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April 19, 1984


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


This civil rights action is before the court on the motion to dismiss of defendant DuPage Area Vocational Education Authority ("DAVEA"). Plaintiffs are seven women now employed by DAVEA, suing on their own behalf and not as class representatives. The four-count complaint contains claims based on both federal and state law. Count I alleges that DAVEA discriminated against plaintiffs on account of their sex by giving them "less compensation and other terms and conditions of employment than males performing equal, comparable, or equivalent duties or functions." (Complaint ¶ 5.) This discrimination occurred "[f]rom the time of the initial placement and during the course of all subsequent employment by DAVEA. . . . (Id.) Relief in Count I is based on alleged violations of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and the Civil Rights Act of 1871, 42 U.S.C. § 1983. Count II is based on the same underlying facts but bases its claim for relief on a violation of the Fair Labor Standards Act, 29 U.S.C. § 206(d)(1) ("Equal Pay Act"). Counts III and IV are the pendent state claims which reincorporate the same factual allegations of the federal claims. Count III alleges a violation of The School Code, Ill.Rev.Stat., ch. 122, ¶ 24-7, and count IV alleges a violation of the Illinois Constitution. DAVEA has moved to dismiss all claims for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. Fed.R.Civ.P. 12(b)(1) and (6). In addition, DAVEA moves to strike plaintiffs' claims for punitive damages.

Counts I and II

DAVEA first argues that the court lacks subject matter jurisdiction over the Title VII and Equal Pay Act claims. DAVEA asserts that plaintiffs have not sufficiently alleged the exhaustion of administrative remedies, nor have they alleged that they filed their charge before the EEOC within 180 days after the last discriminatory act. The allegations relating to exhaustion on the Title VII charge areas follows:

  Each plaintiff has filed a Charge of Discrimination before the
  Equal Employment Opportunity Commission, has received a Right
  to Sue letter therefrom, and has instituted this action within
  90 days from the date of said Right to Sue letter, thereby
  exhausting all statutory and administrative procedures
  prerequisite to instituting this action.

(Complaint Ct. I, ¶ 7.) The exhaustion allegations to the Equal Pay Act claim are substantially the same as the above, with the addition that "[e]ach of the plaintiffs has given her consent in writing to become a party to this action. Said consents are attached to the Complaint." (Complaint Ct. II, ¶ 7.) The right to sue letters are issued by the Attorney General's office, 42 U.S.C. § 2000e-5(f)(1) and are dated July 12, 1983, eighty-seven days before the suit was filed on October 7, 1983.

Jurisdiction over the subject matter of the complaint must be shown affirmatively on its face; absent proper jurisdictional averments, the complaint may be dismissed. Haley v. Childers, 314 F.2d 610 (8th Cir. 1963). A suit for employment discrimination should not be dismissed when general allegations of compliance with administrative conditions precedent are made. E.E.O.C. v. Airguide Corp., 395 F. Supp. 600 (S.D.Fla. 1975), rev'd on other grounds, 539 F.2d 1038 (5th Cir. 1976). For example, the jurisdictional averments held adequate in E.E.O.C. v. Wah Change Albany Corporation, 499 F.2d 187 (9th Cir. 1974), included a general claim that "(a) conditions precedent to the commencement of this action have been fulfilled." Id. at 188 n. 1. Here, plaintiffs have alleged that they have exhausted their administrative remedies. They have explained that they received their right to sue letters and commenced their suit within ninety days of its receipt.

DAVEA counters that plaintiffs do not allege that any discrimination occurred within 180 days before the filing of their charge before the EEOC. Even if such a specific allegation of compliance with administrative remedies were required in the pleadings, plaintiffs have fulfilled this standard. In their fifth allegation, they state that the discrimination in compensation and other terms and conditions of employment continued "during the course of all subsequent employment by DAVEA. . . ." As plaintiffs are still employed thereby, (Complaint ¶ 4), the clear implication is that the discrimination has continued. This implication is supported by plaintiffs' memorandum in opposition to the motion to dismiss, in which they explain that the discrimination continues to the present. (Plaintiffs' Memorandum in Opposition p. 7.)

Defendant continues that plaintiffs' theory of timely filing is one of "continuing violation." As such, their allegations do not fit within the doctrine as it is explained in Stuart v. C.P.C. International, 679 F.2d 117 (7th Cir. 1983). The court notes that at least on the discriminatory compensation claims, which are explained to continue to the present, plaintiffs have clearly alleged a discriminatory act occurring within 180 days of the filing of the charge. One court explains:

  Under Title VII, discrimination as to salary is held to be a
  continuing violation of the law. A charge attacking a

  violation such as salary discrimination is timely if it is
  filed within 180 days of the last act of alleged
  discrimination. (Citations omitted.)
  Here . . . plaintiff claims that defendant discriminated
  against her in pay during her two years of teaching, a
  violation that was continuing when she filed her EEOC
  charge. . . . Plaintiff did, therefore, comply with the 180 day
  rule, and neither of her claims for salary discrimination are
  time-barred under Title VII.

Fisher v. Dillard University, 499 F. Supp. 525, 528-529 (E.D.La. 1980); e.g., Boyd v. Madison County Mutual Insurance Co., 653 F.2d 1173, 1176 (7th Cir. 1981), cert. denied, 454 U.S. 1146, 102 S.Ct. 1008, 71 L.Ed.2d 299 (1982). Hence, the salary discrimination claims are not barred. The court can make no holding on whether any of the other "terms and conditions" have been timely brought before the EEOC, either as acts of discrimination occurring within the 180-day period or as continuing violations. These other types of discrimination are not explained in the complaint. As to them, therefore, the court accepts plaintiffs' general allegation that administrative remedies have been properly exhausted.

One aspect of administrative exhaustion concerns the court. Plaintiffs are required, under 42 U.S.C. § 2000e-5(c) and (e), to file a complaint with the Illinois Human Rights Commission before filing with the EEOC. The court's concern is based on plaintiffs' insistence in its discussion of the state counts that they need not exhaust their remedies before the Illinois commission. This suggests that they may not have thought it necessary to file their complaint with the Illinois Commission. It is possible, however, for plaintiffs to have failed to exhaust their state administrative remedies for purposes of bringing a state claim, while still satisfying the much more limited exhaustion required under federal law. The court simply notes this point, and accepts plaintiffs' allegations that exhaustion under federal law was properly accomplished.

DAVEA next claims that Title VII does not protect against discrimination based on the theory of "comparable worth." It devotes six pages of its memorandum to examining the leading cases on this difficult concept, County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981), and AFSCME v. State of Washington, 578 F. Supp. 846 (W.D.Wash. 1983). The court deems a discussion of this issue is premature at this stage. Plaintiffs' complaint alleges that they were discriminated against by receiving less favorable terms and conditions of employment than "males performing equal, comparable, or equivalent duties and functions." (Complaint ΒΆ 5.) There is no indication in the complaint or in plaintiffs' memorandum, of what they mean by the word "comparable." Even if the court were to deem the word a term of art, meaning the theory of "comparable worth" (that is, for example, comparing the terms and conditions of employment of male truck drivers and female lab technicians), there is no indication from the general allegations of the complaint that plaintiffs are proposing such a theory. That they are not is supported by their grouping of the term with the words "equal" and "equivalent." Moreover, their use of the word on page four of the memorandum indicates that they do not understand the word to be a proxy for the "comparable worth" theory. The complaint, in sum, does not allow the court to ascertain whether plaintiffs are proposing that Title VII protects against discrimination between jobs with comparable worth. On the other hand, the complaint makes clear that it is comparing at ...

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