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GABRIELLE v. BARRETT

November 10, 1986

Neil A. Gabrielle, Plaintiff
v.
Barrett, Haentjens & Co. and Walter D. Haentjens, individually and as president of Barrett, Haentjens & Co., Defendants


William J. Nealon, Chief Judge.


The opinion of the court was delivered by: NEALON

William J. Nealon, Chief Judge, Middle District of Pennsylvania

 Plaintiff instituted this action pursuant to the Age Discrimination in Employment Act of 1967 (ADEA) on April 2, 1986. Defendants filed a Motion to Dismiss and/or for Summary Judgment and a brief in support thereof on June 30, 1986. Pursuant to a Motion for an Extension of Time, plaintiff opposed the motion on August 15, 1986. Defendants replied on August 25, 1986. A conference in this matter was held on September 25, 1986, at which arguments on the motion were heard. Pursuant to the parties' request, the motion was held in abeyance. The court was notified on October 23, 1986, that the parties wished the court to proceed to decide the motion. Accordingly, the matter is ripe for disposition. For the reasons set forth below, defendants' Motion to Dismiss and/or for Summary Judgment will be denied. *fn1"

 FACTUAL BACKGROUND

 In the complaint, plaintiff contends that he was advised of his involuntary retirement from his position as Foundry and Pattern Shop Superintendent on or about April 2, 1984. See Document 1 of the Record at para. 9. Plaintiff alleges that defendants' acts constitute unlawful discrimination in violation of the ADEA. According to the complaint, a timely charge of discrimination with the Equal Employment Opportunity Commission (EEOC) was filed so that the prerequisites for bringing suit pursuant to the ADEA were met. Id. at paras. 15 and 16.

 In their Motion, defendants contend that plaintiff's charge, filed with the EEOC two hundred and eighty-four (284) days after the occurrence of the incident giving rise to his claim of age discrimination, is untimely. In so doing, defendants aver that plaintiff does not receive the three hundred (300) day extension within which to file a claim with the EEOC because he did not file a charge with the Pennsylvania Human Relations Commission (PHRC). Moreover, defendants maintain that since no charge was filed with the PHRC this court is without jurisdiction to entertain the complaint because pursuant to the ADEA no complaint may be filed in federal court until sixty (60) days elapse after a charge is filed with the appropriate state agency. See 29 U.S.C. § 633.

 The parties apparently agree that plaintiff was informed of his "termination" on April 2, 1984. See Document 4 of the Record at 3 and Document 8 of the Record at para. 5. Furthermore, the parties agree that plaintiff filed a charge with the EEOC on January 11, 1985, which charge was dated December 29, 1984. *fn2" Finally, it is conceded that Pennsylvania is a deferral state for purposes of the ADEA.

 The court finds that defendants' contentions are interrelated for purposes of this motion. That is, the issue is whether plaintiff's charge filed with the EEOC within three hundred (300) days is timely.

 The affidavit of Neil Sullivan, Assistant to the Director of the PHRC Compliance Division, indicates that no formal proceedings or complaints were received by the PHRC involving plaintiff's case. The records reveal, however, that on February 14, 1985, the PHRC received notification from EEOC that plaintiff filed a charge with the EEOC alleging age discrimination and that, pursuant to a worksharing agreement between EEOC and PHRC, the charge was to be initially processed by EEOC. See Document 4 of the Record -- Exhibit 1 at para. 5. While plaintiff admits not filing a charge directly with the PHRC, he contends that his filing with the EEOC constituted a filing with PHRC under a worksharing agreement between EEOC and PHRC. Moreover, plaintiff claims that the doctrine of equitable tolling applies so that his claim is timely.

 DISCUSSION

 For purposes of this motion, the court assumes that the filing date with the EEOC was January 11, 1985. A review of the record discloses that a worksharing agreement was in effect between the PHRC and the EEOC between October 1, 1983 and September 30, 1985. See Document 8 of the Record at Exhibit A. The agreement provides: "In order to facilitate the assertion of employment rights, the EEOC and the PHRC each designate the other as its agent for the purpose of receiving charges." Id. at 2 -- subparagraph a. "Each agency will endeavor to forward all appropriate charges to the other agency on a daily basis or as soon as practicable." Id. at subparagraph e. Accordingly, even though this delegation of authority does not include the right of one agency to determine the jurisdiction of the other agency, the agreement clearly provides that each agency shall act as the agent of the other for the purpose of receiving charges and that all appropriate charges will be forwarded to the other agency on a daily basis or as soon as practicable. As previously noted, however, EEOC did not forward plaintiff's charge to the PHRC "on a daily basis or as soon as practicable", which would have made the charge timely, but waited instead approximately thirty-five (35) days to do so which was three hundred nineteen (319) days after plaintiff's termination.

 In pertinent part, the EEOC's own regulations provide:

 
When a worksharing agreement with a State agency is in effect, the State agency will act on certain charges and the Commission will promptly process charges which the State agency does not pursue. Charges received by one agency under the agreement shall be deemed received by the other agency for purposes of § 1626.7.

 29 CFR § 1626.10(c). (emphasis added). Section 1626.7 of those same regulations concerns the ...


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