Bickley v. University of Maryland

• Citation: 527 F. Supp. 174
• Decision Date: 16 November 1981
• Docket Number: Civ. A. No. M-81-140.
• Parties: Cynthia A. BICKLEY v. UNIVERSITY OF MARYLAND, State of Maryland; Board of Regents, Chairman Peter F. O'Malley; President Toll; Art Department Chairperson, David Driskell.
• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)

527 F. Supp. 174

Cynthia A. BICKLEY v. UNIVERSITY OF MARYLAND, State of Maryland; Board of Regents, Chairman Peter F. O'Malley; President Toll; Art Department Chairperson, David Driskell.

Civ. A. No. M-81-140.

United States District Court, D. Maryland.

November 16, 1981.

COPYRIGHT MATERIAL OMITTED

Oliver Denier Long, Bethesda, Md. for plaintiff.

Stephen H. Sachs, Atty. Gen. of Maryland, and Mary Elizabeth Kurz, Asst. Atty. Gen., Baltimore, Md., for defendants.

MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

On January 26, 1981, Cynthia Bickley, a former faculty member at the University of Maryland, filed a pro se complaint alleging that she was the object of various discriminatory employment practices while employed at the University.¹ Named as defendants are the University, the Chairman of the Board of Regents, the President of the University, and the Chairman of the Art Department. All of the individual defendants are sued in their official capacities. After the defendants moved to dismiss her complaint,² an appearance was entered of counsel to represent the plaintiff.³ The plaintiff's counsel thereafter filed an opposition to the defendants' dismissal motion.⁴ The court heard argument from counsel on November 6, 1981 and the matters raised by the defendants' motion are ready for decision.

I. Overview

The plaintiff was employed by the University from September 1, 1966, to June 15, 1978. From September 1, 1971, until her termination, she held the position of an Assistant Professor in the Art Department at the University's College Park campus.

On July 21, 1976, the plaintiff filed an administrative charge with the Equal Employment Opportunity Commission (EEOC), alleging that the University discriminated against her and other female, assistant professors by paying them salaries lower than those paid to male professors doing comparable work.⁵ In December of 1976, the plaintiff was informed that her contract would not be renewed upon its expiration on June 15, 1978.⁶ On November 24, 1978, the plaintiff filed an amended charge with the EEOC, alleging retaliation in connection with the University's decision not to renew her contract.⁷ The plaintiff received her right-to-sue letter from the EEOC on October 29, 1980.⁸

II. Discussion

A. Title VII

The defendants have challenged the plaintiff's right to pursue her retaliatory discharge claim, 42 U.S.C. § 2000e-3(a), on the ground that she did not file a retaliation charge with the EEOC within 180 days of the date on which her claim accrued. Id. § 2000e-5(e). The defendants' position is correct.

The timely filing of an administrative charge is generally a prerequisite to the maintenance of a private Title VII action. See, e. g., United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n. 4, 97 S.Ct. 1885, 1887 n. 4, 52 L.Ed.2d 571 (1977); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974). Such a procedural requirement, however, does not implicate the court's subject matter jurisdiction. Citicorp Person-To-Person Financial Corp. v. Brazell, 658 F.2d 232, 234 (4th Cir. 1981). Nevertheless, absent circumstances justifying the application of the so-called "equitable tolling" rule, a plaintiff's failure to comply with the relevant time limitations serves as a bar to the maintenance of a private Title VII suit. E. g., Citicorp Person-To-Person Financial Corp. v. Brazell, 658 F.2d at 234-35; Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 587-95 (5th Cir. 1981) (en banc) and cases cited therein. The plaintiff has not urged the application of the equitable tolling rule, and the court's review of the record reveals no circumstances justifying its application.

The plaintiff's retaliatory termination claim accrued when the University's decision not to renew her contract was communicated to her in December of 1976, not when the contract ultimately expired on June 15, 1978. Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 504, 66 L.Ed.2d 431 (1980). See Chardon v. Fernandez, ___ U.S. ___, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981). Since the plaintiff did not file her retaliatory termination charge until November 24, 1978, more than 180 days after it accrued, the defendants assert that the court may not entertain her retaliation claim.

Recently, in Gupta v. East Texas State University, 654 F.2d 411 (5th Cir. 1981), a panel of the Fifth Circuit held as follows:

"It is unnecessary for a plaintiff to exhaust administrative remedies prior to urging a retaliation claim growing out of an earlier charge; the district court has ancillary jurisdiction to hear such a claim when it grows out of an administrative charge that is properly before the court."

654 F.2d at 414.

In that case, the plaintiff had filed an administrative charge on July 9, 1975, alleging that the defendant discriminated against him, because of national origin and religion, in terms of job assignments and pay rates. A right-to-sue letter was issued by the Equal Employment Opportunity Commission (EEOC) in February of 1976, and the plaintiff filed suit on March 23, 1979. After the institution of the lawsuit, the plaintiff was informed that his contract would not be renewed the following year. Although no administrative charge was filed by the plaintiff regarding his termination, this issue was litigated at trial. The court of appeals, sua sponte, raised the jurisdictional issue. 654 F.2d at 412-13.

The court in Gupta offered several reasons in support of its decision to carve out an exception to the statutory requirement of administrative exhaustion. From a precedential perspective, the court indicated that ancillary jurisdiction in the Title VII context had been applied in one of its prior cases, Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969), and by several District Courts. See, e. g., Pouncey v. Prudential Insurance Co., 499 F.Supp. 427 (S.D.Tex.1980); National Organization for Women v. Sperry Rand Corp., 457 F.Supp. 1338 (D.Conn.1978); Held v. Missouri Pacific R. R. Co., 373 F.Supp. 996 (S.D.Tex. 1974).⁹

The court also found "strong practical reasons and policy justifications for its conclusion." 654 F.2d at 414. According to the Fifth Circuit panel, since retaliation claims generally arise after the filing of an administrative charge, requiring the plaintiff to file a second administrative charge "would serve no purpose except to create additional procedural technicalities when a single filing would comply with the intent of Title VII." 654 F.2d at 414. In addition, the attainment of Title VII's goals would be hindered without the ancillary exception because the EEOC relies largely on private suits to enforce the Act. Finally, the court indicated that the availability of ancillary jurisdiction over retaliation claims would deter employers "from attempting to discourage employees from exercising their rights under Title VII." 654 F.2d at 414.

Having reviewed the structure of Title VII's exhaustion provisions, as well as judicial pronouncements regarding the policies underlying administrative exhaustion, this court must disagree with the decision of the Fifth Circuit panel in Gupta.

As an initial matter, it appears that Gupta's reliance on Pettway, as sanctioning the use of ancillary jurisdiction to support the assertion in a private lawsuit of claims neither presented to nor investigated by the EEOC, is misplaced. The specific issue decided in Pettway was whether the District Court, after dismissing the plaintiff's Title VII claim for lack of jurisdiction, had jurisdiction to enjoin the defendant from terminating the plaintiff during the pendency of the appeal. Writing for the panel, Chief Judge Brown, held that pursuant to Rule 62(c), Fed.R.Civ.P., the District Court had the authority to grant such injunctive relief as ancillary to the case then pending on appeal, in order to preserve the status quo and prevent the case from becoming moot. 411 F.2d at 1002-03. It is plain, therefore, that neither the holding nor the reasoning of Pettway is authority for the rule announced in Gupta.

There are additional reasons, however, why this court declines to follow Gupta. First, the retaliatory discharge exception carved out by the Fifth Circuit panel has no basis in the language of Title VII. Although there are important legal and conceptual differences between the acts made unlawful by section 703(a), 42 U.S.C. § 2000e-2(a), and section 704(a), id. § 2000e-3(a), Title VII does not distinguish between them for the purpose of administrative exhaustion. Section 706, 42 U.S.C. § 2000e-5.

Second, the course charted by the Fifth Circuit panel is at odds with the settled rule that "the scope of a Title VII suit is limited to the claims asserted in the administrative charge of discrimination and such other claims uncovered during a reasonable investigation of that charge, provided that these other claims were actually investigated by the administrative agency." Mobley v. Acme Markets, Inc., 473 F.Supp. 851, 853 (D.Md.1979) (Harvey, J.), citing Hubbard v. Rubbermaid, Inc., 436 F.Supp. 1184, 1190-93 (D.Md.1977). Accord, Nance v. Union Carbide Corp., 540 F.2d 718, 727 (4th Cir. 1976), vacated on other grounds, 431 U.S. 952, 97 S.Ct. 2671, 53 L.Ed.2d 268 (1977); King v. Seaboard Coastline Ry. Co., 538 F.2d 581, 583 (4th Cir. 1976).

The policy reasons underlying this rule were well stated by Judge Blair in Hubbard.

"When faced with the question of the proper scope of a Title VII complaint, a court must balance two competing statutory policies. The first is that Title VII is a broad remedial statute designed to protect those who are the least able to protect themselves. An individual who files a discrimination charge seldom has the assistance of counsel and is not expected to articulate the entire range of allegedly discriminatory practices of which he feels he is a victim. Courts, therefore, have given a liberal interpretation to

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