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July 16, 1980


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


Plaintiff, a black male, was hired as Supervisor, Equal Opportunity, by defendant International Harvester Company ("Harvester") in May, 1977. He worked in that capacity at Harvester until June, 1978, when he was terminated during a company-wide reduction in force. Plaintiff, believing his discharge to be racially discriminatory, pursued his various administrative remedies. After receiving a Notice of Right to Sue from the Equal Employment Opportunity Commission dated February 14, 1979, he filed this action.

In his twelve-count complaint, plaintiff advances a number of legal theories upon which relief may be premised. Five of the counts (I, II, VII, VIII, X) allege racial discrimination in violation of Title VII, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and Executive Order 11246. The remaining counts, before this Court under the doctrine of pendent jurisdiction, seek recovery under Illinois tort and contract theories as well as Illinois antidiscrimination law. This case now is before the Court on defendants' motions for judgment on the pleadings as to seven counts of the complaint, and to amend the answer to add a third affirmative defense.

I. Judgment on the Pleadings*fn1

A. Counts IX-X

Counts IX and X of the complaint are based on Executive Order 11246. Count X seeks damages for violation of 11246 under a theory of implied federal right of action, whereas Count IX alleges that plaintiff may sue under state law as a third-party beneficiary of the 11246 requirements incorporated in contacts between Harvester and the federal government.

Defendants contend that Count X must be dismissed for the reason that 11246 does not give rise to an implied right of action. This Court agrees. The Seventh Circuit has so held, Cohen v. Illinois Institute of Technology, 524 F.2d 818, 822 n.4 (7th Cir. 1975), cert. denied, 425 U.S. 943, 96 S.Ct. 1683, 48 L.Ed.2d 187 (1976), as has virtually every federal court to consider the issue.*fn2 Plaintiff's lengthy discussion on the Supreme Court's implication of a private right of action in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), has not persuaded the Court that a different result now should obtain. Cannon clearly was not the Supreme Court's last word on implied private rights of action. See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Reddington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). As this Court has observed, Transamerica and Touche Ross have established congressional intent as the pivotal factor in determining the existence of an implied private right of action. Stone v. Saxon & Windsor Group, Ltd., 485 F. Supp. 1212 (N.D.Ill. 1980). In examining the administrative scheme of enforcement, the language of the executive order, and legislative history of related civil rights provisions, the Court can find no evidence of a congressional intent to create a private right of action directly under 11246.*fn3 Thus, even were this Court writing on a clean slate, it would not construe 11246 as providing for an implied right of action.

Defendants' position with respect to the third-party beneficiary theory contained in Count IX is derivative of their argument as to Count X. Defendants observe that one reason federal courts have declined to read into 11246 an implied right of action is that such an action might disrupt the administrative procedures established for the enforcement of that executive order. Defendants contend that this disruption would be even greater if state law contract actions were permitted as a means of enforcement of 11246.

The judicial refusal to imply a private right of action under 11246, however, does not suggest that private enforcement of that executive order never may be obtained through a lawsuit. Indeed, in Jones v. Local 520, International Union of Operating Engineers, 603 F.2d 664 (7th Cir. 1979), cert. denied, 444 U.S. 1017, 100 S.Ct. 669, 62 L.Ed.2d 647 (1980), the Seventh Circuit held that an employee could sue under section 1981 to enforce an 11246 contract establishing preferential minority hiring:

  In our view, the agreements create third party
  beneficiary rights in the white and black
  operating engineers who stand to benefit from the
  operation of the referral plan.

603 F.2d at 665. The court found that so long as the complaint stated the essential elements of a section 1981 claim, an employee could maintain an action to enforce 11246. Thus, it is evident that judicial enforcement of 11246 will not necessarily contravene the administrative machinery.

Defendants' second argument that application of state law principles to enforce 11246 would disrupt unduly the administrative scheme-also is unavailing. In Miree v. DeKalb County, Ga., 433 U.S. 25, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977), the Supreme Court permitted plaintiff to sue under a contract theory for alleged breach by defendant of a Federal Aviation Administration agreement. In rejecting the argument that the overriding federal interest required application of a uniform federal common law, the Court stated:

  The operations of the United States in connection
  with FAA grants such as these are undoubtedly of
  considerable magnitude. However, we see no reason
  for concluding that these operations would be
  burdened or subjected to uncertainty by variant
  state law interpretations regarding whether those
  with whom the United States contracts might be
  sued by third party beneficiaries to the

433 U.S. at 30, 97 S.Ct. at 2494. The Court also observed that Congress' failure to indicate an express intent to displace state law further supported the conclusion that application of state law principles would not be in ...

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