Scott v. University of Delaware, Civ. A. No. 74-58.

Decision Date20 November 1974
Docket NumberCiv. A. No. 74-58.
Citation385 F. Supp. 937
PartiesNolvert P. SCOTT, Jr., Plaintiff, v. The UNIVERSITY OF DELAWARE et al., Defendants.
CourtU.S. District Court — District of Delaware


Sheldon N. Sandler, of Bader, Dorsey & Kreshtool, Wilmington, Del., for plaintiff.

William Poole, John P. Sinclair, James F. Burnett, of Potter, Anderson & Corroon, Wilmington, Del., for defendants.


MURRAY M. SCHWARTZ, District Judge.


This is a class action for equitable and legal relief to redress an alleged deprivation of rights, privileges, and immunities secured to plaintiff and the class he seeks to represent under the Constitution and laws of the United States. Specifically, plaintiff seeks an injunction against the University of Delaware and individual defendants barring them from engaging in discriminatory practices with respect to the hiring, discharge, recruitment, promotion, supervision, wages, terms, conditions, and privileges of employment, mandatory relief with regard to reinstatement and promotion, and compensatory and punitive damages. Plaintiff further seeks a declaration of his right and that of the class to employment without discrimination based upon race, and a declaration that the present policies of defendants are violative of the Constitution and laws of the United States. The action is now before the Court on defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), (2) and (6).

Plaintiff, a black Assistant Professor of Sociology at the University of Delaware since September 1, 1971, was originally employed under a three-year contract. On May 9, 1973, he was informed his contract would not be renewed at its expiration on August 13, 1974. Plaintiff thereafter filed a "Charge of Discrimination" with the Equal Employment Opportunity Commission's regional office, alleging generally that he had been the subject of racial discrimination, and specifically that differential criteria had been utilized in the evaluation of his performance as an instructor vis-a-vis the performance of similarly situated white faculty members in his department. The EEOC subsequently transferred the case to the State Department of Labor. The latter agency failed to act upon the complaint, and subsequently relinquished jurisdiction to the EEOC Regional Office. On April 17, 1974, plaintiff received from the EEOC a right-to-sue-letter informing him that, because the EEOC had not filed suit based on the charge, plaintiff might initiate litigation himself in this Court.

Plaintiff subsequently filed a class action, naming the following defendants: the University of Delaware, the University Board of Trustees, the members of that Board in their individual and official capacities, and various other university officials and faculty members in their individual and official capacities. Plaintiff predicates his claim for relief against each defendant on Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et seq.), 42 U.S.C. §§ 1981, 1983, and 1985, and the Thirteenth and Fourteenth Amendments to the Constitution.

The motion now before the Court seeks dismissal of various of the named defendants from this action, asserting lack of jurisdiction over the subject matter and over some or all of the named defendants, immunity of some or all of the named defendants, and failure to state a legally-cognizable theory of recovery. Because affidavits have been filed with respect to certain issues herein, those matters will be treated as a motion for summary judgment. Braden v. University of Pittsburgh, 477 F.2d 1, 6 (3rd Cir. 1973); Pegues v. Mississippi State Employment Serv., 61 F.R.D. 110, 111 (N.D.Miss.1973).

A. The EEOC Respondents and the District Court Complaint

Title VII of the Civil Rights Act of 1964 forbids employers and unions to discriminate on the basis of race, color, sex, religion, or national origin. A "person claiming to be aggrieved" under its provisions begins the enforcement process when he files a charge with the Equal Employment Opportunity Commission (EEOC) alleging a violation of those provisions. If the occurrence giving rise to the charge took place in 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," the EEOC may not act on the charge until at least 60 days have elapsed since the commencement of proceedings under state or local law, unless these proceedings terminated earlier. 42 U.S.C. §§ 2000e-5(b) to (c). If the state or local agency elects to terminate its proceedings, the aggrieved party must file his charge with the EEOC within 30 days of receipt of that notice.

When the aggrieved party files a charge, the EEOC may investigate to determine whether there is reasonable cause to believe the charge is true, and if it finds reasonable cause, attempts to eliminate the unlawful practice through informal methods of conference, conciliation, and persuasion. 42 U.S.C. § 2000e-5(b). If the EEOC is unable to obtain voluntary compliance with Title VII, it may notify the person aggrieved accordingly and inform him that he may at any time within the following 90 days bring a civil action in federal district court. 42 U.S.C. § 2000e-5(f)(1).1

Title VII provides inter alia a plaintiff may institute a civil action in federal court against only those employers which were respondents "named in the charge" filed with the EEOC. 42 U.S.C. § 2000e-5(f)(1). This jurisdictional prerequisite is important for two reasons:

First, it notifies the charged party of the asserted violation. Secondly, it brings the charged party before the EEOC and permits effectuation of the Act's primary goal, the securing of voluntary compliance with the law.

Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1969). "The conciliation process has several features which recommend it. It may solve problems without the animosities created by coercion; it gives the respondent the chance to explain and possibly justify his conduct before litigation receives widespread public attention; it is less expensive and time consuming than litigation; and a broad relief is available."2 These policies are satisfied as long as the EEOC is given the opportunity to mediate an unlawful employment practice; its failure to act upon this opportunity is immaterial. Miller v. International Paper Co., 408 F.2d 283, 288-91 (5th Cir. 1969); Chastang v. Flynn & Emrich Co., 365 F.Supp. 957, 962 (D.Md.1973).

The record in the instant case indicates the EEOC notified the University of Delaware of the pendency of Dr. Scott's proceeding, mailing a copy of the "Charge of Discrimination" form to the "Executive Officer" of the University. Plaintiff does not allege the identity of the "Executive Officer," or that any other trustee, officer, or employee of the University knew or had reason to know of the notice or the proceeding. He seeks to overcome this deficiency by reference to familiar principles of the law of agency, stating that "notification to a company, labor organization, university, etc., under agency principles, is sufficient to alert the individuals vested with responsibility for its operation."

Plaintiff's agency theory has been rejected where considered, Mickel v. South Carolina State Employment Serv., 377 F.2d 239, 241 (4th Cir.), cert. denied, 389 U.S. 877, 88 S.Ct. 177, 19 L.Ed.2d 166 (1967); Butler v. Local No. 4 and Local No. 269, Laborers' Int. U., 308 F.Supp. 528, 531 (N.D.Ill.1969); McDonald v. American Fed'n of Musicians of U. S. and Canada, 308 F.Supp. 664, 669 (N.D.Ill.1970) (mere agency relationship does not, without more, constitute sufficient notice), except where there is a "substantial, if not complete, identity of parties before the EEOC and the court." Cf. Chastang v. Flynn & Emrich Co., 365 F.Supp. at 964.

It is recognized procedural technicalities should not ban potentially just claims, especially where under the statutory framework, a layman can be expected to initially file the charge with the EEOC. "Consequently, courts confronted with procedural ambiguities in the statutory framework have, with virtual unanimity, resolved them in favor of the complaining party." Sanchez v. Standard Brands, Inc., 431 F.2d 455, 461 (5th Cir. 1970). While liberality in construction should be favored, minimum standards of statutory compliance are essential to avoid bypassing of the Commission and the statutory emphasis on voluntary compliance and conciliation. Johnson v. Seaboard Air Line Railroad Company, 405 F.2d 645 (4th Cir. 1968), cert. denied, 394 U.S. 918, 89 S.Ct. 1189, 22 L.Ed.2d 451 (1969).

In Van Hoomissen v. Xerox Corp., 368 F.Supp. 829 (N.D.Cal.1973), the court had occasion to consider whether plaintiff had complied with the statute. In that case, plaintiff named Xerox Corporation and various of its employees in a suit pursuant to Title VII. In the previously-filed EEOC charge, plaintiff identified only the corporation as the party who had discriminated against him; factual allegations in the charge identified two other employees as possible Title VII violators, but failed to mention any of the other individuals ultimately named by plaintiff in the lawsuit. The court dismissed the action with respect to all other Xerox officers and employees who were neither named nor otherwise identified in the EEOC charge:

The Court does not feel that the liberality with which it may construe 42 U.S.C. § 2000e-5(f)(1) stretches so far as to include as defendants in this suit seven persons whose only visible common denominator appears to be their employer — Xerox. Without any further indication by plaintiff as to some other connection between himself and the seven defendants in terms of this suit, it seems inappropriate in this instance to retain jurisdiction over the suit . . ..

Id. at 835.

The rationale of Van Hoomissen is...

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