Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 C 7207, John F. Grady, Judge.
Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and FAIRCHILD, Senior Circuit Judge.
Plaintiff Ronald E. Anderson brought this action pursuant to the Age Discrimination in Employment Act, as amended (the "ADEA"), 29 U.S.C. § 621 et seq., alleging unlawful involuntary termination of his employment by defendant Illinois Tool Works, Inc. ("Illinois Tool'), and breach of an implied contract of employment. This appeal is taken from the Order of the district court granting summary judgment for defendant and dismissing the action on the ground that plaintiff did not file his claim with the appropriate state agency, here the Illinois Department of Human Rights (the "IDHR"), within 180 days of the alleged discrimination. The only issue on appeal is whether, where the state filing period is not shorter than the 180-day federal filing period available in non-deferral states, a timely filing with the appropriate state agency is a condition precedent to filing a charge with the Equal Employment Opportunity Commission (the "EEOC") under the extended 300-day statutory period, in order to bring suit in federal court under the ADEA. We hold that the state filing need not be timely and therefore reverse.
At the time of his discharge in 1981, plaintiff had been employed by Illinois Tool for over 26 years and was 59 years old. In October, 1981, plaintiff was offered the opportunity of early retirement, which he declined. He was discharged effective October 31, 1981. On April 27, 1982, plaintiff filed a charge of age discrimination with the EEOC, and on April 28, 1982, with the IDHR. On October 29, 1982, the IDHR dismissed plaintiff's charge for lack of jurisdiction. The IDHR investigation report stated "Complainant was told of his discharge on October 27, 1981. His charge was filed on April 28, 1982, 183 days later. Therefore a finding of lack of jurisdiction is recommended." Record on Appeal, Item 28, Ex. B.*fn1
The district court granted Illinois Tool's motion for summary judgment on February 24, 1984, and dismissed the action. The district court reasoned that since plaintiff's state charge had been correctly dismissed as untimely filed by the IDHR,*fn2 plaintiff could not avail himself of the 300-day period of 29 U.S.C. § 626(d) to file his EEOC charge, but was required to file his EEOC charge within the standard 180-day period. The district court concluded that plaintiff had not complied with the ADEA filing requirements (his EEOC charge having been filed 182 days after he received notice of discharge), and so his federal court action was barred. The district court granted summary judgment for defendants, dismissed the action and declined to exercise pendent jurisdiction over the breach of contract claim.
Section 7(c) of the ADEA, 29 U.S.C. § 626(c), creates a private right of action for persons aggrieved by a violation of the ADEA. Section 7(d), 29 U.S.C. § 626(d), imposes a condition precedent upon the bringing of such a private action. It provides that an action cannot be brought until sixty days after a charge of unlawful discrimination has been filed with the EEOC, and provides time limits for filing such a charge. In part, section 626(d) says:
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 Commission. Such a charge shall be filed (1) within 180 days after the alleged unlawful practice occurred; or (2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier. . . .
Section 633(b) (section 14(b) of the ADEA) is applicable in so-called "deferral states," that is, states which have employment discrimination laws, and provides:
In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated: Provided, that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State law. If any requirement for the commencement of such proceedings is imposed by a State authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purpose of this subsection at the time such statement is sent by registered mail to the appropriate State authority.
The question here is whether the 300-day limit of § 626(d)(2) applies to all cases brought in deferral states, or if the 180-day limit of § 626(d)(1) applies unless state proceedings have been instituted within either the state period or 180 days.*fn3 We hold the former to be the case.
We begin by noting that § 633(b) simply requires proceedings to "have been commenced under the State law." There is no explicit requirement in the statute that the aggrieved person file within the time limits specified by the state. Indeed, section 633(b) "requires only that the grievant commence state proceedings." Oscar Mayer & Co. v. Evans, 441 U.S. 750, 759, 60 L. Ed. 2d 609, 99 S. Ct. 2066 (1979). The use of the term "commenced" in the statute indicates to us, as it did to the Supreme Court in Oscar Mayer, that the filing need not be timely. This conclusion is supported by analogy to the Federal Rules of Civil ...