The opinion of the court was delivered by: POLLAK
LOUIS H. POLLAK, District Judge.
This is a case in which the plaintiff is suing Temple University for causes of action that sound in terms of sexual harassment leading to, according to plaintiff's allegations, her essentially coerced resignation from the staff of the Temple University Hospital. The complaint is based in the alternative on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., which is a federal legislative proscription of gender discrimination in hiring or in the terms of employment, and on section 1983 of Title 42 of the United States Code.
Section 1983 prohibits deprivations of constitutional rights and provides for actions at law to vindicate such deprivations imposed under color of law. And it is plaintiff's submission that gender discrimination in hiring or in the terms of employment, including as here alleged, sexual harassment, is constitutionally proscribed as well as legislatively proscribed.
There is no contest by the defendants that the allegations state substantively viable claims provided that, with respect to Title VII, the claim was timely filed; and with respect to the 1983 claim, that Temple University and those who operate under its aegis can be said to be operating under color of law.
The defendants have moved for summary judgment because they take issue both with the timeliness of the Title VII claim and with the constitutional sufficiency of the 1983 claim in that it is directed against an entity, Temple University, which denies that it operates under color of state law.
A. Timeliness of the Title VII Complaint
We will consider first the timeliness of the Title VII claim. The question of timeliness stems from the fact that the filing by the plaintiff of her charge with the Equal Employment Opportunity Commission (EEOC), which is an obligatory predicate for bringing an action in a federal district court, was accomplished on the 299th day after the plaintiff's allegedly coerced departure from her employment at Temple University Hospital. A Title VII complaint must be filed within 180 days of the alleged violation in a state in which there is no state agency analogous to the EEOC which could consider a claim of this sort. In a state such as Pennsylvania where an appropriate state agency does exist, a complainant may be allowed up to 300 days in which to file a complaint with the EEOC. This additional time is granted by the statute in order to allow a complainant to resolve the matter through state-created channels. 42 U.S.C. § 2000e-5(e).
Per contra, where, as here, an appropriate state agency is available but the complainant does not file with the state agency, then under the Third Circuit's recent decision in Kocian v. Getty Refining and Marketing Co., 707 F.2d 748 (1983), a complaint filed with the EEOC on the 299th day is out of time. The reason for the rule in the Kocian case is that it places complainants in states with appropriate state agencies who do not file a complaint with the state agency on a par with complainants in states without such an agency.
The purpose behind the extended 300-day limitations period also supports Getty's position. In Mohasco Corp. v. Silver, 447 U.S. 807, 100 S. Ct. 2486, 65 L. Ed. 2d 532 (1980) the Supreme Court stated
The [legislative] history identifies only one reason for treating workers in deferral States differently from workers in other States: to give state agencies an opportunity to redress the evil at which the federal legislation was aimed, and to avoid federal intervention unless its need was demonstrated.
Id. at 821, 100 S. Ct. at 2494. Here, the purpose in allowing the extended limitations period has not been served because the state agency had no opportunity to address Ms. Kocian's claim. To allow a Title VII litigant the benefit of the extended limitations period merely because she fortuitously works in a deferral state would ignore the plain language of the statute and its legislative purpose. 707 F.2d at 751.
Now, our plaintiff filed her EEOC complaint on the 299th day after the last alleged violation of Title VII so that she complied neither with the 240-day rule nor with the 180-day rule. Plaintiff's counsel acknowledges that this was an untimely filing. Therefore, the only issue before me relating to timeliness is whether the defendant is estopped from pleading the relevant statute of limitations by virtue of the doctrine of equitable tolling which is held to obtain with respect to Title VII actions under certain circumstances.
Equitable tolling, which our Court of Appeals has said must be meticulously monitored, is not a general carte blanche to allow complainants to file late. Equitable tolling comes into play in three principal, but not mutually exclusive, circumstances: 1) where there is a showing that the defendant has effectively misled the plaintiff in some active sense; 2) where the plaintiff has in "some extraordinary way" been precluded from asserting her or his rights; or 3) where the plaintiff made a timely submission but in the wrong forum. Kocian, 707 F.2d at 753.
Plaintiff's grounds for asserting this is a proper case for application of principles of equitable tolling are twofold: first, it is asserted that this record shows beyond a peradventure of a doubt that the plaintiff was misled by the defendant. Principal reliance here is on the plaintiff's assertion in her deposition that the defendant, through Mr. Miller, told her in the closing summer days of 1981, at the point when she was resigning from her position, that he would write a letter of recommendation for her, would rehire her and would keep his eyes open for other employment opportunities for her at the hospital.
Taking the plaintiff's assertion of what Mr. Miller said at its strongest, for the purposes of this motion, the proposition that the plaintiff was so misled by Mr. Miller's statements as to deter her from filing her charge with the EEOC during the next approximately six months (which would have brought her within the 180-day provision) is entirely unpersuasive.
Other evidence submitted by plaintiff in response to this motion makes it clear that plaintiff was aware of how to file an EEOC complaint. She was aware of the importance of timely filing of the complaint since she had obtained information from the EEOC and had some knowledge of the process from her prior job in an employment office. Therefore, as in Vuksta v. Bethlehem Steel Corp., 540 F. Supp. 1276 (E.D.Pa.1982), the statements allegedly made by defendant's agent are not sufficient to support the conclusion that equitable tolling applies here.
The contention that the plaintiff was prevented in "some extraordinary way" from timely assertion of her rights seems to depend on plaintiff's claim that she received erroneous guidance from the EEOC itself. She asserts that she called the EEOC in September of 1981 to find out how to proceed, and they told her that they would send her a brochure, which they did. The brochure she received said under the section entitled "Filing a Charge": "You must file an employment discrimination charge within 180 days of the alleged discriminatory act. Where there is a State or Local Fair Employment Practice Agency in your area, you have up to 240 days, and in some cases you may have up to 300 days to file your charge with EEOC, but you should check with the Commission."
It cannot be asserted that this language in the brochure was a model of clarity, but it is not, on its face, a total misrepresentation. The first injunction was to file within 180 days. The second was, if you are in a state with an appropriate agency, you have up to 240 days. Further, in ...