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SHERMAN v. STANDARD RATE DATA SERV.

February 27, 1989

PAMELA JO SHERMAN, Plaintiff,
v.
STANDARD RATE DATA SERVICE, INC., Defendant


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE.

 I. INTRODUCTION

 Plaintiff Pamela Jo Sherman ("Sherman") filed a three-count amended complaint in this action against her former employer, defendant Standard Rate Data Services, Inc. ("Standard Rate") under Title VII of the Civil Rights Act, 42 U.S.C. ยง 2000e-5 ("Title VII"), seeking permanent injunctive relief, an order of reinstatement, and monetary damages against defendant for the sexual harassment of plaintiff by her supervisor (Count I); for the breach of a settlement agreement between the parties and the Equal Employment Opportunity Commission ("EEOC") (Count II); and for the retaliatory discharge of plaintiff for having filed her charge of sexual discrimination with the EEOC (Count III). Standard Rate has moved for dismissal of plaintiff's amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons set forth below, defendant's motion is granted as to Counts I and III of plaintiff's amended complaint and denied as to Count II.

 II. FACTUAL BACKGROUND *fn1"

 Plaintiff Sherman was an employee of defendant Standard Rate from on or about August 6, 1981 until December 1, 1984. Hired as an administrative assistant, Sherman's duties in this position were to provide technical support to programmers and analysts while she received the technical training necessary to become a programmer or analyst. Sherman served as an administrative assistant until November 22, 1982 when she was demoted to a secretarial position. Richard Caldwell ("Caldwell") served as Sherman's supervisor during her tenure with Standard Rate.

 Shortly after her demotion, on December 6, 1982, Sherman filed a written charge with the EEOC alleging that Standard Rate, through its employee Caldwell, discriminated against her on the basis of her sex. Specifically, Sherman charged that Caldwell sexually harassed her by touching her without her consent, using lewd and suggestive language with her, and threatening and intimidating her in an attempt to force her to submit to his sexual overtures.

 Sherman's charge with the EEOC was resolved on March 3, 1983 when the parties and the EEOC entered into a Settlement Agreement ("Settlement") and a Settlement Agreement and Release ("Release"). Pursuant to the Settlement, Standard Rate agreed to initiate technical training for Sherman, to compensate Sherman with back pay, if any, for the difference between her being paid on a salary basis instead of an hourly basis, to expunge Sherman's record of any negative memoranda, disciplinary writeups, and reports referring to her demotion, to allow Sherman the right to review her personnel file and object to any documents contained therein, and not to retaliate against Sherman for filing her sexual discrimination charge with the EEOC. In exchange for these promises made by Standard Rate, both the EEOC and Sherman agreed not to institute a lawsuit against Standard Rate under Title VII based on the EEOC charges. *fn2"

 According to Sherman, Standard Rate never complied with any of the terms of the Settlement and Release. With respect to the specific promise of training, Sherman alleges that she was told by Standard Rate that she would not receive the promised training because her position was being phased out and she would not be employed with Standard Rate much longer. Sherman was terminated as an employee on December 1, 1984. She alleges that her termination was in retaliation for her earlier filing of sexual discrimination charges with the EEOC.

 On April 2, 1987, Sherman filed a complaint against Standard Rate in the United States District Court for the Northern District of Illinois. Judge Leighton dismissed the complaint without prejudice on November 16, 1987. The instant three count amended complaint was filed with this Court on December 17, 1987. Presently pending before the Court is Standard Rate's motion to dismiss all three counts of Sherman's amended complaint.

 III. DISCUSSION

 A. Count I

 In Count I, Sherman asserts a Title VII claim against Standard Rate based on the same discriminatory acts which served as the basis for the sexual discrimination charge she filed with the EEOC on December 6, 1982 while she was still an employee at Standard Rate. Standard Rate moves to dismiss Count I pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction or, in the alternative, pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a cause of action upon which relief may be granted.

 The threshold issue is whether this Court has subject matter jurisdiction over Sherman's claim in Count I. Standard Rate argues that Count I suffers from two jurisdictional defects: 1) Sherman's failure to file a subsequent charge with the EEOC or to reinstate her original charge after her charge was dropped as part of the Settlement and Release, *fn3" and 2) Sherman's failure to receive a "right to sue" letter *fn4" from the EEOC prior to filing suit in federal court. Sherman argues that the charge filing and right to sue letter requirements are not jurisdictional prerequisites, but are statutory requirements which are subject to equitable modification by the district court. Sherman admits both that she failed to reinstate her original EEOC charge and that she failed to obtain a right to sue letter, but suggests that the facts of this case entitle her to equitable modification of these Title VII statutory requirements.

 In Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 1132, 71 L. Ed. 2d 234 (1982), the United ...


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