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February 11, 2000


The opinion of the court was delivered by: Ludwig, District Judge.


Defendants West Chester University and Samuel Moore, Ph.D., moved to dismiss plaintiffs' complaint for lack of subject matter jurisdiction and failure to state a claim. Fed.R.Civ.P. 12(b)(1) & (6). An order was entered granting in part and denying in part the motion. Order, October 28, 1999. Jurisdiction is federal question. 28 U.S.C. § 1332.

This is an employment discrimination action arising under Title VII, 42 U.S.C. § 2000e-2 (a); 42 U.S.C. § 1983; and, as a supplemental claim, under the Pennsylvania Constitution. The complaint alleges that plaintiffs Maureen Seybert and Geraldine Bellam were the subject of gender discrimination and retaliation. The facts are viewed from the pleader's standpoint, as required for this ruling.*fn1

To summarize the dismissal motion, it asserts that the complaint is deficient because: (1) Title VII's jurisdictional prerequisites are not met; (2) defendants West Chester University and Moore, in his official capacity, are immune from suit under the Eleventh Amendment and also are not "persons" under § 1983; and (3) the Eleventh Amendment and the doctrine of sovereign immunity bar the state constitutional claim.

I. Title VII

On March 26, 1999 each plaintiff filed an administrative charge of discrimination with the EEOC. On March 26, 1999 — 55 days later — each received a right to sue notice. Compl. at ¶¶ 8-13. The question is whether the notices were valid given their issuance before the expiration of the 180-day period set forth in the statute.

Under Title VII, a notice of a right to sue is a prerequisite to filing an action. Section 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5 (f)(1), directs the EEOC to issue a right to sue notice if: (1) it dismisses the charge, or (2) 180 days have elapsed and the EEOC has not entered into a conciliation agreement or filed a civil action.*fn2 Id. Once the notice is given, the employee has 90 days to institute suit.*fn3 Id. However, in 1977, the EEOC promulgated a regulation that permits a right to sue notice to be issued before the expiration of 180 days if the Commission certifies that it will probably be unable to process the case within that length of time. 29 C.F.R. § 1601.28 (a)(2). At issue here is whether the regulation unlawfully defeats the statutory time allocation and, if so, deprives this court of jurisdiction.

The early history of the right to sue regulation is instructive. In 1977, prior to the release of the regulation, the Court described the 180-day waiting period as "mandatory." Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 361, 97 S.Ct. 2447, 2452, 53 L.Ed.2d 402 (1977).*fn4 Later that year, in reaction to the decision and no doubt swamped with cases, the EEOC published*fn5 29 C.F.R. § 1601.28 (a)(2).*fn6 As observed by Judge Dalzell, of our court, the rationale behind § 1601.28(a)(2) is "`the legal principle that a party is not required to perform a useless act, i.e., wait for the passage of 180 days when the passage of such time will not accomplish any purpose.'" Pearce v. Barry Sable Diamonds, 912 F. Supp. 149, 154 (E.D.Pa. 1996) (citing to 42 Fed.Reg. 47, 828, 47, 831 (1977)).

The regulation's validity has been "hotly debated," Lemke v. Int'l Total Servs., Inc., 56 F. Supp.2d 472, 478 (D.N.J. 1999), and as of last year, a circuit split arose by virtue of a case decided by the Court of Appeals for the District of Columbia; Martini v. Fed. Nat'l Mortgage Assoc., 178 F.3d 1336 (D.C.Cir. 1999), petition for cert. filed, 68 USLW 3368 (U.S. November 29, 1999) (No. 99-908). In Martini, the regulation was invalidated as contrary to Title VII's waiting period provision. The hypothesis is that Congress intended to have every charge of discrimination administratively investigated and wanted to encourage informal conciliation in preference to litigation. A number of district courts in New York and one in New Mexico had reached the same conclusion.*fn7 However, the Courts of Appeal for the Ninth and Eleventh Circuits, together with district courts in the Northern District of Illinois, the Southern District of Texas, the Eastern District of Arkansas, and the Southern District of New York, have found the regulation, reasonable and have deferred to the EEOC's interpretation of its role under Title VII.*fn8

Our Court of Appeals has not taken a definitive position. After characterizing the early right to sue notice as a "deliberate bypass of administrative remedies," it declined to rule on the validity of 29 C.F.R. § 1601.28 (a)(2).

Even so, premature resort to the district court should be discouraged as contrary to congressional intent. The preference for conciliation as the dispute resolution method in employment discrimination proceedings should not be underpaid by a party's deliberate bypass, of administrative remedies. Accordingly, the plaintiffs actions in foreclosing EEOC conciliation efforts is one factor to be considered in determining whether equitable relief should be granted.

Moteles v. Univ. of Pa., 730 F.2d 913, 917 (3d Cir.1984). Also in 1984, before Moteles, another case intimated that a failure to exhaust the 180 days was not an absolute bar to suit. See Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984). There, without waiting, an employee was permitted to sue for a second act of discrimination where the discriminatory conduct was related to that in the ongoing suit.

District courts within our Circuit and within our district disagree over the regulation's validity.*fn9 In the present case, the regulation was upheld using the guidance of Chevron v. Natural Resources Defense Counsil, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Under Chevron, in reviewing an administrative agency's construction of a statute, there is a two-tiered analysis. 467 U.S. at 842, 104 S.Ct. 2778.

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with ...

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