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
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. § 627. If a defendant has not met this notice
requirement, a ...