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O'BRIEN v. SHIMP

January 12, 1973

LEE O'BRIEN, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
WAYNE S. SHIMP, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SHERIFF OF DUPAGE COUNTY, DEFENDANT.



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

  MEMORANDUM OPINION

MOTION TO DISMISS

I.

Plaintiff brings this action pursuant to 42 U.S.C. § 1983 against the Sheriff of DuPage County alleging that defendant has deprived her of her constitutional rights by refusing to hire her as a Deputy Sheriff Patrolman. In Count I plaintiff alleges that prior to December 20, 1971 she passed written, oral and physical examinations given by the DuPage County Sheriff's Merit Commission for the position of Deputy Sheriff Patrolman and was placed on a list of certified candidates for that position; that she subsequently was informed by the Sheriff's Department that she could not be hired as a Deputy Patrolman because she is female; and that the defendant does not hire females to perform the same duties as are performed by male Deputy Sheriff Patrolmen. These actions, plaintiff states, are in violation of her due process and equal protection rights guaranteed by the Fourteenth Amendment and also "conflict" with Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

Plaintiff prays that this Court declare defendant's conduct in refusing to hire females for the Deputy Sheriff Patrolman position unconstitutional; that an injunction issue to restrain defendant from refusing to hire females based on considerations other than ability; that the Court order defendant to undertake a program of affirmative action to attract female employees to the position of Deputy Sheriff Patrolman and plaintiff be awarded $25,000.

Plaintiff also seeks to maintain this suit as a class action pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure on behalf of all those females who wish to be employed by defendant in the position of Deputy Sheriff Patrolman but who are barred from such employment because of their sex.

Count II, which was added subsequent to the filing of Count I restates the basic factual allegations of Count I and in addition claims that plaintiff was employed as a Records Clerk by the DuPage County Sheriff's Department, a position she was actively engaged in until May 29, 1972 at which time she was involved in a serious automobile accident; that after the accident she was receiving disability payments from the Sheriff; that on Friday, August 18, 1972, the day after plaintiff filed Count I of this complaint the defendant became aware of this suit and because of it summarily fired her in retaliation, such conduct being in violation of her constitutional rights and in conflict with Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. plaintiff, in Count II seeks retention in her position as Records Clerk and a judgment in the amount of $10,000.

Defendant has filed a Motion to Dismiss Count I on the grounds that 1) Plaintiff lacks standing under 42 U.S.C. § 2000e-5, the Civil Rights Act of 1964 since she has failed to first seek administrative relief before the Equal Employment Opportunity Commission; that monetary relief is not proper under 42 U.S.C. § 2000e-5(g); and that as an agent of a political subdivision of the State defendant is exempt from suit under 42 U.S.C. § 2000b. 2) Plaintiff has an adequate remedy at law either before the Fair Employment Practices Commission of Illinois or the State Courts. 3) Under the doctrine of abstention the State of Illinois should be allowed to resolve the issues. 4) Defendant is immune under State law from liability for the acts alleged in the complaint.

Defendant also seeks dismissal of the 42 U.S.C. § 1983 claims on the grounds that 1) § 1983 does not apply to suits for sex discrimination in employment; 2) Plaintiff has failed to meet the jurisdictional amount requirements because the 28 U.S.C. § 1331 requirements are not waived in a suit for employment discrimination although brought under § 1983; 3) the acts complained of were not done under color of State law. 4) Plaintiff has failed to exhaust State administrative remedies.

As to Count II, defendant seeks dismissal as to the 42 U.S.C. § 2000e et seq. claim on the grounds that plaintiff has failed to exhaust her administrative remedies before the EEOC and that monetary damages are not available under this statute. In addition, defendant argues that: Plaintiff fails to state a claim because the acts complained of were not done under color of State law; the Sheriff is immune from suit; Plaintiff has an adequate remedy at law in the State Courts; Plaintiff has failed to exhaust State administrative remedies; Plaintiff should elect between State and Federal remedies; Plaintiff fails to meet the jurisdictional amount requirements of 28 U.S.C. § 1331.

II.

Count I

A. Civil Rights Act of 1964 — Title VII

Plaintiff has complained that "Defendant's policy and conduct in refusing to hire plaintiff in the manner described above conflicts with Title VII of the Civil Rights Act of 1964, as amended, and is therefore void under the Supremacy Clause of the United States Constitution." (Amended Complaint P. 4). Defendant argues that Count I cannot be framed as a Title VII action because a political subdivision of a State and its agents were exempt from such a suit as indicated in 42 U.S.C. § 2000e(b) at the time the action complained of occurred; that plaintiff lacks standing under Title VII because she has failed to exhaust her administrative remedies before the EEOC as required by 42 U.S.C. § 2000e-5(f) and that monetary relief is improper under 42 U.S.C. § 2000e-5(g).

It is apparent under any construction of the facts that plaintiff is foreclosed from bringing Count I as a Title VII action. First, at the time the complained of act occurred the Sheriff, as plaintiff indeed concedes, was exempt from suit under 42 U.S.C. § 2000e(b). Although as of March 1972 "a State or political subdivision thereof" is no longer exempted from the definition of "employer" and defendant's conduct of continuing to deny plaintiff the position of Deputy Sheriff Patrolman after March 1972 is conceivably no longer immune from a Title VII suit, nevertheless plaintiff has failed to meet the other requirements of § 2000e et seq. such as the commencement of action before the EEOC which under § 2000e-5(e) is the jurisdictional prerequisite for an employment practices suit under Title VII. Dent v. St. Louis-San Francisco Ry. Co., 406 F.2d 399, 403 (5th Cir. 1969); Choate v. Caterpillar Tractor Co., 402 F.2d 357, 359 (7th Cir. 1968); Stebbins v. Nationwide Mutual Ins. Co., 382 F.2d 267, 268 (4th Cir. 1967); James v. Ogilvie, 310 F. Supp. 661, 664 (N.D.Ill. 1970). Thus plaintiff is foreclosed from a Title VII suit for the pre-March 1972 conduct because of defendant's immunity and for the post-March 1972 conduct because of failure to exhaust Federal remedies.

Plaintiff seemingly concedes that she is not seeking jurisdiction under Title VII (Memorandum in Opposition to Motion to Dismiss P. 5) and claims that she need not resort to the EEOC because her claims are "broader than those protected by the narrow provisions of the statute" (Memo. supra P. 9). What plaintiff therefore is attempting to do by construing defendant's conduct as being in "conflict" with Title VII and therefore void under the Supremacy Clause, is to partake of the statutory benefits of Title VII without being compelled to adhere to its procedural requirements. Quite understandably such an attempt must fail. Either the suit is brought under the jurisdiction of Title VII or it is not a Title VII suit. Although there are indeed some instances cited by plaintiff where jurisdiction under Title VII was not sought yet where a complaint based on a "conflict" with Title VII was to a certain extent permitted, e.g. McCrimmon v. Daley, 418 F.2d 366 (7th Cir. 1969) and Caterpillar Tractor Co. v. Grabiec, 317 F. Supp. 1304 (S.D.Ill. 1970), both of those cases involved statutes or ordinances which can technically be construed as truly "conflicting" with Title VII, in McCrimmon, the Chicago Bar Maid Ordinance and in Caterpillar, the Illinois Female Employment Act. Yet if we were to permit suits for conduct, conflicting with Title VII without requiring the jurisdictional requirements of Title VII then all of ...


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