Flesch v. Eastern Pa. Psychiatric Institute

• Decision Date: 23 June 1977
• Docket Number: Civ. A. No. 76-3927.
• Citation: 434 F. Supp. 963
• Parties: Dr. Regina FLESCH v. EASTERN PENNSYLVANIA PSYCHIATRIC INSTITUTE et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

434 F. Supp. 963

Dr. Regina FLESCH v. EASTERN PENNSYLVANIA PSYCHIATRIC INSTITUTE et al.

Civ. A. No. 76-3927.

United States District Court, E. D. Pennsylvania.

June 23, 1977.

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John C. Wright, Jr., Philadelphia, Pa., for plaintiff.

Lynne M. Mountz, John A. Kane, Asst. Attys. Gen., Dept. of Public Welfare, Harrisburg, Pa., for defendants.

OPINION

LUONGO, District Judge.

This is an action under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1871, and the Fourteenth Amendment by Dr. Regina Flesch against Eastern Pennsylvania Psychiatric Institute (EPPI), EPPI Director and Chief Executive Officer Ulysses E. Watson, EPPI Director of Research and Training Bernard Borislow, the Pennsylvania Department of Public Welfare,¹ Pennsylvania Secretary of Public Welfare Frank S. Beal, Deputy Secretary for Mental Health Robert M. Daly, the State Employees Retirement Board (SERB) and SERB Secretary and Chief Administrative Officer Richard L. Witmer. Jurisdiction over the Title VII claims is bestowed by § 706(f)(3) of the Act, 42 U.S.C. § 2000e-5(f)(3). Plaintiff also asserts jurisdiction under 28 U.S.C. §§ 1331(a) and 1343(3)-(4), and pendent jurisdiction as to state law claims. The action is before me on defendants' motion to dismiss for lack of jurisdiction, Fed.R.Civ.P. 12(b)(1), and failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6).

The complaint alleges: From September 12, 1966 to September 14, 1976, plaintiff was employed as a medical research scientist at EPPI, a psychiatric hospital and research institution operated as a part of the Pennsylvania Department of Public Welfare. During that time, EPPI, Watson, and Borislow discriminated against plaintiff by denying her adequate supporting staff, facilities, and equipment because of her sex. In addition, EPPI, with the agreement of SERB, wrongfully classified plaintiff as a part-time employee, causing her to lose a portion of the seniority and retirement credits which should have accumulated while she was working under a federal grant program. Toward the end of plaintiff's tenure, EPPI, acting primarily through Dr. Borislow, gave plaintiff low performance ratings, partly because of her sex and partly because of the inadequate supporting staff, facilities, and equipment which had been provided to her.

On September 26, 1975, plaintiff filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC). The factual allegation in the charge, which named only EPPI as respondent, stated:

"I have been deprived, over a long period of time, of retirement benefits, adequate office space (in the past) and adequate secretarial help, in a way that no other scientist in my position has experienced. I feel that this has happened because of my sex, female."

On September 14, 1976, plaintiff was furloughed by EPPI, in part because of her low performance ratings. The complaint alleges that she has remained unemployed since that time and that EPPI has refused to recall her to work, although it can afford to do so.²

On September 16, 1976, the EEOC issued a letter of determination concluding that the facts revealed in its investigation of plaintiff's charge did not show reasonable cause to believe that EPPI had violated Title VII of the 1964 Civil Rights Act. This determination was forwarded to plaintiff on September 22, 1976, along with a notice of her right to sue.

On December 21, 1976, plaintiff filed this suit against the above-named defendants, alleging the discriminatory conduct already described and, in addition, asserting that defendants' discriminatory actions during the last year of her tenure, including the continued denial of help, the furlough, and the refusal to call her back to work, were in retaliation for filing the EEOC charge. She avers that defendants' actions were taken in furtherance of a conspiracy to discriminate against her because of her sex. The five-count complaint alleges violations of Title VII, the First and Fourteenth Amendments to the Constitution, two sections of the Civil Rights Act of 1871, and the Pennsylvania State Employees Retirement Code. Plaintiff seeks a judgment declaring defendants' actions unconstitutional (see Declaratory Judgment Act, 28 U.S.C. §§ 2201-02); a permanent injunction prohibiting defendants from engaging in such actions and requiring EPPI to reinstate plaintiff with full seniority and credit for benefits which would have accrued since her furlough; and an award of back pay and compensatory and punitive damages, costs of suit, and attorney's fees.

I. Claims under Title VII

A. Exhaustion of Administrative Remedies

Defendants move to dismiss some of the Title VII claims for lack of jurisdiction because plaintiff has not exhausted administrative remedies.

Title VII provides that before a discriminatee may bring a judicial action against an employer for violation of the Act, a charge must have been filed with the EEOC³ and the EEOC must have then notified the discriminatee of the right to sue.⁴ Civil Rights Act of 1964, Title VII, § 706(f)(1), 42 U.S.C. § 2000e-5(f)(1). These prerequisites are jurisdictional. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-99, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Canavan v. Beneficial Finance Corp., 553 F.2d 860 (3d Cir. 1977); Gibson v. Kroger Co., 506 F.2d 647 (7th Cir. 1974), cert. denied, 421 U.S. 914, 95 S.Ct. 1571, 43 L.Ed.2d 779 (1975); Richardson v. Miller, 446 F.2d 1247, 1248-49 (3d Cir. 1971). Plaintiff did file charges before the EEOC. The EEOC dismissed the charges and notified plaintiff of her right to sue. Plaintiff's complaint, however, sets forth allegations not included in the EEOC charge and asserts claims against defendants not named as respondents before the EEOC. Defendants' motion is addressed to extension of this case to those additional claims and parties.

1. The Additional Claims

The matters presented to the EEOC did not include the allegation, now set forth in plaintiff's complaint, that defendants retaliated against her for filing the EEOC charge. Defendants therefore contend that I do not have jurisdiction over the claim of retaliatory action.

Courts which have considered this issue have held that jurisdiction may be exercised over all claims encompassed within the EEOC charge and like or related matters which might reasonably be expected to be subject to an EEOC investigation growing out of the charge. Gamble v. Birmingham Southern R.R., 514 F.2d 678, 687-89 (5th Cir. 1975) (recognizing jurisdiction over claims not included in EEOC charge and not actually investigated by EEOC so long as they were of same type and character of discrimination as originally charged and involved the same plaintiffs); Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973); Tipler v. E. I. duPont deNemours and Co., 443 F.2d 125, 131 (6th Cir. 1971); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 464-67 (5th Cir. 1970). The Third Circuit has intimated agreement with this view. See Wetzel v. Liberty Mutual Insurance Co., 511 F.2d 199, 202-03 (3d Cir. 1975), vacated on other grounds, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976). This rule is broad enough to include claims arising from new acts occurring during pendency of the EEOC charge and reasonably related to or growing out of acts alleged in the charge. Oubichon, supra, 482 F.2d at 571. Claims of retaliation for filing the charge are within this category. Bernstein v. National Liberty International Corp., 407 F.Supp. 709, 713 (E.D.Pa.1976); Held v. Missouri Pacific R.R., 373 F.Supp. 996, 1000-02 (S.D.Tex. 1974); Van Hoomissen v. Xerox Corp., 368 F.Supp. 829, 832-34 (N.D.Cal.1973). Applying this rule, I reject defendants' contention that I do not have jurisdiction over plaintiff's claim of retaliatory conduct.

2. The Additional Defendants

EPPI was the only party named in the charge filed by plaintiff with the EEOC. All of the defendants other than EPPI therefore contend that I do not have jurisdiction over the claims against them because plaintiff has not exhausted administrative remedies as to them.

Section 706(f)(1) of the Act, 42 U.S.C. § 2000e-5(f)(1), provides that after administrative remedies have been exhausted, "a civil action may be brought against the respondent named in the charge ... by the person claiming to be aggrieved." The Act does not provide for a civil action against persons not named in the charge before the EEOC. This statutory scheme is designed to assure that the defendant has notice of the alleged violation and an opportunity to voluntarily enter into a conciliation agreement under EEOC auspices. As a result, courts firmly adhere to the exhaustion requirement and refuse to exercise jurisdiction over defendants not named in the EEOC charge except in very narrow exceptional situations. See e.g., Le Beau v. Libby-Owens-Ford Co., 484 F.2d 798, 799 (7th Cir. 1973); Bernstein, supra, 407 F.Supp. at 714-16; Scott v. University of Delaware, 385 F.Supp. 937, 940-42 (D.Del.1974); Van Hoomissen, supra, 368 F.Supp. at 834-35.

Plaintiff contends that her claims against defendants Watson and Borislow and possibly defendants Beal, Daly, and Witmer should fall within an exception of § 706(f)(1) because of the agency relationship which those defendants have to EPPI, the respondent named in the EEOC charge. Courts have generally rejected an agency exception unless there is a strong identity of interests between the EEOC respondent and the newly named defendant. Scott, supra, 385 F.Supp. at 941; Van Hoomissen, supra, 368 F.Supp. at 834-35; McDonald v. American Federation of Musicians, 308 F.Supp. 664, 669 (N.D.Ill.1970); cf. Jackson v. University of Pittsburgh, 405 F.Supp. 607, 615-18 (W.D.Pa.1975). Generally, such an identity exists if the...