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
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
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
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 §§ 856
and 858 of Chapter 48 of ...