 412 (2d Cir. 1975).
Quite recently, the Court of Appeals for the Third Circuit made clear its belief that "broad remedial legislation such as Title VII is entitled to the benefit of liberal construction." The court went on to state that "humanitarian legislation" should be interpreted "in a humane and common-sensical manner." Hart v. J. T. Baker Chemical Corp., 598 F.2d 829, 831 (3d Cir. 1979). I believe that Judge Luongo's holding in Flesch is entirely consistent with the policy enunciated by the Court of Appeals in Hart. I will therefore follow Flesch and hold that plaintiffs are not barred from obtaining relief in this court under Title VII for defendant's retaliatory actions. See generally, B. Schlei and P. Grossman, Employment Discrimination Law 995 (1976).
By agreement of counsel, the trial of this case was limited to the question of liability, and no evidence was heard regarding damages. A hearing will therefore be held at the earliest opportunity to assess the damages suffered by plaintiffs Sokolsky and Coward as a result of defendant's retaliatory actions against them.
B. The Affirmative Action Plan
In addition to setting forth their individual cases, claiming racial discrimination under Title VII, the three plaintiffs have also challenged the propriety of CCP's affirmative action plan. They argue that this plan establishes an illegal racial quota system, according undue preference to minority employment applicants.
A strong argument could be made, of course, that this aspect of plaintiffs' case is now moot in light of my holding that plaintiffs were not discriminated against and that the persons actually hired were not given preferential treatment. Nevertheless, it is clear that CCP did in fact maintain an affirmative action plan for faculty hiring at all times relevant to this suit. Stipulation of Facts, P 14. If, as the plaintiffs allege, the plan was illegal, and if it had an impact on the hiring decisions involved in this case, then the plaintiffs might be entitled to some form of relief. The scope of that relief would depend on the nature of the plan's illegality as well as the extent of its impact on the plaintiffs.
Relief, however, is a question that I shall not reach. For the reasons that follow, I conclude that CCP's affirmative action plan did not violate Title VII.
The first step in this analysis is to determine exactly what the affirmative action plan was. In a memorandum dated June 2, 1972, CCP's president, Dr. Allen T. Bonnell, set forth the essentials of the affirmative action program that the college would follow throughout all times relevant to this suit. See Exhibit 2. This memo began by reaffirming the policy "that every possible effort shall be exerted to enroll students and recruit faculty and staff who are appropriately representative of the constituencies we serve." Exhibit 2. The memo went on to point out that CCP had enjoyed less success in recruiting minority faculty members than in attracting minority students. As a result, the president stated that all "committees, offices, and officers" who were responsible for recommending new personnel would henceforth attach to their recommendations:
a. Evidence that there is a deliberate, consistent practice of seeking as candidates for consideration for potential openings representatives of minority groups in the community; and