APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before: HUNTER, GARTH, Circuit Judges, and STERN,*fn* District Judge
1. Charlotte T. Kocian filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging that her employer, Getty Refining and Marketing Company ("Getty"), discriminated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1976 & Supp. III 1979). Getty filed a motion for summary judgment asserting that Ms. Kocian's action was barred by the statute of limitations in 42 U.S.C. § 2000e-5(e) (1976). The district judge granted Getty's motion, and Ms. Kocian appeals. We will affirm.
2. Ms. Kocian was employed by Getty as a chemical engineer at its Delaware City, Delaware refinery from October 29, 1979, until February 16, 1980. She alleges, inter alia, that on February 16, 1980, she was "constructively discharged" after a dispute with her supervisor.
3. Ms. Kocian went to the Philadelphia area Equal Opportunity Commission ("EEOC") to file a discrimination charge against Getty on May 19, 1980. The office closed before she could see a counselor, but she did fill out a preliminary intake form. She was told that a counselor would be in touch with her.
4. Ms. Kocian retained counsel and first met with her on August 4, 1980, 170 days after the discharge.She returned with her lawyer to the EEOC office on August 11, 1980, 177 days after her discharge. Ms. Kocian, her lawyer, and an EEOC intake officer began drafting her charge but did not complete their drafting on that day.
5. On the following day the EEOC officer called Ms. Kocian to read her his completed proposed charge and to indicate that he would mail it to her for her signature. On August 15, 1980, the 181st day after the discharge, he mailed the "potential charge" to Ms. Kocian and told her to review it, sign it, and return it to the EEOC "[i]n order for the Commission to proceed any further." App. at 60a. He also stated that "[b]ecause a charge must be filed within the time limitation imposed by law, I urge you to complete these three steps as soon as possible." Id.
6. Ms. Kocian and her attorney reviewed the proposed charge and decided to make some corrections. They drafted another charge and mailed it to the EEOC officer on August 28, 1980. They instructed him either to use their draft or to incorporate their corrections into his initial proposed charge. He returned the corrected charge for Ms. Kocian's signature on Septemer 4, 1980, and again indicated that she should return the charge immediately because "a charge must be filed within the time limitations imposed by law." App. at 57a. Ms. Kocian signed the formal charge and mailed it to the EEOC on September 8, 1980, 205 days after Ms. Kocian's discharge. The EEOC's time stamp indicates that the EEOC did not receive the charge until October 3, 1980. Thus Ms. Kocian's formal charge was not filed with the EEOC until 230 days after the date of the last act of discrimination against her.
7. Ms. Kocian never filed a charge with the Delaware Department of Labor, the state deferral agency approved by the EEOC. See 42 U.S.C. § 2000e-5(c) (1976). The EEOC did not defer Ms. Kocian's charge to the state agency because the agency's ninety-day statute of limitations had run. The affidavit of Johnny J. Butler, District Director of the EEOC, which was submmitted by Ms. Kocian in opposition to Getty's motion for summary judgment, states as follows:
Pursuant to the Rules and Regulations of the Commission and the procedures in the Commission's Compliance Manual, no copy of [Ms. Kocian's] charge was sent to the Delaware Department of Labor because more than ninety (90) days had passed since the complained of event; and this agency has a ninety (90) day filing period. This was the proper procedure at the time.
8. On March 31, 1981, the EEOC issued a Right to Sue Letter to Ms. Kocian, and she filed suit in district court withing ninety days of receipt of that letter. Getty then filed a motion for summary judgment arguing that Ms. Kocian had not filed her charge with the EEOC within 180 days of the date of the last act of discrimination against her as 42 U.S.C. § 2000e-5(e) (1976) ...