The opinion of the court was delivered by: Bua, District Judge.
Melba Goodman, a former employee of Moraine Valley Community
College [MVCC], has filed the present action against the Board
of Trustees of Community College District 524 and James D.
Koeller, President of Moraine Valley Community College. The
Board of Trustees is the governing board of Moraine Valley
Community College. The plaintiff's complaint sets forth three
causes of action against both defendants: (1) Count I asserts
a claim under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., alleging employment discrimination on
account of sex; (2) Count II presents a claim under the Age
Discrimination in Employment Act of 1967 [ADEA], 29 U.S.C. § 621
et seq., alleging employment discrimination on account of
age; and (3) Count III sets forth a state law claim for breach
of an employment contract. Federal jurisdiction with respect to
Count III is founded upon the doctrine of pendent jurisdiction.
Presently before the court are the defendants' various
motions for dismissal and/or summary judgment, and certain
motions to strike.
The plaintiff is a female born on October 20, 1920. She was
hired by the Board of Trustees of MVCC in October, 1969. In
1970, she was appointed to the position of Assistant Dean of
Admissions and Records. In September of 1978, the position of
Associate Dean of Admissions and Records became vacant. In her
complaint, Ms. Goodman contends that the defendants passed
over her and offered this position to a younger male whose
qualifications were inferior to those of the plaintiff.
The complaint further alleges that this discriminatory
appointment violated the policy and procedures adopted by the
Board of Trustees in their written Affirmative Action Program
adopted in 1975. In said Affirmative Action Program, the Board
of Trustees declared that factors of sex and age would not
count against the promotional opportunities of any faculty
member. According to the plaintiff, this policy was violated
when the defendants refused to promote her to the position of
Associate Dean. The plaintiff also contends that the
defendants violated certain Affirmative Action Program
procedures when refusing her the opportunity to apply for the
position of Associate Dean.
Soon after the allegedly discriminatory appointment at issue
was made, the plaintiff submitted her resignation to the MVCC
(Complaint ¶ 10; Defendants' Exhibit III).
In her complaint, the plaintiff alleges that, following this
incident, she filed charges of sex discrimination in May of
1979, with both the Illinois Fair Employment Practices
Commission [FEPC] and the Equal Employment Opportunities
Commission [EEOC]. The FEPC investigated her charge and found
"substantial evidence" of sex discrimination in the denial of
promotion, but not "substantial evidence" to indicate that the
plaintiff's voluntary resignation from the MVCC amounted to a
constructive discharge (Plaintiff's Exhibit B; Defendants'
Exhibit II). On February 25, 1980 the EEOC, without conducting
an independent investigation of the charges, issued a notice
of right to sue (Plaintiff's Exhibit C).
Regarding her ADEA claim, on March 7, 1979 Ms. Goodman filed
a complaint with the United States Department of Labor
alleging that age discrimination was a factor in her being
denied the opportunity for promotion to the position of
Associate Dean. On May 7, 1979 the EEOC (following an
administrative reorganization) issued a notice to the
plaintiff stating that, because conciliation efforts had
failed, she could commence suit under the ADEA.
The present action was commenced on April 16, 1980.
The defendants have raised in their motions to dismiss
and/or for summary judgment two jurisdictional and procedural
defenses to Count I, both of which are premised upon the
plaintiff's failure to comply with certain requirements of
Title VII. In addition, they challenge the availability of
compensatory and punitive damages under Title VII. Each of
these defenses will be considered separately.
A. Definition of "Employer" under Title VII
Defendant Koeller moves for dismissal, pursuant to Rule
12(b)(1), Fed.R.Civ.P., on the ground that he is exempt from
liability under Title VII because he is not an employer, as
that term is defined in 42 U.S.C. § 2000e(b).
Section 2000e(b) defines "employer" as "a person engaged in
an industry affecting commerce who has fifteen or more
employees for each working day in each of 20 or more calendar
weeks in the current or preceding calendar year, and any agent
of such a person . . ." (emphasis added). The 1972 amendments
to Title VII extended the definition of "person" to include
"governments, government agencies, [and] political
subdivisions," 42 U.S.C. § 2000e(a). Pursuant to the clear
language of the statute, therefore, if the Board of Trustees is
an employer and Koeller was its agent, for the purposes of this
litigation he also would be an employer who could be held
accountable for any statutory violations. Kelly v. Richland
School District 2, 463 F. Supp. 216, 218 (D.S.C. 1978). As
regards this issue, defendant Koeller does not dispute that the
Board of Trustees is an employer. Rather, he appears to be
contending that he was not the Board's agent.
Evidentiary materials submitted to the court provide facts
from which defendant Koeller's agency relationship with the
Board of Trustees can reasonably be inferred. In this respect,
plaintiff's Exhibit B is of considerable significance. Exhibit
B reveals that the Board of Trustees had specifically
authorized President Koeller to make hiring recommendations
within his administration. Accordingly, when actually making
those initial hiring decisions, defendant Koeller likely was
acting as an agent for the Board, and as such was an employer
for the purposes of Title VII.
Other courts have found an agency relationship to lie in
similar factual settings. In Schaefer v. Tannian, 394 F. Supp. 1128,
1132 (E.D.Mich. 1974), the court held that officials of
the Detroit Police Department charged with the operation of the
Department and with responsibility for its hiring and
assignment practices were "agents" coming within the provisions
of the statute. In Kelly, supra, one of the defendants, the
administrative superintendent of the school district, moved for
dismissal on grounds virtually identical to those now being
raised by defendant Koeller. The court, however, found the
administrative superintendent to be an "agent".
This court accordingly, because it believes for purposes of
said motion that he may have been the Board of Trustees'
agent, will deny this motion to dismiss defendant Koeller.
B. Motion to Dismiss Unnamed Defendant
The defendants also argue that this court lacks subject
matter jurisdiction under Title VII with respect to defendant
Koeller because he was not named as a respondent in plaintiff
Goodman's right to sue letter. In this regard, the statute
provides that "a civil action may be brought against [any]
respondent named in the [EEOC] charge . . ."
42 U.S.C. § 2000e-5(f)(1). In her complaint before the FEPC-EEOC, Ms.
Goodman named as respondent Moraine Valley Community College
(Defendants' Exhibit I). The EEOC's notice of right to sue
letter also names only MVCC as respondent (Plaintiff's Exhibit
Q. In this suit, however, plaintiff Goodman has added President
Koeller as a defendant.
The defendants assert that the plaintiff's failure to charge
Koeller before the EEOC deprives this court of subject matter
jurisdiction with respect to him. In
this regard, the defendants correctly state the general rule
that, before a defendant may properly be sued under Title VII,
he first must be administratively charged. Mickel v. South
Carolina State Employment Service, 377 F.2d 239 (4th Cir.
1967), cert. denied, 389 U.S. 877, 88 S.Ct. 177, 19 L.Ed.2d 166
(1967). This requirement has the two-fold purpose of providing
notice to the charged party, and of insuring that all relevant
parties are brought before the EEOC so that the agency may
attempt to secure voluntary compliance with the statute.*fn1
Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969). To
allow a plaintiff to bypass the agency and proceed directly in
court against an uncharged party thus would frustrate at least
this latter purpose of the Act.
An exception to the general rule that a charge must precede
suit against a defendant, though, is found in McDonald v.
American Federation of Musicians, 308 F. Supp. 664, 669
(N.D.Ill. 1970), where the plaintiff brought an EEOC charge
against a union local for the discriminatory collection of
union fees. In his judicial complaint, the plaintiff in
McDonald added the union's recording secretary as a defendant.
The recording secretary moved for dismissal on the ground that
he had not been administratively charged. The court, however,
held that because the defendants were "substantially
identical", the statute's policy of providing notice to the
charged party for the purpose of negotiation had been
substantially met. In so concluding, the court stated:
Here the defendant, Nye, is the Recording
Secretary of Local 10-208. He is subject to the
provisions of Title VII and any notice and
investigation of the charges against Local 10-208
must have included him since it was through him
that the allegedly discriminatory fees were
collected. We therefore conclude that no useful
purpose would be served by requiring the plaintiffs
to have proceeded against him before the EEOC and
the Court will therefore not require a futile act
In the case at bar, the court believes that the plaintiff's
complaint, when read in conjunction with evidentiary materials
submitted by both sides, supports her contention that the
defendants in this suit also are substantially identical.
In her complaint, the plaintiff alleges that the defendants
discriminated against her by appointing a less qualified male
to the post of Associate Dean of Admissions and Records (¶¶ 20,
24). Plaintiff's Exhibit C is a letter from the MVCC's attorney
to the plaintiff's attorney, dated December 18, 1978, written
in response to Ms. Goodman's request on December 1, 1978 for a
hearing regarding this allegedly discriminatory appointment
(Plaintiff's Exhibit A). The December 18, 1978 letter reveals
how the challenged appointment was made:
My reading of the policy [of the Affirmative
Action Program] finds that the only possible
section to apply would be that dealing with
Promotion of Staff. However, due to the fact that
this was a reorganization of college personnel
the procedures suggested for a job opening cannot
be strictly followed but must be adapted to meet
the exigencies of the College. The President
[Koeller] did in fact recommend that certain
personnel be switched from their present jobs to
other positions, such recommendations occurring
after consultation with ...