United States District Court, Northern District of Illinois, E.D
September 20, 1983
STELLA PAULS, PLAINTIFF,
ELAINE REVELL, INC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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.
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
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
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
In finding JAC had been afforded ample opportunity to
conciliate, Eggleston reasoned (657 F.2d at 907, footnote
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.  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.