Soble v. University of Maryland, Civ. A. No. M-83-290.

Citation572 F. Supp. 1509
Decision Date13 October 1983
Docket NumberCiv. A. No. M-83-290.
PartiesDr. Rosalynde K. SOBLE v. UNIVERSITY OF MARYLAND.
CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

On January 28, 1983, the plaintiff, Dr. Rosalynde K. Soble, filed suit against the defendant, the University of Maryland, alleging discrimination on the basis of sex resulting in the denial of promotion, unequal pay, harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206 (Paper No. 1). The defendant filed a Motion to Dismiss asserting therein (1) that the plaintiff's claim under Title VII for denial of promotion is time barred, and (2) that this court lacks jurisdiction over the plaintiff's claim of retaliatory reassignment due to the failure of the plaintiff to receive a "right to sue" notice before filing suit. (Paper No. 4). The plaintiff opposes the Motion to Dismiss (Paper No. 5), and the defendant has filed a reply. (Paper No. 7). On July 15, 1983, the plaintiff amended her complaint to indicate receipt by her on June 16, 1983, of a "right to sue" notice from the EEOC regarding her November 19, 1982 charge. After reviewing the memoranda in this case, the court concludes that no hearing is necessary. Local Rule 6(E).

I. Promotion Claim/Time Barred

In her complaint the plaintiff alleges that, despite repeated requests, she was denied promotion from the rank of Assistant Professor to the rank of Associate Professor at the University of Maryland. The dates these requests were denied are not stated in the complaint, but the Motion to Dismiss and the opposition thereto provide the following sequence of events.

The plaintiff is employed as an Assistant Professor with the University of Maryland School of Dentistry, Department of Oral Health Care Delivery. In 1973, the Dental School's Promotion & Tenure Committee approved a recommendation of the plaintiff for a promotion to the rank of Associate Professor, but the University of Maryland Chancellor did not concur citing the plaintiff's lack of doctorate degree. (Paper No. 5, Exh. A). In 1976, the plaintiff received her Doctor of Philosophy degree from the University of Maryland, College of Education, Department of Social Foundations of Education.

Thereafter, in October of 1976, the plaintiff was informed by the Dean of the Dental School, Dr. Reese, that he had requested Dr. Thomas Snyder, Dean of the plaintiff's department at the Dental School, to submit her name to the new Committee on Faculty Appointments, Promotions, Tenure & Professional Affairs ("the Committee") for consideration for promotion effective on July 1, 1977. (Id., Exh. B, at 1-2).

On April 12, 1977, the plaintiff learned that the Committee had not recommended her promotion, and on April 14, 1977, the plaintiff learned that Dr. Snyder had concurred in that decision. (Id. Exh. C & D). On May 13, 1977, in response to the plaintiff's April 29, 1977 letter, the Committee informed the plaintiff of its reaffirmation of its previous decision and informed her that promotion was not approved, because of a lack of support by her department chairman and the previous chairman, and because of little evidence of current support of her teaching effectiveness. (Id. Exh. E).

On May 26, 1977, the plaintiff filed a grievance with the Grievance Committee at the University of Maryland regarding her failure to be promoted. (Paper No. 1, ¶ 13). On June 27, 1977, the Grievance Committee recommended, after completing hearings on the plaintiff's complaints arising from the lack of a recommendation for promotion from the Committee, that the Committee reconsider its most recent decision not to recommend. (Paper No. 5, Exh. F). On September 21, 1977, the Committee voted to reconsider the original decision not to recommend Dr. Soble for promotion, (Id. Exh. G) on the condition that a letter of recommendation from the plaintiff's present department head and evidence of her teaching effectiveness be supplied.

On October 13, 1977, Dr. Snyder, in a memorandum to all Oral Health Care Delivery faculty, requested advice regarding plaintiff's promotion. (Id. Exh. H). On January 10, 1978, Dr. Snyder informed the Committee that he would not offer his support of Dr. Soble for promotion due to her lack of "the characteristics or skills of a consistently excellent teacher." (Id. Exh. I, at 1). On January 18, 1978, the Committee voted to uphold the original decision, (Id. Exh. J), and on February 8, 1978, the plaintiff was notified of that action. (Id. Exh. K).

On February 21, 1978, the plaintiff filed her original charge with the Equal Employment Opportunity Commission (EEOC) alleging discrimination on the basis of sex in the denial of promotion, harassment, and the denial of financial recognition for her having obtained a Ph.D. (Paper No. 4, Exh. B). On October 20, 1978, the plaintiff amended her original charge incorporating the May 13, 1977 decision, the non-support from Dr. Snyder on January 10, 1978, as well as the grievances she filed. (Id. Exh. C).

Thereafter, on October 27, 1978, the Grievance Committee concluded that Dr. Soble had a legitimate grievance against Dr. Snyder for lack of documentation for his decision not to support her promotion. It recommended that Dr. Reese make a final decision regarding Dr. Soble's promotion to Associate Professor, because the matter could not be referred to the Tenure Committee without a positive letter of support from Dr. Snyder. (Paper No. 5, Exh. L). There is no indication in that record what action Dr. Reese took in response to the Grievance Committee's resolution. Almost a year later, however, on September 24, 1979, the plaintiff was notified by Dr. Reese that Dr. John S. Toll, President of the University of Maryland, had rejected her promotion to the rank of Associate Professor. (Id. Exh. N). On February 19, 1980, Dr. Reese informed the plaintiff that, after reviewing her activities, he would consider resubmitting her name for promotion to Dr. Toll in the fall of 1980. (Id. Exh. O).

On November 18, 1982, the plaintiff filed another charge with the EEOC alleging harassment, reassignment and continued lack of promotion and increase in salary due to discrimination on the basis of sex.

The defendant asserts that the denial of promotion claim is time barred because the plaintiff learned of the decision denying her promotion on April 12, 1977 or April 14, 1977, at the latest, when notified by Dr. Snyder, Acting Chairman of the Department of Oral Health Care Delivery at the University of Maryland Dental School, of the Committee's failure to recommend her promotion, his agreement with that recommendation, and his decision not to inquire further into the matter. (Paper No. 5, Exh. C). Because Title VII requires a charge to be filed within 180 days of the alleged discriminatory act or if the act occurred in a "deferral state" within 300 days of the discriminatory act, 42 U.S.C. § 2000e-5(e), and because the plaintiff did not file a charge with the EEOC until February 21, 1978, beyond either the 180 day or the 300 day limit, the defendant contends that this claim is barred for failure to fulfill the statutory requirements of Title VII. Even if the discriminatory act is considered to have occurred as late as May 13, 1977, when the plaintiff was informed of the Committee's decision reaffirming its earlier decision to deny a recommendation for promotion, the EEOC charge filed in February, 1978, was still filed beyond the 180 day period.

The plaintiff, by her counsel, asserts that the denial of promotion is a continuing violation of her rights, and, therefore, her charge with the EEOC was timely filed. Alternatively, the plaintiff notes that some of the decisions to deny promotion occurred within the 180 day filing deadline. Section 706(e) of Title VII provides in part:

"A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed within three hundred days after the alleged unlawful employment practice occurred."

42 U.S.C. § 2000e-5(e). Because the State of Maryland, through the Maryland Commission on Human Rights (MCHR), provides a state agency capable of providing relief from discrimination, Maryland is a Title VII deferral state, Vanguard Justice Society, Inc. v. Hughes, 471 F.Supp. 670, 680 n. 26 (D.Md.1979), and the extended period to file should apply.

The defendant, however, asserts that the plaintiff's failure to file a charge with Maryland's state agency within the 180 day state limitations period, Md.Ann.Code, Art. 49B § 9(a), results in the plaintiff being denied the benefits of the extended federal filing period.

In Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1976), the plaintiff failed to file her age discrimination charge with Iowa's State Civil Rights Commission within Iowa's 120 day age discrimination statute of limitations period. The Supreme Court concluded that Section 633(b) of the ADEA required grievants to resort to state administrative proceedings before bringing a suit in federal court. Id. at 754-58, 99 S.Ct. at 2070-72. Justice Brennan, writing for the majority, concluded that:

"exhaustion of state remedies under the ADEA could be met by an untimely filing of a charge with the state agency, for the federal statute did not provide that the prerequisite state charge must be filed within the time limitation prescribed by state law. See 441 U.S. at 759, 99 S.Ct. at 2073 (1979)."

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