The grant of jurisdiction to impose "relief as may be
appropriate to effectuate the purposes of this act" merely
supplements the court's power to award the monetary damages
provided in § 626(b) with power to order employment,
reinstatement or promotion. It does not provide the court with
power to impose additional monetary damages and penalties.
See, Rogers v. Exxon Research & Engineering Co., supra 550
F.2d at 840.
This result is supported by an examination of the underlying
policy considerations. It is clear from the language of § 626
that the intent of the Congress was to achieve voluntary
compliance through "informal methods of conciliation,
conference and persuasion." Conciliation and persuasion are
difficult, if not impossible when a plaintiff is encouraged to
refrain from negotiation by the promise of a large damage
recovery. Rogers, supra, at 841; Dean v. American Security
Ins. Co., supra, 559 F.2d at 1038-39;*fn1 and Slatin v.
Stanford Research Institute, supra, 590 F.2d at 1296.
I am aware that there is strong and emotional disagreement over
this issue in the other district courts. See, Wise v. Olan
Mills, 485 F. Supp. 542 (D.Colo. 1980); Bertrand v. Orkin,
432 F. Supp. 952 (N.D.Ill. 1977); and Rogers v. Exxon Research
& Engineering Co., 404 F. Supp. 324 (D.N.J. 1975) rev'd
550 F.2d 834 (3rd Cir. 1977). I understand why my brethren choose
not to follow the majority rule. However, it is not proper for
me to rewrite an act of Congress to meet a just result in a
particular case. Congress is aware of the problem and it
possesses the power to rectify it with appropriate legislation.
Accordingly, Kroger's motion to dismiss Counts II and III of
Whiteman's complaint on the ground that punitive and mental
distress damages are not recoverable under the ADEA is GRANTED.
This Court is not ruling out the possibility of pleading an
Illinois tort and pursuing it in Federal Court as a pendent
claim. But it is the opinion of this Court that Counts II and
III rest squarely on the Age Discrimination in Employment Act
and no Illinois tort is pleaded.
2. WRONGFUL DISCHARGE
Kroger's has also moved to dismiss Whiteman's claim of wrongful
discharge and has requested the Court to convert this into a
motion for summary judgment pursuant to Fed.R.Civ.P. 12(b).
Recognizing that a Court has complete discretion to determine
whether or not to accept any material beyond the pleadings that
is offered in conjunction with a 12(b)(6) motion, Wright &
Miller, Federal Practice and Procedure: Civil § 1366, this
Court declines to consider this motion as one for summary
In Count IV Whiteman claims that she was wrongfully discharged
from her employment with Kroger's. Whiteman was a member of the
United Food and Commercial Workers International Union which
negotiated a collective bargaining agreement with Kroger's that
contained a binding grievance and arbitration procedure. § 301
of the Labor Management Relations Act, 29 U.S.C. § 185 (1976),
permits a union employee to sue her employer for wrongful
discharge. However, where the union and the employer have
agreed to submit disputes to a grievance/arbitration process,
the employee must first show that the union has breached its
duty of fair representation. Vaca v. Sipes, 386 U.S. 171, 87
S.Ct. 903, 17 L.Ed.2d 842 (1966); Hines v. Anchor Motor
Freight Co., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231
Apart from filing an affidavit in conjunction with her
memorandum opposing Kroger's motion to dismiss, Whiteman has
made no claim that her union breached its
duty of fair representation. Without such an allegation,
Whiteman cannot state a claim for wrongful discharge against
Kroger's upon which relief can be granted. Therefore, it is
ORDERED that Kroger's motion to dismiss Count IV of Whiteman's
complaint is GRANTED.
Finally, Kroger's moves to dismiss the entire complaint because
Whiteman failed to notify the EEOC of her intent to file suit.
The ADEA does require a plaintiff to serve notice of intent to
file, but such notice need only be given to the Secretary of
Labor. 29 U.S.C. § 626(d). Whiteman did notify the Secretary
and therefore the motion to dismiss is DENIED.