United States District Court, Southern District of Illinois, Benton Division
December 31, 1986
JACK OWENS, PLAINTIFF,
FREEMAN UNITED COAL MINING, DEFENDANT.
The opinion of the court was delivered by: Foreman, Chief Judge:
MEMORANDUM AND ORDER
This cause is before the Court on defendants' Motion to Dismiss
and for Summary Judgment. Both parties have submitted briefs and
reply briefs on the dismissal and summary judgment motions.
Plaintiff, then represented by counsel, filed a two count
complaint against defendant on November 29, 1984. Service was
eventually made, an answer filed in June of 1985 and discovery
began shortly thereafter. In February of 1986, counsel for
plaintiff asked the Court to allow him to withdraw due to
irreconcilable differences with the plaintiff regarding the way
in which the case was being handled. The Court granted the
request and advised plaintiff to find another attorney.
In July of 1986, plaintiff informed the Court that he was
having difficulty finding another attorney willing to handle the
case. The Court granted a continuance motion and gave plaintiff
until September 5, 1986 to locate counsel or face the possibility
of proceeding pro se. Through a number of pretrial conferences
and trial date postponements, this Court has bent over backwards
in an attempt to juggle its schedule in hopes of plaintiff
locating new counsel. In fact, on November 17, 1986 a status
conference was held in anticipation of the plaintiff having
finally found willing representation. Unfortunately, the attorney
located by plaintiff informed the Court that he would only enter
an appearance for plaintiff if the Court could further postpone
the trial date to a time which would accommodate the schedule of
new counsel. It may be unfortunate, however the Court cannot set
its calendar on the basis of an attorney's convenience. Plaintiff
is now proceeding pro se and, in this Court's opinion, is doing
an above average job of representing himself.
Count I of plaintiff's complaint alleges several breaches of
the Age Discrimination In Employment Act, 29 U.S.C. § 623, on the
part of defendant. Defendant asserts that summary judgment is
warranted as to
any allegations in Count I which occurred prior to 300 days
before plaintiff filed his charge with the Illinois Department of
Human Rights (IDHR). Defendant also argues that summary judgment
is proper as to all allegations not reflected in the charge filed
with IDHR. In support defendant cites to 29 U.S.C. § 626(d) and
relevant case law. Plaintiff filed his charge with the IDHR on
May 2, 1984. It reads as follows:
I. Since at least December, 1982 and continuing, most
recently about March 7, 1984, Respondent has
refused to recall me. I was hired by Respondent on
July 17, 1967. My most recent position (as of my
12/82 lay off) was General Underground Foreman
Conveyor Belt Supervisor.
II. No reason has been given for the action.
III. I believe I have been discriminated against due
to my age, 49 and Physical Handicaps, Fractured
Vertebrae and Ruptured Disc in that:
A. At the time I was laid off, George Higgins, Mine
Superintendent, told me I would be moved to either
Mine # 4 or Mine # 6 within 30 days of my lay off.
I was not moved. Then he told me I would be
recalled at such time the economy improved.
B. The economy has improved because Respondent has
been recalling people. These people are all under
the age of 40. They have been placed into positions
I held or for which I am qualified. For example, on
or about March 7, 1984, Respondent recalled Vernan
Mandrell (about 37) into the position of Guard but
immediately moved him into the position of General
Underground Foreman. I trained Mandrell. He worked
under my supervision for seven to eight years.
Respondent also recalled Charles Issler (about 32
or 33) on or about 3/7/84. Issler also worked under
me. I do not know, however, if Issler actually
returned to work. Furthermore, Respondent recalled
ten to twelve Face Bosses about 3/7/84. All are
under the age of 40. None, to my knowledge, even
injured himself on the job. I performed the job of
Face Boss on a regular basis for over five years
when people were off work because of sickness,
vacation, or injury.
C. In January, 1980, I injured myself on the job.
The injury resulted in a fractured vertabrae and
ruptured disc and caused me to be off regular work
for seven months. I returned to work, however, and
performed my job with no problem. Also, during the
time I was hospitalized I was requested to advise
supervisors as to what actions to take regarding
the operation of all the conveyor belts on the east
half of the coal mine. Because of that injury
Respondent is perceiving me as handicapped and a
safety risk. There are other employees about my age
who had also injured themselves on the job who have
not been recalled either.
A reading of the charge filed with the IDHR leads only to the
conclusion that plaintiff was complaining of a failure to rehire.
Nowhere on the face of the charges filed are there allegations of
discrimination in job assignments or termination of employment.
Yet in Count I of the complaint before this Court, plaintiff
raises allegations of both discriminatory job assignments and
The Court of Appeals for the Seventh Circuit has stated that a
court should read charges filed with the appropriate
administrative agency broadly when determining its jurisdiction
to hear a claim for relief. Caldwell v. National Association of
Home Builders, 771 F.2d 1051, 1054 (7th Cir. 1985). Even the
broadest reading of the charges filed by plaintiff with the IDHR
would not yield any indication of plaintiff taking issue with
past job assignments. That being the case, the plaintiff cannot
raise the issue in litigation. Foit v. Suburban Bancorp,
549 F. Supp. 264 (D.Md. 1982). It is only with the broadest of
readings that this Court could find any inkling of plaintiff's
displeasure with the actual termination of his employment.
Although this Court is nowhere near convinced
that the charges filed reflect any accusation of discriminatory
discharge, it does not choose to dismiss the allegations in the
complaint which address discriminatory discharge on the basis of
failure to include the same in the IDHR charges.
Those allegations in the complaint which might be read as
dealing with discriminatory discharge should be dismissed for a
different reason. Plaintiff filed his charges with the IDHR more
than 300 days after his lay-off from defendant's employ. There is
no question that an individual wishing to pursue a cause of
action under the Age Discrimination in Employment Act must file
charges with the Equal Employment Opportunity Commission or its
state counterpart within 300 days of the complained of activity.*fn1
Plaintiff admits as much but argues that defendant's
discriminatory conduct amounted to a "continuing violation" which
would allow for the filing of charges more than 300 days after
termination. "An employer's terminating an employee, unlike the
employer's failure to hire or to promote, is a completed act;
that its consequences linger does not indicate that the
discrimination itself is continuing." Caldwell v. National
Association of Home Builders, 771 F.2d 1051
, 1055 (7th Cir.
1985). Those allegations in Count I of plaintiff's complaint
which address discriminatory job assignments and discharge should
be dismissed for lack of subject matter jurisdiction. The
requirements of the charge filing procedures in 29 U.S.C. § 626
have not been met.
The sole issue remaining in Count I, which summary judgment is
being sought on, is whether defendant discriminated against
plaintiff in its rehire process because of his age. An exhaustive
search of the relevant case law has left this Court without
specific criteria for determining the requirements of a prima
facia case. There is plenty of case law on age discrimination in
termination and promotion, however little if any law has been
developed on the specific issue of age discrimination in the
rehire of laid-off employees. Using the legal standards developed
for various age discrimination suits this Court feels it is
possible to find enough common thread to weave a set of prima
facia requirements for a claim of this nature.
The burden of proof formula set out in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) has
been held by the Seventh Circuit to apply to cases under the Age
Discrimination In Employment Act. See La Montagne v. American
Convenience Products, Inc., 750 F.2d 1405 (7th Cir. 1984); Huhn
v. Koehring Co., 718 F.2d 239 (7th Cir. 1983). The courts have at
times modified the McDonnell Douglas requirements to fit the
particular circumstances of the case. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 252 n. 5, 101 S.Ct.
1089, 1093 n. 5, 67 L.Ed.2d 207 (1981); Dorsch v. L.B. Foster
Co., 782 F.2d 1421, 1424 n. 3 (7th Cir. 1986); Matthews v. Allis
Chalmers, 769 F.2d 1215, 1217 (7th Cir. 1985). Through reviewing
the basic requirements under McDonnell Douglas and the various
modifications used in previous age discrimination cases, this
Court has established what it believes to be the elements
necessary to establish a prima facia case of age discrimination
in the rehire process. The plaintiff must make the following
showing: (1) that the employer had a policy of rehiring
individuals who were previously terminated (laid-off) during a
reduction in work force; (2) that plaintiff was a member of the
class of former employees eligible for rehire; (3) that plaintiff
is a member of the protected age group; (4) that plaintiff was
qualified for a rehire position; (5) that reasonable evidence
exists for inferring that the employer intended to discriminate
in not rehiring plaintiff.
A review of the factual scenario surrounding this case is
necessary in evaluating whether plaintiff has met his prima facia
burden of proof. From 1972 to 1982 plaintiff worked in a
supervisory position as a "Belt Foreman" for the defendant coal
mining company. In December of 1982 the defendant closed its
Orient # 3 mine at which plaintiff worked. As a result of the
mine closing all "Belt Foremen" and the majority of all other
mine employees, including supervisory personnel, were laid-off.
On January 20, 1983, Mr. Robert Stewart, Director of Personnel
and Employee Benefits at defendant coal mining company, called
the plaintiff to offer him a rehire position as a watchman at the
company's Orient # 5 mine. At this point each side has a slightly
different rendition of the facts.
The defendant maintains that plaintiff refused employment as a
watchman. In support it submits the affidavit of Robert Stewart
stating that plaintiff turned down a watchman position both on
January 20, 1983 and in July of 1984. There is also a letter
submitted, which plaintiff admits receiving, that confirms the
company's understanding that plaintiff refused the watchman
position offered via telephone call on January 20, 1983.
Plaintiff maintains that the job offer over the phone came only
after he had complained that another younger supervisor had been
offered a position prior to plaintiff. He also maintains that he
never accepted or refused the job offer because the company would
not authorize travel expenses and never told him the exact hours
he would work or who his supervisor would be. In support of his
position, plaintiff has submitted a letter which he claims to
have written to Robert Stewart after receiving the company's
confirmation letter. In the plaintiff's opinion, the job offer
was not valid until his questions were answered and the offer was
put in writing. Stewart and the company deny ever receiving such
At this point it may be enough for this Court to stop its
analysis and hold that plaintiff failed to meet his burden of
showing that reasonable evidence exists for inferring that the
employer intended to discriminate in not rehiring plaintiff. It
is not disputed that a job offer was made, and the only dispute
is whether plaintiff outright refused it or failed to answer the
offer at all. However, further analysis of some of the reams of
discovery paper which have been filed as exhibits might prove
even more enlightening.
It may not be apparent whether or not plaintiff refused the
initial watchman job offer or merely failed to respond one way or
another. However, it is quite clear how plaintiff felt about
working as a watchman. From the letter which plaintiff claims to
have sent to Robert Stewart comes the following excerpts.
"Later and during another conversation, pertaining to
the same position, I asked if the salary could be
one-half of my previous salary or at least meet what
I was drawing unemployment?"
"After being a capable and loyal company employee for
16 years, I truly felt that your offer was not
justifiable. You stated in your letter that I had
been considered in the past, if so, why was I not
offered the P.M.A. job?"
From a July 20, 1984 letter sent by plaintiff and received by
Robert Stewart comes the following excerpt.
"Appreciate you continuing to consider me for a
position, but why haven't I been considered for a
more equitable paying job? When laid off I was told
that type of position would be made for me."
The following dialogue is taken from the plaintiff's deposition
in which counsel for defendant was questioning plaintiff.
Q. How would your status have been affected adversely
by taking the job as watchman, Mr. Owens?
A. I had worked for and gained respect as an
underground supervisor and I feel a night watchman
was below what I figured I could do and what I
should have had. I am not crippled and I am not
old and decrepit.
Q. So it is your testimony that you thought that a
job as a watchman was beneath your abilities?
A. Yes, that is just exactly what I thought.
It seems clear to the Court that plaintiff was not pleased with
the idea of working as a watchman and felt that a better job
should have been offered him.
Though many of the documents submitted as exhibits in this case
are challenged by the opposing side, some information which
stands undisputed is of great interest. The Court has gleaned the
following from a list of defendant's supervisory employees who
were offered rehire positions. (Defendant's exhibit # 2).
Thirty-two of defendant's supervisory personnel who were laid off
in December of 1982 were offered rehire positions. Of the
thirty-two, eighteen were offered watchman positions. Of the
eighteen, thirteen such offers were accepted. Of the thirteen who
accepted, eight eventually were promoted back to supervisory
positions. None of the employees rehired were placed in a "Belt
Foreman" position. Thirteen of the employees offered rehire
positions were in the 40 to 69 protected age classification.
Furthermore, from a list submitted by plaintiff himself
(plaintiff's exhibit # 14), it is noticed that plaintiff was the
second laid-off employee to be offered a rehire position. The
offer was made only one month after lay-off, and the only person
offered a position quicker was also in the protected age group.
Most other offers, including plaintiff's second chance, came more
than a year after lay-off.
It is unnecessary for this Court to speculate as to what might
have happened if plaintiff had swallowed his pride and accepted
the non-supervisory position. However, one cannot help but think
that he may well have been working in a supervisory position with
defendant by now.
In summary, this Court is holding that plaintiff has failed to
present a prima facia case and that the undisputed facts indicate
that he cannot do so. Plaintiff is responsible for showing this
Court that reasonable evidence exists which would allow this
Court to infer discriminatory intent. Because it is undisputed
that plaintiff was offered a rehire position on two separate
occasions, that no one was rehired as a "Belt Foreman", and that
a majority of those rehired were offered non-supervisory
positions, this Court finds no indicia of discrimination. The
question of whether plaintiff actually refused the job offers or
simply refused to answer until given further information is
irrelevant. Plaintiff has offered no support for his theory that
the job offers were invalid until all questions were answered to
his satisfaction and the offers were put in writing. The Court
can sympathize with a person who has risen to a high level of
achievement on the ladder of his career only to be laid-off due
to the economy. However, the Court sees no reason for that same
individual to remain unemployed when given an opportunity to
start climbing back up the career ladder. The validity of Count
I of plaintiff's complaint is best summed up by an exchange which
took place during plaintiff's deposition.
Q. Mr. Owens, I have the right to ask you what you
are looking for and what you are claiming in this
lawsuit regardless of whether you have the
complaint in front of you or not, and that is what
I am asking right now. Do you claim that you were
failed or denied reinstatement or recall by the
company because of your age?
Q. What facts do you have to support that claim?
A. None at the moment.
Count II of plaintiff's complaint seeks damages on the theory
that defendant breached its statutory duty of not discriminating
against him for exercising his rights under the Illinois Workers
Compensation Act. This Court's jurisdiction is invoked through
the doctrine of pendant jurisdiction. The defendant argues that
because Count I of plaintiff's complaint has failed to pass the
summary judgment stage, the Court should decline the exercise of
its discretion in hearing the pendent claim.
The doctrine of pendent jurisdiction gives a federal court
power to hear a claim which has no independent basis for federal
jurisdiction if the claim arises out of the same common nucleus
fact which a federal claim sufficient to confer federal
jurisdiction does. United Mine Workers of America v. Gibbs,
383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966).
However, a federal court should hesitate to adjudicate a claim
totally dependent on state law when the federal claim has been
dismissed prior to trial. Buethe v. Britt Airlines, Inc.,
749 F.2d 1235 (7th Cir. 1984). It is this Court's position that
unless a great hardship would accrue to a party or the interests
of judicial economy mandate otherwise, the proper place to hear
an independent state law claim is in the state courts. There
would appear to be no hardship to plaintiff caused by this
Court's decision not to hear the state claim. Defendant points
out that there is no time bar to plaintiff refiling his state
claim in state court. The Illinois courts have established that
this relatively new type of action is guided by a five year
statute of limitations. Henon v. Lever Brothers Company,
114 Ill. App.3d 608, 70 Ill.Dec. 322, 449 N.E.2d 196 (1983).
Furthermore, the plaintiff may benefit from the dismissal by
being able to locate counsel who would be willing to pursue such
an action rather than entering this particular suit after the
bulk of pleadings have been filed. Therefore, the Court sees no
reason why it should exercise its discretion in hearing this
remaining state claim.
Accordingly, defendant's Motion to Dismiss and for Summary
Judgment (Document No. 33) is GRANTED. Those allegations in Count
I of plaintiff's complaint which deal with discriminatory job
assignments and termination of employment are DISMISSED for lack
of subject matter jurisdiction. Summary Judgment is GRANTED in
favor of defendant on the remaining allegations in Count I. The
Court declines to exercise pendent jurisdiction as to Count II
and hereby DISMISSES Count II of plaintiff's case for lack of
subject matter jurisdiction.
IT IS SO ORDERED.