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FRANKLIN v. HERBERT LEHMAN COLLEGE

February 25, 1981

Jennie E. FRANKLIN, Plaintiff,
v.
HERBERT LEHMAN COLLEGE et al., Defendants



The opinion of the court was delivered by: TENNEY

The existence of multiple remedies for employment discrimination may be a mixed blessing under certain circumstances. In this Title VII action, *fn1" the plaintiff started down and followed one avenue of relief after several government agencies indicated that she was on the right track. Unfortunately, her failure to explore alternate routes within the specified time has now foreclosed those paths. The Court recognizes that Title VII's limitations periods may be subject to equitable considerations and that the administrative procedures followed here left much to be desired. Nonetheless, the Court is constrained to grant the defendants' motion for summary judgment on the ground that the plaintiff's suit is time-barred. *fn2"

The Facts

 In 1969, plaintiff Jennie E. Franklin was appointed as a part-time lecturer for the Department of Education at Herbert H. Lehman College ("the College"). *fn3" The following year, she was hired to serve as a full-time lecturer, a position she held through the 1974-1975 academic year. On September 16, 1974, Franklin was notified by letter that the Personnel and Budget Committee of the Department of Education had voted not to recommend her reappointment for the 1975-1976 term. Franklin was informed soon afterward that the Committee intended to reconsider its initial decision. On October 2, 1974, the plaintiff received another letter stating that the Committee had voted to sustain its decision not to recommend reappointment.

 On September 19, 1974, Franklin wrote a letter to Joel W. Barkan, Director of the Office of Civil Rights ("OCR") for the Department of Health, Education, and Welfare ("HEW"). The letter indicated that Franklin had spoken to an OCR employee who suggested that she send a letter and supporting documents describing her complaint. In the letter, Franklin recounted incidents that had occurred during the time she was employed by the College and charged that her mistreatment and dismissal were motivated by racial and sexual discrimination. According to the plaintiff, "(no) doubt remains that were I a male (either Black or White) or a white female I would have received both support and compensation for my artistic achievements."

 OCR responded to Franklin's complaint in a letter dated December 3, 1974 and signed by Joel W. Barkan. This letter stated:

 
Our office has received your letter of complaint and attached information dated September 19, 1974 in which you have alleged discrimination against you by Herbert Lehman College, on the basis of race in their decision not to tenure you as a faculty member.
 
Executive Order 11246 prohibits discrimination on the basis of race, creed, color, sex or national origin in employment. The Office for Civil Rights is authorized to investigate complaints in this area.
 
Due to the heavy workload and backlog of complaints in the office, we are unable to investigate your complaint at this time. Prior to initiating the investigation, you will be contacted to discuss the details of the allegations.
 
If you have any questions, please feel free to contact this office at (212) 264-3828.

 The next communication Franklin received was a letter from OCR, signed by Barkan, which was dated April 11, 1975. After referring to Franklin's September 19th letter and OCR's anti-discrimination authority, Barkan's letter explained:

 
As a result of an agreement between the Office of Federal Contract Compliance (OFCC) and the Equal Employment Opportunity Commission (EEOC), we are now referring all complaints to the OFCC for transmittal to EEOC. This office will, however, retain a copy of your complaint and use it as a factor in determining general and specific review priorities and investigate, decide and resolve any complaint in the context of a compliance review at the institution, should our overall targeting factors result in scheduling the institution for review prior to an investigation by the Equal Employment Opportunity Commission. We will, of course, be kept informed by the EEOC of the status of your complaint.
 
Should you have further questions, please contact Ms. Glorietta Gatston, Associate Director for Administration, Office of Federal Contract Compliance, Department of Labor, Washington, D.C. 20210.

 Franklin then received a letter from OFCC, dated August 14, 1975 and signed by the Director, Philip J. Davis. This letter stated that HEW "has forwarded your complaint to this office for appropriate action." The letter explained that OFCC implemented Executive Order 11246 and that EEOC administered Title VII. The letter continued.

 
This Office has signed a Memorandum of Understanding with the Equal Employment Opportunity Commission which provides that the Commission investigate complaints of discrimination covered by both ...

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