The opinion of the court was delivered by: CURTIN
This is an employment discrimination case in which the plaintiff alleges that the defendants have discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 1981 and 1983, and the fourteenth amendment. The defendants have moved for summary judgment on the following grounds: res judicata, statute of limitations, lack of subject matter jurisdiction, lack of jurisdiction over the defendants, insufficient service on defendants Townsend and Elliot, failure to state a claim, and failure to obtain the requisite permission to sue the defendants.
In an order dated July 1, 1977, the court dismissed the suit against defendants Townsend and Elliot for insufficient service. It also ruled that the plaintiff's claims under 42 U.S.C. §§ 1981 and 1983 were barred by the statute of limitations. The remaining grounds raised by the defendants in their motion are now before the court. For the reasons stated below, the defendants' motion is denied in its entirety.
The plaintiff, Dr. Betty Al-Hamdani, accepted a three-year appointment as an associate professor in art history at the State University of New York at Buffalo. Her term began September 1, 1967, and was scheduled to end on June 30, 1970. During the 1968-1969 term, the Art Department considered her for a tenured position but she was rejected. Accordingly, her position with the University terminated at the expiration of her three-year term.
In July 1970, the plaintiff filed a complaint with the New York State Division of Human Rights, alleging that she was denied tenure on the basis of her sex. After a hearing, the State Division dismissed her complaint. On appeal, the Human Rights Appeals Board affirmed the order of dismissal. The plaintiff then instituted an Article 78 proceeding in the Appellate Division of the Supreme Court of New York to review the determination of the State Division and the Appeals Board. In an order dated November 29, 1973, the Appellate Division, Fourth Department, affirmed the State Division's order as supported by substantial evidence. The plaintiff did not appeal.
On January 18, 1973, the plaintiff filed a similar complaint with the Equal Employment Opportunity Commission, alleging that she was denied tenure on the basis of her sex. The complaint was dismissed on the ground that Title VII of the Civil Rights Act, prior to its amendment in 1972, did not apply to educational institutions.
The plaintiff then wrote a letter dated February 2, 1973 to Dr. Robert L. Kettler, the President of the University, requesting reinstatement on a permanent basis. The President responded, stating that ". . . this matter has been through a series of reviews. Based on information available to me, I feel it would be inappropriate to consider re-appointment at this time."
After her request for reinstatement was denied, the plaintiff filed a second EEOC charge on April 3, 1973, alleging that the University's refusal to reinstate her was based on her sex. The EEOC investigated the charge and, in a decision dated November 26, 1975, found reasonable cause to believe that the University had engaged in an unlawful employment practice in refusing to reinstate the plaintiff. The EEOC issued a right to sue letter, and the plaintiff commenced the present action.
In her complaint, Dr. Al-Hamdani alleges that she was denied tenure on the basis of her sex, and that the University has engaged in a policy and practice of sex discrimination in hiring and tenuring female faculty members. Although the complaint does not specifically allege that she was denied reinstatement in 1973 on the basis of her sex, it shall be so construed by the court in accordance with Federal Rule 8(f) of Civil Procedure.
Until 1972, educational institutions were exempted from coverage under Title VII, Pub. L. 88-352 § 702 (1964). It was not until the 1972 Amendments to the Civil Rights Act were enacted that those employed by institutions of higher education could avail themselves of the remedies provided in Title VII, Pub. L. 92-261 (1972). The first question therefore presented by the defendants' motion is whether the plaintiff, whose employment with the University terminated in 1970, has stated a Title VII claim under the 1972 Amendments.
In Weise v. Syracuse University, 522 F.2d 397, 10 FEP Cases 1331 (2d Cir. 1975), the Second Circuit held on virtually identical facts that the plaintiffs had alleged Title VII claims. In that case, two female teachers sued Syracuse University for sex discrimination. Both had been terminated prior to March 24, 1972, the effective date of the 1972 Amendments. In 1973, both requested and were denied reconsideration of their terminations. The court found that the 1972 Amendments did not apply retroactively to discriminatory acts occurring before March 24, 1972. 522 F.2d at 411-412, 10 FEP Cases at 1341. But the court held that both plaintiffs had alleged independent acts of discrimination occurring after the University lost its exemption from Title VII. The court stated:
We think that the Act's sweep is sufficiently broad to include within the definition of discrimination with respect to terms, conditions or privileges of employment, a discriminatory refusal, in violation of the employer's own established ...