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OXMAN v. WLS-TV

September 24, 1984

JONAH OXMAN, ON BEHALF OF HIMSELF AND NUMEROUS OTHERS WHO ARE SIMILARLY SITUATED, PLAINTIFF,
v.
WLS-TV, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Jonah Oxman ("Oxman") has brought this class action against his former employer WLS-TV ("WLS") alleging religious and race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and age discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("the ADEA"). WLS has asked that the Court dismiss the complaint or at least strike Oxman's class allegations. For the reasons stated below, WLS's motion is denied.

1. Facts

The facts recited below are taken from the complaint, which we assume to be true for the purposes of this opinion. Oxman, a 61 year old Jewish man, worked for WLS from July 1967 until January 27, 1984, when he was discharged. Shortly after being fired, Oxman filed a charge with the Equal Employment Opportunity Commission ("EEOC"). On the EEOC form titled "Charge of Discrimination," Oxman checked the boxes for "religion" and "other" (for "age") as the types of discrimination he was charging. The complete text of the "particulars" of his charge stated:

  1. On the above date my 16 1/2 years of
    continuous employment with the employer was
    involuntarily terminated. Said action was
    religious and/or age based. My religion is
    Jewish. My age is 60.
  2. The above discriminatory employment practice
    against me is part of a current pattern of
    discriminatory conduct against employees
    similarly situated based upon religion, race,
    and age.

On May 8, 1984, the EEOC sent Oxman a "right to sue" notice, and he filed the two-count complaint in this action on June 4, 1984.

Oxman's complaint is about as brief and conclusory as his EEOC charge. Count I defines a purported plaintiff class of "Jewish and Black individuals employed by . . . WLS-TV, in various management, on-camera, or other positions exempt from the unit of employees represented in collective bargaining pursuant to the Labor-Management Relation Act." Oxman then copies without factual support, the four requirements for class certification of Fed.R.Civ.P. 23(a). Finally, he alleges that WLS discharged him on January 27, 1984, because he is Jewish, and that his termination was part of a WLS policy and practice of terminating or "constructively" terminating employees because of religion and race. Oxman also alleges that WLS has a discriminatory policy with respect to job assignments, although his EEOC charge contained no such explicit allegations. Finally, in Count II Oxman raises an individual claim that WLS fired him because of his age, violating the ADEA.

WLS's motion to dismiss can be divided into four general issues. The first two contentions challenge our subject matter jurisdiction: first, WLS argues that Oxman's allegations of discrimination based on race and job assignments exceed the scope of his charge to the EEOC, and thus he has not exhausted his administrative remedies with respect to those claims. Second, WLS asserts that Oxman, a White, lacks standing to raise a claim of discrimination against Blacks. Next, WLS postures its motion as one under Fed.R.Civ.P. 23(c)(1) and asks that the Court strike Oxman's class allegations for not complying with the prerequisites of Rule 23. Finally, WLS attacks Oxman's age discrimination claim, arguing that his complaint fails to allege all of the essential elements of an ADEA claim. We will consider WLS's arguments in order.

2. Exhaustion

The parties agree that the Seventh Circuit's en banc opinion in Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164 (1976), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976), defines how this Court should approach the exhaustion issue. Jenkins held that we should not dismiss allegations of discrimination so long as they are "`like or reasonably related to the allegations of the [EEOC] charge and grow [. . .] out of such allegations.'" Id. at 167, quoting Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir. 1971). It is well established that this "like or reasonably related" test is broad and liberal, as it grows out of the policy of being "solicitous of the Title VII plaintiff." 538 F.2d at 168 (citations omitted); see also Bowie v. Veteran's Administration, 565 F. Supp. 81, 84 (N.D.Ill. 1983) (Shadur, J.); Aponte v. National Steel Service Ctr., 500 F. Supp. 198, 201 (N.D.Ill. 1980) (Moran, J.); Petty v. Peoples Gas Light and Coke Co., 86 F.R.D. 336, 341-342 (N.D.Ill. 1979) (Bua, J.). But a countervailing consideration sets a boundary for this liberal policy: the EEOC serves a conciliatory function and when a plaintiff's complaint exceeds the scope of an EEOC charge, it denies the EEOC a chance to mediate between the parties. See, e.g., Carter v. Container Corporation of America, No. 79 C 3786, slip op. at 3 (N.D.Ill. 1980) (Aspen, J.). This respect for exhaustion no doubt underlies the "reasonably related" test, which can be viewed as ensuring some initial EEOC involvement with a discrimination claim while removing technical obstacles from a Title VII plaintiff's path to federal court. Essentially, the Jenkins test parallels the concept of notice pleading under Rule 8 and requires that the EEOC be put on general, broad notice of a claim.

With this standard in mind, we can easily dispose of WLS's argument that Oxman's allegation of race discrimination is not "like or reasonably related to" his EEOC charge. The EEOC charge explicitly alleges that WLS has a discriminatory policy based on race. Oxman's complaint is plainly "reasonably related" to the EEOC charge on that score,*fn1 and the EEOC certainly had general notice of that claim. Of course, Oxman's allegation of race discrimination raises a host of other issues, which we discuss in the next two sections.

WLS's argument that Oxman's allegation of discriminatory job assignments exceeds the scope of the EEOC charge is more difficult. Unlike the race allegation, job assignments are not mentioned in the EEOC charge. Oxman concedes, and we agree, that a discriminatory pattern of job assignments not connected to a general discharge policy falls outside the scope of his EEOC charge. But Oxman argues that WLS has aimed its job assignment practices at the purported class of Blacks and Jews as part of its overall plan of discharging class members. In effect, he argues that the job assignment policy is one of WLS's means to its end of discharging class members. Oxman implies that because the assignment scheme is a component of the broad race and religion policy, it is reasonably related to the EEOC charge which does mention that policy. Oxman stretches the Jenkins test to its limit, but given the breadth of the Jenkins standards, we hold that the allegation of job assignment discrimination is like or reasonably related to the EEOC charge of classwide discrimination.*fn2 See Aponte v. National Steel Service Ctr., 500 F. Supp. 198, 201 (N.D.Ill. 1980) (Jenkins satisfied where court can construct a set of facts which can show a reasonable relation between the charge and the complaint); Bowie v. Veteran's Administration, 565 F. Supp. 81, 84 (N.D.Ill. 1983) (although plaintiff's EEOC charge did not mention performance evaluations, it did mention promotion policy and thus Jenkins was satisfied because performance evaluation was one ...


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