Franklin v. Herbert Lehman College

• Decision Date: 25 February 1981
• Docket Number: 78 Civ. 2330 (CHT).
• Citation: 508 F. Supp. 945
• Parties: Jennie E. FRANKLIN, Plaintiff, v. HERBERT LEHMAN COLLEGE et al., Defendants.
• Court: U.S. District Court — Southern District of New York

508 F. Supp. 945

Jennie E. FRANKLIN, Plaintiff, v. HERBERT LEHMAN COLLEGE et al., Defendants.

78 Civ. 2330 (CHT).

United States District Court, S. D. New York.

February 25, 1981.

Jennie E. Franklin, pro se.

Allen G. Schwartz, Corp. Counsel, New York City, for defendants; Mark Schwartz, Judith Levitt, Marian M. Schuman, New York City, of counsel.

OPINION

TENNEY, District Judge.

The existence of multiple remedies for employment discrimination may be a mixed blessing under certain circumstances. In this Title VII action,¹ the plaintiff started down and followed one avenue of relief after several government agencies indicated that she was on the right track. Unfortunately, her failure to explore alternate routes within the specified time has now foreclosed those paths. The Court recognizes that Title VII's limitations periods may be subject to equitable considerations and that the administrative procedures followed here left much to be desired. Nonetheless, the Court is constrained to grant the defendants' motion for summary judgment on the ground that the plaintiff's suit is time-barred.²

The Facts

In 1969, plaintiff Jennie E. Franklin was appointed as a part-time lecturer for the Department of Education at Herbert H. Lehman College ("the College").³ The following year, she was hired to serve as a full-time lecturer, a position she held through the 1974-1975 academic year. On September 16, 1974, Franklin was notified by letter that the Personnel and Budget Committee of the Department of Education had voted not to recommend her reappointment for the 1975-1976 term. Franklin was informed soon afterward that the Committee intended to reconsider its initial decision. On October 2, 1974, the plaintiff received another letter stating that the Committee had voted to sustain its decision not to recommend reappointment.

On September 19, 1974, Franklin wrote a letter to Joel W. Barkan, Director of the Office of Civil Rights ("OCR") for the Department of Health, Education, and Welfare ("HEW"). The letter indicated that Franklin had spoken to an OCR employee who suggested that she send a letter and supporting documents describing her complaint. In the letter, Franklin recounted incidents that had occurred during the time she was employed by the College and charged that her mistreatment and dismissal were motivated by racial and sexual discrimination. According to the plaintiff, "no doubt remains that were I a male (either Black or White) or a white female I would have received both support and compensation for my artistic achievements."

OCR responded to Franklin's complaint in a letter dated December 3, 1974 and signed by Joel W. Barkan. This letter stated:

Our office has received your letter of complaint and attached information dated September 19, 1974 in which you have alleged discrimination against you by Herbert Lehman College, on the basis of race in their decision not to tenure you as a faculty member.

Executive Order 11246 prohibits discrimination on the basis of race, creed, color, sex or national origin in employment. The Office for Civil Rights is authorized to investigate complaints in this area.

Due to the heavy workload and backlog of complaints in the office, we are unable to investigate your complaint at this time. Prior to initiating the investigation, you will be contacted to discuss the details of the allegations.

If you have any questions, please feel free to contact this office at (212) 264-3828.

The next communication Franklin received was a letter from OCR, signed by Barkan, which was dated April 11, 1975. After referring to Franklin's September 19th letter and OCR's anti-discrimination authority, Barkan's letter explained:

As a result of an agreement between the Office of Federal Contract Compliance (OFCC) and the Equal Employment Opportunity Commission (EEOC), we are now referring all complaints to the OFCC for transmittal to EEOC. This office will, however, retain a copy of your complaint and use it as a factor in determining general and specific review priorities and investigate, decide and resolve any complaint in the context of a compliance review at the institution, should our overall targeting factors result in scheduling the institution for review prior to an investigation by the Equal Employment Opportunity Commission. We will, of course, be kept informed by the EEOC of the status of your complaint.

Should you have further questions, please contact Ms. Glorietta Gatston, Associate Director for Administration, Office of Federal Contract Compliance, Department of Labor, Washington, D. C. 20210.

Franklin then received a letter from OFCC, dated August 14, 1975 and signed by the Director, Philip J. Davis. This letter stated that HEW "has forwarded your complaint to this office for appropriate action." The letter explained that OFCC implemented Executive Order 11246 and that EEOC administered Title VII. The letter continued.

This Office has signed a Memorandum of Understanding with the Equal Employment Opportunity Commission which provides that the Commission investigate complaints of discrimination covered by both Executive Order 11246, as amended, and Title VII.

Since your complaint appears to involve discrimination within our jurisdiction, we have referred it to the EEOC for investigation. You can expect to hear from the EEOC. If you have any further information or questions concerning your complaint, please contact the EEOC directly at:

Mr. Arthur W. Stern, Director New York District Office—EEOC 90 Church Street—Rm. 1301 New York, New York 10007

An EEOC letter, dated August 22, 1975 and signed by Arthur Stern, was then sent directly to Franklin. The letter stated that Franklin's "letter of complaint" had been forwarded by OFCC and requested that she fill out and have notarized the enclosed Charge of Discrimination Form and Affidavit. The letter provided a telephone number which Franklin could call if she had any questions. Stern's letter also included a copy of the letter that Franklin had originally sent to OCR. In a postscript, Stern noted that Franklin "might wish to incorporate its contents into the EEOC charge and affidavit forms."

Franklin's Charge of Discrimination Form was received by EEOC on September 17, 1975. According to the plaintiff, she also filed charges with the New York State Division of Human Rights on September 18, 1975, although no documentary evidence supporting this statement has been submitted. More than two years later, Franklin received a letter, dated November 7, 1977 and signed by Stern, stating that the EEOC charge had been dismissed because it was not filed within 180 days after the alleged violation, as required by Title VII. Her "right to sue" letter, dated January 26, 1978 informed Franklin that if she wished to pursue her suit, a civil action had to be filed within 90 days.

Franklin's complaint in this action is stamped April 17, 1978, although it does not indicate who put that stamp on at that time. The same date appears on her affidavit in support of her motion to proceed in forma pauperis. Both the complaint and affidavit were executed on official Southern District forms, presumably provided by the court, which provide blank spaces for the plaintiff to fill in the specifics of her Title VII claim and her financial situation. An order granting Franklin in forma pauperis status was signed by then Chief Judge Edelstein on May 17, 1978. This order, as well as Franklin's complaint, was officially filed with the Clerk of the Court on May 19, 1978. Notwithstanding this May 19th filing date, the Court assumes that Franklin's complaint and affidavit were executed on April 17th at the court or at the pro se clerk's office, and then held for filing until the Chief Judge approved her application to proceed in forma pauperis.

If April 17 is viewed as the "constructive filing date" of Franklin's complaint, then she did file within the 90 day time period. Her complaint was untimely, however, if May 19 is deemed to be the date of filing. It appears likely that Franklin submitted her complaint on time and that filing was delayed while the pro se office reviewed the complaint and waited for the order granting in forma pauperis status. Therefore, the Court is inclined to adopt the view that Franklin's complaint was constructively filed on April 17 and thus satisfied the 90 day requirement. Cf. Hawkins v. International Harvester, 461 F.Supp. 588, 591 (W.D.Tenn.1978) (statutory filing period may be tolled when plaintiff submits notice of right to sue or requests appointment of counsel). The Court need not decide this question, however. As discussed below, the Court concludes that Franklin did not file a timely complaint with the EEOC and that the limitations period should not be tolled due to the resulting prejudice to the defendants.

On May 19, 1978, the Clerk of the Court issued a summons to the named defendants directing them to answer Franklin's complaint within twenty days after service of the summons. The receipts from the United States Marshals Service indicate that the defendants served did not receive a copy of the summons and complaint until March 1979.⁴

On February 28, 1979, the College President received a letter from HEW stating that OCR had commenced an investigation of Franklin's complaint, pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq. The letter requested that the College provide certain data and arrange for OCR interviews with several professors. Apparently, the investigation was conducted and completed a short time later. A letter dated April 27, 1979 was sent to the President via certified mail by OCR's Region II Director who reported that the investigation was closed. The letter stated that "jurisdiction in this matter was conferred by Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964." It continued:

The facts established during the investigation of this

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