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November 16, 1972

Suann M. Hecht et al., Plaintiffs
Cooperative For American Relief Everywhere, Inc. (CARE), Defendant

Lasker, D.J.

The opinion of the court was delivered by: LASKER


On January 14, 1971, Suann Hecht filed charges with the Equal Employment Opportunity Commission ("EEOC" or "Commission"), alleging that her employer, Cooperative for American Relief Everywhere, Inc. ("CARE"), discriminated against her because of her sex in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). The charges were deferred to the New York State Division of Human Rights, which found that it had jurisdiction and that there was "probable cause to believe that the respondents have engaged or are engaging in the unlawful discriminatory practice complained of" (Exhibit 5 to Ball Affidavit (supporting motion to dismiss)), but dismissed the complaint, on April 29, 1971, on the ground of "administrative inconvenience" (Exhibit 6 to Ball Affidavit (supporting motion to dismiss)).

 On April 9, 1971, Hecht formally filed charges with the EEOC. The Commission investigated and made findings of fact to which both parties took written exception. On January 25, 1972, the EEOC informed Hecht that she was entitled to sue in federal court within thirty days of receipt of the notice.

 Hecht, Margot Higgins, Ruth Lambie, Ellen Lieber and Sandra Ward brought this suit on February 2, 1972, on behalf of themselves and others similarly situated, alleging jurisdiction under 28 U.S.C. §§ 1343(4), 2201, 2202 and 42 U.S.C. § 2000e-5(f). CARE moves to dismiss the complaint and plaintiffs move for a class action determination.

 Motion to Dismiss

 CARE's motion is based on several grounds: As to Hecht, because of her alleged failure to file timely charges with the EEOC and to participate in EEOC conciliation proceedings; as to Higgins, Lambie, Lieber and Ward, because they did not file charges with the Commission; and as to Lambie and Ward, because their claims are barred by the statute of limitations. CARE also moves to dismiss six counts of the indictment as being beyond the scope of the EEOC charges.

 1. Timeliness of EEOC charges. -

 CARE argues that the EEOC lacked jurisdiction and consequently that this court is without jurisdiction because Hecht failed to file charges with the Commission within the statutory time limit. Contrary to CARE's position, the applicable statute of limitations is 210 days from the act complained of and not 90 days, *fn1" since New York State has a commission which handles charges of discriminatory employment practices. 42 U.S.C. § 2000e-5(d). Hecht alleges that a discriminatory act occurred on October 2, 1970, and filed charges on April 9, 1971, 189 days later, in full compliance with the statute.

 2. Cooperation with EEOC Conciliation. -

 CARE's argument that Hecht did not cooperate with the conciliation attempts of the EEOC and that her suit should therefore be dismissed is equally without merit. 42 U.S.C. § 2000e-5(e) provides:

"If within thirty days after a charge is filed with the Commission . . . (except that . . . such period may be extended to not more than sixty days upon a determination by the Commission that further efforts to secure voluntary compliance are warranted), the Commission has been unable to obtain voluntary compliance with this subchapter, the Commission shall so notify the person aggrieved and a civil action may, within thirty days thereafter, be brought against the respondent named in the charge . . ."

 The Commission regulations extended to sixty days the time for processing all cases in which it finds reasonable cause to believe that an unlawful employment practice has occurred. 29 C.F.R. § 1601.25a(a). The regulations provide further that "[at] any time after the expiration of sixty (60) days from the date of the filing of a charge, . . . the charging party may demand . . . that a notice issue pursuant to § 1601.25, and the Commission shall promptly issue such notice. . . ." Id. at § 1601.25a(c). The notice must advise the charging party of his right to bring suit in federal court within thirty days of its receipt. Id. at § 1601.25(c).

 As noted above, Hecht filed charges on April 9, 1971. It was not until August 13, 1971, well after the sixty day period of exclusive EEOC jurisdiction, that the EEOC issued its findings of fact. CARE submitted its objections to the findings on September 15, and Hecht submitted hers on October 5. CARE claims that "[in] its response of September 15, in a letter of November 23 (Exhibit 12), and again in a telephone call of December 16, CARE through its undersigned counsel again stated its eagerness to meet with Ms. Hecht and the Commission to seek to resolve the dispute." (Affidavit of Markham Ball (in support of motion to dismiss), par. 15.) This may be true, but these efforts came more than four months after Hecht's statutory right to bring suit in federal court had accrued. The papers do not reveal any failure by Hecht to cooperate with the EEOC during its period of exclusive jurisdiction. On the contrary, they show that Hecht cooperated for considerably longer than required by the statute *fn2" and, indeed, deferred her request for a "right to sue" letter to January, 1972. Thus, the case is directly in line with the many decisions holding that actual conciliation efforts are not a jurisdictional prerequisite for Title VII suits, that the statute is satisfied if the Commission has had an opportunity to conciliate and that once the sixty days from the filing of charges have passed the charging party has a right to bring suit in federal court. *fn3"

 The fact that in this case, unlike many others litigated in federal court, the EEOC investigated and took some steps towards conciliation does not require the application of a different rule. A similar contention was rejected in Dent v. St. Louis-San Francisco Railway Co., 406 F.2d 399 (5th Cir. 1969). There, the EEOC investigated, found reasonable cause and expressed a desire to conciliate, but was unable to engage in conciliation before the expiration of sixty days. The court held that, although conciliation had not been completed, the charging party had a statutory right to proceed to federal court after sixty days without awaiting further EEOC action. See also Danner v. Phillips Petroleum Co., 447 F.2d 159, 161 (5th Cir. 1971). Any other rationale would lead to the anomaly that steps taken by the EEOC to process a ...

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