Lombardi v. Margolis Wines & Spirits, Inc., Civ. A. No. 78-988.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: VAN ARTSDALEN
• Citation: 465 F. Supp. 99
• Parties: Jo Ann LOMBARDI v. MARGOLIS WINES & SPIRITS, INC.
• Decision Date: 02 February 1979
• Docket Number: Civ. A. No. 78-988.

465 F. Supp. 99

Jo Ann LOMBARDI
v.
MARGOLIS WINES & SPIRITS, INC.

Civ. A. No. 78-988.

United States District Court, E. D. Pennsylvania.

February 2, 1979.

465 F. Supp. 100

Michael L. Levy, Philadelphia, Pa., for plaintiff.

H. Ronald Klasko, Philadelphia, Pa., for defendant.

MEMORANDUM OPINION AND ORDER

VAN ARTSDALEN, District Judge.

This is a sex discrimination case filed under Title VII of the Civil Rights Act of 1964. It was originally brought in the Western District of Pennsylvania and was transferred on February 22, 1978 to this district, for the convenience of the parties and witnesses. Defendant now moves to dismiss for lack of subject matter jurisdiction.

Plaintiff was the only woman member of the sales force of defendant Margolis Wines & Spirits, Inc. (Margolis). In her amended complaint, she alleges that she was dismissed solely because she had complained to the defendant that her salary was some $400 per month less than that of her male colleagues who worked neither harder nor better than she.¹

Plaintiff filed a claim with the Equal Employment Opportunities Commission (EEOC). The EEOC then referred her claim to the Pennsylvania Human Relations Commission (HRC). Less than two weeks later, at plaintiff's own written request, the HRC terminated the processing of her complaint. Plaintiff asserts by sworn affidavit that this request was made not of her own initiative, but at the direction and under the supervision of an employee of the EEOC. It further appears that there was in effect at that time an agreement between the HRC and the EEOC, which contained the following provisions for the allocation of cases between them:

The EEOC will, except under special circumstances, refrain from administratively processing the charge if the PHRC desires to continue the administrative

465 F. Supp. 101

process. If EEOC desires to process the charge, the appropriate PHRC Regional Office will be notified immediately in writing.

The question raised by the present motion is whether the plaintiff has, by her written request, so waived her right to an investigation by the HRC, contrary to Congress's desire that such matters first be processed by state agencies, as to deprive this court of subject matter jurisdiction.

Under Title VII, the EEOC will not hear a complaint until the appropriate state administrative agency (here the HRC) has first had an opportunity to decide the case. 42 U.S.C. § 2000e-5(c). See DuBois v. Packard Bell Corp., 470 F.2d 973 (10th Cir. 1972). Section 2000e-5(c) provides in pertinent part:

(c) In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings

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