Jacobs v. BD. OF REGENTS, ETC.

• Citation: 473 F. Supp. 663
• Decision Date: 10 July 1979
• Docket Number: No. 78-945-CIV-JAG.,78-945-CIV-JAG.
• Parties: Ellen D. JACOBS, Plaintiff, v. BOARD OF REGENTS OF the DIVISION OF UNIVERSITIES OF the DEPARTMENT OF EDUCATION OF the STATE OF FLORIDA et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

473 F. Supp. 663

Ellen D. JACOBS, Plaintiff, v. BOARD OF REGENTS OF the DIVISION OF UNIVERSITIES OF the DEPARTMENT OF EDUCATION OF the STATE OF FLORIDA et al., Defendants.

No. 78-945-CIV-JAG.

United States District Court, S. D. Florida.

July 10, 1979.

COPYRIGHT MATERIAL OMITTED

Jack P. Attias, Key Biscayne, Fla., Sarel K. Kromer, Miami, Fla., for plaintiff.

James D. Little, Gen. Counsel, State Bd. of Ed., Tallahassee, Fla., for defendant Board of Regents.

John W. Kozyak, Mahoney, Hadlow & Adams, Miami, Fla., for defendants.

MEMORANDUM OPINION

GONZALEZ, District Judge.

Plaintiff, Ellen B. Jacobs, has filed this suit alleging that she was, and is, the victim of the Defendant's unlawful discriminatory employment practices. The Plaintiff asserts federal jurisdiction based upon 28 U.S.C. § 1343 and 42 U.S.C. § 2000e et seq.

The defendant, Board of Regents, has moved to dismiss the complaint attacking the Court's jurisdiction over the claims asserted.

The individual defendants, Wyroba, Crosby and Cooper, have moved to dismiss the Complaint as to them arguing:

1. The Court lacks jurisdiction over the acts of discrimination complained of because they occurred more than 180 days prior to the institution of charges with the E.E.O.C., or occurred after the charges were filed but are not similar to the actual charges lodged with the Commission.

2. The individual defendants were not specifically named in the plaintiff's charge to the E.E.O.C.

3. The Complaint fails to state a claim for which relief can be granted pursuant to 42 U.S.C. 1983 or 1985.

A complaint should never be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-56, 78 S.Ct. 99, 2 L.Ed.2d 80; Mann v. Adams Realty Company, Inc., 556 F.2d 288, 293 (5th Cir. 1977), and Cook & Nichol, Inc. v. Plimsoll Club, 451 F.3d 505 (5th Cir. 1971). Moreover, this Court is required to construe the complaint in the light most favorable to the plaintiff and to take the allegations contained therein as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1974); Reid v. Hughes, 578 F.2d 634 (5th Cir. 1978); Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Slavin v. Curry, 574 F.2d 1256 (5th Cir. 1978), and Spector v. L. Q. Motor Inns, Inc., 517 F.2d 278 (5th Cir. 1975), cert. denied 423 U.S. 1055, 96 S.Ct. 786, 46 L.Ed.2d 644 (1976).

The Fifth Circuit has consistently held that the District Courts are to be "very liberal rather than technical in Title VII pleading requirements." See: Love v. Pullman, 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); Smith v. Olin Chemical Corp., 535 F.2d 862 (5th Cir. 1976); Smith v. Delta Air Lines, Inc., 486 F.2d 512 (5th Cir. 1973); Danner v. Phillips Petroleum Co., 447 F.2d 159 (5th Cir. 1971); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970).

The plaintiff, a white female, alleges that she was hired as an Assistant Professor with the Department of Fine Arts at Florida International University (FIU) in August of 1972. Plaintiff states that although she was qualified to be an Associate Professor, the Chairman of the Fine Arts Department and defendant herein, Francis Wyroba, represented to her that there were no associate positions available. The Complaint alleges that, in fact, there were associate positions available which were filled by males who were equally or less qualified than the plaintiff.

The plaintiff remained in her position as an Assistant Professor, despite repeated requests for advancement until she was promoted to an associate's position effective December of 1975. Even with the promotion, however, the plaintiff alleges that she was paid, and is still being paid, a salary lower than similarly situated males. While the Complaint is unclear as to whether the plaintiff believes that she is still in a rank inferior to similarly qualified males, the Complaint makes it absolutely clear that she is complaining about her position as an Assistant from August of 1972 to December 1975.

The plaintiff made several attempts to obtain the relief she seeks here from the defendants prior to filing charges with the Equal Employment Opportunity Commission (EEOC). Failing in this, the plaintiff filed a charge with the E.E.O.C. on May 26, 1976, charging a continuing practice of sex discrimination regarding her rank and salary.

Florida is what is commonly known as a "Referral State", since it provides a local agency to investigate charges of employment discrimination, to wit: the Fair Housing & Employment Appeals Board. See 42 U.S.C. 2000e-5(c), (e). Thus, after filing her Complaint with the Commission, plaintiff was notified that the Commission had no jurisdiction over the charge until the Fair Housing & Employment Appeals Board had at least 60 days to investigate the charge.

The plaintiff's charge was then filed with the state agency to be automatically refiled with the Commission at the conclusion of the 60 days.

The Complaint also alleges that some time during June of 1976, the defendant, Francis Wyroba, conspired with co-defendant, James Cooper, to fabricate a "study" of the comparative qualifications and salaries of the defendant, Cooper, and the plaintiff.

The document was then submitted to the "Salary Equity Study Committee", which was created to discover and eradicate sexbased discriminatory salaries.

The plaintiff alleges that the document is inaccurate and was drafted and submitted by the Defendants, Wyroba and Cooper, solely to perpetuate the discrimination from which the plaintiff is seeking relief.

The Complaint continues by asserting that the defendant, Harold Crosby, who is the President of F.I.U., also contributed to the discriminatory practices complained of by recommending a discriminatorily low salary to the Chancellor of the University.

The Defendants argue that this Court lacks jurisdiction to grant relief to redress any acts of discrimination which occurred more than 180 days prior to the filing of the plaintiff's charge with the E.E.O.C.

It is generally true that the timely filing of a charge with the E.E.O.C. has been viewed as jurisdictional. See United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); Alexander v. Gardner Denver Company, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Bickham v. Miller, 584 F.2d 736 (5th Cir. 1978); Bracamontes v. Amstar Corporation, 576 F.2d 61 (5th Cir. 1978); Cutliff v. Greyhound Lines, Inc., 558 F.2d 803 (5th Cir. 1977); East v. Romine, Inc., 518 F.2d 332 (5th Cir. 1975); Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975); Miller v. Miami Prefabricators, Inc., 438 F.Supp. 176 (S.D.Fla.1977); Wallace v. International Paper Company, 426 F.Supp. 352 (W.D.La.1977); Williams v. Texas International Airlines, 435 F.Supp. 703 (S.D. Tex.1977); Gorman v. University of Miami, 414 F.Supp. 1022 (S.D.Fla.1976).

This is consistent with Courts treatment that the timely filing of a complaint with the courts is also jurisdictional. See Herbert v. Monsanto Company, 576 F.2d 77 (5th Cir. 1978); Prophet v. Armco Steel, Inc., 575 F.2d 579 (5th Cir. 1978); Wrenn v. American Cast Iron Pipe Co., 575 F.2d 544 (5th Cir. 1978); Turner v. Texas Instruments, Inc., 556 F.2d 1349 (5th Cir. 1977); Zambuto v. American Tel. & Tel. Co., 544 F.2d 1333 (5th Cir. 1977).

The defendants reliance upon the 180 days rule is here misplaced. Where there exists a local referral agency in the state where a charge is being brought, an aggrieved party has 300 days within which to file her charge with the commission. See, generally, Doski v. M. Goldseker Co., 539 F.2d 1326 (4th Cir. 1976). The filing of the charges with the local agency, may be "initiated by the charging party filing a written statement with, or by the E.E.O.C. transmitting a copy of the charge to the appropriate state officer or agency." White v. Dallas Independent School District, 566 F.2d 906, 907 (5th Cir. 1978). As plaintiff's complaint was filed with the state agency by "the E.E.O.C. transmitting a copy of the charge to the appropriate state officer or agency" id., the Court finds the 300 day period applicable. There is no allegation by defendants that the filing of the charge with the Fair Housing and Employment Appeals Board by the E.E.O.C. rather than by the plaintiff would change the rule. Nor does the case of Olson v. Rembrandt Printing Company, 511 F.2d 1228 (8th Cir. 1975), suggest a contrary result.

Furthermore, the general rule that timely filing of an initial charge with the E.E.O.C. is a jurisdictional prerequisite to a civil action, is subject to narrow exceptions. First, it has been held that the 180 day or 300 day time period for filing a charge with the commission does not begin to run until the facts which would support the charge have become apparent, or should have been apparent to a person with a reasonably prudent regard for his or her rights. Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1978); see also, Bickham v. Miller, 584 F.2d 736 (5th Cir. 1978). Cf. Dartt v. Shell Oil Company, 539 F.2d 1256 (6th Cir. 1976), aff'd 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977), reh. denied 434 U.S. 1042, 98 S.Ct. 785, 54 L.Ed.2d 792; Quiana v. Owens-Corning Fiberglas Corporation, 575 F.2d 1115 (5th Cir. 1978); Smith v. American President Lines, Ltd., 571 F.2d 102 (2nd Cir. 1978).

Second, where a plaintiff is not complaining of a discrete act of discrimination, the doctrine of continuing discrimination may except an aggrieved party from the strict time requirements of Title VII. See Clark v. Olinkraft, Inc., 556 F.2d 1219 (5th Cir. 1977), cert. denied 434 U.S. 1069, 98 S.Ct. 1251, 55 L.Ed.2d 772 (1978).

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