The defendant's contention that this court lacks subject matter
jurisdiction, due to the plaintiff's failure to file with the FEPC, is
without merit. In addressing a similar argument, arising in relation to
section 14(b) of the Age Discrimination in Employment Act of 1967
(ADEA), 29 U.S.C. § 633 (b), the United States Supreme Court has held
that the appropriate state agency must be given an opportunity to
entertain the claim before the federal litigation can continue; however,
during this period, the federal suit should be held in abeyance. Oscar
Mayer & Co. v. Evans, 441 U.S. 750, 764, 99 S.Ct. 2066, 2075, 60 L.Ed.2d
609. If the state claim is dismissed as untimely, or the state agency is
unable to achieve a settlement within sixty days, the plaintiff may then
pursue the present litigation.
The defendant also contends that the court lacks jurisdiction because
the plaintiff's charge of discrimination was filed with the EEOC more
than 180 days after the alleged unlawful employment practices occurred.
The defendant maintains that the last alleged act of discrimination
occurred on May 17, 1979 when the plaintiff was notified of his transfer
to Sandridge School. The defendant submitted the affidavit of the
Superintendent of Schools to support this contention. In addition, a copy
of the EEOC charges dated December 12, 1979, 209 days after notification
of the reassignment, was submitted.
The court has reviewed the pleadings, affidavits, and other materials
on file, and believes that there exists a material question of fact as to
whether the pattern of discrimination alleged continued up to the date of
filing the original charge. As stated previously, the plaintiff had
apparently requested a transfer back to the Waterman School on March 3,
1980. In addition, the plaintiff taught at the Sandridge School, despite
his dissatisfaction with the assignment, through November 30, 1980. Under
these circumstances, the court believes that a question of fact exists
whether there was a continuing violation of the Act. Cf. Cox v. U.S.
Gypsum Co., 409 F.2d 289 (7th Cir. 1969).
In addition, the plaintiff has requested leave to amend his complaint
to add a count for the allegedly discriminatory discharge from his
employment. The EEOC has issued a right to sue letter concerning this
charge on May 8, 1980. The plaintiff is granted leave to amend his
For the reasons stated, the defendant's motion for summary judgment is
denied. The plaintiff is directed to refer his charges of discrimination
to the FEPC. This court will retain jurisdiction over the cause until
further action by the FEPC.
IT IS SO ORDERED.
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