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February 14, 1989


Marvin E. Aspen, United States District Judge.

The opinion of the court was delivered by: ASPEN


 The plaintiff Equal Employment Opportunity Commission ("EEOC") brought this action against the Board of Governors of State Colleges and Universities ("the Board") and University Professionals of Illinois ("the Union") under section 4(d) of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(d) (1982). The suit seeks to enjoin the defendants from discriminating against those Board employees who file charges or complaints under the ADEA. Currently before the Court is the EEOC's motion for partial summary judgment on the issue of liability. For the reasons set forth below, that motion is denied.


 The Board, which operates five public universities in the State of Illinois, see Ill.Rev.Stat. ch. 144, paras. 1001-1017 (1987), and the Union, which represents academic employees at those universities, are parties to a collective bargaining agreement ("CBA"). *fn1" Article 17.2 of the CBA, the article at issue in this case, provides in pertinent part as follows:

If prior to filing a grievance hereunder, or while a grievance proceeding is in progress, an employee seeks resolution of the matter in any other forum, whether administrative or judicial, the Board or any University shall have no obligation to entertain or proceed further with the matter pursuant to this grievance procedure.

 Article 17.2 came into play in this case when the President of Northeastern Illinois University ("NIU") recommended that Raymond Lewis, an Associate Professor of Business Law, not be granted tenure. Plaintiff's Local Rule 12(e) Statement, Exhibit C ("Pltf's Exh. C"). On April 9, 1984, Lewis filed a grievance contending that the President had improperly interpreted and applied the evaluation criteria in making his decision and had been influenced by factors outside the evaluation criteria. Pltf's Exh. D. Lewis did not, however, specifically mention age discrimination. On May 3, 1984, the Board adopted the President's recommendation and denied Lewis tenure. It is not clear what, if anything, happened with regard to the grievance in the next year, but an arbitration hearing was scheduled for May 1985. Shortly before the hearing took place, on May 14, 1985, Lewis filed a charge with the EEOC, alleging that he had been denied tenure because of his age. Pltf's Exh. B. The Board did not learn of the charge until after the arbitration hearing, but when it did become aware of the charges, it indicated that it wished to invoke Article 17.2 and asked that the arbitrator not make his decision. Pltf's Exhs. E, F. After Lewis learned of this, he filed a second charge with the EEOC, dated June 13, 1985, alleging that the Board had retaliated against him for the filing of the ADEA charge. Pltf's Exh. G. The Board now claims that it later changed its mind and informed the arbitrator that it had decided not to invoke Article 17.2. Affidavit of William H. Lieneman, Defendant's Local Rule 12(f) Statement, Exhibit 1 ("Def's Exh. 1"), para. 21. In addition, the Board claims that it subsequently reached a settlement with Lewis. See Affidavit of Thomas D. Layzell, Def's Exh. 2, para. 5.

 On July 30, 1985, the EEOC issued a charge on behalf of Lewis and others similarly situated against NIU and the Board. On August 7, 1985, representatives from the EEOC and the Board met in order to discuss the charge. Each side now accuses the other of intransigence at this meeting and thereafter, and, as we discuss below, the Board argues that the EEOC did not truly attempt to conciliate, as required by section 7(b) of the ADEA, 29 U.S.C. § 626(b) (1982). At any rate, the EEOC subsequently informed the Board that it believed conciliation was unsuccessful, and on January 14, 1986, filed the present suit against the Board and the Union. The suit charges that at least since January 1, 1979, the Board has violated section 4(d) of the ADEA, 29 U.S.C. § 623(d) by terminating the grievances of those employees who filed charges or complaints under the ADEA. The effect of this practice, according to the EEOC, has been to deprive employees of a term or condition of employment, deterring them from exercising their rights under the ADEA. The EEOC, therefore, asks us to enjoin the Board from engaging in any practice that discriminates against employees who have asserted their ADEA rights, to order the Board to carry out programs that eradicate the effects of past and present unlawful practices, and to direct the Board to "make whole" those employees adversely affected by these practices.

 After the suit was filed, the Board moved to dismiss for failure to state a claim upon which relief could be granted. *fn2" Judge Susan Getzendanner, to whom this case was then assigned, held that the complaint stated a claim and denied the motion to dismiss on April 22, 1987. Equal Employment Opportunity Commission v. Board of Governors of State Colleges and Universities, 665 F. Supp. 630 (N.D. Ill. 1987). We will discuss Judge Getzendanner's opinion in greater detail below, but a summary is appropriate here. At the outset, Judge Getzendanner, who has since left the bench, discussed several conflicting principles of law. First was the doctrine that a party is not required to submit any dispute to arbitration that it has not agreed to submit. In this case, however, the doctrine, derived from contract law and applied to labor law by the 1960 Steelworkers Trilogy,3 conflicts with section 4(d) of the ADEA, 29 U.S.C. § 623(d), which prohibits discrimination against employees who bring charges under the ADEA. Also, the non-arbitration doctrine conflicts with the rule that any collective bargaining agreement must comply with federal law, especially those concerning discrimination, and that a union therefore cannot waive the rights of its members under an anti-discrimination statute such as the ADEA. See 665 F. Supp. at 633 (citing UMWA Health & Retirement Fund v. Robinson, 455 U.S. 562, 102 S. Ct. 1226, 71 L. Ed. 2d 419 (1982); Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974); U.S. Equal Employment Opportunity Commission v. County of Calumet, 686 F.2d 1249 (7th Cir. 1982)). Judge Getzendanner concluded that this conflict must be resolved in favor of the employee's right to be free from discrimination. In addition, Judge Getzendanner concluded that Article 17.2 of the CBA constituted a waiver of employees' rights under the ADEA, because it "permits the employer to discriminate against employees who bring ADEA actions." 665 F. Supp. at 635. Finally, Judge Getzendanner rejected the Board's contention that Article 17.2 should be considered valid since it was motivated by a desire to avoid unnecessary duplication of effort. Judge Getzendanner considered the Board's contention as an affirmative defense and declined to resolve it on a motion to dismiss, since no record had yet been developed. Moreover, without deciding the issue, Judge Getzendanner cast doubt on the Board's implicit argument that a desire to avoid duplication of effort was legally sufficient to rebut a prima facie case of discrimination, an argument we discuss in great detail below.

 After Judge Getzendanner denied the motion to dismiss, *fn4" the EEOC brought the present motion for partial summary judgment. *fn5"

 Summary Judgment

 Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material facts and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

 The Eleventh Amendment

 The Board asserts that the eleventh amendment bars any ADEA claims against it, *fn6" but we disagree. In general, the eleventh amendment immunizes the states and their agencies against any suits in federal court, Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105 S. Ct. 3099, 3106, 87 L. Ed. 2d 114 (1985); Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S. Ct. 1347, 1355, 39 L. Ed. 2d 662 (1974), but Congress can abrogate the states' eleventh amendment immunity if it acts pursuant to section five of the fourteenth amendment, Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238, 105 S. Ct. 3142, 3145, 87 L. Ed. 2d 171 (1985); Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S. Ct. 2666, 2671, 49 L. Ed. 2d 614 (1976). The Seventh Circuit has concluded that the ADEA was passed pursuant to section five of the fourteenth amendment, Equal Employment Opportunity Commission v. Elrod, 674 F.2d 601, 603 (7th Cir. 1982); under the Seventh Circuit's analysis, therefore, ADEA actions may be brought against state agencies such as the Board. The Board, however, argues that Elrod was wrongly decided. The Board notes that, although the Supreme Court has not definitively decided the issue, four members of the Court have argued that the ADEA was not -- indeed, could not have been -- passed pursuant to the fourteenth amendment. See Equal Employment Opportunity Commission v. Wyoming, 460 U.S. 226, 259-63, 103 S. Ct. 1054, 1072-75, 75 L. Ed. 2d 18 (1983) (Burger, C.J., joined by Powell, Rehnquist and O'Connor, JJ., dissenting). Perhaps, when squarely faced with the issue, the Supreme Court will hold that Congress was not acting under the fourteenth amendment when it passed the ADEA. But until that happens, or until the Seventh Circuit changes its mind, we are bound to follow the Seventh Circuit's resolution of the issue in Elrod. We accordingly conclude that the eleventh amendment does not bar this suit.


 The Board also argues that there is a genuine issue of material fact concerning the EEOC's attempt to conciliate the issue. Section 7(b) of the ADEA, 29 U.S.C. § 626(b), provides that "before instituting any action under this section, the [EEOC] shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of [the ADEA] through internal methods of conciliation, conference, and persuasion." As suggested above, the parties disagree about the EEOC's attempt to conciliate the claim, and the Board has presented evidence that may create a factual issue concerning the EEOC's good faith in the conciliation process. Yet even if a factual issue has been raised, we conclude that dismissal is unnecessary here. Section 7(b) of the ADEA vests a court with broad discretion "to grant such legal or equitable relief as may be appropriate to effectuate the purposes" of the ADEA. 29 U.S.C. § 626(b). Relying on this language, a number of courts have held that when the EEOC has failed to conciliate an ADEA claim before bringing suit, the proceedings may be stayed so that conciliation may be attempted. Marshall v. Sun Oil Co. (Delaware), 605 F.2d 1331, 1338 n.8 (5th Cir. 1979); Marshall v. Sun Oil Co. of Pennsylvania, 592 F.2d 563, 566 (10th Cir.), cert. denied, 444 U.S. 826, 62 L. Ed. 2d 33, 100 S. Ct. 49 (1979); Brennan v. Ace Hardware Corp., 495 F.2d 368, 376 (8th Cir. 1974); 3 A A. Larson & L. Larson, Employment Discrimination § 102.24(b) at 21-244 (1988). As a general matter, this rule is sound. But because we referred this matter to Magistrate Weisberg to attempt settlement and because his attempts were ...

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