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April 16, 1984


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


This action arises out of defendant Illinois Tool Works' ("ITW") termination, or forced retirement, of plaintiff Robert W. Stoecklein ("Stoecklein"). Stoecklein alleges in Count I that ITW violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621-634, by demoting him and later terminating him because of his age. Included in the complaint are two state law claims over which Stoecklein asks this Court to exercise pendent jurisdiction. Count II is a tort claim for retaliatory discharge, based on the Illinois public policy against age discrimination embodied in the Illinois Human Rights Act ("IHRA"), Ill.Rev.Stat. ch. 68, § 1-101 et seq. Count III is a tort claim for intentional infliction of emotional distress. ITW has moved to dismiss all three counts of the complaint. For the following reasons, we deny ITW's motion as to Count I but grant it as to Counts II and III.

Factual Background

The allegations of the complaint and the attached EEOC charge, which we must accept as true for purposes of a motion to dismiss, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), establish the following facts.

Stoecklein, who was fifty-seven years old at the time of the alleged discrimination, was employed continuously by ITW for more than twenty-six years, from October 17, 1955 to December 31, 1981.*fn1 During that time, he performed his work in a competent and satisfactory manner and received promotions, merit salary increases and letters of commendation.

Prior to December of 1980, Stoecklein was Manager of the Power Tools Department. During that month, however, he was transferred to a different department and demoted to Product Manager. In December of 1981, his new position was eliminated, and he was terminated. Contrary to prior company practice and policy regarding the elimination of positions, ITW made no effort to relocate or transfer Stoecklein to another position within the company. Stoecklein further alleges that at the same time he was terminated, others were also forced to retire, ITW having established a pattern of involuntary retirement for many in his same age group.

The facts and occurrences leading to Stoecklein's termination are not entirely clear. Stoecklein was first informed, orally, in September that his position might be eliminated and then later that he would be terminated as of December 31, 1981, rather than transferred. During October, he was informed that others were to be terminated also, as of October 31, 1981. All these employees were in their fifties or early sixties. He was told on October 16 that he would have to leave with the others on October 31. In the end, Stoecklein apparently continued working at least until December 1, 1981, the date alleged in the EEOC charge, although in his complaint he gives a termination date of December 31, 1981.

Stoecklein alleges also that, to his knowledge and belief, ITW replaced him with younger workers to fill available positions within his qualifications, and that ITW refused to rehire him for any such positions. Finally, Stoecklein alleges that ITW's discriminatory conduct towards him was wilful within the meaning of the ADEA, 29 U.S.C. § 626(b), in that it was done in known violation of the ADEA and with motivation to engage in a pattern of discrimination against older employees.

On June 1, 1982, Stoecklein filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). On May 4, 1983, the EEOC informed Stoecklein it would not proceed further with his case. He filed the present action on September 21, 1983.

Count I

Count I of Stoecklein's complaint alleges that ITW has discriminated against him because of his age in violation of the Age Discrimination in Employment Act. ITW argues that Stoecklein's ADEA claim should be dismissed because his charge was not filed with the EEOC within 180 days of the alleged discriminatory act, which it claims is required by the ADEA, 29 U.S.C. § 626(d)(1). ITW asserts that Stoecklein knew at least by November 11, 1981, (and arguably by October 16) that his position was to be eliminated, since on that date and prior to that date, he executed documents evidencing his intent to retire in lieu of discharge. Those documents are attached to ITW's motion to dismiss. In addition, ITW cites Stoecklein's own EEOC charge attached to his complaint, which gives December 1, 1981, as Stoecklein's final termination date. Using either of these dates, the EEOC charge was filed more than 180 days after Stoecklein had knowledge of the alleged discrimination.

Stoecklein answers by asserting (1) that December 31, 1981, is the appropriate date, but that in any case the exact date of his termination is an issue of fact which should not be resolved on a motion to dismiss; (2) that ITW has waived its right to object to the timeliness of the EEOC charge because it failed to raise that issue during administrative proceedings; and (3) that in any case Stoecklein is entitled to a 300-day filing period under the ADEA, 29 U.S.C. § 626(d)(2). Because we conclude that the 300-day filing period is applicable in this case and that therefore the EEOC charge was timely filed using any of the possible trigger dates, we need not reach Stoecklein's first two contentions.

The ADEA, 29 U.S.C. § 626(d), establishes two different limitation periods for the filing of charges with the EEOC, 180 days as a general rule, but 300 days in so-called deferral states which have their own enforcement agencies to combat age discrimination.*fn2 Section 626(d) reads as follows:

    No civil action may be commenced by an individual
  under this section until 60 days after a charge
  alleging unlawful discrimination has been filed with
  the ...

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