The positions which the five younger attorneys filled were
those of general attorneys in various departments of Allied.
Given plaintiff's broad experience, the Court concludes that he
was qualified to at least be considered for one of the positions.
It is apparently the policy of Allied, when openings arise, to
give priority to its own employees whose positions have
disappeared. Thus, some months after plaintiff was terminated,
the position of James Clayton in the Information Systems Division
also "disappeared." Unlike plaintiff, however, Clayton was
requested to transfer to a different job in an entirely different
division. Similarly, when David Fewkes' position with Bunker Ramo
"disappeared," he was offered a different position with Allied.
While plaintiff does not contend that he should have been
considered for the position which Fewkes was ultimately offered,
he does contend that he should have been afforded the same
treatment in that an effort should have been made on the part of
defendant to place plaintiff elsewhere in the company.
In further support of his case, plaintiff notes that in 1981,
the job description of one attorney, Dennis R. Marshall, was
changed to reflect Marshall's new function as a securities
lawyer. Despite the admission of Allied's Vice President and
Associate General Counsel, Kevin Salisbury, the individual
charged with reorganizing the Bunker Ramo law department, that
plaintiff's expertise was in the area of securities law,
plaintiff was never notified of the need for a securities lawyer
and apparently was never considered for the position.
Finally, plaintiff has set out certain evidence which would
tend to indicate defendant's concern for the age of its
employees. While no evidence directly implicating that defendant
was specifically concerned about plaintiff's age is tendered, the
general concern regarding the age of the law department employees
is evident. Thus plaintiff testified in his deposition that he
heard Harold Doherty, administrator of the Allied law department,
state to David Fewkes, with regard to Frederick Arbuckle, the
Bunker Ramo Director of Patents, "I won't move him back east [to
Allied's east coast offices] because he's too close to
In light of the foregoing, it is clear that a genuine issue of
fact exists as to whether the decision not to employ plaintiff in
the Allied organization was based upon his age. For that reason,
defendant's motion for summary judgment must be denied.
II. The Procedural Claim
Defendant also argues that plaintiff's claim is procedurally
barred. It argues that because plaintiff may have filed his
charge of discrimination with the Illinois Department of Human
Rights more than 180 days after the discriminatory act, the
action must be dismissed. While defendant relies upon a number of
district court cases indicating the correctness of its position,
it is clear that under Mohasco v. Silver, 447 U.S. 807, 100 S.Ct.
2486, 65 L.Ed.2d 532 (1980), a plaintiff need only file the state
charge prior to instituting suit. The ADEA requires only that the
state charge be filed 60 days prior to instituting suit.
29 U.S.C. § 633(b).
As Judge Marshall noted recently in Curto v. Sears Roebuck &
Co., 552 F. Supp. 891, 895 (N.D.Ill. 1982):
Every post-Mohasco court to consider the question has
concluded that state proceedings need not be
commenced within 180 days, and that the statute only
requires a state filing at some point prior to
seeking a judicial remedy under ADEA. [emphasis
added] [Citing] Aronsen v. Crown-Zellerbach,
662 F.2d 584 (9th Cir. 1981); Ciccone v. Textron, Inc.,
651 F.2d 1 (1st Cir.), cert. denied, 452 U.S. 917, 101
S.Ct. 3052, 69 L.Ed.2d 420 (1981) [opinion after
remand]; Goodman v. Heublein, Inc., 645 F.2d 127 (2d
Cir. 1981); Davis v. Calgon Corp., 627 F.2d 674 (3d
Cir. 1980), cert. denied, 449 U.S. 1101, 101 S.Ct.
897, 66 L.Ed.2d 827 (1981).
In the case at bar, defendant concedes that plaintiff filed his
lawsuit more than 60 days prior to the institution of the instant
suit. The ADEA requires no more.