United States District Court, Northern District of Illinois, E.D
December 11, 1972
MICHAEL KENNETH ABSHIRE, PLAINTIFF,
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
1. Prior to the 5th of April, 1971 the plaintiff, Michael
Kenneth Abshire, was
employed as a switchman by the Chicago and Eastern Illinois
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 the Illinois Revised Statutes. Illinois
Fair Employment Commission can enforce its orders by petitioning
an Illinois State Court. See Chapter 48 § 861 of the Illinois
It is undisputed that the plaintiff has not availed himself of
the benefits of the Illinois Fair Employment Statute or the
Illinois Fair Employment Practices Commission. The plaintiff has
failed to exhaust state administrative and judicial remedies
before going to the EEOC or filing his complaint before this
Clear language of § 706(b) of the act, 42 U.S.C. § 2000e-5(b)
needs no interpretation. However, the legislative history
underlying 42 U.S.C. § 2000e-5(b) reveals important reasons why
complaints must first be filed with the State agency if there is
an appropriate State statute. See 110 Cong.Rec., Part 10, 13008
and 12721 (1964). The exhaustion requirement was not part of
Title VII when it first emerged from the House of
Representatives.*fn5 This requirement was part of the
"leadership compromise agreement" introduced in the Senate to
combat the objections raised by various Senators that the House
version did not give sufficient deference to the sovereignties of
the respective states. Senator Dirksen, who along with Senators
Mansfield, Humphrey and Kuchel, was part of a leadership team
that proposed the amendment, noted:
[W]ith respect to the enforcement of the title, we
undertook to keep primary, exclusive jurisdiction in
the hands of the State Commissions for a sufficient
period of time to let them work out their own
problems at the local level.
110 Cong.Rec. 13087 (1964)*fn6
It is well settled that where rights asserted in a court are
statutory in nature, compliance with the statute in
question is a prerequisite to the commencement of a civil action
based on that statute. See, e.g., Coleman v. Brotherhood of
Railway and Steamships Clerks, etc., 340 F.2d 206 (2nd Cir.
1965); Scott v. Railroad Retirement Board, 227 F.2d 684 (7th Cir.
Thus, it is the opinion of this Court that where substantial
relief against alleged discrimination is available under state
law, the person aggrieved must pursue state remedies before a
valid complaint may be filed with the EEOC or with this Court.
The plaintiff in this case has adequate relief available under
Illinois statutes. The plaintiff has never attempted to utilize
his state remedies. Since the plaintiff has failed to exhaust, or
even begin to exhaust his state remedy, as required by § 706(b),
42 U.S.C. § 2000e-5(b), the EEOC cannot file the plaintiff's
complaint relating to alleged discrimination. Jurisdiction does
not lie in this Court until state remedies have been exhausted.
See Love v. Pullman Co., supra. The parties have represented to
this Court that neither the plaintiff nor the EEOC have filed or
otherwise notified the Illinois Fair Employment Practices
Commission. Accordingly, the EEOC, pursuant to § 706(b), does not
presently have jurisdiction over this cause of action. Since the
EEOC lacks jurisdiction to hear these allegations, this Court is
without statutory jurisdiction to consider them.*fn7
II. PLAINTIFF HAS FAILED TO STATE A PROPER CAUSE OF ACTION UNDER
THE CIVIL RIGHTS ACT OF 1870, 42 U.S.C. § 1981.
The plaintiff is a white male United States citizen who alleges
discrimination in his employment based on his sex, pursuant to
42 U.S.C. § 1981. The clear purpose of § 1981 is to provide for
equality between persons of different races. In order for a
plaintiff to predicate an action on this section, he must have
been deprived of a right, which, under similar circumstances,
would have been accorded to a person of a different race. The
applicability of this section is clearly limited to racial
discrimination. It does not pertain to discrimination on the
grounds of religion, national origin or sex. Jones v. Alfred H.
Mayer Co., 392 U.S. 409
, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968);
Georgia v. Rachel, 384 U.S. 780
, 86 S.Ct. 1783, 16 L.Ed.2d 925,
(1966); United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588
(1875); Agnew v. Compton, 239 F.2d 226 (9th Cir. 1956), cert.
denied, 353 U.S. 959
, 77 S.Ct. 868
, 1 L.Ed.2d 910 (1957);
Schetter v. Heim, 300 F. Supp. 1070
(E.D.Wis. 1969). Thus, the
plaintiff's complaint based on allegations of sex discrimination
fails to state a cause of action pursuant to § 1981.
Thus, this Court is without jurisdiction under
42 U.S.C. § 2000e et seq. and § 1981 to entertain the plaintiff's complaint.
Accordingly, it is hereby ordered, adjudged and decreed that the
defendant's motion to dismiss the plaintiff's complaint is