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November 5, 1980


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 contested.

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. ...

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