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December 3, 1980


The opinion of the court was delivered by: Shadur, District Judge.


Delphine Fields, a White female, and Jerome Young, a Black male ("plaintiffs"), are employed as police officers by the Village of Skokie, Illinois ("Skokie"). They filed this action June 30, 1980 against Skokie and various of its departments and employees,*fn1 alleging that defendants had discriminated against Fields, Young and others similarly situated on account of their sex and race in violation of Title VII of the Civil Rights Act of 1964, Section 1981 of the Civil Rights Act of 1866 ("Section 1981"), Section 1983 of the Civil Rights Act of 1871 ("Section 1983") and the Fourteenth Amendment. Defendants have moved to dismiss the complaint, asserting that because plaintiffs have failed to exhaust their administrative remedy under Title VII, this Court is without subject matter jurisdiction. For the reasons stated in this memorandum opinion and order:

(1) Defendants' motion is granted only as to plaintiffs' Title VII claims.

(2) Because the Complaint may state a cause of action under Sections 1981, 1983 and the Fourteenth Amendment, all of which afford grounds for jurisdiction independent of plaintiffs' Title VII claims, defendants' motion to dismiss the action as a whole is denied.

(3) On the Court's own motion, plaintiffs' class action claims are dismissed.

Plaintiffs' Title VII Claims

Plaintiffs filed their Complaint June 30, 1980 alleging that defendants had engaged in numerous practices designed to discriminate unlawfully against Blacks and women employed by or applying for employment with the Skokie Police Department. Although there are brief references to the other claimed bases for jurisdiction, the main thrust of the Complaint was plaintiffs' contention that such practices violate Title VII of the Civil Rights Act of 1964.

Just twenty-eight days earlier plaintiffs had filed their Title VII charge with the Equal Employment Opportunity Commission ("EEOC"). When the Complaint was filed (and apparently to date) EEOC had taken no dispositive action on plaintiffs' charges. Specifically, EEOC has not yet issued (nor is it required to do so until 180 days after filing of the administrative complaint) a right to sue letter.

It is axiomatic that a Title VII plaintiff must satisfy two requirements to maintain an action in federal court: timely filing of employment discrimination charges with the EEOC, and receipt of a right to sue letter (and institution of a suit within ninety days thereafter). See, e. g., Bates v. Western Elec., 420 F. Supp. 521, 525 (E.D.Pa. 1976). As defendants properly point out, receipt of a right to sue letter is a jurisdictional prerequisite to bringing an action in federal court. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973); 42 U.S.C. § 2000e-5(e) and (f)(1). Because plaintiffs concede they have failed to satisfy this requirement, their Title VII claim must be dismissed.

Plaintiffs argue that these jurisdictional rules are inapplicable under a number of theories, all of which the Court has considered and found untenable. Only one of those theories is at all near-colorable: plaintiffs' assertion that normal exhaustion of Title VII administrative remedies is not required Where, as is the case here, a Title VII plaintiff seeks interim injunctive relief. That argument has been favorably received in some limited circumstances; see, e. g., Berg v. Richmond Unified School District, 528 F.2d 1208 (9th Cir. 1975), vacated and remanded on other grounds, 434 U.S. 158, 98 S.Ct. 623, 54 L.Ed.2d 375 (1975). However, this Court regards the better-reasoned position as that adopted in a number of other decisions,*fn2 that Title VII's jurisdictional conditions apply "across the board" with respect to lawsuits instituted in federal court. Nothing in the statute (nor, in this Court's view, in the particular circumstances of this case) suggests that a mere prayer for injunctive relief should allow a plaintiff to circumvent the administrative procedure required by the facially absolute language of Title VII.

Furthermore, the basis for plaintiffs' offered distinction in this context between actions for injunctive and non-injunctive relief-that in circumstances involving the former more expeditious resolution is necessary-is undermined by 42 U.S.C. § 2000e-5(f)(2). That provision allows EEOC to bring an action for "temporary relief" prior to its full consideration of a complaint where it concludes that "prompt judicial action is necessary to carry out the purpose of [the] Act." In short, Title VII does authorize applications to federal courts for injunctive relief prior to final EEOC action within the framework of the administrative procedures to which a complaining party must adhere as a jurisdictional prerequisite.

Plaintiffs' Remaining Claims

Plaintiffs contend that even if this action cannot presently be maintained as a Title VII claim, dismissal of the entire action is improper because they also allege violations of Sections 1981 and 1983 and the Fourteenth Amendment, each of which is sufficient to support this Court's jurisdiction over the action. Defendants concede that such allegations can in fact constitute "independent bases for discrimination claims" but assert that dismissal of the entire complaint "must be had here because of [p]laintiffs' failure to clearly present their respective claims."

Defendants' theory of dismissal is somewhat unclear. They argue that plaintiffs' complaint is defective only because it incorporates numerous theories against multiple defendants in a single count, thereby making an effective responsive pleading "extremely difficult" to fashion and failing to comply with Fed.R.Civ.P. 10(b)'s requirement that each claim founded upon a separate transaction or occurrence be stated in a separate count "whenever a separation facilitates the clear presentation of the matters set forth." Citing Plummer v. Chicago Journeyman Plumbers' Local 130, 452 F. Supp. 1127, 1144 (N.D.Ill. 1978), defendants then argue that compliance with Rule 10(b) may be ordered by the Court. Finally, defendants ...

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