The opinion of the court was delivered by: Aspen, District Judge.
MEMORANDUM OPINION AND ORDER
Fekade Zewde ("Zewde"), a black, Ethiopian man, has sued Elgin
Community College ("Elgin") and Dennis Sienko ("Sienko") in a
six-count complaint which alleges unlawful employment
discrimination under various federal and state theories. Elgin
and Sienko have moved to dismiss the suit, raising a host of
challenges to the complaint. For the reasons stated below, the
Court grants the motion in part and denies it in part.
The complaint alleges the following facts, which we assume to
be true for the purposes of this motion. Elgin hired Zewde in
June of 1977 as a Coordinator of the Adult Basic Education
Program. Over the years, Zewde had been denied tenure and passed
over for several job openings, such as Community Education
Coordinator, Director of Adult Continuing Education and
Affirmative Action Coordinator. During this time defendant Sienko
had been Director of Occupational Relations for Elgin and had
been responsible for its hiring and other personnel practices.
On September 21, 1983, less than 180 days following his June
discharge, but 277 days after his December 18, 1982 rejection,
Zewde filed a charge with the Equal Employment Opportunity
Commission ("EEOC"), alleging discrimination on the basis of race
and national origin. The charge named Elgin, but not Sienko, as
a respondent. It alleged the December 1982 and June 1983 events,
but did not mention the denial of tenure or the previous
rejections. The EEOC later issued a "right to sue" letter, and
Zewde then filed his six-count complaint with this Court. The
first count alleges violations of Title VII and prays for
punitive and compensatory damages. Count II is based upon
42 U.S.C. § 1983, alleges "constitutional" violations and also prays
for punitive damages. Counts III and IV arise under 42 U.S.C. § 1981.
Counts V and VI are pendent state law claims, alleging
breach of contract and "wrongful discharge," respectively. Elgin
and Sienko have moved to dismiss the complaint, raising myriad
challenges to each of the six counts. Below we will address the
challenge to each count in order.
Elgin argues that all or part of Title VII claim must be
dismissed because (1) Zewde never filed a charge with the
Illinois Department of Human Rights ("IDHR"); (2) all acts before
the ones of June 1983 occurred more than 180 days before Zewde
filed his EEOC charge; (3) Title VII forbids recovery of punitive
and compensatory damages; (4) several of the acts alleged in the
complaint fall outside the scope of the EEOC charge. In addition,
Sienko argues that he must be dismissed as a defendant to Count
I because he was not named as a respondent in the EEOC charge.
A. Failure to File With the IDHR
Elgin asserts that Zewde's failure to file a charge with the
IDHR demands dismissal under 42 U.S.C. § 2000e-5(c).*fn2
However, Elgin concedes that Zewde did file a charge with the
EEOC. It is well established that a layperson will not be
punished for filing with the "wrong" agency first. Since Illinois
is a "deferral" state, if the EEOC happens to receive the charges
first, it may institute state administrative proceedings on
behalf of the complainant by referring the charges to the state
agency. See Love v. Pullman, 404 U.S. 522, 92 S.Ct. 616, 30
L.Ed.2d 679 (1971); Stoecklein v. Illinois Tool Works, Inc.,
589 F. Supp. 139, 144 n. 7 (N.D.Ill. 1984); 2 Larson, Employment
Discrimination, § 48.12 (1983). EEOC regulations require the EEOC
to refer charges automatically to the relevant state agency.
29 C.F.R. § 1601.13 (1983). Accordingly, we hold that Zewde
instituted state proceedings by filing his
charge with the EEOC, and we therefore deny Elgin's motion to
dismiss on that theory.
Zewde filed his EEOC charge on September 21, 1983, which was
within 180 days of his June rejection and discharge, but between
180 and 300 days of his December rejection. Elgin argues that the
EEOC charge was timely filed only with respect to the June
events, because the Illinois Human Rights Act ("IHRA") imposes a
180 day limitation for filing with the IDHR. See Ill.Rev.Stat.
ch. 68, ¶ 1-101 et seq. (1983).
Title VII grants jurisdiction to federal courts only if certain
time limitations are met. An EEOC charge must normally be filed
"within one hundred and eighty days after the alleged unlawful
employment practice occurred . . ." 42 U.S.C. § 2000e-5(e).
However, that period may extend to 300 days in a deferral state
like Illinois. Id. In a deferral state, no EEOC charge may be
filed "before the expiration of sixty days after proceedings have
been commenced under state or local law, unless such proceedings
have been earlier terminated . . ." 42 U.S.C. § 2000e-5(c). The
District Courts in this district have split in their
interpretations of these sections and the equivalent sections of
the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621
et seq. Compare O'Young v. Hobart Corporation, 579 F. Supp. 418
(N.D.Ill. 1983) (Illinois complainants must file EEOC charge
within 180 days because of limitations period of IHRA); Lowell v.
Glidden-Durkee, Div. of SCM Corp., 529 F. Supp. 17 (N.D.Ill. 1981)
(same), with, Stoecklein v. Illinois Tool Works, Inc.,
589 F. Supp. 139 (N.D.Ill. 1984) (ADEA does not require complainant to
begin state proceedings within 180 days in order to enjoy
extended 300 day period for filing with the EEOC); Curto v.
Sears, Roebuck & Co., 552 F. Supp. 891 (N.D.Ill. 1982) (same).
This issue is presently on appeal before the Seventh Circuit.
Anderson v. Illinois Tool Works, Inc., 750 F.2d 791 (9th Cir.
1984).In Stoecklein, supra, we decided the issue in the context
of the ADEA, holding that Illinois complainants may file their
EEOC charges (and, derivatively, their IDHR charges) within 300
days of the last act of discrimination. 589 F. Supp. at 144. We
see no reason to depart from that recent holding. As we
recognized in that opinion, Title VII and the ADEA are nearly
identical in their limitations periods, and opinions construing
the filing requirements of one Act often apply as well to the
other. Accordingly, we hold that Zewde need not have filed his
Title VII charge with the IDHR within 180 days of the last act of
Title VII differs, however, in one material respect from the
ADEA such that we cannot fully apply Stoecklein to this case. As
we pointed out in Stoecklein, 589 F. Supp. at 143, Title VII
requires a complainant to file a charge with the state 60 days
before filing a charge with the EEOC, while the ADEA requires
only that the state filing occur 60 days before filing a lawsuit.
Compare 42 U.S.C. § 2000e-5(c), with, 29 U.S.C. § 633(b). We held
in Stoecklein that the ADEA complainant could file his charge
within the full time period allotted by that Act, i.e., 300 days.
But because of the difference between Title VII and the ADEA as
discussed above, we cannot simply apply the 300 day rule in this
case. The Supreme Court has construed §§ 2000e-5(c) and
2000e-5(e) to require that a complainant file his state charges
within 240 days of the alleged discriminatory act in order to
preserve his or her federal rights. Mohasco Corp. v. Silver,
447 U.S. 807, 814 n. 16, 100 S.Ct. 2486, 2491, 65 L.Ed.2d 532 (1980).
If the complainant files with the state agency between 240 and
300 days following the alleged discriminatory act, the EEOC
charge will be deemed untimely unless that state agency actually
terminated its proceedings before the 300th day. Id. Accordingly,
consistent with Mohasco and with our previous holding in
Stoecklein, we hold as follows: Despite the 180 day limitations
period of the IHRA, a Title VII complainant may file his state
charge any time within 240 days of
the alleged discriminatory act. If, as in this case, the charge
is filed between 240 and 300 days, the court must determine
whether the state agency actually terminated its proceedings on
or before the 300th day. If so, the charge was "timely" filed
with the EEOC. If not, Mohasco compels dismissal.
In this case, Zewde filed his charge on September 21, 1983,
which by our calculations was 277 days after the alleged December
18, 1982 act of discrimination. The record is silent on whether
the IDHR terminated its proceedings regarding Zewde's charge
within 23 days after the filing. Thus, we cannot decide now
whether Zewde's charge was timely filed. Because this fact goes
to our jurisdiction, we take the following action. We will
dismiss Zewde's Title VII claim insofar as it is based on the
December 1982 or any earlier act of discrimination. If within 30
days Zewde provides the Court with proof that the IDHR actually
terminated its investigation within 300 days of the December 18,
1982 act, he may move to reinstate that part of his claim.
In response to the above limitations arguments, Zewde argues
that the December, 1982 and earlier discriminatory acts were part
of a pattern of discrimination against him, amounting to a
continual violation of Title VII, which culminated in his
discharge on June 30, 1983. He claims that the time for filing
his EEOC charge was tolled until the date he was fired, and thus
his charge was filed within 180 days of the last discriminatory
act. We disagree.
The Seventh Circuit surveyed the continuing violation doctrine
in Stewart v. CPC International, Inc., 679 F.2d 117 (1982). The
Court identified four types of situations subject to a continuing
violation analysis. Id. at 120-1.*fn3 Only the fourth of these
appears to apply to this case. In this paradigm, the plaintiff
alleges that the employer has for some time secretly
discriminated against the plaintiff or class. Only a series of
discrete acts exposes the discriminatory policy or practice. Id.
at 121. Like the plaintiff in Stewart, Zewde alleges this "Type
4" continuing violation. He argues that the several rejections of
his applications for various positions reveal a pattern of
unlawful discrimination, culminating in his discharge, which took
place less than 180 days before he filed his EEOC charge. Having
artificially categorized the "type" of continuing violation
theory Zewde is advancing, we must determine what violations in
this category warrant protection. On the one hand, Zewde was
allegedly confronted over his six or so years at Elgin with
several discrete discriminatory acts — denials of job
applications and refusals of tenure. Arguably, he either knew or
should have known of the discrimination before June, 1983. But on
the other hand, the first few rejections might not have
reasonably alerted Zewde to possible discrimination. It might
take several rejections for one to realize or suspect that
decisions are being made on the basis of a forbidden factor. In
sum, this tension reduces to this question: "What event, in
fairness and logic, should have alerted the average lay person to
act to protect his rights, or when . . . should [he] have
perceived that discrimination was occurring"? Elliott v. Sperry
Rand Corp., 79 F.R.D. 580, 585 (D.Minn. 1978).
In an attempt to focus this confusing area of Title VII law,
the Fifth Circuit delineated three, non-exclusive factors to
consider in deciding whether a "continuing violation" existed: