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July 8, 1983


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


This is an age, race and handicap discrimination action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the Civil War statutes, 42 U.S.C. § 1981 and 1983. Defendants have brought a motion to dismiss parts of the complaint. We grant that motion in part and deny it in part.


On a motion to dismiss, we accept the facts as stated in plaintiff's complaint. We summarize the facts relevant to this motion.

Plaintiff is a black person and is blind in one eye. At the time his complaint was filed, he was 50 years of age. Plaintiff was an employee of the City of Naperville, Illinois (the "City") from July 1978 to August 8, 1981, when he was discharged. Plaintiff alleges that although he was a competent employee, he was the target of racial slurs by one or more of the defendants who questioned his abilities and intelligence as a black person in a management position. He alleges that the City had a clear preference for hiring younger, less experienced, non-handicapped white people for data processing and management positions. At the time of his discharge, according to plaintiff, the City employed no other black managers and only four of the City's 400 employees were black. Plaintiff alleges that he was replaced by a young, less-experienced, non-handicapped white male.

Plaintiff also alleges that his discharge was in violation of the City personnel code, which provided that disciplined employees must be notified of the cause for their discipline, notified that they may appeal the actions to a personnel review board, and must first be suspended before being terminated. According to the complaint, the City did not follow any of these procedures in terminating plaintiff but rather told him only that "recent events" demonstrated his "less than satisfactory" management. Further, plaintiff alleges that his request for an explanation was denied and that he was denied the opportunity to appeal his termination to the personnel review board.

Finally, plaintiff alleges that "much after" his discharge, defendants sent to the Equal Employment Opportunity Commission, and to an attorney plaintiff was trying to retain, a letter which raised "false, spurious, suspect and professionally damaging statements about plaintiff's job performance." Plaintiff alleges that these statements were made pretextually in an effort to justify his termination. The letter alleged falsely imputed sexual misconduct to plaintiff. Plaintiff also alleges, in a separate count, that the City later made several defamatory, false and misleading statements with reckless disregard for the truth, which constituted the foundation of several newspaper articles regarding plaintiff's discharge. According to plaintiff, the letter and the latter statements damaged his reputation both personally and professionally.

Plaintiff has sued not only the City but also the Mayor, the City Council members, the City Manager, the Finance Officer and the Personnel Officer. Plaintiff alleges that his unlawful discharge and the violation of the City personnel code were known to each defendant but that none of them took any action to mitigate or correct plaintiff's injuries. According to the complaint, each defendant intentionally and maliciously refused to perform his or her lawful duties, including direction, supervision, control or other acts. Plaintiff alleges that the defendants' acquiescence in plaintiff's unlawful discharge shows that the discharge was part of the City's customs and policies.

Plaintiff requests a declaratory judgment that the City's actions violated his statutory and constitutional rights; an order requiring the United States Treasury Department to cut off federal revenue sharing funds to the City until a hearing is held by the Secretary of the Treasury; reinstatement to his position with the City; back pay and compensatory damages; liquidated damages arising out of the age discrimination claim; punitive damages; and fees and costs.


Defendants' motion to dismiss attacks only certain parts of the complaint. We consider the grounds in turn.

1. Failure to Bring Administrative Charge

Defendants argue that plaintiff's age discrimination claim must be dismissed because plaintiff failed to file an administrative claim prior to bringing suit as required by the Age Discrimination in Employment Act. See 29 U.S.C. § 626(d). Such a claim must be filed within 180 days after the alleged unlawful employment practice occurred (or within 300 days in states with parallel administrative mechanisms for addressing age discrimination). Id. The requirement that the administrative claim be filed within the prescribed time limits is not jurisdictional in a strict sense; the time limits may be tolled on certain equitable grounds. Kephart v. Institute of Gas Technology, 581 F.2d 1287 (7th Cir. 1978), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981).

Plaintiff concedes that the administrative claim form he filed with the EEOC did not specifically mention age discrimination. However, in his brief, he offers two arguments to counter defendant's position. First, plaintiff argues that he told the EEOC enforcement officers about the age discrimination claim but that the officers simply did not include the claim on his form. According to plaintiff the age discrimination claim was fully a part of the EEOC investigation and conciliation efforts and therefore plaintiff has accomplished all that would have been accomplished by listing age discrimination on his form. Second, plaintiff argues that he was not given notice of his rights under the Age Discrimination in Employment Act, as required by the Act. See 29 U.S.C. ยง 627. If a defendant has not met this notice requirement, a ...

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