The opinion of the court was delivered by: MCCUNE
BARRON P. McCUNE, SENIOR UNITED STATES DISTRICT JUDGE
We consider a motion for summary judgment filed by defendant, Metal Service Company, Inc. (Metal Service). This action was instituted pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq., (Title VII).
On January 24, 1986, both Willie Brown, Jr. and Steven C. Brown filed charges of race discrimination with the Equal Employment Opportunity Commission (EEOC) alleging that Metal Service engaged in discriminatory hiring practices when it failed to hire them due to their race in violation of Title VII. On or about January 29, 1986, the EEOC sent copies of the charges along with the charge transmittal forms to the Pennsylvania Human Relations Commission (PHRC). The PHRC returned the charge transmittal forms to the EEOC and indicated that the PHRC intended to "dismiss/close/not docket" the charges because the work-sharing agreement between the EEOC and PHRC provided that the EEOC would process all charges originally filed with it and, in those instances, the PHRC would waive its exclusive jurisdiction under Section 706(c) and (d) of Title VII. The EEOC took jurisdiction over the charges from the date that it received them, and the EEOC is the only administrative agency which has been involved in handling the charges.
The basis of the charges is that defendant hired a caucasian in June, 1984 and May-June, 1985, despite several applications made by complainants, and that complainants were never called for an interview for those positions even though they were qualified. The parties agree that the EEOC received the charges of the complainants on the 218th day and 219th day, respectively, after the alleged discrimination occurred. The central issue now before the court is whether the charges were filed within the time period set forth in Title VII such that the case can proceed to trial on the merits.
When deciding a motion for summary judgment, we view the evidence in the light most favorable to the non-moving party. Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). Doing so, we accept as true the allegations of the non-movant and resolve any conflicts in his favor. Gans v. Mundy, 762 F.2d 338, 340 (3d Cir.), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985). Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. In the instant action, we must decide whether, under Title VII, the 180 day statute of limitations or the 300 day statute of limitations is appropriate. If we apply the 180 day limitation period, this action is time barred. For the reasons stated herein, we will apply the 300 day limitation-period and deny defendant's summary judgment motion.
Sections 706(e) and 706(c) of Title VII
set forth the time limitations for filing a discrimination charge. The provisions provide:
Section 706(c). State or local Proceedings. In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a state or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (a)[b] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. . . .
The general rule is that a Title VII charge is timely if filed with the EEOC within 180 days of the alleged discriminatory act. The exception to the general rule is that an extended 300 day limitations period may be applied if the alleged discriminatory act occurred in a State that has an agency that can provide a remedy for such discrimination (deferral State), and the complainant initially instituted proceedings with that State agency. EEOC v. Commercial Office Products Co., 486 U.S. 107, 108 S. Ct. 1666, 100 L. Ed. 2d 96 (1988). Section 706(c) of Title VII, 42 U.S.C. § 2000e-5(c), provides that unless the State agency's proceedings have been "earlier terminated," a complainant can not file a charge with the EEOC until 60 days have elapsed from the initial filing of the charge with the State agency.
In the instant action, the parties agree that the charges were filed with the EEOC on the 218th and 219th days, respectively, for both complainants. We must determine if their charges fall into the category wherein we must apply the 300 day limitation period. Our inquiry is threefold: First, we must determine whether Pennsylvania is a deferral State; Secondly, we must determine whether the complainants "initially instituted" proceedings with the State agency charged with providing remedies for employment discrimination under Section 706 of Title VII (706 agency). Finally, if Pennsylvania is a deferral state, and we find that complainants "initially instituted" proceedings with the Pennsylvania 706 agency, we must determine whether the proceedings were "earlier terminated" before the EEOC officially processed the charge.
Pennsylvania has a statute which prohibits employment discrimination on the basis of race, and Pennsylvania has established the PHRC to enforce that statute. See 43 P.S. § 951 et seq.; Seredinski v. Clifton Precision Products Co., 776 F.2d 56 (3d Cir. 1985); Douglas v. Red Carpet Corp. of America, 538 F. Supp. 1135 (E.D. Pa. 1982). Defendant argues that Pennsylvania is a non-deferral state, and thus, the 180 day limitation period applies. There is absolutely no merit to this contention. Defendant even states in its brief that a State which has an agency that can provide a remedy for unlawful employment discrimination is a deferral State. Defendant has not argued that the PHRC is not such an agency. On the contrary, defendant concedes ...