Moteles v. University of Pennsylvania
| Decision Date | 25 April 1984 |
| Docket Number | No. 83-1319,83-1319 |
| Citation | 730 F.2d 913 |
| Parties | 34 Fair Empl.Prac.Cas. 424, 35 Fair Empl.Prac.Cas. 1783, 33 Empl. Prac. Dec. P 34,221, 34 Empl. Prac. Dec. P 34,322, 16 Ed. Law Rep. 1091 Sandra MOTELES, Appellee, v. UNIVERSITY OF PENNSYLVANIA and Local 506, United Plant Guard Workers of America, Appellants. |
| Court | U.S. Court of Appeals — Third Circuit |
Kathryn H. Levering (argued), James A. Matthews, III, Drinker, Biddle & Reath, Philadelphia, Pa., for appellant The Trustees of the University of Pennsylvania.
Alice W. Ballard (argued), Anna M. Durbin, Samuel & Ballard, P.C., Philadelphia, Pa., for appellee Sandra Moteles.
Neal Goldstein (argued), Freedman & Lorry, Philadelphia, Pa., for appellant Local 506, United Plant Guard Workers of America.
Before HUNTER and WEIS, Circuit Judges, and DUMBAULD, District Judge. *
In this Title VII case, the district court preliminarily enjoined the involuntary transfer of a female campus security officer to a less desirable shift. The court reasoned that the plaintiff had more seniority than a number of male officers and ruled that the employer's defense of a bona fide occupational qualification was irrelevant. We vacate the preliminary injunction, concluding that the plaintiff failed to show irreparable injury and that the BFOQ proffer was a proper defense.
The plaintiff filed a discrimination complaint with the EEOC against her employer, the University of Pennsylvania. She was issued a right-to-sue letter and then brought this suit seeking injunctive relief and damages. The district court granted a preliminary injunction and the defendant University has appealed.
After several rapes on campus in 1973, female students staged a "sit-in" protesting the lack of adequate security. Following negotiations, the University pledged that the next guard hired would be a woman. It also agreed to create and staff an official position designated as Female Security Specialist to promote and oversee the development of a rape victim service program.
Students again protested in 1976 because they were dissatisfied with the University's progress in fulfilling the promises made in 1973. The provost appointed a committee to assess the problem and offer solutions. In early 1977, the committee recommended measures that included assigning at least two women on each work shift of the campus police so they would be available to female students when needed or when a sexual assault occurred. One woman was to be a security officer and the other a detective. The progress in hiring and retaining female officers was also reviewed, and it was urged that, despite budget cutbacks, the number of persons on the security force be increased.
Later that year, on October 10, 1977, plaintiff Moteles began working as a security guard for the University. She was assigned to various shifts and by 1983 was working regularly on the day shift.
In 1982 two female security officers were transferred from the day shift (7:00 am--3:00 pm) to the evening (3:00 pm--11:00 pm) and night (11:00 pm--7:00 am) assignments so that each shift would have at least one woman officer. The women filed a grievance through Local 506, their collective bargaining agent. The union and the University settled the dispute. In what is called the "DuPlantis Settlement" they agreed that whenever the female-only position on a shift was vacant, the other woman officers would be given the opportunity to bid on it. If no bids were received, the opening would be filled by a woman officer through inverse seniority.
In early 1983, the female officer assigned to the evening shift was promoted to sergeant, thus creating a need for a woman during that work period. When none of the officers bid on that position, plaintiff was transferred to that assignment effective March 14, 1983.
On February 15, 1983, before plaintiff was transferred, she filed a complaint with the EEOC alleging that the DuPlantis Settlement Agreement constituted discrimination. The complaint was referred to the Pennsylvania Human Relations Commission. At the plaintiff's request, the state commission waived jurisdiction and returned the matter to the EEOC on March 16, 1983. On that same day, the plaintiff's counsel requested the Commission to issue a right-to-sue letter. The agency did so on the following day, and plaintiff immediately filed suit in the district court.
Plaintiff began working the evening hours on March 20, 1983. However, by the time of the preliminary injunction hearing in the district court on April 4, 1983, she had already successfully bid on an opening on the night shift. When plaintiff was transferred to the evening assignment, the University had forty-one security officers. Four were women, including one trainee who was to be commissioned on April 1, 1983. Of the force's six sergeants, two were women. In the detective division two of four persons were women.
At the time the transfers were made, the University had a collective bargaining agreement with Local 506, which represented all the security officers. Article XII, section 6 of the contract provided that seniority was to be used in "shift preference ... provided the employee involved is reasonably capable of performing the work in question." At the time of her involuntary transfer, plaintiff had greater seniority than a number of the male security officers.
The district court ruled that it had jurisdiction to hear the case since the EEOC had issued plaintiff a right-to-sue letter and the agency's reasons for so doing were irrelevant. The court concluded that the University had violated the plaintiff's seniority rights and that the bona fide occupational qualification defense was "totally inapplicable to the facts as defendant presents them to be." A defense based on the contract language "reasonably capable of performing the work" was also found to be inapplicable.
As for the requisite irreparable injury, the court found that The University was directed to immediately reassign plaintiff to the day shift and the union was directed to accede in that assignment. A request for a stay pending appeal was denied.
On appeal, the University contends the district court lacked jurisdiction, plaintiff failed to present evidence of irreparable harm, and the court erroneously excluded evidence on the BFOQ.
We first address the jurisdictional question. The University contends that because the EEOC did not attempt informal resolution of the charge before issuing plaintiff a right-to-sue letter, she has not exhausted her administrative remedies. Therefore, the University argues, the suit was premature.
Section 706(f)(1) of Title VII, 42 U.S.C. Sec. 2000e-5(f)(1) (1976), provides that in the absence of a conciliation agreement, the Commission shall notify an aggrieved party if the agency dismisses the charge or does not file a civil action within the requisite time. That period is 180 days from either the date of the charge or the expiration of the period of reference to a state agency. On receiving notice of a right to sue, the complainant has ninety days to bring suit in the district court.
Another provision of the Act requires the EEOC to notify the employer of the charge against it, to investigate the allegations, and to either dismiss or attempt to conciliate the complaint. 42 U.S.C. Sec. 2000e-5(b). In the case at hand, none of these steps were taken, apparently because plaintiff thwarted any administrative activity so she could gain early resort to the district court.
As we noted in Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 (1977), "Conciliation rather than formal court proceedings remains the preferred method of settling [discrimination] disputes." In establishing these procedures, Congress acted on the assumption that "[a]dministrative tribunals are better equipped to handle the complicated issues involved in employment discrimination cases." H.R.Rep. No. 238, 92d Cong., 2d Sess. 2 reprinted in 1972 U.S.Code Cong. & Ad.News 2137, 2146. Furthermore, "the sorting out of the complexities surrounding employment discrimination can give rise to enormous expenditure of judicial resources in already heavily overburdened Federal district courts." Id.
Despite Congress' declared preference for agency resolution of complaints, the EEOC has adopted a regulation permitting an aggrieved party to request a right-to-sue letter at any time before the expiration of 180 days, calculated from the date the charge is filed. The only precondition to issuance of the letter is that a designated official certify that the Commission "will be unable to complete its administrative processing of the charge" within the statutorily specified time. 29 C.F.R. Sec. 1601.28(a)(2) (1983).
In a thoughtful opinion, the district court in Spencer v. Banco Real, 87 F.R.D. 739 (S.D.N.Y.1980), found that the regulation was inconsistent with Title VII and directed that the suit be suspended, rather than dismissed, until the plaintiff completed administrative procedures before the EEOC. Other courts have differed, emphasizing the futility of requiring an individual plaintiff to idly await the passing of 180 days when the EEOC, with a huge backlog of cases, could not as a practical matter process the charge within that time. Bryant v. California Brewers Ass'n., 585 F.2d 421, 425 (9th Cir.1978), vacated on other grounds, 444 U.S. 598, 100 S.Ct. 814, 63 L.Ed.2d 55 (1980)...
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