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CURTO v. SEARS

December 15, 1982

FRANK T. CURTO, PLAINTIFF,
v.
SEARS, ROEBUCK AND CO., A NEW YORK CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Prentice H. Marshall, District Judge.

MEMORANDUM OPINION

This case presents two important questions under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621-34 (1976 & Supp. II 1978). We must decide what the time limit is for filing an age discrimination complaint under the ADEA with the Equal Opportunity Employment Commission ("EEOC") in a state which provides an administrative remedy for age discrimination, and to what extent a complainant must cooperate with the state administrative agency in order to preserve his or her right to file suit under the ADEA. While the issues may sound esoteric and hypertechnical, their resolution is important to the ability of persons to preserve their rights under the ADEA.

I

Defendant Sears, Roebuck and Co. hired plaintiff Frank T. Curto as an "assistant to the Vice-President" on May 1, 1970. On April 21, 1980, plaintiff was informed that he would be discharged effective July 31, 1980. At the time, plaintiff was 58 years old. Plaintiff alleges that he was a highly competent employee and that he was terminated because of his age, while younger employees in comparable positions who were no more competent than plaintiff were permitted to keep their jobs.

On July 31, 1980, as scheduled, plaintiff lost his job. On December 12, 1980, 235 days after the allegedly unlawful employment practice at issue here,*fn1 counsel for plaintiff sent charges of age discrimination against defendant to the EEOC and the Illinois Department of Human Rights ("IDHR") by certified mail. On December 22, 1980, 245 days after the alleged discrimination took place, plaintiff signed a sworn charge thereby formally commencing proceedings before the IDHR.*fn2 On April 8, 1981, IDHR notified plaintiff that it had scheduled a conference on his charge for April 20. On April 16, the conference was postponed at plaintiff's request. Plaintiff never requested a new conference date. Throughout June and July, an investigator for IDHR attempted to contact plaintiff, but neither plaintiff nor his counsel returned the investigator's calls. On September 4, 1981, plaintiff's IDHR charge was dismissed at his request. This lawsuit followed.*fn3 Defendant's motion for summary judgment is now pending before the court.*fn4

II

A

The general rule of timeliness contained in the ADEA is found in § 7(d) of the Act, 29 U.S.C. § 626(d) (Supp. II 1978).*fn5

    No civil action may be commenced by an
  individual under this section until 60 days after
  a charge has been filed with the Secretary [of
  Labor]. Such charge shall be filed —
    (1) within 180 days after the alleged unlawful
  practice occurred; or
    (2) in a case to which section 633(b) of this
  title applies, within 300 days after the alleged
  unlawful practice occurred, or within 30 days
  after receipt by the individual of notice of
  termination of proceedings under State law,
  whichever is earlier.

Section 14 of the ADEA, 29 U.S.C. § 633 (1976), in turn provides,

    (a) Nothing in this chapter shall affect the
  jurisdiction of any agency of any State
  performing like functions with regard to
  discriminatory employment practices on account of
  age except that upon commencement of action under
  this chapter such action shall supercede any
  State action.
    (b) In the case of an alleged unlawful practice
  occurring in a State which has a law prohibiting
  discrimination in employment because of age and
  establishing or authorizing a State authority to
  grant or seek relief from such discriminatory
  practice, no suit may be brought under section
  626 of this title before the expiration of sixty
  days after proceedings have been commenced under
  the State law, unless such proceedings have been
  earlier terminated: Provided, That such sixty-day
  period shall be extended to one hundred and twenty
  days during the first year after the effective date
  of such State law. If any requirement for
  commencement of such proceedings is imposed by a
  State authority other than a requirement of the
  filing of a written and signed statement of the
  facts upon which the proceeding is based, the
  proceeding shall be deemed to have been commenced
  for purposes of this subsection at the time such
  statement is sent by registered mail to the
  appropriate State authority.

In Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), the Supreme Court construed the analogous provisions of Title VII of the Civil Rights Act of 1964, which provide that a charge of employment discrimination prohibited by Title VII be filed with the EEOC within 180 days of the alleged discriminatory practice or within 300 days in a state which prohibits such practices. In these "deferral states," the statute provides that a charge may not be filed with the EEOC until at least sixty days after the complainant has commenced proceedings under state law.*fn6 In Mohasco, the plaintiff filed charges with the EEOC and the state deferral agency 291 days after the alleged unlawful employment practice. The Court first held that plaintiff had satisfied the deferral requirement. It noted that Title VII requires only that a complainant initially institute proceedings under state law ...


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