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April 17, 1980


The opinion of the court was delivered by: LORD, III

Delores LeGare, a black woman, claims that she was discharged from her job at the University of Pennsylvania Medical School because of her race and sex and in retaliation for filing a discrimination charge with the EEOC. Read generously, *fn1" the complaint seeks to state claims for relief under title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to -17; the Equal Pay Act of 1963, 29 U.S.C. § 206(d); the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1981, 1983 and 1985(3); and the Fourteenth Amendment.

 The defendant Medical School has moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. F.R.Civ.P. 12(b) 1, 6. Defendant contends that the title VII sex claim is jurisdictionally deficient because plaintiff failed to raise it before the EEOC; that the equal pay claim is legally insufficient and time-barred; that there is no allegation of state action to support the § 1983 claim; that § 1981 does not cover sex discrimination; and that no right of action should be implied under the Fourteenth Amendment for injuries redressable through a statutory private remedy. *fn2" To these arguments defendant adds the formal objection that the complaint is not divided into counts, see F.R.Civ.P. 10(b), and is otherwise vague. Finally, the defendant argues that it is not amenable to suit because the University of Pennsylvania Medical School is not a legal entity independent of the University as a whole.

 Taking the well-pleaded allegations in the complaint as true, the plaintiff was employed by the University of Pennsylvania in several secretarial or clerical positions from 1966 to 1977. The complaint describes with specificity three instances of discrimination. First, in February 1976 plaintiff was bypassed in favor of a white woman for promotion to the position of "Dean's Assistant", although LeGare was qualified for the job. Second, later in 1976 while she was employed in the University's Personnel Department, plaintiff was placed on disciplinary probation and later terminated on the pretext that she was rude to her fellow workers. Third, after she was called back to work as a secretary in the Medical School, plaintiff was once again discharged, this time for refusing her supervisor's request that she submit to an examination by a University-approved doctor. At the time of her discharge plaintiff had been absent from work for two months due to illness.

 Plaintiff claims that she was treated in this manner because of her sex and race, and, in the case of the final discharge, because she filed a charge with the EEOC. In addition to recounting plaintiff's individual employment history, the complaint broadly attacks virtually every aspect of the defendant's employment policy, including seniority, job specifications and assignments, wages, recruiting and hiring, transfer and promotion, layoffs and recall, sick leave, issuance of paychecks, discharges and affirmative action. Each of these practices is said to have adversely affected the plaintiff because of her race and sex.

 I. Title VII

 Filing a charge with the EEOC is a jurisdictional prerequisite to a private civil action under title VII. 42 U.S.C. § 2000e-5(e); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S. Ct. 1817, 1822, 36 L. Ed. 2d 668 (1973); Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir. 1976), cert. denied, 429 U.S. 1041, 97 S. Ct. 741, 50 L. Ed. 2d 753 (1977). According to the complaint, LeGare filed two charges with the EEOC: the first on July 6, 1977 while she was still employed, alleging racial discrimination; the second on August 31, 1977 after her discharge, alleging racial discrimination and retaliation. The defendant moves to dismiss the sex discrimination portion of the title VII claim on the ground that plaintiff failed to check the box marked "sex" on the EEOC complaint forms or otherwise indicate to the agency that her discharge was sex-related.

 This problem the relation of the permissible scope of a title VII action to the EEOC charge has often perplexed the federal courts. The difficulty lies in the tension between the judicially-developed presumption against technical defaults under title VII, see, e.g., Love v. Pullman, 404 U.S. 522, 527, 92 S. Ct. 616, 619, 30 L. Ed. 2d 679 (1972), and Congress's clear mandate that title VII claimants initially resort to administrative proceedings. The object in each case is to accommodate the general remedial and humanitarian purpose of the legislation with a particular legislative preference for conciliation as a means of resolving disputes. In Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970), Judge Goldberg announced what has become the standard formula for reconciling these conflicting goals: "the "scope' of the judicial complaint is limited to the "scope' of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Id. at 466; accord, Gamble v. Birmingham Southern Ry. Co., 514 F.2d 678 (5th Cir. 1975). The Third Circuit adopted the Sanchez rule in Ostapowicz, supra, 541 F.2d at 398-99, and has applied it most recently on facts quite similar to this case in Hicks v. ABT Associates, Inc., 572 F.2d 960 (3d Cir. 1978).

 Both parties have presented documentary evidence which they seem to believe is sufficient to permit an informed assessment of the reasonableness of the EEOC investigation. In urging a decision on the merits of the jurisdictional question, though, the parties have overlooked the plaintiff's neglect of the primary obligation to plead jurisdiction. F.R.Civ.P. 8(a)(1). Under Hicks, to establish jurisdiction for the sex claim the plaintiff needed to plead either that one of her charges included sex discrimination or that the EEOC reasonably should have discovered sex discrimination based on her charges of race discrimination. Although the complaint recites in detail the filing of charges of race discrimination and retaliation, it is devoid of any such jurisdictional allegations with regard to sex. Accordingly, it must be dismissed insofar as it seeks relief under title VII for sex-based discrimination.

 Even if the pleadings were adequate, the proffered evidence is not. In support of its motion the defendant offers the affidavit of James H. Robinson, Equal Opportunity Administrator for the University of Pennsylvania. Robinson states that to the best of his knowledge the question of sex discrimination was not raised by the EEOC, the Philadelphia Commission on Human Relations or the plaintiff during the course of the agencies' investigations. The defendant relies entirely on this affidavit as evidence of what the EEOC actually investigated, combined with the presumed regularity of official actions. But the affidavit sheds no light on the crucial question of what the plaintiff communicated to the agencies. Robinson does not state that the plaintiff failed to raise sex discrimination with the agencies and his affidavit shows no basis in personal knowledge for such a statement. Cf. F.R.Civ.P. 56(e). This lacuna makes Robinson's affidavit largely beside the point. As Judge Hunter wrote in Hicks, the issue is whether the investigation was reasonable, "irrespective of the actual content of the Commission's investigation . . . ." 572 F.2d at 966.

 The plaintiff's evidence is no better. Attached to the memorandum in opposition to this motion is an exhibit which purports to be a copy of plaintiff's second EEOC charge. In the upper right-hand corner the box marked "sex" seems to have a mark next to it, although the copy is partially obliterated and the mark is not legible. It could, for example, be a question mark. Plaintiff's counsel now asserts remarkably for the first time that LeGare did in fact include "sex" in her second EEOC charge as revealed by the exhibit. This evidence, if it can be called that, is no more than an ambiguous squiggle on a faded photocopy, lacking any sort of verification.

 II. Equal Pay

 Defendant argues that plaintiff has not stated an equal pay claim because she neglected to allege that she was paid less than men. Paragraph 11(d) of the complaint charges the defendant with "maintaining policies and practices with respect to, but not limited to wages, . . . which unlawfully operated to deny equal opportunity to women" and P 12 alleges that these practices affected the plaintiff. While it is true that plaintiff does not expressly refer to male wages, as Mr. Justice Powell reminds us, "With respect to gender there are only two possible classifications." University of California Regents v. Bakke, 438 U.S. 265, 303, 98 S. Ct. 2733, 2755, 57 L. Ed. 2d 750 (1978) (separate opinion). To be sure, an equal pay plaintiff need not always make the implied sexual comparison explicit. But simple gender discrimination will not make out an equal pay claim. The Act provides relief only when males and females are paid different wages for equal work. *fn3" See Corning Glass Works v. Brennan, 417 U.S. 188, 94 S. Ct. 2223, 41 L. Ed. 2d 1 (1974); Angelo v. Bacharach Instrument Co., 555 ...

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