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.
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.
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 ...