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December 21, 1984


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


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.

I. Facts

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 December 18, 1982, Zewde applied for the job of Director of Correctional Programs. Elgin rejected him and hired a white applicant, who was allegedly less qualified than him. In early June 1983, Zewde applied to be Director or Account Executive of Corrections Training. A three-person panel headed by Sienko interviewed him and told him he would be contacted. An hour later Sienko told Zewde that he had hired a different applicant. This applicant was White, also allegedly less qualified than Zewde.*fn1 As of Fall 1983, Elgin employed only one Black full-time faculty member out of a total of 100. Elgin hired one more in 1984. At the end of June 1983, when Zewde's most recent one-year employment contract expired, Elgin told Zewde that the funding for his position had dried up, and that his contract would not be renewed.

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.

II. The Title VII Claim

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.

B. Limitations

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:

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