Dixon v. Westinghouse Elec. Corp., Civ. No. Y-83-3034.

• Decision Date: 19 August 1985
• Docket Number: Civ. No. Y-83-3034.
• Citation: 615 F. Supp. 538
• Court: U.S. District Court — District of Maryland
• Parties: Patricia A. DIXON v. WESTINGHOUSE ELECTRIC CORP.

615 F. Supp. 538

Patricia A. DIXON v. WESTINGHOUSE ELECTRIC CORP.

Civ. No. Y-83-3034.

United States District Court, D. Maryland.

August 19, 1985.

Mark E. Herman, Baltimore, Md., for plaintiff.

Leonard E. Cohen and Monte Fried, Baltimore, Md., for defendant.

MEMORANDUM

JOSEPH H. YOUNG, District Judge.

I. BACKGROUND

The plaintiff instituted this action against her employer, Westinghouse Electric Corporation ("Westinghouse") seeking a declaratory judgment and injunctive relief as well as money damages. In Count I of her complaint, she seeks recovery for discriminatory employment practices pursuant to 42 U.S.C. § 2000e et seq. of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 (Title VII). Count II alleges that these practices constitute the intentional infliction of emotional distress under Maryland law. Defendant has filed a motion and supplemental motion for summary judgment as to both Counts I and II of the complaint.

Plaintiff, an employee with more than ten years service in the defendant's drafting department, alleges that she was discharged on December 18, 1981 because of her sex. She also charges, in essence, that she was required to provide more documentation and verification of the medical nature of her absence than were similarly situated male employees "out on disability."

Westinghouse contends that the plaintiff was discharged for excessive absenteeism after having missed substantial time from work before and after an automobile accident in June, 1980.¹ Defendant also alleges that the plaintiff did not report regularly to her supervisor to apprise him of her situation and condition during these absences, and did not document and substantiate the reasons for her prolonged absences. Additionally, when reports were received concerning the plaintiff's condition, the information usually came from third parties (e.g., plaintiff's roommate, daughter, sister, and son), and often was ambiguous and contradictory. Defendant insists that the plaintiff was discharged pursuant to a provision in the collective bargaining agreement² only after repeated requests for medical documentation went unanswered. Plaintiff is alleged to have been counseled, warned, and subjected to progressive discipline before she finally was discharged. Defendant also notes that it voluntarily reinstated the plaintiff to her prior position on January 3, 1983, at a salary she would have received had she been continuously employed between December 18, 1981 and January 3, 1983.³

Following her termination in December, 1981, plaintiff challenged defendant's action in two separate proceedings. Initially she filed a grievance under the collective bargaining agreement in effect between Westinghouse and the Salaried Employees Association ("SEA"). Subsequently, on August 4, 1982, she filed a charge of discrimination with the EEOC, 230 days after her discharge. Plaintiff's grievance presumably was resolved by defendant's offer of reinstatement on November 2, 1982 following discussions between the union, company, and EEOC representatives. The EEOC made no finding on Dixon's charge. Instead, the Commission terminated its processing of the charge and issued plaintiff a Right to Sue Notice on June 16, 1983.

II. PLAINTIFF'S TITLE VII CLAIM

Section 706(e) of Title VII, 42 U.S.C. § 2000e-5(e), governs the filing of timely charges of discrimination with the EEOC. Subsection (e) states that:

A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a state or local agency with authority to grant or seek relief from such practice ... such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred. ... (emphasis added).

"The effective filing of a timely charge with the EEOC is a prerequisite to the invocation of the administrative process within the EEOC, § 706(c), and to the maintenance of an action in the district court." Citicorp v. Brazell, 658 F.2d 232, 234 (4th Cir.1981) (citing § 706(f)(1), 42 U.S.C. § 2000e-5(f)(1)); Lopez v. Sears, Roebuck, and Co., 493 F.Supp. 801, 804 (D.Md.1980).

Defendant contends that plaintiff's claim is time barred because it was not filed within the 180 day period provided for such filings in § 706(e). Plaintiff counters that the filing is timely under the subsection's 300 day filing period rather than the 180 day period, and submits that although she did not file a charge with any state or local agency, (Plaintiff's Deposition, p. 244), the 300 day filing period provided for discrimination charges "initially instituted" with a state or local agency should nonetheless apply because the EEOC transmitted the charge to the Maryland Commission on Human Relations ("MCHR"). (Plaintiff's Exhibits # 1 and 1A; Affidavit of Leo Sanchez, ¶¶ 2, 3).

However, assuming that plaintiff's EEOC charge was transmitted to, and received by the MCHR, the charge is not timely filed with the EEOC because it was filed after the 180 day period had expired and state agency proceedings were never "initially instituted." Nor could such proceedings involving plaintiff's charge have been instituted in view of the contractual relationship which existed between the EEOC and the MCHR as illustrated by their Work Sharing Agreement. See Lopez, 493 F.Supp. at 805.

Plaintiff vigorously disputes this proposition and cites numerous cases as well as a provision of the Code of Federal Regulations in support of her contentions. However, plaintiff's cases address the issue of whether a charge must be filed with a deferral state agency within the limitations period set forth in the applicable state statute in order to take advantage of the 300 day extended filing period under Title VII. See, e.g., Soble v. University of Maryland, 572 F.Supp. 1509, 1512-13 (D.Md.1983); Rasimas v. Michigan Dept. of Mental Health, 714 F.2d 614 (6th Cir.1983); Jones v. Airco Carbide, 691 F.2d 1200 (6th Cir. 1982); these cases are distinguishable and the issue they address is separate and distinct from the question presented here — i.e., whether the mere submission of a transmittal form by the EEOC to the MCHR is sufficient to constitute an initially instituted charge by the plaintiff.

Lopez and the cases upon which it relies are persuasive and directly address this issue. In Lopez, the Court interpreted § 706(e) and determined that the 180 day period for filing a charge with the EEOC rather than the extended 300 day period applied to the case where the EEOC had a Work Sharing Agreement with a county fair employment practices agency which provided that the county would not act on charges initially received by the EEOC until the EEOC had "resolved" the matter.

Lopez, 493 F.Supp. at 805. The Court reasoned that because of the Work Sharing Agreement, there was no contemplation on the part of the agencies that the county agency would process the plaintiff's case before the EEOC had an opportunity to resolve the matter, and therefore the EEOC's transmittal of the charge to the Montgomery County Human Relations Commission was for informational purposes only. Id. Accordingly, the Court found that the plaintiff's charges were never "initially instituted" with the local deferral agency within the meaning of § 706(e) because there was no filing with the county agency with the intention it would actually process the charge. Id.

The holding in Lopez relies in part on Doski v. Goldseker Co., 539 F.2d 1326 (4th Cir.1976). There, the Fourth Circuit noted that "the meaning of the phrase initially instituted is well settled: the state or local agency should be given first opportunity to act on the complaint." Id. at 1330 (brackets added). Doski itself relied upon the reasoning in Ugiansky v. Flynn and Emrich Co., 337 F.Supp. 807 (D.Md.1972), where this Court explained the circumstances under which the expanded filing period under § 706(e) is available.

As long as the state commission has been afforded the first opportunity to act on the complaint, there is a period of 210 days now 300 days after the date of the alleged unlawful employment practice (or 30 days) after the notice of the termination of the state commission proceedings, whichever period expires earlier, within which the complaint may be filed with the EEOC.

Id. at 809, n. 4.⁴

These cases hold that the expanded filing period in § 706(e) was intended to allow state or local agencies sufficient time to process a discrimination charge before it is processed by the EEOC, and the expanded period is only available where the state or local agency has been afforded the first opportunity to act on the charge. In Lopez, the local agency had previously waived its right to process the charge through its Work Sharing Agreement with the EEOC. Thus the reason for the extended filing period under § 706(e) was not present and the Court refused to afford the plaintiff additional time. Lopez, 493 F.Supp. at 805.

Defendant is correct in its assertion that the reasoning and holding of Lopez compel a similar conclusion here. Although the order of filing is immaterial, id., and the expiration of the state statute of limitations does not preclude the processing of a charge filed with the state agency within the 300 day period provided in § 706(e) where the agency is empowered to act,⁵ the expanded filing period in 706(e) is not available in situations where there is no opportunity whatsoever for the state deferral agency to process the charge before the EEOC does. In these situations transmittal of the charge from the EEOC to the deferral agency is purely for informational purposes and does not constitute an "initially instituted" charge within the meaning of the Act. Lopez, 493 F.Supp. at 805. Where the...