United States District Court, Northern District of Illinois
May 1, 1974
ANDREW WILLIS, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
CHICAGO EXTRUDED METALS COMPANY, A CORPORATION, AND ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO LOCAL 717, AN UNINCORPORATED ASSOCIATION, DEFENDANTS.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on the defendant Chicago Extruded Metal
Company's ("Extruded Metals") motion to strike and dismiss. 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.
This Court is alleged to have jurisdiction under 42 U.S.C. § 2000e-5(f),
29 U.S.C. § 301(a), 28 U.S.C. § 1331 and 1343, and
42 U.S.C. § 1985.
The plaintiff Andrew Willis is a Negro citizen of the United
States residing in Chicago, Illinois. The defendants are the
former employer of Andrew Willis, Chicago Extruded Metals Company
("Extruded Metals"), an Illinois corporation having its principal
place of business in Chicago, Illinois, and the plaintiff's
former union, Allied Industrial Workers of America, AFL-CIO,
Local # 717 ("Local 717"), a labor organization within the
meaning of 29 U.S.C. § 152(5) of the Labor Management Relations
The plaintiff, in his amended complaint, alleges the following
facts, inter alia:
1. Plaintiff Andrew Willis brings this action on his
own behalf and on behalf of all other persons
similarly situated pursuant to Rule 23(b)(2) of
the Federal Rules of Civil Procedure. The class
which plaintiff represents is composed of all
(a) who were or are members of Local 717;
(b) who will apply for membership or become
members of Local 717;
(c) who were, are, or will be represented by Local
(d) who have sought or will seek employment with
Extruded Metals; and
(e) who were or are employed by Extruded Metals.
2. The defendant Local 717 conspired with the
defendant Extruded Metals to make possible
racially discriminating employment practices.
3. The defendants have discriminated against Andrew
Willis because of his race and color by denying
him equal opportunity for employment retention and
advancement. Further the defendants have prevented
the plaintiff from exercising his rights under
employment contracts and from receiving equal
treatment under the applicable collective
4. More specifically, on or about March 19, 1971, at
approximately 2:45 a.m., plaintiff Andrew Willis
was working the night shift for Extruded Metals
when he received a telephone call from his
daughter asking him to come home as his grandchild
was very sick. The plaintiff was unsuccessful in
locating a foreman or supervisor in order to
obtain permission to leave, so he left the plant
after notifying his fellow workers of his
intentions. In his haste to aid his grandchild the
plaintiff forgot to "punch out". On that same day,
March 19, 1971, the defendant Extruded Metals,
without any hearing, fired the plaintiff Andrew
5. The plaintiff has fully complied with all
procedural requirements of Title VII. A timely
complaint was filed with the Equal Employment
(EEOC) within 210 days of the alleged unlawful
employment practices, more than sixty days after
referral of the charges to the Illinois Fair
Employment Practice Commission, and the instant
action was filed within 30 days from the date
plaintiff received notification from EEOC of his
right to sue.
The plaintiff seeks damages for lost wages and additional
damages in the amount of $100,000 for emotional harm, degradation
and humiliation, $100,000 exemplary damages, plus the cost of
maintaining the instant law suit.
More specifically, in Count I of the complaint the plaintiff
alleges that the defendant company follows and maintains "a
racially discriminating policy of hiring, firing and promoting
Negro workers" by means of putting into effect "a formal or
informal quota system for the purpose of limiting the percentage
and numbers of Negro workers", by requiring "qualified Negro
workers to be sponsored by a Chicago Extruded employee in order
to be eligible for employment", by establishing "a discriminatory
layoff system" and by establishing "a promotional and seniority
system limiting the employment and promotional opportunities of
Negro employees". In Count II of the complaint the plaintiff
alleges that the defendant company discharged the plaintiff and
entered into a conspiracy with the defendant union to prevent the
plaintiff from exercising his rights under the collective
bargaining agreement because of his race. In Count III of the
complaint plaintiff alleges that the defendant union violated its
duty of fair representation under the National Labor Relations
Act by entering into a conspiracy to deprive plaintiff of his
rights under the collective bargaining agreement.
The defendant company in its instant motion contends that the
allegations contained in Count I of the amended complaint so
materially deviate from the gravamen of the charge filed by the
plaintiff with the EEOC that the plaintiff has utterly failed to
exhaust the administrative remedies under the Civil Rights Act of
1964 with respect to all issues contained in Count I and thus
this Court has no jurisdiction over the subject matter of that
In support of its instant motion to strike and dismiss Count I
of the amended complaint the defendant Extruded Metals contends
1. The subject matter of Count I is not included or
related to the allegations contained in the charge
filed with the EEOC.
2. The District Court has no jurisdiction over
allegations which extend beyond the scope of the
charge filed with the EEOC.
3. The claimed jurisdiction of this Court under Title
42 U.S.C. § 1981 does not allow matters to be
pleaded outside the scope of the original charge
filed with the EEOC.
The plaintiff in opposition to the instant motion contends that
this Court has jurisdiction over Count I of the amended
This Court in its Memorandum Opinion and Order dated April 25,
1973 found that this Court has jurisdiction under 42 U.S.C.
Section 2000e et seq. and that the plaintiff's amended complaint
properly states a cause of action under the Civil Rights Act of
1870, 42 U.S.C. § 1981. See Willis v. Chicago Extruded Metals
Company, 358 F. Supp. 848 (N.D.Ill. 1973). It is the opinion of
this Court that the instant motion is without merit and that this
Court has jurisdiction over Count I of the instant amended
It is well settled that when an employee seeks judicial relief
for incidents not listed in his original charge to the EEOC, the
judicial complaint nevertheless may encompass any discrimination
like or reasonably related to the allegations of the EEOC charge,
including new acts occurring during the pendency of the charge
before the EEOC. See Oubichon v. North American Rockwell
Corporation, 482 F.2d 569 (9th Cir.
1973); Danner v. Phillips Petroleum Co., 447 F.2d 159 (5th Cir.
1971); Tipler v. E.I. du Pont de Nemours & Co., 443 F.2d 125 (6th
Cir. 1971); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th
Cir. 1970); Taylor v. Safeway Stores, Inc., 333 F. Supp. 83
(D.Colo. 1971); Garneau v. Raytheon Co., 323 F. Supp. 391 (D.Mass.
1971); Sciaraffa v. Oxford Paper Co., 310 F. Supp. 891 (D.Me.
1970); Logan v. General Fireproofing Co., 309 F. Supp. 1096
(S.D.N.C. 1969); King v. Georgia Power Co., 295 F. Supp. 943
(N.D.Ga. 1965); note, "Developments in the Law-Employment
Discrimination and Title VII of the Civil Rights Act of 1964", 84
Harv.L.Rev. 1109 (1971); cf. Macklin v. Spector Freight Systems,
Inc., 156 U.S.App.D.C. 69, 478 F.2d 979 (1973).
To force an employee to return to the EEOC every time he claims
a new instance of discrimination in order to have the EEOC and
the courts consider the subsequent incidents along with the
original ones would erect a needless procedural barrier. Cf. Love
v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679
Two competing policies must be weighed in determining whether
there is a material variance between charges which have been
filed with the EEOC and the allegations of the complaint in a
subsequent court suit. The first is that an EEOC charge must
sufficiently inform the commission of the nature of the alleged
unlawful practices so that it can make a reasonable attempt at
the "conciliation" contemplated by the Civil Rights Act. See
Edwards v. North American Rockwell Corp., 291 F. Supp. 199
(C.D.Cal. 1968). To permit a civil action based upon allegations
other than those presented to the Commission would permit a
plaintiff to bypass the conciliation procedures of the Act and
thereby to frustrate its purposes. See 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).
Accordingly, courts have ruled that the complaint in a court suit
cannot be based upon wholly new derelictions which were not
presented to or considered by the Commission. See Edwards v.
North American Rockwell Corp., supra.; cf. Stebbins v. Nationwide
Mutual Insurance Company, supra.
On the other hand, the Civil Rights Act is designed to protect
those who are least able to protect themselves. Complainants to
the EEOC are seldom lawyers.*fn1 To compel the charging party to
specifically articulate in a charge filed with the Commission the
full panoply of discrimination which he may have suffered may
cause the very persons Title VII was designed to protect to lose
that protection because they are ignorant of or unable to
thoroughly describe the discriminatory practices to which they
are subjected.*fn2 The correct rule is that the complaint in the
civil action is confined to those issues which the original
complainant has standing to raise, but may properly encompass any
such discrimination like or reasonably related to the allegations
of the EEOC charge or growing out of such allegations during the
pendency of the case before the Commission. Stebbins v.
Nationwide Mutual Insurance Company, supra.
It is against this background that the courts have generally
required no more than that the charge provide the Commission with
general notice of the matter
to be investigated, and that the issues properly presented in a
subsequent court action may include those which grow out of or
are reasonably related to the Commission's investigation.
Applying the foregoing principles to the present case, this
Court is satisfied that the allegations of the complaint are
sufficiently related to the EEOC charges to permit this action to
proceed.*fn3 It is true that the allegations of Count I of the
amended complaint are broader than those in the plaintiff's EEOC
charge. The charge filed with the EEOC alleged a discriminatory
discharge because of race. The plaintiff did not expressly allege
that his discharge was the consequence of a policy and practice
of limiting, segregating, classifying, and discriminating against
blacks in a way which jeopardizes the jobs of blacks and their
employment opportunities as detailed in Count I of the amended
complaint. However, the EEOC charges simply stated in laymen's
language the "unfair thing that happened"*fn4 to the plaintiff,
that is, the discriminatory discharge, without attempting to
specify the underlying causes of the alleged discriminatory acts,
that is, the alleged discriminatory employment policy and system
maintained by the company and the union. Moreover, the Commission
accepted the charges as the basis for a comprehensive
investigation, as a result of which it found reasonable cause to
believe that the plaintiff's discharge was the result of the
underlying patterns of discrimination alleged in the instant
complaint.*fn5 It is evident that the brief statement of facts
in the charges filed with the Commission gave it sufficient
notice of the nature of discrimination complained of so that it
was able to make the investigation and conciliation efforts
contemplated by the Act. It is clear that the issues raised by
the present amended complaint are well within the compass of
those which could be developed from the facts alleged by the
plaintiff in his charge filed with the EEOC.
Under the circumstances disclosed by the present record, this
Court cannot say that there is such a fatal material variance
between the EEOC charges and the allegations of Count I of the
amended complaint that the plaintiff must be denied his day in
Accordingly, it is hereby ordered that the defendant's motion
to strike and dismiss Count I of the amended complaint is denied.