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ALLEN v. SCHWAB REHABILITATION HOSPITAL

February 25, 1981

HILDA ALLEN, PLAINTIFF,
v.
SCHWAB REHABILITATION HOSPITAL, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

On July 31, 1980 Hilda Allen ("Allen") filed this action under 42 U.S.C. § 1981 ("Section 1981") against her employer, Schwab Rehabilitation Hospital ("Schwab"), alleging that Schwab had engaged in various acts of discrimination against Allen because she is black. On November 13, 1980 Allen moved for leave to amend her complaint to include a second count charging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, 2000e-2(a) ("Title VII"). Schwab objects to the proposed amendment, claiming that Allen's Notice of Right to Sue ("right to sue letter"), receipt of which is a jurisdictional prerequisite to maintaining a Title VII action in the District Court, was invalidly issued by the Equal Employment Opportunity Commission ("EEOC"). For the reasons stated in this memorandum opinion and order, Allen's motion to amend her complaint is granted.

Facts

On March 6, 1980 Allen first filed some of her charges of unlawful discrimination with the Illinois Fair Employment Practices Commission ("FEPC") (since renamed the Human Rights Commission). Specifically Allen claimed that (1) two days earlier she had learned that Schwab would not promote her to become its Director of Employee Relations (she was then Acting Director) and (2) such failure to promote her was because she was black.

Pursuant to its work sharing agreement with EEOC and because Allen had specifically requested such action when she filed her Charge of Discrimination,*fn1 FEPC forwarded Allen's charge to EEOC for registration as a claim March 18, 1980. On May 7, 1980 a fact finding conference was conducted before an FEPC officer, and the complaint was taken under advisement for a determination on the merits.*fn2

Sometime in September 1980 Allen apparently requested issuance by EEOC of a right to sue letter. EEOC did so September 26, 1980. Allen then filed the present motion, seeking to have her Title VII claims joined with the previously filed Section 1981 charges.

Some Arcane Mysteries of Title VII Law

1. Filing Date of Allen's Charges with EEOC

It is axiomatic that a Title VII plaintiff must satisfy two requirements to maintain a federal court action: timely filing of employment discrimination charges with EEOC and receipt of a right to sue letter. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973). Schwab argues that Allen failed to satisfy those requirements in two respects:

1. Under 42 U.S.C. § 2000e-5(e) ("Section 5(e)"), Schwab asserts that no aggrieved person who has instituted proceedings in a state or local agency may file a charge with EEOC until "three hundred days after the alleged unlawful employment practice occurred, or . . . thirty days after receiving notice that the State or local agency has terminated the proceedings under State or local law, whichever is earlier. . . ." Here the allegedly unlawful practice — the decision to hire someone other than Allen as Director of Employee Relations — took place only 14 days before charges were filed with EEOC (by FEPC on Allen's behalf), and state proceedings had not terminated on that date. Thus Schwab argues that Allen's filing of EEOC charges failed to satisfy either of the alternative requirements of Section 5(e).

2. Under 42 U.S.C. § 2000e-5(c) ("Section 5(c)"), where a charge of discrimination cognizable under Title VII may also be brought under state law in a state agency it cannot be filed with EEOC "before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated . . ." Schwab contends that Allen's filing with EEOC was ineffective because it took place only 12 days after institution of the state proceedings.

Schwab's first contention simply reads the statute backwards. Plain English tells us that the two time periods listed in Section 5(e) are those within which a charge must be filed with EEOC rather than periods in which such filing is precluded.*fn3

Schwab's second contention poses more difficulties. Section 5(c) states:

  In the case of an alleged unlawful employment
  practice occurring in a State . . . authorizing a
  State or local authority to grant or seek relief
  from such practice . . . no charge may be filed
  [with EEOC] . . . before the expiration of sixty
  days after proceedings have been commenced under
  the ...

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