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PATTON v. UNIVERSITY OF CHICAGO HOSPS.

February 16, 1989

STANLEY R. PATTON, Plaintiff,
v.
THE UNIVERSITY OF CHICAGO HOSPITALS, Defendant



The opinion of the court was delivered by: BUA

 NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE

 Following his termination, plaintiff filed this suit against his former employer. Based on claims of age discrimination, intentional infliction of emotional distress, and breach of contract, plaintiff seeks reinstatement with back pay as well as compensatory and punitive damages. Defendant moves to dismiss plaintiff's claims of intentional infliction of emotional distress and breach of contract. Defendant also moves to dismiss several of plaintiff's allegations of age discrimination. In addition, defendant moves to strike plaintiff's request for punitive damages. For the reasons stated herein, this court denies defendant's motion to dismiss plaintiff's age discrimination and breach of contract claims. The court grants defendant's motion to dismiss plaintiff's claim of intentional infliction of emotional distress. Additionally, the court grants defendant's motion to strike plaintiff's request for punitive damages.

 FACTS

 In late 1980, defendant, the University of Chicago Hospitals ("UCH"), hired plaintiff Stanley Patton as a manager. In his first five years of employment with UCH, Patton received consistently favorable job evaluations, four salary increases, and a promotion. Sometime in 1985, officials at UCH reassigned Patton to another department. After working in this new department for several months, Patton received a very unfavorable job evaluation in January 1986. He met with his supervisors on January 25, 1986 to discuss the evaluation. Patton alleges that during the January 25 meeting, his supervisors told him that he was being terminated because he earned too much money. On February 7, 1986, Patton received written notice of his termination effective March 31, 1986. The notice characterized Patton's termination as a routine layoff consistent with UCH's reduction-in-force policy. This policy states that with a few limited exceptions, UCH shall commence any layoff of permanent employees by terminating the least senior employees within each job classification. As a result of his 1985 transfer, Patton ranked as the least senior employee within his new department. Pointing to Patton's lack of seniority, the officials who terminated Patton claimed that they were simply applying UCH's reduction-in-force policy.

 Patton, who is 65 years old, contends that UCH terminated him because of his age. He has filed suit pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634 (1982 & Supp. IV 1986). Patton's complaint against UCH also asserts two state law claims: intentional infliction of emotional distress and breach of employment contract.

 DISCUSSION

 On August 10, 1988, this court dismissed Patton's original complaint because Patton failed to allege that he had filed a discrimination charge with the Illinois Department of Human Rights. As the court noted, a person may not bring suit under the ADEA without first filing a charge with the state agency that reviews age discrimination claims. See Oscar Mayer & Co. v. Evans, 441 U.S. 750, 758, 60 L. Ed. 2d 609, 99 S. Ct. 2066 (1979); Smith v. General Scanning, Inc., 832 F.2d 96, 98-99 (7th Cir. 1987). Having dismissed Patton's suit on procedural grounds, the court did not address the merits of Patton's claims.

 Following the dismissal of his suit, Patton moved to amend his complaint. He cured the procedural defect in his pleadings by asserting in his amended complaint that he filed age discrimination charges with the Illinois Department of Human Rights on June 25, 1986. The court then reinstated Patton's lawsuit. Despite the amendment of Patton's complaint, UCH continues to insist that the court should dismiss most of Patton's claims. The court will now examine UCH's challenges to Patton's second amended complaint.

 I. Age Discrimination

 Count I of the complaint alleges that UCH discriminated against Patton on the basis of his age. Patton claims that in April 1983, UCH started to implement a policy of terminating older employees and replacing them with younger employees at greatly reduced salaries. Patton further asserts that in 1984, UCH began to transfer older employees and change their job descriptions so as to strip these employees of their seniority and make them eligible for layoff. The complaint depicts Patton's 1985 transfer, his poor job evaluation in January 1986, and his March 1986 termination as part of UCH's overall scheme to phase out older employees with high salaries. In support of this theory, Patton alleges that when he met with his supervisors on January 25, 1986, they told him that his position was being eliminated because he earned too much money.

 Except for Patton's termination, all of the discriminatory acts alleged by the complaint occurred more than two years before February 5, 1988, the date on which Patton filed suit. UCH moves to dismiss Patton's allegations of pretermination discrimination, contending that such allegations are barred by the two-year statute of limitations for ADEA claims. See 29 U.S.C. § 626(e). The amendment of Patton's complaint, however, has rendered UCH's motion moot. Patton no longer asserts an ADEA claim based on his alleged demotion and harassment; rather, he founds his age discrimination claim entirely on UCH's decision to terminate him. By narrowing the focus of his ADEA claim, Patton has averted any potential problems with the statute of limitations. Although Patton continues to allege that UCH discriminated against him prior to his termination, he makes these allegations for the sole purpose of demonstrating a pattern of discrimination by UCH. While the statute of limitations may prohibit Patton from recovering damages based on any pretermination discrimination, the statute does not prevent Patton from alleging such discrimination for the limited purpose of establishing UCH's discriminatory motive for terminating him. Therefore, the court sees no reason to dismiss any of the age discrimination allegations contained in Patton's second amended complaint.

 II. Breach of Employment Contract

 Patton also claims that UCH breached an employment contract with him by terminating him. Although UCH contends that no such contract exists, Patton has pointed to two UCH policies that might form the basis for a contract action. In his original complaint, Patton identified UCH's published policy against age discrimination as the source of his contractual rights. This antidiscrimination policy, however, does not create a contract between UCH and its employees. The policy merely constitutes a reiteration of a pre-existing legal duty, unsupported by consideration. Because federal law already prohibits age discrimination, UCH's breach of its own antidiscrimination policy would not warrant an award of contract damages to Patton. See Willis v. Evans Products Co., No. 86 C 9111 (N.D. Ill. May 14, 1987). Apparently conceding this point, Patton has recently revised his contract claim. He now seeks contract damages based on UCH's reduction-in-force policy, a copy of which is attached to the second amended complaint. With a few limited exceptions, this policy states that if a reduction of UCH's work force should become necessary, UCH will proceed to lay ...


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