The opinion of the court was delivered by: CURTIN
The initial issue which must be resolved is the appropriate date from which defendants' actions must be examined under Title VII to determine whether liability exists. Plaintiffs have conceded that with respect to their claims under 42 U.S.C. § 1981, the Second Circuit's holding that a three-year period of limitations is applicable mandates a starting date of October 29, 1968 for such examination, which is three years prior to the filing of the complaint in Civ-71-487. See, e.g., EEOC v. Enterprise Assoc. Steamfitters, 542 F.2d 579 (2d Cir. 1976). The point of disagreement between plaintiffs and defendants as to the Title VII starting date concerns whether plaintiffs can utilize a charge of discrimination filed by Lavern Price with the Equal Employment Opportunity Commission ("EEOC") to fix that date. Plaintiffs argue that the starting date should be August 18, 1967, utilizing the charge filed by Lavern Price on March 15, 1968. Defendants contend that the starting date should be January 25, 1968, which is 210 days prior to August 22, 1968, the date of the earliest filing of a charge with the EEOC by a named representative of the plaintiff in this case. In the alternative, if plaintiffs are allowed to rely on the Price charge, defendants argue that the earliest possible starting date should not be prior to October 1, 1967. Resolution of this issue requires discussion.
Lavern Price, an unnamed class member, mailed a charge to the EEOC on or about March 15, 1968. See Exhibit A-1, attached to the Affidavit of Lavern Price, sworn to March 6, 1979. It stated:
I have been constantly by passed over the years for promotions to a supervisory position, because of my Race and Color and prejudice Supervisors. I have over 18 years seniority in the unit and have been acting in the compacity of a supervisor for over 15 years. The only difference in my job and a supervisor's is the color of hat and pay envelope.
There is no evidence as to the precise date EEOC received it. On March 29, 1968, the EEOC referred this charge to the New York State Commission for Human Rights ("NYSCHR"). A copy of the forwarding letter is attached as Exhibit E-1 to the Affidavit of Anthony Dean, sworn to May 23, 1979. On the same date, the EEOC informed Mr. Price of this step. On April 8, 1968, NYSCHR received a complaint from Mr. Price. Exhibit E-4 to Dean Affidavit. The EEOC informed Lavern Price on June 4, 1968 that NYSCHR had had his case for the required 60-day deferral period and that he could request the EEOC to assert its jurisdiction. The EEOC did begin investigation. Notice of the pending charge of Mr. Price was not sent by the EEOC to the Company until October 20, 1972. In the meantime, NYSCHR, after informing the EEOC on June 28, 1968, that it believed there was probable cause to credit Mr. Price's allegations, dismissed his claim on April 19, 1971.
Mr. Price filed an additional charge of discrimination with the EEOC on July 17, 1973. The EEOC sent Price a letter on July 12, 1976 which informed him that the EEOC review of his charge had ended and that his complaints were resolved by the relief afforded by the Consent and Amended Decrees, entered in United States v. Bethlehem Steel Corporation, Civ-1967-432 (W.D.N.Y.), and that he had the option to accept the back pay offer made pursuant to the Consent Decree. Lavern Price did not accept this offer.
In January of 1978, Price's attorneys requested and obtained a right-to-sue letter on his 1968 charge. Price filed an action in this court on April 12, 1978. The action alleged class claims and Price moved to consolidate his action with the Williamson action.
The court notes initially that resolution of whether or not the Williamson class can rely on Mr. Price's EEOC charge may have significance for certain members of the class. Applying then-current § 706(d) of Title VII, 42 U.S.C. § 2000e-5(d), alleged discrimination occurring within 210 days prior to the claimed March 15, 1968 filing date of Price could be used to establish liability and provide a basis for relief for class members affected by that discrimination. McDonald v. United Airlines, Inc., 587 F.2d 357 (7th Cir. 1978); Moore v. Sunbeam Corp., 459 F.2d 811, 821-22 (7th Cir. 1972); Gill v. Monroe County Dep't of Social Services, 79 F.R.D. 316, 331 (W.D.N.Y.1978). Two hundred and ten days prior to March 15, 1968 extends the potential period of liability back to August 18, 1967. The significance of this extension lies in the plaintiffs' expressed desire to use a stipulation in the record in United States v. Bethlehem Steel Corporation, Civ-1967-432 (W.D.N.Y.), to establish discrimination in hiring and assignments by defendant Bethlehem Steel Corporation ("Company"). In that case, the government and the Company stipulated that any pattern or practice of discrimination at the Company's Lackawanna Plant ended by October 1, 1967. Thus, if the Price charge can be utilized, the plaintiff class intends to use the United States v. Bethlehem record to establish liability by the Company to class members hired and assigned between August 18, 1967 and October 1, 1967.
Moreover, contrary to the Company's argument, then-current § 706(b) of Title VII, now found in 42 U.S.C. § 2000e-5(c), would not preclude a starting date prior to October 1, 1967. This subsection essentially provides that no charge may be filed with the EEOC until sixty days after proceedings have been commenced with the relevant state agency unless such proceedings have been earlier terminated. The Company argues that although Price first mailed his charge to the EEOC on March 15, 1968, the charge was not technically filed with the EEOC at that time under § 706(b). Rather, the earliest date the EEOC could have filed the charge is said to be June 7, 1968, sixty days after Price filed a formal complaint with NYSCHR on April 8, 1968. Two hundred and ten days prior to that argued filing date would be November 11, 1967, well after the October 1, 1967 date in the stipulation.
This argument is unpersuasive. The Second Circuit has recently discussed the procedural filing requirements of Title VII. The court held that a charge referred to the state agency and held in abeyance by the EEOC for 60 days in order to defer to that agency is "filed" when "the EEOC first receives it and not when the sixty-day period ends." Silver v. Mohasco Corp., 602 F.2d 1083, 1088 (2d Cir. 1979), cert. granted, 444 U.S. 990, 100 S. Ct. 519, 62 L. Ed. 2d 418 (1979). The court stated that 42 U.S.C. § 2000e-5(c) requiring "that no charge be "filed' before the deferral period ends simply means that the EEOC may not process a Title VII complaint until sixty days after it has been referred to a state agency." Ibid. See also Love v. Pullman, 404 U.S. 522, 92 S. Ct. 616, 30 L. Ed. 2d 679 (1976). The court finds Silver persuasive and controlling in this action and that Price's filing date is on or about March 15, 1968. Therefore, whether plaintiffs can utilize the filing date of the Price charge must be resolved.
The Company argues that plaintiffs cannot rely on the filing of the Price charge because his charge with the EEOC was a narrow claim relating solely to the question of supervisory promotions and not raising all of the broad claims of discrimination made by the Williamson class. The Company asserts that resolution and conciliation of his charge at the administrative level would not reasonably have led to an investigation of the Company's hiring, assignment, seniority, and transfer policies which are the crux of the Williamson action. The Company points to the actual investigation by NYSCHR of Mr. Price's 1968 charge to support this argument. Moreover, the Company argues that Lavern Price is not a proper representative of the class because his claim is not typical of the class and because he would not adequately represent the interests of the class. In conjunction with this argument, the Company contends that the outstanding motion to consolidate the Price v. Bethlehem action, Civ-78-187, with Williamson would not result in a merger of two cases even if it were granted and that any motion to intervene would be untimely. Therefore, the starting date would not be affected.
The argument raised by the defendant Union is simpler. First, the Union points out that it was not named in Price's EEOC charge. Second, the Union argues that Price's charge complains only of his being passed over for promotion to a supervisory, non-bargaining unit position. Since the appointment of supervisors is within the Company's power exclusively, the Union asserts that the Williamson class cannot rely in its claims against the Union on a charge filed with the EEOC which does not allege any action for which the Union could be responsible.
The principal argument raised by defendants both at oral argument and in their papers concerns the scope of the Price charge. The allowable scope of a lawsuit is not limited to the specific allegations in an EEOC charge, but rather by "the "scope' of the EEOC investigation which can reasonably be expected to grow out of (that charge)." Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970). A private litigant may bring a civil action on any claims of discrimination "like or reasonably related to" allegations raised in the EEOC charge and "growing out of such allegations." Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir. 1971); Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir.), cert. denied, 429 U.S. 986, 97 S. Ct. 506, 50 L. Ed. 2d 598 (1976); Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973); Tipler v. E. I. duPont, 443 F.2d 125, 131 (6th Cir. 1971). In determining the permissible scope of the judicial pleadings, the EEOC charge should be liberally construed, for the jurisdictional requirements of Title VII were not "intended to serve as a stumbling block to the accomplishment of the statutory objective." Evans v. Sheraton Park Hotel, 164 U.S. App. D.C. 86, 503 F.2d 177, 183 (D.C.Cir.1974); Canavan v. Beneficial Finance Corp., 553 F.2d 860, 864 (3d Cir. 1977); Danner, supra; see Egelston v. State University College at Geneseo, 535 F.2d 752, 754-55 (2d Cir. 1976).
Mr. Price's EEOC charge is set out above. A reading of the charge indicates that his concern was the Company's failure to promote him to a supervisory position, which he alleged was because of his race. Although he stated that he had "over 18 years seniority in the unit," there is no allegation on the face of his charge that the Company's seniority system discriminated against him or other black employees. Nor is there any allegation of discrimination by the Company in hiring and assignment, or in its transfer, layoff or recall policies. Mr. Price claimed only that he should have been promoted to foreman in Department 404. The plaintiffs and the defendants of course differ as to whether a reasonable investigation by the EEOC of this charge would have explored the Company's hiring and job assignments and its seniority system and other policies which are at issue in this action, and as to whether his claim is like or reasonably related to the claims in this case.
In determining whether the claim made by Lavern Price is like or reasonably related to those made in the Williamson complaint, the court notes initially that it is in fact identical to one of the claims of discrimination alleged by the Williamson class. Mr. Price asserted that he was denied a promotion to a supervisory position because of his race; P VII(e) of the Williamson complaint charges the Company with "(f)ailing to provide for advancement opportunities . . . to supervisory positions to black persons equal to those opportunities provided for white persons." There ...