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October 23, 1984


The opinion of the court was delivered by: WEBER

 This matter is before the court on defendant's motion for summary judgment.

 This is a complaint alleging race discrimination in employment by defendant based on 42 U.S.C. 1981 and Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e. Plaintiffs are black males who were employed by defendant pursuant to an agreement between the Sheet Metal Workers' Local Union No. 12, and SMACNA of Western Pennsylvania, of which the defendant is a member. In November 1982, plaintiffs were laid off due to "lack of work". After their layoff, plaintiffs were assured by certain of the defendant's employees that they would be called back when work became available.

 On or about July 20, 1983, one or both plaintiffs contacted defendant's field supervisor, Ed McCafferty, and were told that no alternate work was then available. Shortly thereafter, plaintiffs learned that alternative work had become available and that white employees, members of Local 12, had been assigned to perform that work.

 On December 14, 1983, plaintiffs filed charges with the Equal Employment Opportunity Commission (EEOC) alleging that they were laid off by defendant on July 20, 1983, and alleging inter alia that race was the only factor in defendant's treatment of them. By letter dated December 15, 1983, plaintiffs requested that the EEOC issue Notices of Right To Sue. On December 21, 1983, the EEOC forwarded a copy of each of plaintiffs' charges to the Pennsylvania Human Relations Commission (PHRC) along with a Charge Transmittal Form 212-A. This form was subsequently stamped with the signature of Neil Sullivan, Assistant to the Director of Compliance of the PHRC, and returned by the PHRC to the EEOC and received by them January 3, 1984. On January 11, 1984, twenty-seven days after initial receipt of the charges, the EEOC issued Notices of Right to Sue to the plaintiffs. On April 19, 1984, plaintiffs filed their complaint in this court alleging discrimination.

 Defendant's motion for summary judgment is supported by affidavits of Ed McCafferty, Supervisor of Schneider Sheet Metal, Eugene Reid, Supervising EEOC Opportunity Specialist in Pittsburgh, and Neil Sullivan, Director of Compliance of the PHRC. Plaintiffs oppose the motion supported by the individual affidavit of each plaintiff and briefs.

 Defendant argues that the motion should be granted for the following reasons: (a) Plaintiffs failed to file timely charges with either the EEOC or the PHRC; (b) The EEOC failed to defer to the PHRC; (c) The EEOC failed to investigate and conciliate prior to issuance of a Notice of Right to Sue; and (d) Plaintiffs failed to plead specific facts to set forth a Section 1981 cause of action and failed to allege intent to discriminate.


 Defendant points out that although plaintiffs allege in their complaint that they were laid off on July 20, 1983, it is clearly established by the affidavit of Ed McCafferty, the defendant's field supervisor, that they were actually laid off on November 16, 1982, and November 30, 1982 respectively, and therefore their charges filed with the EEOC on December 14, 1983 were time barred. The affidavits of plaintiffs Bey and Christian support defendant's assertion as to the date of lay-off which was not clearly set forth in either the complaint or the EEOC filing. Though the court takes note of this discrepancy in plaintiffs' pleadings it does not find it to be fatal to plaintiffs' claims to have filed timely charges under Title VII. Plaintiffs' "EEOC charges should be liberally construed since they are prepared by laymen, generally without the assistance of counsel." Wetzel v. Liberty Mutual Ins. Co., 511 F.2d 199, 202 (3d Cir. 1975); Love v. Pullman, 404 U.S. 522, 527, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972). Furthermore, Rule 15(a) states that leave to amend the complaint should be freely given when justice so requires. Here, the necessary changes would be slight, correcting details of the original factual basis for plaintiffs' cause of action. Defendant has received sufficient notice of the claim of discriminatory recall and would not be prejudiced by such an amendment. Therefore plaintiffs will be given leave to amend their complaint to correctly state the facts on which their cause of action lies. Such amendment would facilitate a proper decision on the merits. See, Conley v. Gibson, 355 U.S. 41, 48, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Having decided that such amendment is proper we must next determine whether on these facts plaintiffs had made the timely filing necessary for a Title VII claim.

 Under Section 706(e) the time for filing runs from the time "the alleged unlawful employment practice occurred . . ." 42 U.S.C. 2000e-5(e). If, as plaintiffs have alleged in their brief, defendant, subsequent to a general layoff, classified former employees in such a way as to deprive blacks of employment opportunities solely because of their race, then the time for filing does not run until the last date that such unlawful practices occurred. It is not the layoff itself of which plaintiffs complain but the selective discrimination against blacks in the recall process. See, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).

 Plaintiffs do not state the dates on which such discriminatory practices occurred but rather urged the court to adopt the "apparency test" adopted in two Fifth Circuit cases. Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975), and Tucker v. United Parcel Service, 657 F.2d 724 (5th Cir. 1981). In Reeb, the Court of Appeals held that the time for filing charges of employment discrimination with the EEOC did not begin to run until facts that would support a charge of discrimination were apparent or should have been apparent to a person with reasonably prudent regard for his rights similarly situated to the plaintiff. The facts there showed that Mrs. Reeb was notified on September 24, 1969 that her employment would be terminated due to "limitation of funds", (p. 926), but learned on April 21, 1970 that her former position had been refilled on November 10, 1969 by an allegedly less qualified male. She immediately filed charges with the EEOC. The filing was timely.

 We must view the facts in the light most favorable to the plaintiffs as the non-moving parties in this summary judgment action. Plaintiffs aver that they were laid off due to "lack of funds", and that as late as July 20, 1983, defendant's field supervisor told plaintiffs that no alternate work was available and that they would be recalled when openings became available. Shortly thereafter plaintiffs learned that alternate work had become available and that white employees had been recalled. On December 14, 1984, plaintiffs filed charges with the EEOC.

 The doctrine of equitable tolling has been accepted by many courts. See, Hart v. Baker Chemical Co., 598 F.2d 829 (3d Cir. 1979), (Title VII time limitation subject to equitable modification); Aljadir v. University of Pennsylvania, 547 F. Supp. 667 (E.D. Pa. 1982). Plaintiffs allege that defendant deceived them through misleading statements or concealment thereby preventing them from discovering the discrimination. Defendant is not prejudiced by the delay. These are factors that warrant application of the equitable tolling doctrine.

 On July 20, 1983, or shortly thereafter, when plaintiffs learned of others being recalled, facts that would support a charge of discrimination should have been apparent. The plaintiffs' charges were initially filed with the EEOC on December 14, 1983, and were referred back to the EEOC by the Pennsylvania Human Relations Commission on January 3, 1984. Although this filing was not within the ninety day statute of limitations required by the Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. § 959(g) (1984 Supp.), plaintiffs "federal statutory rights [cannot] be foreclosed by . . . failure to file within the significantly shorter state limitation period." (cites omitted). Vuksta v. Bethlehem Steel Corp., 540 F. Supp. 1276, ...

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