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December 15, 1980

Charles E. McKEEVER, Elvin P. Ross

The opinion of the court was delivered by: LUONGO

Plaintiffs in this action, Charles McKeever and Elvin Ross, brought suit alleging that their employer, Atlantic Spring and Manufacturing Company, Inc., discriminated against them because they are black, in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. Atlantic now moves for partial summary judgment, contending that both plaintiffs failed to comply with various procedural requirements under Title VII, as a result of which this court lacks jurisdiction over some of the claims raised in the complaint.

I. Ross' Claims

 The procedural history of Ross' claims is as follows. On October 15, 1973, Ross filed a complaint with the Equal Employment Opportunity Commission (EEOC). In it, he alleged that Atlantic denied him a promotion because of his race, that Atlantic generally denied blacks advancement in the company, and that it made attempts to restrict its hiring to whites. On April 3, 1975, Ross entered into a conciliation agreement with Atlantic through the EEOC. Atlantic agreed, inter alia, to refrain from discrimination against blacks, to take certain affirmative action in seeking minorities in its hiring, and to pay Ross $ 750. As part of the agreement, Ross agreed not to sue Atlantic on any charges which he had brought or might have brought before the EEOC, provided that Atlantic performed its obligations under the agreement. The agreement further provided for the EEOC to monitor the company for two years to determine whether it had complied with the agreement.

 On September 30, 1975, Ross filed a complaint with the EEOC charging that management representatives at Atlantic had retaliated against him for filing his original charges by taking unwarranted disciplinary action against him. On June 15, 1977, Ross amended that complaint to add a restatement of his original charge that he, and blacks generally, were denied promotions because of their race. On October 31, 1977, the EEOC determined that there was no probable cause to believe that a violation had occurred, and issued Ross a right to sue letter. Ross filed the instant suit on January 27, 1978.

 A. Waiver of Ross' Claim

 Atlantic first contends that, under the terms of the conciliation agreement, Ross waived his right to sue. It argues that Ross had agreed to sue only if Atlantic violated the agreement and that the EEOC was to determine whether a violation had occurred. Since the EEOC determined that there was no probable cause to believe that a violation had occurred, Ross, therefore, had violated his covenant not to sue.

 The Supreme Court has suggested in dicta that it is permissible for an employee to waive his rights under Title VII as part of a voluntary settlement. Alexander v. Gardner-Denver Co., 415 U.S. 36, 52, 94 S. Ct. 1011, 1021, 39 L. Ed. 2d 147 (1974). Two circuits have followed the lead suggested by Alexander and have held that a waiver of the right to sue is a permissible condition in a Title VII settlement. United States v. Trucking Employers, Inc., 182 U.S. App. D.C. 315, 561 F.2d 313 (D.C.Cir.1977); United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826 (5th Cir. 1975). If it is possible for an employee to waive unconditionally his right to bring suit under Title VII, a fortiori it is permissible for an employee to consent to the conditional waiver agreed to by Ross here.

 In discussing the possibility that an employee might waive his rights under Title VII, the Supreme Court made clear that if such waiver is permissible, "a court would have to determine at the outset that the employee's consent to the settlement was voluntary and knowing." 415 U.S. at 52, n.11, 94 S. Ct. at 1020. Accord, Trucking Employers, supra, 561 F.2d at 318; Allegheny-Ludlum Industries, supra, 517 F.2d at 858. Here, although I agree with Atlantic that Ross plainly covenanted not to sue unless there was a violation of the conciliation agreement, it is not clear that Ross knowingly and voluntarily agreed that the EEOC would be the final arbiter of whether a violation in fact occurred.

 The clause on which Atlantic relies states: "The Commission shall determine whether the Respondent has complied with the terms of this Agreement." This language can be interpreted, as Atlantic contends, as an agreement that no court action may be brought unless the EEOC first determines that Atlantic has violated the conciliation agreement; that, in effect, the parties agreed to abide by the EEOC's determination as to whether Atlantic had complied. It can also be interpreted, however, as simply an agreement that the EEOC will monitor Atlantic's compliance with no greater effect than in the case of the filing of an original complaint with EEOC, i. e., that a finding of "no probable cause" by that body has no effect on the employee's statutory right to seek redress in the courts.

 It is possible for an employee to agree to the kind of waiver which Atlantic contends is present in this case, but in order for it to be effective, it must be clear that the employee understood that he was giving up his right to seek redress in the courts. The parties may well have intended for the EEOC to act as final arbiter in this case, but the language of this purported waiver clause is sufficiently ambiguous that I cannot conclude as a matter of law that Ross "knowingly and voluntarily" waived his right to sue. Atlantic is, of course, free to raise the waiver issue as a defense at trial, and to attempt to prove that the parties intended the settlement agreement to bar suit in the absence of a finding of non-compliance by the EEOC.

 B. The Scope of Ross' Complaint

 Because Title VII plaintiffs are required to exhaust administrative remedies before commencing suit, the extent to which a court may entertain an action is determined by the scope of the EEOC investigation. Jurisdiction over a civil action is "defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976). Atlantic contends that allegations in paragraph twelve of Ross' complaint go beyond the scope of the charges which he filed with the EEOC.

 The allegations of paragraph twelve can be grouped in three categories: allegations with respect to discrimination in hiring, in promotion, and in evaluation and discipline on the job. I view all three of Ross' charges with the EEOC as related: the first charge in 1973 led to the conciliation agreement; the second charge in 1975 in effect charged a breach of that agreement and retaliation; and the amended charge in 1977 recapitulated Ross' claims going back to 1973, and added further charges of retaliation. If the charges are read as being related to one ongoing dispute over discrimination by Atlantic, it is plain that I have jurisdiction over all of the allegations of discrimination in Ross' complaint.

 In his 1973 charge to the EEOC, Ross alleged that Atlantic discriminated in its hiring and promotions, and generally denied blacks advancement in the company. This gave the EEOC sufficient notice to investigate his charges in these areas. Jurisdiction exists whenever the allegations of the civil suit are of the same type and character of discrimination as charged before the EEOC, Flesch v. Eastern Pennsylvania Psychiatric Institute, 434 F. Supp. 963, 970 (E.D.Pa.1977) (citing cases), and I am satisfied that ...

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