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United States District Court, Northern District of Illinois

May 18, 1973


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


This cause comes on the defendant's motion to dismiss the complaint for lack of subject matter jurisdiction. This is an action to redress alleged deprivation of the plaintiff's civil rights to equal employment opportunities pursuant to the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This Court is alleged to have jurisdiction over the instant action pursuant to Section 706(f) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f) and 28 U.S.C. § 1331(a), and § 1343(3).

  The plaintiff is a citizen of the United States, a resident
of Chicago, Illinois, and employed by the defendant Baker
Protective Service, Inc., d/b/a Wells Fargo Security Guard,
Inc. ("Wells Fargo"). Wells Fargo is an employer within the
jurisdiction and meaning of § 701 of the Civil Rights Act of
1964, 42 U.S.C. § 2000e(b).

  The plaintiff, in his Second Amended Complaint, alleges the
following facts, inter alia:

  1.  That beginning in December of 1969, plaintiff
      was denied the right of promotion, in spite
      of his seniority; that on or about September
      22, 1970, plaintiff was subjected to demotion
      after his continuous complaints concerning
      the discriminatory denial of promotion; and
      in February, 1971, the plaintiff was
      involuntarily transferred to a lower position
      by the party defendants, all due to his race
      and color.

  2.  This continuous pattern of discrimination
      still continues to effect the plaintiff and
      constitutes a denial of his right to equal
      job opportunities and use of his seniority
      and abilities.

  3.  Since December, 1969, and until the present
      date, the plaintiff has continuously been
      subjected to harassment, condemnation and
      illegal suspensions due to his race and color
      by the party defendants.

  4.  That on June 7, 1971 charges were filed by
      the plaintiff with the Equal Employment
      Opportunity Commission (EEOC) regarding the
      alleged discriminatory conduct of September
      22, 1970 describing it as continuous.

  5.  On May 16, 1972, the EEOC issued to plaintiff
      a "Notice of Right to Sue" letter, a copy of
      which was attached to the original Complaint.

The plaintiff seeks relief pursuant to the provisions of 42 U.S.C. § 2000e-5(g).

The defendant Wells Fargo in support of its motion to dismiss contends:

  1.  The plaintiff's Complaint alleges three
      specific acts of purported discrimination
      occurring in December 1969, on September 22,
      1970, and in February, 1971.

  2.  Plaintiff does not allege that he invoked the
      appropriate administrative remedy within the
      required time period following any of the
      purported acts of discrimination.

  3.  Invoking the appropriate administrative
      remedy following an alleged act of
      discrimination is a jurisdictional
      prerequisite to the maintenance of a civil
      rights action under 42 U.S.C. § 2000e-5(f).

  4.  The plaintiff's failure to invoke such remedy
      deprives this Court of jurisdiction under
      Title VII of the 1964 Civil Rights Act with
      respect to each of the alleged discriminatory
      acts, which are the only specific acts of
      discrimination alleged by the plaintiff.

The plaintiff, in opposition to the instant motion, contends that since the discrimination was continuing his complaint was filed with the EEOC within the requisite period of time.

Magistrate Balog in his Report and Recommendation to this Court stated that the alleged violation was not continuing and thus the complaint should be dismissed based on the plaintiff's failure to file his claim within the requisite period time.

It is the opinion of this Court that the recommendation of the Magistrate is sound.


It is well settled that the statutory period of time for filing a complaint with the EEOC pursuant to 42 U.S.C. § 2000e-5(e) is a jurisdictional prerequisite to any subsequent action. The statutory period for filing constitutes, in effect, a limitation by Congress on the right to proceed before the EEOC or in a subsequent suit in a district court. Moore v. Sunbeam Corp., 459 F.2d 811 (7th Cir. 1972); Malone v. North American Rockwell Corp., 457 F.2d 779 (9th Cir. 1972); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). If an alleged violation is deemed to be "continuing" the statutory period is of little practical effect. Bartmess v. Drewrys U.S. A., Inc., 444 F.2d 1186 (7th Cir. 1971), cert. denied, 404 U.S. 939, 92 S.Ct. 274, 30 L.Ed.2d 253. Consequently, it is necessary for this Court to determine whether the plaintiff's complaint filed June 7, 1971 with the EEOC alleged discrimination which involved a violation of a continuing nature rather than an isolated transaction.

The plaintiff, in his charge of discrimination, filed with the EEOC on June 7, 1971, alleged that he was demoted on September 22, 1970 because of his race. This charge was referred to the Illinois Fair Employment Practices Commission on August 10, 1971. No allegation of a continuing violation and no other specific act of harassment, or condemnation was alleged in the charge filed with the EEOC. On May 16, 1972 the EEOC mailed to plaintiff a "Notice of Right to Sue Within 90 Days" letter. This section was commenced on August 9, 1972.

It is clear that the plaintiff's claim was not filed with the EEOC within the statutory period of 210 days.*fn* The alleged violation filed with the EEOC was not alleged to be nor could it be a continuing violation. Rather it was a complete isolated transaction occurring on September 22, 1970. Further, the additional allegations of the second amended complaint that the plaintiff was denied a promotion in December of 1969 and was transferred to a lower salary in February of 1971 have not been made the subject of a specific charge to the EEOC. The Court is therefore without jurisdiction to consider those allegations. Moore v. Sunbeam Corp., supra.

The plaintiff's claims fail to satisfy the jurisdictional prerequisite of proper filing of a charge with the EEOC and therefore this Court is without jurisdiction to consider them. Choate v. Caterpillar Tractor Company, 402 F.2d 357 (7th Cir. 1968).

Accordingly, it is hereby ordered that the defendant's motion to dismiss the complaint is granted.

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