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 Ross' complaint in this action with respect to hiring and promotions sufficiently tracks his original charges before the Commission.
With respect to Ross' allegations that he suffered retaliation and harassment on the job, the rule is broad enough to encompass "claims arising from new acts occurring during the pendency of the EEOC charge and reasonably related to or growing out of acts alleged in the charge," as well as "claims of retaliation for filing the charge." Flesch, supra, at 970. Because Ross complained of retaliation and unequal treatment on the job in his 1975 and 1977 charges before the commission, I am satisfied that the EEOC was given sufficient opportunity to investigate in these areas as well, and therefore I have jurisdiction over these aspects of Ross' complaint.
C. Enforcement of the Conciliation Agreement
As an alternative theory of recovery, Ross seeks enforcement of the conciliation agreement as a contract under state law, and urges that I assume jurisdiction over the claim under the doctrine of pendent jurisdiction. Atlantic argues that if I were to give effect to the purported waiver clause in the conciliation agreement, then Ross would be limited to raising claims arising after 1977, with the result that the issues relating to the alleged breach do not derive from a common nucleus of operative fact. United Mineworkers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966).
Clearly, whether Atlantic discriminated against Ross is closely tied, if not identical, to the question of whether it violated the conciliation agreement. Therefore exercise of pendent jurisdiction is proper.
II. McKeever's Claims
McKeever filed charges with the EEOC on June 8, 1977. On June 27, 1977, the EEOC deferred the charge to the Philadelphia Commission on Human Relations (PCHR). McKeever then wrote to the PCHR, asking that it waive jurisdiction over his complaints. On July 15, 1977, the PCHR granted McKeever's request and referred the case back to the EEOC. Atlantic contends that I lack jurisdiction over McKeever's complaint because he failed to permit the local agency charged with responsibility for conciliating such charges a chance to operate, in violation of 42 U.S.C. § 2000e-5(c).
This is not a case in which McKeever totally bypassed the PCHR, thereby depriving it of the opportunity to decide whether to investigate the case. The narrow issue presented by this case is the effect of an employee's request that the local agency waive its jurisdiction in favor of the EEOC.
It is generally accepted that the purpose of § 2000e-5(c) is to " "avoid premature interference by the Federal Government' in disputes better suited to resolution at the state administrative level." Lombardi v. Margolis Wines & Spirits, Inc., 465 F. Supp. 99, 101 (E.D.Pa.1979); Bell v. Wyeth Laboratories, Inc., 448 F. Supp. 133, 135 (E.D.Pa.1978). Underlying § 2000e-5(c) are considerations of federalism which were expressed during the "tempestuous legislative proceedings that produced the Act." Mohasco Corporation v. Silver, 447 U.S. 807, 818, 100 S. Ct. 2486, 2493, 65 L. Ed. 2d 532 (1980).
Because the principal concern of § 2000e-5(c) is that state and local agencies not be deprived of their power to act by the federal government,
"courts applying that section have attached primary significance to the wishes of the state agency. Virtually anything that the state agency does of its own initiative in order to be rid of a case may be sufficient to pass jurisdiction on to the EEOC via § 2000e-5(c), as long as the state agency had an opportunity for some period, however brief, to dispose of the matter."