United States District Court, Eastern District of Pennsylvania
February 11, 2000
MAUREEN SEYBERT AND GERALDINE BELLAM
WEST CHESTER UNIVERSITY AND SAMUEL MOORE, PH.D.
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
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 respect to the specific issue, the
question for the court is whether the agency's
answer is based on a permissible construction of the
Id. at 842-843, 104 S.Ct. 2778. Both the statutory language and the
legislative history should be examined. "[T]he particular statutory
language," as well as "the language and design of the statute as a whole"
are to be considered. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291,
108 S.Ct. 1811, 1818, 100 L.Ed.2d 313 (1988). If the intent of Congress
is unclear or is ambiguous, deference should be given to the agency's
interpretation so long as it is reasonable. See Chevron, 467 U.S. at
844, 104 S.Ct. 2778 ("a court may not substitute its own construction of
a statutory provision for a reasonable interpretation made by the
administrator of an agency.").
Here, the issue turns on whether § 2000e-5(f)(1) specifies the
exclusive conditions for federal jurisdiction under Title VII. See
Martini v. Fed. Nat'l Mortgage Assoc., 178 F.3d 1336.
The statutory text is not particularly helpful.
"[I]f within  days from the filing of such
charge . . . the [EEOC] has not filed a civil action
under this section or the [EEOC] has not entered
into a conciliation agreement to which the person
aggrieved is a party, the [EEOC] . . . shall so
notify the person aggrieved and within ninety days
after the giving of such notice a civil action may
be brought against the respondent named in the
charge . . . by the person claiming to be
aggrieved. . . ."
§ 2000e-5(f)(1). While there are two instances in which the EEOC is
obligated to issue a right to sue notice — after 180 days have
passed without conciliation or filing suit, or upon dismissal of the
charge — these jurisdictional contours are not explicitly
See Lemke, 56 F. Supp.2d at 480. The statute certainly
seems to contemplate some EEOC action within 180 days, see § 2000e-5
(b)(if practicable, reasonable cause to be determined within 120 days of
filing), but it does not stake out as a condition precedent to a private
lawsuit six months of agency inaction. See Berry v. Delta Air Lines,
Inc., 75 F. Supp.2d 890, 891 (N.D.Ill. 1999)(180-day period can just as
easily be read to be a maximum waiting period, as it can a minimum.).
The legislative history is not less equivocal. Some of it depicts the
EEOC as the preferred tribunal for resolving employment discrimination
claims, observing that "[a]dministrative tribunals are better equipped to
handle the complicated issues involved in employment discrimination
cases." H.R.Rep. No. 92-238, (1971), reprinted in 1972 U.S.C.C.A.N.
2137, 2146. With this in mind, it can be said that Congress enacted the
180-day waiting provision to force complainants "[to] sit around [for] 6
months," in the hope that administrative processing would lead to
conciliation. 118 Cong. Rec. 1069 (1972).
Private lawsuits, Congress envisioned, would be "the exception and not
the rule." 118 Cong. Rec. 7168.
Concomitantly, it was stated in the House that "[t]he primary concern
must be protection of the aggrieved person's option to seek a prompt
remedy in the best manner available." H.R.Rep. No. 92-238, (1971),
reprinted in 1972 U.S.C.C.A.N. 2137, 2148. The 180-day provision was
"designed to make sure that the person aggrieved does not have to endure
lengthy delays if the [EEOC] . . . does not act with due diligence and
speed." Id. It "allow[s] the person aggrieved to elect to pursue his or
her own remedy under this title where there is agency inaction; dalliance
or dismissal of the charge, or unsatisfactory resolution." Id.
Perhaps unsurprisingly, given the multiple objectives of the
legislation, its history does not conclusively point to a single
interpretation. "Did Congress simply intend to guarantee the right to sue
after 180 days, or did it further intend to prohibit private suits within
180 days." Martini, 178 F.3d at 1345; see Berry, 75 F. Supp.2d at 891.
While the EEOC must issue a right to sue letter after 180 days, Title VII
did not deal with the problems of an agency ill-equipped to sweep back
increasing waves of employment discrimination and disability claims. The
EEOC has a huge bureaucratic workload in which only a certain portion of
the filings can be processed within the allocated time period. The split
in the Circuits and the variety of district court decisions reflect how
statutory construction has produced differing views on the validity of
the Commission's regulation.*fn11
When legislation is not clear, Chevron dictates that one ask whether
"the agency's interpretation "is based on a permissible construction of
the statute." Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. The question
is not whether the EEOC'S view is correct, or whether another view, such
as Martini's, is incorrect, but given the alternatives, whether the
regulation is a plausible interpretation of § 2000e-5(1)(f). Under
Chevron, that suffices, and once upheld the regulation is entitled to
deference. See Deane v. Pocono Med. Ctr., 142 F.3d 138, 143 n. 4 (3d
Cir. 1998) (EEOC regulations are accorded substantial deference).
The regulation's validity, however, should not presuppose its
unfettered applicability. A policy objective of Title VII was to promote
informal resolution of employment discrimination disputes. Early right to
sue notices should not be issued as of course. A cooling off period can
have value, and with the proliferation and simplification of ADR
procedures and worksharing with state agencies, every case should at least
be screened for the possibility
of early conciliation. Bringing the parties together should have a
salutary effect at least in some instances. The EEOC should not be
regarded as a minor detour on the way to court, and it is up to the
Commission to assure that misconception is not given credence.*fn12 If
it appeared of record that a charge has received little, if any,
consideration other than the issuance of an early right to sue notice, a
court should be able to remand the case for further administrative
II. Section 1983
The Eleventh Amendment bars "suits against departments or agencies of
the state having no existence apart from the state," Laskaris v.
Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981), cert. denied, 469 U.S. 886,
105 S.Ct. 260, 83 L.Ed.2d 196, as well as suits for monetary damages
against state officials acting in their official capacity. Kentucky v.
Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 3107, 87 L.Ed.2d 114 (1985).
A state university system, as a government instrumentality, 24 P.S.
§ 20-2002-A(a), is "entitled to the protection of the Eleventh
Amendment." Skehan v. State System of Higher Education, 815 F.2d 244, 249
(3d Cir. 1987). As a member institution, 24 P.S. § 20-2002-A(a)(14),
West Chester University is entitled to such immunity. See Lach v. Robb,
679 F. Supp. 508, 513 (W.D.Pa.) (California University of Pennsylvania),
aff'd, 857 F.2d 1464 (3d Cir. 1988); see also Lewis v. Kelchner,
658 F. Supp. 358, 360 (M.D.Pa. 1986)(Mansfleld University); Wynne v.
Shippensburg Univ., 639 F. Supp. 76, 82 (M.D.Pa. 1985). By giving
consent, a state may waive its Eleventh Amendment immunity. However, via
statute, 42 P.S. § 8521(b), Pennsylvania has explicitly withheld
consent. See Laskaris, 661 F.2d at 25.
Accordingly, the motion to dismiss was granted, plaintiffs were given
leave to amend their complaint to state a claim against Dr. Moore in his
individual capacity, and on November 10, 1999, and an amended complaint
III. Pennsylvania Constitution
Count III of the complaint pleads a supplemental claim under the
Pennsylvania Constitution, and a 1990 decision of our Court of Appeals
holds open that there may be such a possibility. Pfeiffer v. Marion Ctr.
Area Sch. Dist., 917 F.2d 779, 789 (3d Cir.1990); but see, Crighton v.
Schuylkill County, 882 F. Supp. 411, 416 (E.D.P.A. 1995), and Agresta v.
Goode, 797 F. Supp. 399, 409 (E.D.Pa. 1992). It would appear extremely
unlikely that plaintiff could prevail on this state claim. In addition to
the lack of a statutory vehicle, defendant would appear to be immunized
under the PA Political Subdivision Torts Claims Act, 42 Pa. Cons.Stat.
Ann. §§ 8541-64. See Crighton, 882 F. Supp. at 416; Agresta, 797 F.
Supp. at 409-410.