The opinion of the court was delivered by: TROUTMAN
In September 1958, plaintiff, a white Catholic male of Slavic origin, was hired by defendant, Bethlehem Steel Corporation
(Bethlehem) and, upon receipt of a degree in mechanical engineering, enrolled in its Loop Training Program. Nineteen years later, on September 30, 1977, plaintiff was told that his employment would soon be terminated as his job was being eliminated in a reduction of force. Plaintiff, proceeding pro se and contending that impermissible motives supply the real reason for his firing, brings suit pursuant to Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., (Title VII), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., (ADEA), the Civil Rights Act of 1866, 42 U.S.C. § 1981, the Civil Rights Act of 1871, 42 U.S.C. § 1983, 42 U.S.C. § 1985 and adds a pendent state claim for malicious interference with contractual rights. The suit seeks declaratory and injunctive relief in addition to compensatory and punitive damages. Defendant, captioning its response to plaintiff's hydra-headed complaint as a motion to dismiss, actually seeks summary judgment
on a number of claims and moves to dismiss others for lack of subject-matter jurisdiction.
Keeping in mind the liberal and generous pleading construction accorded to pro se plaintiffs, Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Perkins v. Wagner, 513 F. Supp. 904 (E.D.Pa.1981), we nevertheless grant the motion.
Summary disposition pursuant to Fed.R.Civ.P. 56 is appropriate since there are no genuine issues of material fact as to plaintiff's Title VII claim. On September 30, 1977, defendant informed plaintiff of its intention to eliminate his job and to release him from employment as of October 30, 1977.
Pursuant to defendant's termination policy, plaintiff elected to remain on defendant's list of employees until December 11, 1978.
This apparently permitted plaintiff to accrue sufficient seniority so as to insure his eligibility for pension benefits.
On November 4, 1977, plaintiff sent the Equal Employment Opportunity Commission (EEOC) a letter containing a chronology of events which purportedly amounted to illegal discrimination by defendant.
Responding approximately three weeks later, a representative of the EEOC specifically informed plaintiff of his Title VII rights and suggested that he "further develop" the charge before sending it to the Philadelphia EEOC field office. He did not do so.
Eight months later, on August 1, 1978, a full 304 days after being notified of defendant's adverse employment decision, plaintiff complained to the Pennsylvania Human Relations Commission (PHRC). A representative thereof advised him, on August 31, 1978, that a formal, notarized charge was required before the PHRC could consider it.
In early January, 1979, plaintiff's charge with the PHRC was finally filed.
42 U.S.C. § 2000e-5(e) provides in relevant part that
a charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ... except that in the case of an unlawful employment practice with respect to which the person aggrieved has instituted proceedings with a State ... agency ... such charge shall be filed ... within three hundred days after the unlawful practice occurred.
Our determination of whether plaintiff filed a timely charge necessarily entails an effort to discover when the limitation period began to run. Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S. Ct. 498, 504, 66 L. Ed. 2d 431 (1980) held that
... the filing limitations periods ... commenced-at the time the tenure decision was made and communicated to Ricks. That is so even though one of the effects of the denial of tenure-the eventual loss of a teaching position did not occur until later. The Court of Appeals for the Ninth Circuit correctly held in a similar tenure case, that "(t)he proper focus is upon the time of the discriminatory acts, not upon the time in which the consequences of the acts became most painful'. (footnotes and citations omitted) (emphasis by the court).
Similarly, in the case at bar, the complained of decision occurred on September 30, 1977. The fact that plaintiff continued to work for one month thereafter and remained on defendant's list of employees until December 1978 does not stay the commencement of the limitation period.
As previously noted, plaintiff delayed until August 1, 1978, a full 304 days after he had been notified of his impending loss of employment, before attempting to file a charge with the PHRC. Five months later, in January 1979, plaintiff's charge was perfected. Assuming for present purposes the validity of the August 1978 PHRC charge, plaintiff has missed the 180-day filing deadline. See generally, Mohasco Corp. v. Silver, 447 U.S. 807, 100 S. Ct. 2486, 65 L. Ed. 2d 532 (1980).
Untimely filing of a Title VII claim does not create a jurisdictional bar to the subsequent suit. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, -- , 102 S. Ct. 1127, 1132, 71 L. Ed. 2d 234 (1982); Hart v. J. T. Baker Chemical Corp., 598 F.2d 829, 832 (3d Cir. 1979). Rather, Title VII's time limitations are subject to equitable tolling which can occur where an "employer prevent(s) the employee from asserting his or her rights by actively concealing them or misleading the discharged employee as to the true reason for the discharge". Id. Determining the propriety of equitable tolling normally requires reference to a factual record. Emrick v. Bethlehem Steel Corp., 539 F. Supp. 653, at 657 (E.D.Pa. May 26, 1982). Such a record exists here.
On October 25, 1977, less than a month after being notified of defendant's decision, plaintiff was informed by the Director of the EEOC's Office of Congressional Affairs that specific time limits would govern the filings of his charge.
Approximately one month later, on November 29, 1977, plaintiff was informed how to file a charge, was sent a form to allow him to properly do so and was told to whom to mail it. Moreover, plaintiff was specifically told that the "EEOC cannot assert Federal jurisdiction ... until the Pennsylvania Human Relations Commission has been allowed at least 60 days to try to resolve the matter..."
Notwithstanding these cooperative efforts by the EEOC, plaintiff failed to comply with their suggestions. Cf. Mikkilineni v. United Engineers & Constructors, 485 F. Supp. 1292, 1298 (E.D.Pa.1980) (Court refused to excuse exhaustion of remedies where plaintiff failed to file an administrative complaint even though the agency evidenced a willingness to aid plaintiff in the preparation thereof.) The facts are clear that shortly after defendant's decision to terminate him, plaintiff believed that his civil rights had been violated. Upon inquiry to the EEOC plaintiff was informed of his statutory rights and obligations. Moreover, EEOC representatives aided him and instructed him as to the scope of Title VII's prohibitions, sent him a charge form and informed him with whom he should file the charge. These unrebutted facts are inapposite to any theory of equitable tolling which generally requires, in the Title VII context, either employer concealment of rights or active misleading of the employee as to the true reason for the discharge. See Hart v. J. T. ...