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December 31, 1984

NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, ALBION CORRECTIONAL FACILITY, STATE OF NEW YORK, JANICE CUMMINGS, Individually and as Superintendent of Albion Correctional Facility, JAMES BERBARY, Individually and as Deputy Superintendent of Administration of Albion Correctional Facility, FARRELL McKENDRICK, Individually and as Food Service Administrator of Albion Correctional Facility, Defendants.

The opinion of the court was delivered by: ELFVIN


In this action by a female employee of the New York State Department of Correctional Services ("the NYSDCS") alleging, inter alia, violations of 42 U.S.C. § 2000e et. seq. ("Title VII"), 29 U.S.C. §§ 206(d), 215 and 216 ("the Equal Pay Act") and 42 U.S.C. §§ 1983 and 1985, defendants have moved to dismiss portions of the Amended Complaint or for summary judgment regarding many of plaintiff's federal and pendent state causes of action.

 Initially defendants had asserted that plaintiff's Title VII claim should be dismissed pursuant to Fed.R.Civ.P. rule 12(b)(1) for lack of subject matter jurisdiction inasmuch as the Equal Employment Opportunity Commission ("EEOC") had neither dismissed nor determined plaintiff's June 13, 1983 charges against defendants of employment discrimination. On September 23, 1983 pursuant to plaintiff's attorney's request, the EEOC issued an "early" Right-to-Sue Notice due to its determination that it would not be able to "investigate and conciliate" the filed charges with the 180-day period of jurisdiction set forth in 42 U.S.C. § 2000e-5(f)(1). *fn1" See Logan-Baldwin Affidavit, Exhibit A. Although the commencement of this action prior to the issuance of the Right-to-Sue Notice does not in of itself present a jurisdictional defect, see Pinkard v. Pullman-Standard, A Div. of Pullman, Inc., 678 F.3d 1211, 1219 (5th Cir. 1982), cert. denied, 459 U.S. 1105, 103 S. Ct. 729, 74 L. Ed. 2d 954 (1983) (subsequent Right-to-Sue letter effectively ratifies earlier-filed action), the issuance of the notice prior to the passage of 180 days from the filing of the discrimination charges with the EEOC does present a jurisdictional deficiency requiring suspension and a remand of plaintiff's Title VII claim to the EEOC. *fn2"

 The September 23, 1983 Right-to-Sue letter was issued pursuant to an EEOC regulation, 29 C.F.R. § 1601.28(a)(2), which authorizes an early Right-to-Sue Notice where it is determined that it is probable that the agency will be unable to complete administrative processing of the charges prior to the expiration of 180 days from the filing of such charges. *fn3" However a number of courts have held that this regulation is invalid as it is inconsistent with Congress's intentions as expressed in 42 U.S.C. § 2000e-5(f)(1) that either dismissal by the EEOC of charges or the lapse of the 180-day period is a prerequisite to the issuance of a Notice of Right to Sue. See Mills v. Jefferson Bank East, 559 F. Supp. 34, 36 (D.Colo. 1983); Spencer v. Banco Real, S.A., 87 F.R.D. 739, 742-745 (S.D.N.Y. 1980); Loney v. Carr-Lawrey Glass Co., 458 F. Supp. 1080, 1081 (D.Md. 1978).

 These decisions are supported by dicta in numerous United States Supreme Court opinions recognizing that a private party must file charges with the EEOC and then wait 180 days before instituting a federal lawsuit. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 53 L. Ed. 2d 402, 97 S. Ct. 2447 (1977), held that the 180-day waiting period imposed no statute of limitations upon the EEOC's power to file action, but further explained that a "private right of action does not arise until 180 days after a charge has been filed." Id. at 361.

 "[A] natural reading of § 706(f)(1) [42 U.S.C. § 2000-5(f)(1)] can lead only to the conclusion that it simply provides that a complainant whose charge is not dismissed or promptly settled or litigated by the EEOC may himself bring a lawsuit, but that he must wait 180 days before doing so." Ibid.

 See also, Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, fn. 12, 104, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979) (a complainant must allow the EEOC a full 180 days to negotiate a settlement); Johnson v. Railway Express Agency, 421 U.S. 454, 458, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975) (after the passage of 180 days the claimant may demand a Right-to-Sue letter and may institute the Title VII action himself).

 Although other courts have held that section 2000e-5(f)(1) does not prohibit the EEOC from issuing a notice prior to the end of the 180-day period -- see, e.g., Saulsbury v. Wismer and Becker, Inc., 644 F.3d 1251, 1257 (9th Cir. 1980) (recognizing the futility of forcing alleged victims of discrimination to "mark time" when it appears that the EEOC will be unable to deal with the charges within the 180-day period) --, I find that the language of section 2000e-5(f)(1) is clear in requiring either the dismissal of the charges or the passage of the stated time period as a condition precedent to the filing of a Title VII cause of action in a federal district court. As recognized by the court in Spencer v. Banco Real, S.A., supra, Congress was aware of the enormous backlog of cases before the EEOC when the section was amended in 1972 (see Occidental Life Ins. Co. v. EEOC, supra, at 369-370) and any problem presented by the 180-day waiting period must properly be addressed by the legislature and not the judiciary. See Spencer v. Banco Real, S.A., supra, at 744-745.

 Therefore plaintiff's Title VII claim shall be held in abeyance and will be remanded to the EEOC with the direction that the agency retain jurisdiction and investigate and attempt to reach conciliation regarding such claim for a maximum period of 152 days (180 days minus the 28-day period from the filing of the EEOC charges to the institution of this lawsuit).

 Defendants have also moved to dismiss or, alternatively, for summary judgment regarding plaintiff's Equal Pay Act cause of action. The Amended Compalint alleges:

 "53. The Equal Pay Act guarantees employees equal pay for equal work and further provides that there shall be no retaliation against the employee who complains of denial of equal pay and/or who assists in any claim of denial of equal pay.

 54. Because of defendants' actions, plaintiff and other persons similarly situated, have been and are being subjected to denial of equal pay for equal work and are being retaliated against for having complained of employment discrimination and/or having assisted with an employment discrimination complaint."

 Defendants have submitted three affidavits stating that plaintiff received the same rate of pay as any other employee in her employment position with similar experience, that she has earned more overtime wages than other cooks who worked during the period of her employment with the NYSDCS and that she has never filed a complaint or grievance regarding a claim of unequal pay. See Berbary Affidavit, Bower Affidavit, McKendrick Affidavit. Defendants therefore assert that they are entitled to summary judgment regarding the Equal Pay Act cause of action as a matter of law. Plaintiff's opposing affidavit asserts that her equal pay claim consists of defendants having denied her overtime assignments due to her gender, as well as their general practice of giving male cooks the first opportunity to accept overtime work.

 I find that defendants are entitled to summary judgment regarding plaintiff's Equal Pay Act cause of action because, even were plaintiff's allegations to be proven completely accurate, they would fail to establish a prima facie case of a violation of 29 U.S.C. § 206(d). Although plaintiff's allegations of discriminatory assignment of overtime might present a Title VII claim -- see, e.g., Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir. 1972) --, she has neither contended nor alleged that she was actually paid at a lower rate than male employees. *fn4" Therefore she cannot possibly establish a claim under the Equal Pay Act. See also Odomes v. Nucare, Inc., 653 F.2d 246, 250 (6th Cir. 1981) (setting forth the elements of a plaintiff's prima facie case under the Equal Pay Act). Furthermore, the complaint filed by the plaintiff with the EEOC alleged, inter alia, sex discrimination regarding overtime assignments rather than unequal wage rates -- see Logan-Baldwin Affidavit, P7 -- and therefore cannot serve as the basis for a ...

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