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October 20, 1980


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.

I. The Title VII Count

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
  (emphasis added).

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 ...

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