Patton v. Conrad Area School District

• Decision Date: 13 January 1975
• Docket Number: Civ. A. No. 74-131.
• Citation: 388 F. Supp. 410
• Parties: Ann R. PATTON, Plaintiff, v. CONRAD AREA SCHOOL DISTRICT, a political corporation, et al., Defendants.
• Court: U.S. District Court — District of Delaware

388 F. Supp. 410

Ann R. PATTON, Plaintiff, v. CONRAD AREA SCHOOL DISTRICT, a political corporation, et al., Defendants.

Civ. A. No. 74-131.

United States District Court, D. Delaware.

January 13, 1975.

COPYRIGHT MATERIAL OMITTED

Stanley C. Lowicki, Wilmington, Del., for plaintiff.

F. Alton Tybout and David E. Brand, Tybout, Redfearn & Schnee, Wilmington, Del., for defendants.

MEMORANDUM OPINION

LATCHUM, Chief Judge.

On July 1, 1974 plaintiff Ann R. Patton filed a complaint seeking equitable relief, compensatory and punitive damages. She claims: (1) that she was deprived of her rights to due process and equal protection of the law in violation of 42 U.S.C. §§ 1983, 1985(3) and 1986; (2) that she was discriminated against in her employment because she was a woman in violation of 42 U.S.C. § 2000e et seq.; and (3) that her employment contract with the defendants was breached in violation of state law.¹ After answering the complaint, the defendants moved, pursuant to Rule 12(b), F. R.Civ.P., (1) to dismiss the complaint as to all the defendants with respect to the claim alleging a violation of § 2000e et seq., and (2) to dismiss the complaint against the Conrad Area School District and the individual defendants in their capacity as Board members with respect to the equitable and monetary claims alleging a violation of 42 U.S.C. §§ 1983, 1985(3) and 1986.² In addition, defendants moved pursuant to Rule 56(c) for partial summary judgment with respect to the breach of contract claim.

Turning first to a consideration of the defendants' Rule 12(b) motions, the following well pleaded material allegations of plaintiff are taken as true: Plaintiff had been employed by the defendant School District in various capacities as a teacher and administrator for over twelve years, most recently as a coordinator, acting as Supervisor of Personnel under a contract running from July 1, 1973 to June 30, 1974. On December 19, 1973 the defendant Board of Education voted to terminate her contract for technical reasons, that is, if the contract were not terminated by December 30, 1973, it would automatically be renewed for an additional year under its terms. Between February 1, 1974 and April 2, 1974, plaintiff through her counsel attempted to obtain various information from the Board; on the latter date, counsel for the Board agreed to provide minutes of the December 19, 1973 Board meeting. Thereafter, on May 22, 1974, the School District advertised for applications to replace plaintiff in her job, and on June 25, 1974, the Board offered the job to a man. In addition, the Board denied plaintiff a "higher level" job, viz., Director.³ Plaintiff on June 26, 1974 filed a complaint by mail with the Baltimore District Office of the Equal Employment Opportunity Commission EEOC. That complaint charged unlawful discrimination against her in her employment based upon sex. Finally, the complaint alleges that as of June 28, 1974,

"The EEOC . . . had informed petitioner that upon investigation of employment practices by the Defendant that it had found the Board to be in present violation of 42 U.S.C. 2000e-2 and engaged in sex discrimination in employment; and FURTHER that the Board had failed to reply to the Commission with regard to its finding of sex discrimination as of that date."

I. Motion To Dismiss The § 2000e claim.

Defendants have moved to dismiss the plaintiff's claim based on a violation of 42 U.S.C. § 2000e-2 because of her failure to allege sufficiently the exhaustion of her administrative remedy that is a prerequisite of the federal district court taking jurisdiction under 42 U.S.C. § 2000e-5(f)(1). If she has not exhausted her administrative remedy, as outlined in 42 U.S.C. § 2000e-5 and interpreted in the regulations issued by the EEOC, then plaintiff's case is premature and this Court has no jurisdiction to entertain the § 2000e-2 claim.⁴

Turning to a consideration of the administrative procedure which must be followed when the case is initiated by someone other than a member of the EEOC, the first step is the filing by the person aggrieved of a charge of discrimination with a state or local authority that is authorized to grant or seek relief from or institute criminal action against the alleged unlawful employment practice.⁵ By statute a charge of discrimination may not be filed with the EEOC before sixty days have passed from the "commencement of proceedings" before the state or local authority, or the state or local proceedings have terminated, whichever is earlier.⁶ By regulation,⁷ and the approval of the Supreme Court in Love v. Pullman,⁸ a charge, if first filed with the EEOC, must be referred by the EEOC to the appropriate state or local authority for disposition.

The charge also must be filed with the EEOC by a "person aggrieved," or "on his behalf,"⁹ within the earlier of three hundred days after the alleged unlawful employment practice occurred or 30 days after receiving notice that the state or local authority has terminated its proceedings.¹⁰ Within 10 days of the effective filing date with the EEOC, the EEOC must serve notice on the employer advising the employer of the charge.¹¹ If the charge is not filed by the "person aggrieved" but by some one on "his behalf," the EEOC verifies that the "person aggrieved" has authorized the charge to be filed on his behalf¹² during the course of its investigation of the basis of the charge,¹³ which is made to determine the existence of reasonable cause. This determination must be made "as promptly as possible and, so far as practicable, not later than 120 days from . . . the date upon which the EEOC is empowered to take action with respect to the charge."¹⁴

Upon completion of its investigation, the EEOC promptly notifies the parties concerned of its reasonable cause determination.¹⁵ If the EEOC has determined that there is reasonable cause, as required by 42 U.S.C. § 2000e-5(b) it "shall then endeavour to eliminate the practice of the respondent-employer by informal methods of conference, conciliation, and persuasion." According to the regulations, the endeavour may be terminated by an outright refusal or failure of the respondent-employer to confer with the EEOC or its representative, or by a failure or refusal of the respondent-employer to make a good faith effort to resolve any dispute.¹⁶ The respondent-employer is notified that the EEOC considers the conciliation effort to have been unsuccessful and that it will not be resumed except by written request from the respondent-employer within the time specified in the notice.¹⁷

In the case of a respondent-employer that is a governmental unit, as is the School District defendant, the EEOC must refer the matter to the Attorney General recommending possible civil suit after "the EEOC has been unable to secure . . . a conciliation agreement acceptable to it."¹⁸ There appears to be no statutory requirement that the EEOC wait any particular time interval before it refers the matter to the Attorney General for possible suit. If the Attorney General institutes suit against the named governmental unit, the "person aggrieved" has a right to intervene.¹⁹

Despite these § 2000e-5 provisions that assign the undertaking of conciliation to the EEOC and the initiation of a civil suit to the Attorney General in a case where the respondent-employer is a governmental unit, the statute also gives the "person aggrieved" the right to sue independently upon meeting certain pre-conditions.²⁰ For example, if

1) 180 days have passed from the date the charge was filed with the EEOC or from the date the EEOC first had jurisdiction to investigate the charge after referral of the charge to a state or local authority,²¹ the EEOC has not entered into a conciliation agreement with the respondent-employer to which the "person aggrieved" is a party²² or

2) The same time period has elapsed and the EEOC has previously turned over the matter to the Attorney General recommending possible suit,²³ but the Attorney General has not filed suit,²⁴ and

3) In either of these situations the "person aggrieved" has received a notice of right to sue sent in regular course by the EEOC or the Attorney General as the case may be²⁵ or sent on the demand of the "person aggrieved."²⁶

Thus, while it is clear from the above that no such right to demand a notice to sue letter accrues to the "person aggrieved" before the expiration of the 180 day period, it is unclear whether a notice to sue letter may be issued by the Attorney General before the expiration of the 180 day period.

Since there was no clear allegation in the complaint that the plaintiff here had a right to sue the defendants on the date that she filed her complaint in this court, defendants have moved to dismiss the claim alleging a violation of 42 U.S.C. § 2000e-2 for failure to state a cause of action. The Court, however, views defendants' motion as contending that this portion of the complaint fails to comply with the pleading requirements under Rule 8(a)(1), F.R.Civ.P.,²⁷ because receipt of the notice of right to sue is the jurisdictional prerequisite established by 42 U.S.C. § 2000e-5(f)(1) for a suit in federal district court by a "person aggrieved" claiming a violation of 42 U.S.C. § 2000e-2.²⁸ In order to comply with the requirements of Rule 8(a)(1), F.R.Civ.P., a complaint asserting a § 2000e-2 claim against a governmental unit must allege either that the plaintiff has received a right to sue notice from either the EEOC or the Attorney General, or that the plaintiff had the right to demand and receive such notice at the time of filing the complaint.

With respect to the instant complaint, the Court has difficulty in discovering whether its jurisdiction under § 2000e-5 is permissible. There is no allegation of the receipt of a right to sue notice. The only reference to filing of the charges with the EEOC states that this occurred 2 days before the date the complaint was filed in this court, and...