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SHAFFER v. NATIONAL CAN CORP.

June 14, 1983

NANCY C. SHAFFER
v.
NATIONAL CAN CORPORATION



The opinion of the court was delivered by: GILES

 GILES, J.

 I. FACTS

 Taking as true all of plaintiff's well-plead allegations, as I must on a motion to dismiss, *fn1" the salient facts follow. Shaffer was employed at National's Morrisville plant from March 13, 1975 until March 27, 1981, first as a secretary-receptionist and then as a billing clerk. In June of 1977, Pat Dettorre ("Dettorre") was hired as the plant manager of the Morrisville facility. From that point until Shaffer left National's employ, Dettorre allegedly engaged in a continuing course of sexual harassment. Dettorre, who was married, attempted to induce plaintiff to go out with him socially and was very insistent despite her refusals. After plaintiff did not accept his publicly made invitation to the company Christmas celebration, Dettorre told her that "if she did not change her tune he would turn the conversation around and it would not be to her benefit." (Complaint at para. 15). He then loudly asked her where she lived and what time he should pick her up, refusing to take "no" for an answer. He made subtle threats, alluding to his power at the plant by calling himself the "king-pin" and noting that "things could get better or worse, depending on whether she decided to 'play ball' with him." (Complaint at para. 16). Dettorre made verbal sexual advances, discussed the relative sizes of female employees' chests, suggested she would be better attired in skirts with slits and generally endeavored to engage her in sexually related conversation. (Complaint at para. 17). When Shaffer repeatedly refused to succumb to his dubious charm, Dettorre began to retaliate by alternately mistreating and ignoring her. For example, it is claimed that he excluded her from certain luncheons and ignored her, at the same time being overly friendly towards other female employees. His conduct allegedly made it impossible for Shaffer to carry out her responsibilities, caused her severe mental anguish and ultimately lead to her resignation on March 27, 1981. Plaintiff characterizes this resignation as a constructive discharge.

 Although the time frame is greatly disputed, Shaffer sent complaints to both the EEOC and the PHRC. On May 13, 1982, the PHRC dismissed her complaint for failure to file within the ninety day statute of limitations. See 16 Pa. Code § 42.11(a). On August 27, 1982, the EEOC made its determination, issuing Shaffer notice of her right to sue. The complaint was filed in this court on November 23, 1982, alleging a violation of Title VII, as well as state claims for wrongful discharge and intentional infliction of emotional distress.

 II. DISCUSSION

 A. Title VII Claim

 Section 706(e) of Title VII, 42 U.S.C. § 2000e-5(e) (1976), requires the filing of administrative complaints within 180 days of the alleged unlawful employment practice. However, if the discrimination occurs in a "deferral state," the time period is extended. A "deferral state" is one which has its own agency with the power to adjudicate claims of employment discrimination and grant remedies. If the charging party has "initially instituted proceedings" before a state agency, then the EEOC charge must be filed within 300, rather than 180 days. 42 U.S.C. § 2000e-5(e). Pennsylvania is a deferral state, with the Pennsylvania Human Relations Commission serving as the state equivalent of the EEOC. *fn2"

 It is undisputed that plaintiff failed to file her complaint with the EEOC within 180 days from her termination date. However, it is agreed that the charge was filed within 300 days. The issue then is whether Shaffer was entitled to invoke the 300 day exception. National claims that Shaffer's charge was not "initially" filed with the PHRC, thus depriving her of the longer time period. Shaffer contends that complaints were sent to the EEOC and the PHRC simultaneously and proffers return receipts to show that the complaint actually arrived at the PHRC first. Resort to extrinsic evidence will not be necessary. *fn3" A literal reading of the statute makes it clear that in this case where the complaint was first filed has no effect.

 Section 706(c), 42 U.S.C. § 2000e-5(c) provides that in a deferral state, an EEOC charge may not be filed "before the expiration of sixty days after proceedings have been commenced under state or local law . . .," or before termination of the state proceedings, whichever is earlier. This language has been interpreted literally to preclude the official filing of a charge with the EEOC before the expiration of the 60 day period, even where the complaint might have technically arrived at the EEOC first. See Mohasco Corp. v. Silver, 447 U.S. 807, 816-17, 65 L. Ed. 2d 532, 100 S. Ct. 2486 (1980). See also Citicorp Person-to-Person Financial Corp. v. Brazell, 658 F.2d 232, 234 (4th Cir. 1981); Wiltshire v. Standard Oil Co. of Cal., 652 F.2d 837, 840 (9th Cir. 1981), cert. denied, 455 U.S. 1034, 102 S. Ct. 1737, 72 L. Ed. 2d 153 (1982); Wajda v. Penn Mutual Life Insurance Co., 528 F. Supp. 548, 563 (E.D. Pa. 1981). If the EEOC is not able to file a complaint formally before the running of the 60 day period then, by necessity, a proceeding before the state agency will be commenced prior to the proceeding before the EEOC. Thus, the interplay between these two statutory sections dictates that where a charge is sent to a state agency it will always be "initially" filed, rendering the 300 day period applicable.

 In Mohasco, a letter was sent to the EEOC 291 days after the alleged unlawful termination. The EEOC referred the charge directly to the New York State Division of Human Rights. 447 U.S. at 810. The Court recognized the very argument National advocates -- since plaintiff had not filed with the state agency first, he could not claim the 300 day period. To this the Court replied; "since the EEOC could not proceed until either state proceedings had ended or 60 days had passed, the proceedings were 'initially instituted with a State . . . agency' prior to their official institution with the EEOC." Id. at 816-17. However, in Mohasco, the complaint was filed on day 291. Therefore, the addition of the 60 day period brought the elapsed time well over 300 days. Consequently, the Court held that the claim was time barred. Id. at 817.

 The practical effect of Mohasco is the "240 day rule." Generally, the charge must be filed with the state agency by day 240, so that the addition of the statutory 60 days will not bring the total over the 300 day mark. A charge filed after 240 days but before the running of 300 days will be timely if the state proceedings terminate before 300 days have elapsed. See Mohasco, 447 U.S. at 814-815 and n. 16. Thus, Mohasco laid to rest more restrictive readings of the statute. *fn4"

  Shaffer contends that her charge was received by the PHRC on October 27, 1981, *fn5" 214 days after her termination. National claims that the filing date was November 5, 1981, 223 days after termination. Assuming arguendo that November 5, 1981 is the appropriate date, the charge would still be timely. Adding 60 days *fn6" to 223 brings the total elapsed time to 283 days, ...


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