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PROFFIT v. KEYCOM ELECTRONIC PUB.

December 11, 1985

VALERIE PROFFIT, PLAINTIFF,
v.
KEYCOM ELECTRONIC PUBLISHING, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Valerie Proffit ("Proffit") sues Keycom Electronic Publishing ("Keycom"), charging race-motivated employment discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e to 2000e-17.*fn1 Keycom has moved under Fed.R.Civ.P. ("Rule") 12(b)(6)*fn2 to dismiss three of Proffit's claims. For the reasons stated in this memorandum opinion and order, Keycom's motion (converted to one under Rule 56*fn3) is granted.

Facts*fn4

In October 1982 Proffit, a black female, began working for Keycom as a departmental assistant. She points to several occurrences over the following two-year period as racially discriminatory:

    1. In August 1983 Keycom's Vice President Bob Taller
  ("Taller") began recruiting an executive assistant. Although
  Taller promised to interview Proffit for that position, he
  never did so. Eventually Taller hired a white executive
  assistant.
    2. In April 1984 Keycom sent a white departmental assistant
  to a trade show but did not send Proffit.
    3. In May 1984 Bob Burk interviewed Proffit for a higher
  position, but he promoted a white worker to that spot.
    4. In July 1984 Taller again began recruiting an executive
  assistant. This time Taller did interview Proffit, but he
  hired a white worker with less seniority than Proffit to fill
  the position.

On October 5, 1984 Keycom fired Proffit.

Proffit complained to the relevant federal and state agencies on two separate occasions. On June 8, 1984 she filed a charge ("Charge I," D.Ex. B) with both the Illinois Department of Human Rights ("IDHR") and EEOC, claiming Keycom had denied her promotion because of her race beginning in February 1984. Nearly a year later (on May 15, 1985) Proffit submitted an "Intake Questionnaire" (P.Ex. A) to EEOC, saying Keycom had discharged her in retaliation for filing Charge I. Two weeks later EEOC sent Proffit a proposed draft of a formal charge document encompassing that retaliation claim, asking that she sign and return the charge if it was satisfactory. Nearly 21/2; months passed without any action by Proffit. Then on August 11 she signed the charge ("Charge II," P.Ex. C) and filed it with EEOC. In turn EEOC proceeded on August 22 in accordance with the applicable regulation (Reg. § 1601.14(a)):

    1. Pursuant to the well-known sharing agreement between the
  state and federal agencies, EEOC transmitted a copy of Charge
  II to IDHR (D.Ex. D).

2. EEOC also sent a copy of Charge II to Keycom (D.Ex. E).

Timeliness and Scope of Proffit's Filings

Keycom advances three arguments to limit Proffit's claims in this action:

    1. Though Keycom's allegedly retaliatory discharge occurred
  on October 5, 1984, Proffit neglected to file a charge with
  EEOC until August 11, 1985 — 310 days later. That filing
  failed to comply with Title VII's time limits under Section
  2000e-5(e).
    2. Neither Charge I nor Charge II spoke of the allegedly
  discriminatory refusal to send Proffit to a trade show in
  April 1984.
    3. Charge I contains no claim that Keycom discriminatorily
  denied Proffit an interview for possible promotion in August
  1983.

Those asserted flaws will be dealt with in turn.

1. Proffit's Retaliatory Discharge Claim

Section 2000e-5(e) provides a complainant must file a discrimination charge with EEOC:

1. within 180 days, or

    2. in deferral states — states that have established their
  own agencies to remedy discrimination claims*fn5 — within
  300 days,

after the alleged discriminatory act. Absent special circumstances (not asserted here), no plaintiff who fails to file a timely charge with EEOC can maintain a Title VII suit. Martinez v. United Automobile, Aerospace & Agricultural Implement Workers of America, Local 1373, 772 F.2d 348, 350 (7th Cir. 1985).

Proffit waited until August 11, 1985 — 310 days after her October 5, 1984 discharge — to file a formal charge with EEOC. That formal charge fell outside the 300-day limitation period prescribed by Section 2000e-5(e). Keycom says Proffit consequently cannot include a claim for retaliatory discharge in this Title VII action.

Proffit retorts the Intake Questionnaire she submitted May 15, 1985 222 days after her discharge — constitutes a sufficient "charge" under Section 2000e-5(e) and thus satisfies the 300-day filing requirement. Keycom counters with two contentions:

    1. Under EEOC's regulations and for its own purposes, an
  Intake Questionnaire is not treated as a "charge."
    2. Even if the Intake Questionnaire were viewed as a
  "charge," Proffit's failure to file it with IDHR within 180
  days bars a Title VII suit based on the allegedly retaliatory
  discharge.

Both positions have merit, as the ensuing discussion shows.

(a) Intake Questionnaire

  Section 2000e-5(b) provides in part: Charges shall be in
  writing under oath or affirmation and shall contain such
  information and be in such form as the Commission requires.

Reg. § 1601.12(b) establishes the minimum requirements for the contents of a charge:

  Notwithstanding the provisions of paragraph (a) of this section
  [outlining the required contents of a charge], a charge is
  sufficient when the Commission receives from the person making
  the charge a written statement sufficiently precise to identify
  the parties, and to describe generally the action or practices
  complained of.

Proffit's Intake Questionnaire clearly contained enough information to satisfy Reg. § 1601.12(b): It identified Proffit and Keycom as the relevant parties and described the alleged discriminatory act as "Retaliation due to discrimination charges I filed with [I]DHR." Proffit relies on Casavantes v. California State University, Sacramento, 732 F.2d 1441 (9th Cir. 1984) to argue the Intake Questionnaire's content alone should determine its status as a charge, regardless of any other circumstances surrounding Proffit's failure to file a timely formal charge. Casavantes, id. at 1443 did indeed reject the argument — advanced by Keycom in this case — that an Intake Questionnaire simply solicits general information, while only an actual charge formally invokes EEOC's jurisdiction:

  We find the University's position overly formalistic. We
  observe that the same regulation permitting wide latitude in
  the content of the charge also includes an amendment
  procedure. . . . Consequently, while Casavantes's questionnaire
  was not signed or verified, those deficiencies were cured by
  amendment when the formal charge document was filed on April
  14, 1979. We are thus led to the inescapable conclusion that
  Intake Questionnaire, in the context of both the amendment
  the completed procedures and the liberality to be ascribed to
  the procedural requirements, is sufficient to constitute a
  charge.

This Court finds Casavantes wholly unpersuasive as a rule of decision for this case. It has several serious ...


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