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United States District Court, Eastern District of Pennsylvania

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 respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

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 [180] 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 exclusive.*fn10 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 processing.

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 was filed.*fn13

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.

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