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EEOC v. PIERCE & STEVENS CHEM. CORP.

August 1, 1977.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
PIERCE & STEVENS CHEMICAL CORPORATION, Defendant.



The opinion of the court was delivered by: ELFVIN

MEMORANDUM and ORDER

ELFVIN, District Judge.

 The Complaint herein by the Equal Employment Opportunity Commission ("the EEOC") charges that Pierce & Stevens Chemical Corporation ("P & S") unlawfully discriminates against its female employees in its employment practices. These employment practices include hiring, job assignment, promotional and wage policies and the maintenance of separate lunchroom facilities for men and women employees. In its answer P & S generally denies the allegations of sex discrimination and raises two affirmative defenses. Firstly, the action was not initiated within the time prescribed by the applicable statutes. Secondly, the scope of the unlawful employment practices alleged and of the relief sought in this action exceeds that for which the EEOC is authorized to maintain suit under the applicable statutes.

 P & S has moved this Court for the following relief:

 (a) partial summary judgment dismissing so much of the complaint as goes beyond that class of employees which was identified as the affected class by the EEOC in its administrative, investigative and conciliation proceedings - i.e., female laboratory employees,

 (b) extensioon of time to answer the EEOC's first set of interrogatories until a court decision is made upon the scope of the action,

 (c) leave pursuant to Fed.R.Civ.P. rule 15 to amend its answer to add as an affirmative defense the allegation that the EEOC failed to serve proper notice upon P & S within ten days of the filing of the discrimination charges against defendant as required under 42 U.S.C. § 2000e-5(b), and

 (d) summary judgment dismissing the complaint on the grounds stated in its additional affirmative defense.

 Taking the last point first, P & S's argument that the EEOC failed to serve proper notice within ten days of the filing of the charges contains two alternative positions. Either P & S was not given timely notice as required by 42 U.S.C. § 2000e-5(b)or, if notice was timely served, it was inadequate.

 The time sequence of events is not disputed. The EEOC received on January 19, 1973 charges from Karen J. Nemmer and Cornelia Merison, two female employees of P & S. On January 22, 1973, the EEOC referred such charges to the New York State Division of Human Rights as required under 42 U.S.C. § 2000e-5c). On April 2, 1973, P & S received notices of these charges.

 P & S contends that the notices were untimely under 42 U.S.C. § 2000e-5(b) and the EEOC's own regulations, 29 C.F.R. § 1601.13, which require the service of notice on the employer within ten days after the filing of a charge. The EEOC in turn contends that it met the requirements of both the statute and regulations. The EEOC agrees that 42 U.S.C. § 2000e-5(b) and 29 C.F.R. § 1601.13 do require ten days' noice but points however to the requirements under 42 U.S.C. § 2000e-5(c) and 29 C.F.R. § 1601.12 which indicate that no charge can be filed until 60 days after referral to a state agency or earlier termination of the state proceedings. Further, 29 C.F.R. § 1601.12(b)(1)(iii) states:

 "(iii) The aggrieved party and any person filing a charge on behalf of an aggrieved party shall be notified, in writing, that the document which he or she sent to the Commission has been forwarded to the State or local agency pursuant to the provisions of section 706(c), and that unless the Commission is notified to the contrary, on the termination of State or local proceedings, or after 60 (or, where appropriate, 120) days have passed, whichever occurs first, the Commission will consider the charge to be filed with the Commission and commence processing the case. Where the State or local agency terminates its proceedings within sixty (60) (or, where appropriate, 120) days without notification to the Commission of such action the Commission will consider the charge to be filed with the Commission on the date the person making the charge was notified of the termination. (iv) The 60-day (or, where appropriate, 120-day) period shall be deemed to have commenced at the time such document is mailed or delivered to the State or local authority. Upon notification of the termination of State or local proceedings or the expiration of 60 (or 120) days, whichever occurs first, the Commission will consider the charge to be filed with the Commission and will commence processing the case."

 The United States Supreme Court aapproved such deferral procedures in Love v. Pullman Co., 404 U.S. 522, 92 S. Ct. 616, 30 L. Ed. 2d 679 (1972). Although the Court did not have before it the ten days' notice provision, the Court did uphold considering a charge not filed when received by the EEOC where the charge must be referred to a state agency for action. The Court found that the EEOC properly may hold a charge in "suspended animation", automatically filing it upon termination of the state proceedings.Id., at 525-6, 92 S. Ct. 616. Delaying service upon the employer of the notice of the charges until the termination of the sixty day deferral period or earlier official termination of the state proceedings is consistent with this decision.

 As to the computation of time, the deferral time commenced pursuant 29 C.F.R. § 1601.12(b)(1)(iv) when the charges were mailed to the state agency. Under the regulations the 60 days commenced its running January 22, 1973 and terminated March 23, 1973. On March 30, 1973 the seventh day thereafter, the EEOC sent to P & S a Notice of Charge of Employment Discrimination for each of the subject charges. P & S admits receiving ...


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