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ABSHIRE v. CHICAGO AND EASTERN ILLINOIS RAILROAD CO.

December 11, 1972

MICHAEL KENNETH ABSHIRE, PLAINTIFF,
v.
CHICAGO AND EASTERN ILLINOIS RAILROAD COMPANY, AN INDIANA CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes on defendant's motion to dismiss the complaint. This is an action to redress alleged deprivation of the plaintiff's civil rights pursuant to the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1870, 42 U.S.C. § 1981.

The plaintiff is a male United States citizen who resides in the State of Illinois. The defendant, the Chicago and Eastern Illinois Railroad Company, is an Indiana corporation doing business in the State of Illinois in the greater Chicago area. The defendant company is engaged in the operation and maintenance of railroad service and is an employer within the meaning of 42 U.S.C. § 2000e(b) and (c). More specifically, the defendant corporation is engaged in an industry affecting commerce, and employs at least 25 persons.

In his complaint, plaintiff alleges, inter alia, the following facts:

1. Prior to the 5th of April, 1971 the plaintiff, Michael Kenneth Abshire, was employed as a switchman by the Chicago and Eastern Illinois Railroad Company.

2. The plaintiff was dismissed from said employment on or about the 5th of April, 1971 because of the length of his hair. At that time the plaintiff's hair was the same length as that of females who were employed by the defendant.*fn1

3. On August 11, 1971, the plaintiff filed written charges of such discrimination, under oath, with the Equal Employment Opportunity Commission (hereinafter referred to as "EEOC"), alleging denial by the defendant of petitioner's rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

4. The complaint was filed with this Court within 30 days after the plaintiff received a letter from the EEOC stating that he was entitled to institute a civil suit in the appropriate federal District Court.

In his prayer for relief, the plaintiff requests both monetary and injunctive relief.

The defendant, in support of its motion to dismiss, contends that the plaintiff has failed to exhaust his state remedies. In particular, the defendant contends that plaintiff has never applied to the Illinois Fair Employment Practices Commission, as required by § 706(b) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(b).

It is the opinion of this Court that the plaintiff has failed to allege a proper basis for jurisdiction in this Court under 42 U.S.C. § 2000e-5(b) and § 1981.

I. THE PLAINTIFF HAS FAILED TO FULFILL THE JURISDICTIONAL
    REQUIREMENT OF § 706(b) OF THE CIVIL RIGHTS ACT OF 1964,
    42 U.S.C. § 2000e-5(b).

It is well settled that subsection 2000e-5(b) contains a clear mandate requiring the victim of an alleged unlawful employment practice to proceed under available state statutes and administrative remedies before a charge can be filed with the EEOC.*fn2 See Equal Employment Opportunity Commission v. Union Bank, 408 F.2d 867 (9th Cir. 1969); Stebbins v. Nationwide Mutual Insurance Company, 382 F.2d 267 (4th Cir. 1967), cert. denied, 390 U.S. 910, 88 S.Ct. 836, 19 L.Ed.2d 880 (1968). Illinois, the situs of the alleged discrimination, has a Fair Employment Practices Act and a Fair Employment Practices Commission. See 48 Ill.Rev.Stat. § 851 et seq. The parties have represented to this Court that neither the plaintiff, nor the EEOC, have filed a complaint under the Illinois Fair Employment Practices Act.*fn3

The defendant, in addition to its verbal statement to this Court, has submitted an affidavit from Maxine Longanecker, Administrative Assistant to the Director of the Illinois Fair Employment Practices Commission, which attests to the fact that the docket book of the Commission reveals no charge of employment discrimination filed by or on behalf of the plaintiff against the defendant. The plaintiff's claim of alleged sexual discrimination as the cause for his discharge from employment by the defendant is actionable under Chapter 48 § 853(a) of the Illinois Revised Statutes.*fn4 The Illinois Fair Employment Practices Commission is empowered to grant the plaintiff adequate relief under ยงยง 856 and 858 of Chapter 48 of ...


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