Ms. Barbara Noble appeals from an order of the United States District Court for the Western District of New York, Harold P. Burke, Judge, dismissing her Title VII complaint as time-barred. Reversed and remanded.
Kaufman, Chief Judge, Clark, Associate Justice,*fn* and Timbers, Circuit Judge.
On March 1, 1976, Judge Burke dismissed Barbara Noble's sex discrimination complaint before an answer had been filed. In our opinion in Egelston v. State University College at Geneseo, 535 F.2d 752, filed today, we have resolved most of the legal issues posed by this appeal and, accordingly, shall not tarry over them here.
As in Egelston, we must glean the facts underlying Noble's claims from her complaint which was dismissed out-of-hand by the district judge. Noble, hired as an operating room nurse by Strong Memorial Hospital in 1969, learned to operate the complex heart-lung machinery used to keep patients alive during open-heart surgery. In March, 1973, she became head of the "pump team", the group of people responsible for running that machine. A few months later, Dr. Earl Mahoney, the doctor in charge of cardiac surgery, promised Aaron Hill, an employee at the cardiology research laboratory that he would take command of the team. Hill, however, was not qualified to operate the heart-lung machinery. Accordingly, he was sent to Houston, Texas, for training. Upon his return -- apparently, in January, 1974 -- he was given the position of "Chief Perfusionist", a title created by Dr. Mahoney expressly for him. Despite this appellation, however, Hill was not yet fully trained.
Noble, the complaint relates, thus continued as de facto head of the pump team for some time thereafter; additionally, her duties had come to include instruction of the new "Chief Perfusionist". During this time, Hill nevertheless received a higher salary than Ms. Noble. Although the date on which Hill assumed actual command of the pump team is unclear, the complaint states that he was not qualified to take the examination to be a certified cardiac perfusionist until July, 1975.
Meanwhile, in March, 1975, Noble filed a complaint with the New York State Division of Human Rights, and with the Equal Employment Opportunity Commission. In November, after obtaining a right-to-sue notice from the EEOC, she brought suit in the Western District of New York under Title VII.*fn1
Noble's complaint in the District Court charged that the hospital had promoted the less-qualified Hill solely because of his sex, and that she "continues to seek advancement at Strong." And, the complaint also contains an allegation, similar to that in Egelston, that the discrimination against her derived from the hospital's policy of excluding women from more desirable positions.
The defendants, as in Egelston, did not file an answer to Ms. Noble's allegations. Rather, they moved to dismiss the complaint which, they argued, was barred by 42 U.S.C. § 2000e-5(e). This section required Noble to file her charge with the EEOC within 300 days after the alleged unlawful employment practice occurred. Judge Burke in a memorandum containing merely conclusory statements granted the motion.*fn2
For essentially the same reasons set forth by us today in Egelston v. State University College at Geneseo, supra, we reverse. Judge Burke wrongfully assumed that the time limit began to run when Hill received the title of Chief Perfusionist, apparently in January, 1974. But, taking the allegations in the dismissed complaint as true, as we must, Cooper v. Pate, 378 U.S. 546, 12 L. Ed. 2d 1030, 84 S. Ct. 1733 (1964), we view the conferring of that title upon the then unqualified Hill as but a hollow formality. The promotion was consummated when Hill took actual command of the pump team, see Egelston, supra, and the time limit was not triggered until then.
Moreover, Noble alleges that the discrimination against her was but a part of the hospital's policy of denying women access to its upper echelons, a policy which continued to preclude her from promotion even after she had filed her charge.*fn3 These allegations of continuing discrimination are not time-barred. Egelston, supra.
Reversed and remanded.*fn4