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.
Counts I & II
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. Rush-Presbyterian-St. Lukes
Medical Center, 80 F.R.D. 254 (N.D.Ill. 1978); Willis v. Chicago
Extruded Metals Co., supra.
Using those guidelines, this court turns to the specific claims
of plaintiff. Count II alleges retaliatory discharge, harassment
in the form of abusive language, threats of personal injury and
property damage, unnecessary surveillance and more strenuous work
assignments than other employees in similar job classifications.
Plaintiff's EEOC charge and right to sue letter specify
retaliatory discharge under § 704.
It is undisputed that the retaliatory discharge claims are
properly before this court. It is less clear whether the
harassment claims belong here. In his pleadings, plaintiff has
alleged harassment without outlining how the harassment related
to the plaintiff's eventual retaliatory discharge. If the alleged
harassing acts were part of a design to force the plaintiff out
because of his prior charges with various state and federal
agencies, a reasonable relation between the charge and complaint
exists. If the harassment stemmed from motives entirely unrelated
to plaintiff's previous charges, the relationship is less
The Seventh Circuit has made it clear that complaints should be
liberally construed. Because this court believes that there is a
set of facts which can show a reasonable relation between the
charge and complaint, it will be upheld. The motion to dismiss
Count II is denied.
Count I can only be maintained either because the retaliatory
termination charge is broad enough to encompass § 703 claims of
harassment or because the November, 1978 settlement agreement was
not complied with.
The plaintiff assumes that his alleged harassment stemmed from
national origin discrimination in violation of § 703. Once again,
he does not plead any relation between these alleged violations
he brings under § 704. Absent Count II, this court would be
reluctant to include these claims, particularly in light of a
settlement agreement which was entered into by the parties on at
least the abusive language and strenuous work assignment issues.
See EEOC v. Bailey, Co., 563 F.2d 439 (6th Cir. 1977) cert.
denied 435 U.S. 915, 98 S.Ct. 1468, 55 L.Ed.2d 506 (1978). Since
the conduct complained of is before the court in Count II,
however, a refusal to consider those same matters under Count I
would be parsing it too fine. The motion to dismiss Count I is
The defendant urges that this court lacks jurisdiction to
entertain the plaintiff's discrimination claim under 42 U.S.C. § 1981
of the Civil Rights Act. That section provides:
All persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white
citizens and shall be subject to like punishment,
pains, penalties, taxes, licenses and exaction of
every kind and to no other.
It is settled that § 1981 includes discrimination based upon
race and alienage. Takahashi v. Fish and Game Comm'n.,
334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948). There is considerable
debate, however, about whether Latinos come within the coverage
of § 1981. The dispute essentially centers upon whether
discrimination against Latinos is characterized as racial
discrimination or national origin discrimination. Those courts
that have held that § 1981 does not encompass the claims of
Hispanics have viewed them as ones of national origin. See e.g.
Martinez v. Bethlehem Steel Corp., 78 F.R.D. 125 (E.D.Pa. 1978);
Plummer v. Chicago Journeyman Plumbers' Local 130, 452 F. Supp. 1127
(N.D.Ill 1978); Jones v. United Gas Improvement Corp., 68
F.R.D. 1, 15 (E.D.Pa. 1975); Gradillas v. Hughes Aircraft Co.,
407 F. Supp. 865 (D.Ariz. 1975).
The courts which have extended coverage of the statute to
Latinos have found a "degree of identity between claims of
national origin or ethnic background discrimination and racial
discrimination." Garcia v. Rush-Presbyterian-St. Luke's Medical
Center, 80 F.R.D. 254 (N.D.Ill. 1978). See e.g. Davis v. County
of Los Angeles,