The opinion of the court was delivered by: Moran, District Judge.
The plaintiff brings this six-count complaint alleging
violations of various antidiscrimination statutes, ERISA and the
Illinois Wage Payment and Collection Act. The defendants have
filed a motion to dismiss each of the counts pursuant to FRCP
12(b) or for summary judgment. The parties have entered into a
stipulation regarding the ERISA claims and they are no longer
According to his complaint and administrative charges,
plaintiff Aponte, a Mexican American, was employed as a "set up
with defendant National Steel Service Center Inc., a steel
processing facility of Evanston, Illinois. His employment began
on April 4, 1966 and was continuous until his discharge on
December 22, 1978. Aponte was, until December 18, 1978, excused
from overtime responsibilities because he attended school,
although mandatory overtime was incorporated in the company's
collective bargaining agreement on October 25, 1978. When he was
advised that overtime would be required after December 18, the
plaintiff submitted a medical report to the employers stating
that he was unable to work overtime. On December 20, 1978, the
plaintiff was injured at work and was taken to the hospital. The
plaintiff's physician stated that he was unable to work for two
weeks. In a letter dated December 22, 1978, the company stated
that it could not retain him unless he worked overtime. The
letter made his discharge effective on that date.
The plaintiff submitted his claim to arbitration consistent
with the company's collective bargaining agreement. The
arbitrator found that the plaintiff's refusal to work overtime
was sufficient cause for dismissal. The arbitrator, however,
changed the effective date of discharge from December 22, 1978 to
January 24, 1979.
During the course of plaintiff's employment, he filed several
charges with the Illinois Fair Employment Practices Commission
(FEPC) and the Equal Employment Opportunity Commission (EEOC). In
March, 1978, the plaintiff filed a charge with FEPC complaining
of discriminatory treatment and retaliation for filing earlier
charges. The company and plaintiff entered into a settlement
agreement on June 5, 1978. On September 6, 1978, the plaintiff
filed an EEOC charge alleging harassment and discrimination in
failing to promote him. The plaintiff specifically objected to
his probation and his alleged constant harassment by his foreman
and leadman. These charges were settled in November, 1978. The
plaintiff agreed not to pursue a Title VII lawsuit in exchange
for the defendant's promise not to penalize him in any "future
consideration for wage increases, promotions, transfers, or other
employment related matters" for filing the charge. EEOC issued a
right to sue letter on plaintiff's allegations that he had been
denied a promotion.
After his discharge, plaintiff filed charges with both the EEOC
and FEPC alleging that his termination was in retaliation for
filing previous charges. On March 23, 1979, EEOC issued a right
to sue letter on the charge, finding that there was no reasonable
cause to believe the allegations made in the charge were true.
Aponte originally filed this federal court action pro se.
Counsel was appointed and the most recent second amended
complaint was filed on plaintiff's behalf on June 27, 1979.
Plaintiff brings Counts I and II under the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. commonly known as Title VII.
Count I is brought under § 703 of the Act which attempts to
remedy discrimination on the basis of race, color, religion, sex
or national origin.*fn1 Count II is brought under § 704 which
provides in part a remedy for retaliatory discharge based upon
previous filing of employment discrimination charges.*fn2
To maintain a federal court action a party must have filed a
timely charge with the EEOC and then act upon the Commission's
notice of the right to sue in federal court. Alexander v.
Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39
L.Ed.2d 147 (1974).
The defendant challenges this court's subject matter
jurisdiction of harassment claims that are included in both
counts. The defendant argues that the plaintiff has not gone
through the proper administrative procedures regarding these
claims and cannot raise them for the first time in this action.
In Jenkins v. Blue Cross Mutual Hospital Ins. Co., 538 F.2d 164
(7th Cir.) (en banc) cert. denied 429 U.S. 986, 97 S.Ct. 506, 50
L.Ed.2d 598 (1976) the Seventh Circuit defined the standard
courts should follow in evaluating whether federal court actions
properly arise from the administrative proceedings:
The complaint in the civil action . . . may properly
encompass any . . . discrimination like or reasonably
related to the allegations of the charge and growing
out of such allegations. Id. at 167.
Because most claims at the administrative level are filed pro
se, courts have been solicitous of Title VII plaintiffs. See e.g.
Willis v. Chicago Extruded Metals Co., 375 F. Supp. 362
(N.D.Ill. 1974). In Love v. Pullman Co., 404 U.S. 522, 92 S.Ct.
616, 30 L.Ed.2d 679 (1972), the Supreme Court observed that
"technicalities are particularly inappropriate in a statutory
scheme in which laymen, unassisted by trained lawyers initiated
the process." See also Garcia v. ...