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United States District Court, Northern District of Illinois, E.D

September 20, 1983


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


Stella Pauls ("Pauls") sues Elaine Revell, Inc. ("Revell") and its Chairman Herman Hoke and President James Hoke (collectively "Hokes"), claiming she was dismissed by Revell because of her age and sex in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621-34, and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2000e-17.*fn1 Hokes now move for dismissal pursuant to Fed.R.Civ.P. ("Rule") 12(b)(1) and 12(b)(6), asserting lack of subject matter jurisdiction. For the reasons stated in this memorandum opinion and order their motion is denied.

Complaint Allegations

Pauls is a 50-year-old woman who held various managerial positions at Revell from March 17, 1976 until August 27, 1982, when she was discharged. Following her termination Pauls filed a charge of unlawful sex and age discrimination with the Equal Employment Opportunity Commission ("EEOC"). As its factual allegations reveal, that EEOC charge plainly identified Hokes as the ones responsible for her allegedly discriminatory dismissal but named only Revell as the "Respondent":*fn2

    I. On 8/31/82, Respondent terminated me from my
  position as Vice President. I began working for
  Respondent March 17, 1976. I was denied Profit
  Sharing Benefits of $5,330.80.

    II. The reason given by Mr. Herbert Hoke, Chairman,
  age 60, and James Hoke, President, age 38, for
  termination, was that Respondent was on the verge of
  bankruptcy and as of right now, they were letting me
  go. The reason given for denial of benefits was a
  change in Company Profit Sharing Policy.

    III. I believe I have been discriminated against
  because of my age, 49, in that:

      A) In September of 1982, Respondent filled the
    position I held as Vice-President, with Mike (last
    name unknown), age 32.

      B) Respondent has recently terminated employees
    in the protective age (40-70) from Management
    positions. Their names are: Delores, age 58;
    Audrey, over 40, and Kate, over 50. In addition,
    Florence, Bookkeeper, over 40.

      C) I was denied the Profit Sharing Benefits of

      D) Respondent's Profit Sharing Policy states that
    employees shall receive 100% of the benefits, when
    I began in March of 1976.

      E) Respondent implemented a new Profit Sharing
    Benefits policy July 1, 1976. At the time of my
    termination, 8/31/82, Respondent only granted me
    60% of my Profit Sharing Benefits.

On May 18, 1983 EEOC issued Pauls a Notice of Right To Sue, entitling her to seek redress in federal court within 90 days. Pauls timely filed this civil action.

Motion To Dismiss

Hokes argue Pauls' failure to name them in her EEOC grievance, as required by Section 2000e-5(f)(1)*fn3 and Section 626(d),*fn4 deprives this Court of subject matter jurisdiction over them. Analysis of that contention first requires a brief digression into the nature of those preconditions for bringing suit.

Until just last year federal courts, including our Court of Appeals, treated the Section 2000e filing requirements as jurisdictional prerequisites. See, e.g., Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, U.A., 657 F.2d 890 (7th Cir. 1981). But in Liberles v. County of Cook, 709 F.2d 1122, 1125 (7th Cir. 1983) our Court of Appeals retracted that position, choosing instead to characterize those Title VII provisions as "conditions precedent" under Rule 9(c):*fn5

  In Zipes v. Trans World Airlines, Inc.,
  455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the
  Court held that "filing a timely charge of
  discrimination with the EEOC is not a jurisdictional
  prerequisite to suit in federal court, but a
  requirement that, like a statute of limitations, is
  subject to waiver, estoppel, and equitable tolling."
  455 U.S. at 393, 102 S.Ct. at 1132 (footnote
  omitted). Zipes' basis is the statutory language of
  42 U.S.C. § 2000e-5(f)(3)(1976), the legislative
  history, and the fact that "a technical reading [of
  Title VII] would be `particularly inappropriate in a
  statutory scheme in which laymen, unassisted by
  trained lawyers, initiate the process,' [Love v.
  Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d
  679 (1972)] at 527 [92 S.Ct. at 619]." 455 U.S. at
  397, 102 S.Ct. at 1134. Further, by holding that
  timely filing is not jurisdictional, the Court
  "honor[ed] the remedial purpose of the legislation as
  a whole without negating the particular purpose of
  the filing requirement, to give prompt notice to the
  employer." Id. [455 U.S.] at 398, 102 S.Ct. at 1135.
  Another purpose of the filing requirements is to
  secure voluntary compliance with the law. Bowe v.
  Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir.

  We agree with the reasoning of Jackson v. Seaboard
  Coast Line RR Co., 678 F.2d 992, 999-1010 (11th Cir.
  1982). In Jackson the court carefully reviewed the
  case law and legislative history of Title VII and
  concluded that it could "discern no rational basis
  for treating those [Title VII action preconditions,
  i.e., the requirements of 42 U.S.C. § 2000e-5
  (1976)] that have not been considered from those that
  implicitly or explicitly have been held not to be
  jurisdictional." 678 F.2d at 1009 (footnote omitted).
  Accord Pinkard v. Pullman-Standard, 678 F.2d 1211,
  1216-18 (5th Cir. 1982). Further, if a defendant does
  not deny specifically and with particularity, as
  required by Fed.R.Civ.P. 9(c), the satisfaction of
  the Title VII lawsuit preconditions, the defendant
  cannot later assert that a condition precedent to the
  lawsuit has not been met. Jackson, 678 F.2d at 1010.

Liberles' analysis applies with equal force to Section 626(d), for ADEA procedural provisions generally receive the same interpretation as their Title VII counterparts. See Goodman v. Board of Trustees of Community College District 524, 498 F. Supp. 1329, 1336 (N.D.Ill. 1980) (finding exception to Section 2000e-5(f)(1) applicable to Section 626(d)); Quinn v. Bowmar Publishing Co., 445 F. Supp. 780, 784-85 (D.Md. 1978) (same).

Because the administrative charging requirements of Title VII and ADEA are non-jurisdictional, Pauls' satisfaction of those conditions precedent can be challenged under Rule 12(b)(6) (or Rule 56) but not Rule 12(b)(1).*fn6 This Court will therefore evaluate Hokes' motion under Rule 12(b)(6) standards, accepting as true the well-pleaded Complaint allegations and any reasonable inferences favorable to Pauls.

Hokes correctly point out the general rule that a defendant can be sued under Title VII or ADEA only after he has been administratively charged. But that rule has been tempered by several exceptions, at least two of which are apposite here.*fn7 For example, in Eggleston, 657 F.2d at 905, our Court of Appeals announced the rule should give way when the twin purposes of the EEOC charge are fulfilled:

    1. to notify the accused party of the alleged
  violation and

    2. to insure all parties involved have an
  opportunity to participate in EEOC's conciliation
  proceedings (which are designed to secure voluntary
  compliance with Title VII).

Specifically Eggleston teaches in that respect:

  [W]here an unnamed party has been provided with
  adequate notice of the charge, under circumstances
  where the party has been given the opportunity to
  participate in conciliation proceedings aimed at
  voluntary compliance, the charge is sufficient to
  confer jurisdiction over that party.

That exception is plainly applicable, for the factors that convinced Eggleston to invoke the exception carry equal (if not greater) weight here. Eggleston involved a challenge to the admission requirements of a plumbers' apprenticeship program operated by the defendant Joint Apprenticeship Committee Local No. 130 U.A. ("JAC"), an unincorporated association allegedly controlled by the defendant Plumbers' Local Union No. 130 ("Local 130"). Eggleston plaintiffs' EEOC charge had named Local 130 but not JAC. Eggleston, 657 F.2d at 906, emphasis in original, found the charge had sufficiently apprised JAC of the alleged violation to meet the "notice" prong of the exception:

  Our reference to the record convinces us that the
  JAC was sufficiently apprised of the charge to meet
  this notice requirement. We begin by noting that five
  members of the ten person JAC board have been
  appointed by Local 130. These five individuals, as of
  the date of Rose's 1975 charge, were all serving as
  officers within Local 130, while simultaneously
  serving on the JAC. Their positions within Local 130
  include respectively: the business manager, the
  business representative, an executive board member,
  the vice-president, and the recording secretary.
  Moreover, the JAC coordinator has served as an
  elected officer in Local 130 since 1966, and has
  signed affidavits and other pleadings in this
  litigation in the JAC's behalf.

  The charge itself, which named Local 130, clearly
  complained of discriminatory exclusion from the
  apprenticeship program. Given that the JAC
  administers the only apprentice program of record,
  the charge was sufficient to apprise both the EEOC
  and the JAC of the alleged discriminatory practices.

Such reasoning is even more compelling here:

    1. Hokes themselves are the most important officers
  in Revell.

    2. Pauls' EEOC charge not only focuses on conduct
  taken by Hokes, but it expressly identifies them as
  the ones through whom Revell effected the allegedly
  discriminatory dismissal.

In finding JAC had been afforded ample opportunity to conciliate, Eggleston reasoned (657 F.2d at 907, footnote omitted):

  Upon balancing these [policy] considerations, we find
  that the JAC has been presented with a sufficient
  opportunity to conciliate. As soon as the JAC had
  notice of the charge, either through its Local 130
  members or through the JAC coordinator, nothing
  prevented it from attempting to resolve the alleged
  discrimination in an amicable manner. Any opportunity
  to effect voluntary compliance of Local 130 by the
  EEOC would have necessarily involved contact with the
  JAC, its coordinator, and its other members. Compare
  Kelly v. Richland School District 2, 463 F. Supp. 216,
  218-21 (D.S.C. 1978); Wong v. Calvin, 87 F.R.D. 145,
  149 (N.D.Fla. 1980). Thus, the JAC was presented with
  an adequate opportunity in this regard. Moreover, if
  a party has a close relationship with a named
  respondent, as does the JAC, and has actual notice of
  the EEOC charge, as it is likely the JAC has had, to
  the extent that the JAC could have participated in
  conciliation efforts, the JAC "should not be heard to
  cry `foul' when later made a defendant in a suit. . .
  ." Stevenson v. International Paper Co., supra, 432
  F. Supp. [390] at 397-98.

Eggleston (id.) also noted the futility of affording JAC a greater opportunity for conciliation in view of Local 130's "unmatched ferocity" in fighting the lawsuit and JAC's refusal to settle after it had been specifically named in a later-filed EEOC charge. Again those considerations have persuasive force here:

    1. Once Hokes were notified of the EEOC charge,
  they could have attempted to reach a settlement with

    2. Any EEOC initiative to achieve Revell's
  voluntary compliance would have necessarily embraced
  Hokes, for they (a) control Revell's employment
  practices and (b) were the ones who ordered Pauls'

    3. In all likelihood, enhancing Hokes' opportunity
  to conciliate would have been futile in light of the
  persistent refusal of both Revell and Hokes (after
  the latter learned of the EEOC charge) to resolve
  their dispute with Pauls.

In sum Eggleston, 657 F.2d at 906, requires the retention of Hokes in this case, for they were "sufficiently named or alluded to in the factual statement [of the EEOC charge] to be joined."*fn8

As if that were not enough (and it is), the "substantial identity" exception first articulated in McDonald v. American Federation of' Musicians, 308 F. Supp. 664, 669 (N.D.Ill. 1970) also renders Hokes amenable to suit. McDonald permitted suit against an uncharged union official who took the allegedly discriminatory action at issue because that official was "substantially identical" to the charged union. As McDonald makes plain, the availability of its exception hinges on the extent to which the entity-defendant acted through the unnamed individual defendant in undertaking the challenged practices.*fn9 Accord, Goodman, 498 F. Supp. at 1333 (allowing plaintiff to proceed against unnamed college president who had merely recommended the allegedly discriminatory appointment to the named board of trustees); cf. Quinn, 445 F. Supp. at 785 ("Mere employment by the named defendant is an insufficient identity of interest").

That "substantially identical" doctrine could not be more directly on point here, for Hokes were wholly responsible for Pauls' discharge. Accordingly, both Eggleston and McDonald excuse Pauls' failure to name Hokes in her EEOC charge.*fn10


Hokes' motion to dismiss is denied. They are ordered to answer the Complaint on or before September 27, 1983.

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