the position of Associate Dean of Admissions and Records. Soon
after the allegedly discriminatory appointment at issue was
made, plaintiff submitted her resignation to Moraine Valley
Count I of the complaint presents a claim under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
alleging employment discrimination on the basis of sex. Count
II presents a claim under the Age Discrimination in Employment
Act of 1967, 29 U.S.C. § 621 et seq., alleging employment
discrimination on the basis of age. No issues arise as to
Counts I and II of the amended complaint and it is not disputed
that these counts present substantial federal claims. See
Goodman v. Board of Trustees of Community College Dist. 524,
498 F. Supp. 1329 (1980).
Count III charges the existence of a written contract to employ
plaintiff at Moraine Valley Community College through June 30,
1978. In support of this allegation plaintiff has attached a
copy of the employment contract for the period July 1, 1977
through June 30, 1978 (Complaint, ¶ 32; Plaintiff's Exhibit D).
Expressly incorporated in and made a term and condition of this
contract are the policies and procedures of the Affirmative
Action Program. A copy of this program is attached as Exhibit A
to the complaint. (Complaint, ¶ 12, Exhibit A). Plaintiff
alleges that an June 30, 1978 the terms and conditions of this
contract were extended for an indefinite period of time by
defendant Board of Trustees. A copy of a memorandum dated June
30, 1978 authorizing payment of employees at the then existing
contract rate from July 1, 1978 "until such time as contracts
or letters of appointment are issued" is also attached to the
complaint. (Complaint, ¶ 33, Exhibit F). In addition, plaintiff
alleges that the defendants breached this agreement by
appointing to the position of Associate Dean of Admissions and
Records a less qualified younger male in a manner inconsistent
with the policies and procedures of the Affirmative Action
Count IV of the amended complaint charges, in addition to those
facts presented in Count III, that defendant Board of Trustees,
"by actions and words" agreed to employ plaintiff after June
30, 1978 under the terms and conditions of the Affirmative
Action Program. In addition, plaintiff alleges that the actions
of defendant were in violation of this agreement. Federal
jurisdiction of these state law employment contract claims is
alleged to be founded upon the doctrine of pendent
Defendants contend that the present case is inappropriate for
the exercise of pendent jurisdiction. In support of this
position, defendants suggest that the issues and matters of
proof involved in the state claims are substantially dissimilar
to the issues and matters of proof involved in the federal
claims. Therefore, according to defendants' argument, the state
claims do not arise out of a common nucleus of operative facts,
and the presentation of proof in all claims is likely to
confuse the trier of fact. In addition, defendants argue that
the state claims present novel questions of law properly left
to determination by a state forum. The court is not persuaded
that the exercise of pendent jurisdiction would be improper
under these circumstances.
The factors to be considered in determining the appropriateness
of the exercise of pendent jurisdiction are: (1) the existence
of a substantial federal claim sufficient to confer subject
matter jurisdiction on the court; (2) whether the state and
federal claims derive from a common nucleus of operative fact;
and (3) whether a plaintiff's claims are such that he would
expect them all to be tried in a single judicial proceeding.
United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16
L.Ed.2d 218 (1966). The satisfaction of the above factors,
however, does not entitle plaintiff to present her state claims
in a federal forum. The court, in its discretion, may decline
to exercise its pendent jurisdiction when judicial economy,
convenience, and fairness to the litigants will not be
promoted. Gibbs, supra at 726, 86 S.Ct. at 1139.
In the present case, this court has previously determined the
existence of a substantial federal claim sufficient to confer
subject matter jurisdiction in the court. Goodman v. Board of
Trustees of Community College Dist. 524, 498 F. Supp. 1329
It is also clear from a reading of plaintiff's amended
complaint that her state and federal claims arose out of a
common nucleus of operative facts. Essential to plaintiff's
federal and state claims are the circumstances of her
employment, the relationship of the defendants' Affirmative
Action Program to the appointment of an Associate Dean, and the
defendants' alleged failure to comply with the requirements of
this program. These factors are relevant to both the federal
claims and the state claims. See Predmore v. Allen,
407 F. Supp. 1067 (D.Md. 1976); Jones v. Cleland, 466 F. Supp. 34
(N.D.Ala. 1978). This court also notes that a possible defense
to this action, i. e. that defendants had a legitimate
nondiscriminatory reason for not appointing Ms. Goodman, could
be asserted against all claims. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668
In addition, given the substantial factual similarities in
plaintiff's federal and state claims, it is the court's opinion
that the plaintiff's claims are such that she would be expected
to try them in a single judicial proceeding. Hughes v. Marc's
Big Boy, 479 F. Supp. 834 (E.D.Wis. 1979).
In conclusion, it is the court's opinion that joinder of the
state claims would promote the interests of judicial economy
and fairness to the litigants. In addition, while the factual
circumstances attending the state claims are unique, the court
does not find that considerations of comity require the
resolution of these legal questions in the first instance by a
state forum. Under Illinois law, employment contracts are
subject to the same general rules of construction as are other
contracts. Evackus v. Neff, Kohlbusch & Bissell, Inc.,
40 Ill. App.2d 416, 189 N.E.2d 542 (1963). Accord: Birdwell v.
Hazelwood Schoot Dist., 352 F. Supp. 613, 625 (E.D.Mo. 1972),
aff'd 491 F.2d 490 (8th Cir. 1974).
For the reasons stated, defendants' motion to dismiss for lack
of pendent jurisdiction is DENIED.
Motion to Dismiss Counts III and IV for Failure to State a
Claim under Rule 12(b)(6), Fed.R.Civ.P.
The defendants contend that Counts III and IV of plaintiff's
amended complaint should be dismissed for failure to state a
claim upon which relief may be granted. As previously noted,
Count III alleges the existence of a "written contract". The
terms and conditions of this contract are evidenced by certain
writings attached as exhibits. Count IV alleges the existence
of an employment contract created by "words and actions". In
support of their position, defendants argue that, as a matter
of law, the Affirmative Action Program was not a term or
condition of plaintiff's employment contract as evidenced by
these writings. In the alternative, the defendants argue that
plaintiff's allegations create a contract of employment
terminable at will and that therefore, as a matter of law, the
provisions of the Affirmative Action Program are not a term or
condition of this contract. In addition, the defendants argue
that Count IV merely alleges a conclusion of law, i. e. the
existence of an agreement.
Under the Federal Rules of Civil Procedure, the purpose of a
complaint is to state, not prove, a claim. Dismissal is only
warranted where it appears to a legal certainty that the
plaintiff is entitled to no relief under any state of facts
which could be proved in support of the claim presented.
Conley v. Gibson, 335 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2
L.Ed.2d 80 (1957).
In the case at bar, the plaintiff has alleged in Counts III and
IV of her amended complaint the existence of an employment
contract created either by the writings attached as exhibits,
or the "words and actions" of the defendants. While it is true
that plaintiff has alleged in Count III the existence of a
"written contract", the documents
attached to the complaint do not evidence an intent to reduce
the parties' agreement to writing, nor do they purport to be
the entire agreement of the parties. Under these circumstances,
the court believes that the question of whether the parties'
agreement is evidenced by a series of writings, or some other
manifestation of intent, is immaterial to the issue of whether
the terms and conditions of the alleged employment contract
include adherence to the provisions of the defendants'
Affirmative Action Program. For these reasons, the court finds
that Counts III and IV state a claim for breach of an
employment contract. The terms and conditions of this contract
is a question of fact which the plaintiff is not precluded from
proving by the allegations and exhibits presently on file. See
generally Chambers v. Shayne & Co., 32 Ill. App.2d 16, 25,
176 N.E.2d 645, 649 (1st Dist. 1961).
In addition, the defendants' contention that the complaint
alleges merely the existence of an employment relationship
terminable at will does not preclude plaintiff from proving the
terms and conditions of this contract. The cases cited by the
defendants merely hold that an "at will" contract is not
breached by a unilateral termination by the employer and the
employer is not liable for damages beyond the time of the
employee's discharge. "A `terminable at will' agreement is
nevertheless a contract under which rights and obligations
exist prior to its termination and for breach of which there is
a remedy of law." Louisville Cycle and Supply Co., Inc. v.
Baach, Ky., 535 S.W.2d 230, 233 (1976); Austin v. So. Pac.
Co., 50 Cal.App.2d 292, 123 P.2d 39, 40 (1942).
The court finds that Counts III and IV of the plaintiff's
amended complaint properly present claims for breach of an
alleged employment contract. For the aforementioned reasons,
the defendants' motion to dismiss Counts III and IV is DENIED.
In summary, for the foregoing reasons, the following is
(1) The defendants' motion to dismiss Counts III and IV of
the plaintiff's amended complaint for lack of pendent
jurisdiction is DENIED.
(2) The defendants' motion to dismiss Counts III and IV of
the plaintiff's amended complaint for failure to state a
claim is DENIED.
IT IS SO ORDERED.