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May 28, 1987

Carl E. Spidle, Plaintiff
Commonwealth Of Pennsylvania, Office Of The Budget, et al., Defendants

The opinion of the court was delivered by: CALDWELL

 I. Introduction And Background

 Defendants, the Commonwealth of Pennsylvania and three of its officials, Ross E. Starner, Comptroller for Public Protection and Recreation, Ann Wildeman, his assistant, and Anna M. Anderson, Supervisor of Budgetary Control for the Comptroller, have moved to dismiss plaintiff's complaint. Plaintiff, Carl E. Spidle, has made claims under Title VII, 42 U.S.C. § 2000e-5(f), The Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985, and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. He has also set forth several pendent state law claims, including a claim under the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951 et seq. The complaint arises from plaintiff's discharge from employment with the state allegedly as a result of sex and age discrimination. In connection with the Title VII and ADEA claims, plaintiff has alleged that "administrative remedies have been exhausted." (Complaint, paras. 2 and 4). The individual defendants have been sued in their individual and official capacities.

 In their motion and supporting brief, defendants argue that: (1) the eleventh amendment divests this court of jurisdiction to entertain the pendent state claims; (2) the Title VII claim must be dismissed because plaintiff has not adequately alleged that he has satisfied the conditions precedent for filing suit; (3) count II must be dismissed because it makes a claim for sex discrimination under the ADEA when the ADEA does not apply to sex discrimination; and, (4) counts III and IV must be dismissed because the allegations of conspiracy are too vague to satisfy Third Circuit pleading requirements in civil rights actions.

 II. Discussion.

 A. The Eleventh Amendment Divests This Court of Jurisdiction to Entertain the Pendent State Claims Against the Commonwealth.

 Defendants have cited Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984), to support their claim that the eleventh amendment bars us from adjudicating plaintiff's state law claims. *fn1" In Pennhurst, the Supreme Court held that a federal court did not have jurisdiction to order state officials to conform to the requirements of state law. The Court stated:

The reasoning of our recent decisions on sovereign immunity thus leads to the conclusion that a federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when -- as here -- the relief sought and ordered has an impact directly on the State itself.

 Id. at 117, 104 S. Ct. at 917, 79 L. Ed. 2d at 89.

 We agree with defendants that Pennhurst requires us to dismiss the pendent state claims as presently set forth. As noted by the Court in Pennhurst, the "constitutional bar applies to pendent claims as well." Id. at 120, 104 S. Ct. at 918, 79 L. Ed. 2d at 91. And there can be no doubt that the relief sought has an impact directly on the state. The Commonwealth through the Office of the Budget has been named as a defendant in all counts of the complaint except count III. All counts share a common request for relief which includes, among other things, reinstatement with full back pay and benefits, the possibility of a lateral transfer within the state and an injunction against future discrimination. No greater impact upon the state can be imagined.

 We do not believe, however, that the state claims must be dismissed as to defendants other than the Commonwealth. In their individual capacities, they may be liable in damages for slander or invasion of privacy. Of course, some of the requested relief, such as reinstatement, would be inappropriate based upon the above discussion. This relief would have to be deleted in connection with the state claims. Plaintiff will be given an opportunity to amend his complaint to set forth the state claims only against the individual defendants and for relief which would not operate directly against the Commonwealth.

 B. Plaintiff Has Adequately Alleged the Fulfillment of the Conditions Precedent to His Filing of the Title VII Claim.

 Defendants argue that plaintiff has not adequately alleged that he has fulfilled all the conditions necessary for bringing a Title VII claim in federal court. They assert that the conclusional statement that "administrative remedies have been exhausted" is insufficient. Defendants would require plaintiff to allege specifically what he has done to satisfy the statutory prerequisites. Defendants note that, although plaintiff alleges he filed a complaint with the referring agency, the Pennsylvania Human Relations Commission (PHRC), he has failed to allege that he subsequently filed a charge with the Equal Employment Opportunity Commission (EEOC) in a timely manner or that the EEOC had issued him a right-to-sue letter. See 42 U.S.C. § 2000e-5. Plaintiff counters by relying upon Fed. R. Civ. P. 8(a)(1) which only requires "a short and plain statement of the grounds upon which the court's jurisdiction depends. . . ." Plaintiff also seeks to place the burden upon defendants by arguing that they have not asserted that a right to sue letter was not issued or that the suit is untimely, etc.

 Both sides cite Gooding v. Warner-Lambert Co., 744 F.2d 354 (3d Cir. 1984) in their support. In Gooding, the court of appeals held that the issuance of a right-to-sue letter was not a jurisdictional requirement for bringing a Title VII action. Hence, a complaint need not be dismissed on jurisdictional grounds pursuant to Fed. R. Civ. P. 12(b)(1) for failing to plead the issuance of such a letter. The Third Circuit also concluded that the district court erred in failing to give plaintiff leave to amend to allege the issuance of the letter. The district court's refusal to allow amendment was ...

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