Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. EV 76-54-C -- James E. Noland, Judge.
Before Fairchild, Chief Judge, Swygert, Circuit Judge, and East, Senior District Judge*fn* .
This case arises from the nonreappointment of a University faculty member who had been employed under a series of one year probationary contracts. The district court granted a motion for summary judgment filed by the University defendants and this appeal followed. We affirm in part, reverse in part, and remand for further proceedings.
Thomas Eichman, the plaintiff-appellant, was first employed by Indiana State University, at the Evansville Campus (ISUE), in September, 1970. That year, and in each succeeding year through the 1974-75 academic year, he received a one year regular probationary appointment as an assistant professor of German. In May, 1974 he was notified that he would not be reappointed at the conclusion of the 1974-75 academic year. After a hearing held in April, 1975 the University Hearing Committee concluded that Eichman had failed to establish that his non-retention was in violation of his right to academic freedom. This lawsuit, charging the defendants with violating the plaintiff's constitutional rights to free speech, liberty, property, equal protection, and substantive and procedural due process, was filed in April, 1976. As amended, the complaint also included a Title VII count and a state law count alleging a breach of contract. The plaintiff filed a motion for partial summary judgment on the free speech, substantive due process, equal protection, liberty, and privacy aspects of his complaint. The defendants responded by asking the court to treat a previously filed motion to dismiss as a motion for summary judgment on all counts. The plaintiff's motion was denied, and the defendants' granted, on March 24, 1978. The several claims dealt with will be discussed below.
In his second amended complaint the plaintiff alleged that his employment was terminated and that he was denied the opportunity to teach summer school because he "actively participated in assisting a fellow faculty member, Marion Iglehart, who asserted her rights under Title VII to retain her faculty position in the face of alleged sex discrimination by the defendant." The Title VII claim was dismissed by the district court on grounds that (a) Title VII was intended to protect persons against discrimination based on race or otherwise impermissible classifications and the plaintiff had not alleged that he was a member of a racial minority or that there were racial or sexual overtones in the action taken against him; (b) that plaintiff's allegations were conclusory in nature and failed to specify either how he assisted his fellow faculty member or what the action being taken against her was; (c) that the evidence presented was void of any substantive factual allegations supporting a Title VII claim; and (d) that the plaintiff had not satisfied the jurisdictional prerequisite of filing a timely charge with the EEOC.
There was no ambiguity in the statutory language on which plaintiff relies. Section 704 of Title VII, (42 U.S.C. § 2000e-3) states:
"It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."
We think it clear that this section extends protection to all who "assist" or "participate" regardless of their race or sex. The plaintiff alleged that he assisted a woman who was trying to exercise her Title VII rights to retain her job and that his discharge was in retaliation for that assistance. Referred to in the complaint, and attached as an exhibit, was the original EEOC complaint which stated that Marion Iglehart, the woman referred to in the complaint, had been terminated and was pursuing both her EEOC and judicial remedies under Title VII. While the plaintiff's complaint might have been drawn with more precision, we hold that it states a claim under Section 704. See Novotny v. Great American Federal Savings, 584 F.2d 1235 (3rd Cir. 1976), Cert. granted -- - U.S. -- , 99 S. Ct. 830, 59 L. Ed. 2d 30 (January 9, 1979).
The district court also held that the plaintiff could not maintain a Title VII claim because he had not first filed a complaint with the EEOC, a jurisdictional prerequisite to suit. A right-to-sue letter had been issued to the plaintiff, and was attached to the complaint, but the district court found this insufficient since the underlying EEOC complaint had been filed not by the plaintiff but by a colleague, William Sands. The court held that the plaintiff was barred from bringing suit under Title VII, citing United Air Lines v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977), for the proposition that a plaintiff cannot rely on an EEOC charge filed by a third party to satisfy the jurisdictional prerequisite.
Although Evans does not really discuss the issue, it is undoubtedly true, class action technicalities aside, that the statute requires that a Title VII complaint be presented to the EEOC before action can be brought in district court. Missing from the memorandum entry of the district court, however, is any discussion of the fact that in this case the third party complaint to the EEOC named the plaintiff as a person who was retaliated against by the defendants for his support of Ms. Iglehart. Specifically, the last paragraph of William Sands' EEOC complaint contained these words:
"(T)he three members of the faculty who tried hardest to help Prof. Iglehart to retain her job have all met with reprisal at the hands of the ISUE administration, or, to be more specific, at the hands of President David Rice and Dean Donald Bennett. For Professor Michael Pasko, Professor Thomas Eichman, and myself have all been denied continuing positions at the university (for 1975-76). It would seem that this is either an odd coincidence or a pattern of reprisal directed at those who oppose, or who have opposed, the administration in the past."
Title VII does not require that as a prerequisite to suit an individual alleging discrimination must first file a complaint with the EEOC. Instead, the statutory language speaks of a charge filed "by Or on behalf of a person claiming to be aggrieved" (42 U.S.C. § 2000e-5(b)) (emphasis added), and states that a civil action may be brought "by the person claiming to be aggrieved" (s 2000e-5(f)(1)). Since Thomas Eichman was named in William Sands' complaint as a person aggrieved by the University's retaliatory actions, (and the EEOC apparently deemed him a person aggrieved), we hold that the jurisdictional prerequisite was satisfied and the district court erred in dismissing the complaint on that ground. See Antonopulos v. Aerojet-General Corporation, 295 F. Supp. 1390 (E.D.Cal.1968).
Finally, apart from its jurisdictional ruling, it appears that the district court may have considered that the defendants were entitled to summary judgment on the plaintiff's Title VII claim. As already pointed out, we hold that plaintiff stated a claim under Section 704, and the record would not support summary judgment for defendants. The judgment as to the Title VII ...