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
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.
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.
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,
and 2) Sherman's failure to receive a "right to sue" letter
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 States Supreme Court held that:
filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel and equitable tolling.
Based on its review of the structure of Title VII, the congressional policy underlying it, and its own precedent, the Supreme Court held that "the provision for filing charges with the EEOC should not be construed to erect a jurisdictional barrier to suit in district court." Id. at 397, 102 S. Ct. at 1132. After Zipes, Sherman's failure to reinstate her charges with the EEOC does not deprive this court of subject matter jurisdiction over Count I of her amended complaint.
Following Zipes, decisions from several other circuits have extended the reasoning of Zipes to hold that the procedural requirement of obtaining a right to sue letter, like the charge filing requirement at issue in Zipes, is no longer considered a jurisdictional prerequisite to suit but is, instead, a statutory prerequisite analogous to a statute of limitations and is subject to equitable modification by a district court when appropriate. See, e.g., Bintz v. NSU Bd., 811 F.2d 1504 (Table) (text in WESTLAW) No. 86-110, slip op. at 4 (4th Cir. Feb. 2, 1987) (WESTLAW CTA Database); Gooding v. Warner-Lambert Co., 744 F.2d 354 (3d Cir. 1984); Fouche v. Jekyll Island-State Park Authority, 713 F.2d 1518 (11th Cir. 1983); Pinkard v. Pullman-Standard, 678 F.2d 1211 (5th Cir. Unit B 1982), cert. denied, 459 U.S. 1105, 103 S. Ct. 729, 74 L. Ed. 2d 954 (1983); Hladki v. Jeffrey's Consolidated, Ltd., 652 F. Supp. 388, 392 (E.D.N.Y. 1987). The Court finds the reasoning of these cases persuasive, and in the absence of any compelling contrary authority from courts within the Seventh Circuit,
holds that a right to sue letter is not a jurisdictional prerequisite to the filing of a Title VII action. Accordingly, Count I cannot be dismissed for lack of subject matter jurisdiction on this basis.
Although the charge filing requirement and right to sue letter requirements are not jurisdictional prerequisites, they are statutory prerequisites and Sherman's failure to comply with them, absent special circumstances justifying equitable modification, subject Count I of her amended complaint to dismissal on Fed. R. Civ. P. 12(b)(6) grounds. Plaintiff has not set forth any reasons that would justify an equitable modification of these statutory requirements. In Hladki, the court examined relevant case-law and compiled a list of situations that have led courts to invoke equitable principles to modify Title VII's statutory requirements:
1) when a claimant has received inadequate notice; (2) when a motion for appointment of counsel is pending; (3) when a court has led a plaintiff to believe that he or she has done everything required; (4) when affirmative misconduct has lulled a plaintiff into inaction; (5) when a "plaintiff has in some extraordinary way been prevented from asserting his rights"; (6) when a plaintiff "has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum;" (7) when a right to sue letter has been received subsequent to commencement of a Title VII action and while the action is still pending; or 8) when the EEOC or Attorney General has incorrectly refused to issue a right to sue letter.