United States District Court, Northern District of Illinois
May 18, 1973
ROBERT L. GORDON, PLAINTIFF,
BAKER PROTECTIVE SERVICES, INC., D/B/A WELLS FARGO SECURITY GUARD, INC., DEFENDANT
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
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
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
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
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
It is the opinion of this Court that the recommendation of
the Magistrate is sound.
THE ALLEGED VIOLATION IS NOT CONTINUOUS AND THE PLAINTIFF HAS
FAILED TO PROPERLY FILE HIS CLAIMS WITH THE EEOC
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
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
Cir. 1971), cert. denied, 404 U.S. 939
, 92 S.Ct. 274
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
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
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.
Accordingly, it is hereby ordered that the defendant's
motion to dismiss the complaint is granted.