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September 7, 1989


Charles P. Kocoras, United States District Judge.

The opinion of the court was delivered by: KOCORAS


 This matter is before the court on defendant State of Illinois' ("State") motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, the State's motion is granted.


 Plaintiff United States Equal Employment Opportunity Commission ("EEOC") is the agency of the United States government charged with the administration, interpretation and enforcement of the Age Discrimination in Employment Act of 1967 as amended ("ADEA"), 29 U.S.C. 621 et seq. EEOC filed this suit against the state on December 7, 1988, alleging that since at least January 1, 1987, and continuously up until the present, the State has engaged in unlawful employment practices in violation of Sections 4(a) and (e) of the ADEA by publishing, maintaining, and enforcing Illinois Revised Statute, Chapter 37 para. 23.71 (1987) ("State statute") which mandates the compulsory retirement of Associate Judges at the expiration of the term in which the Associate Judge attains the age of 75. The EEOC's request for injunctive relief is grounded in an assertion that the State statute is in direct conflict with the ADEA. No one disputes that a mandatory retirement age imposed on persons covered by the ADEA is a prima facie violation. The issue, therefore, is whether Associate Judges are employees under the ADEA or exempted from those persons covered by the Act.



 The State of Illinois raises two preliminary issues that the court will briefly address. First, the State argues that the absence of a named individual in the EEOC's complaint deprives the EEOC of standing and renders the case premature. However, the EEOC does not challenge the constitutionality of the statute, but rather, seeks to enjoin the State from enforcing the statute because it allegedly conflicts with federal law. Accordingly, it is the maintenance of the statute itself which is actionable by the EEOC. EEOC v. Elrod, 47 Fair Empl. Prac. Cas. (BNA) 1651 (N.D. Ill. 1986) aff'd in part, rev'd and rem'd in part sub nom., EEOC v. O'Grady, 857 F.2d 383 (7th Cir. 1988). The ADEA does not require the EEOC to wait until a charge has been filed by an individual victim to take action against the maintenance of a discriminatory statute. See EEOC v. Wyoming Retirement Systems, 27 Fair Empl. Prac. Cas. (BNA) 1291, 1292 (D. Wyo. 1981).

 Secondly, the State's contention that the EEOC's complaint should be dismissed because of inadequate conciliation efforts is without merit. The Act provides in pertinent part:

Before instituting any action under this section, the Secretary shall attempt to eliminate the discriminatory practice or practices alleged, and effect voluntary compliance with the requirements of this Act through informal methods of conciliation, conference, and persuasion.

 29 U.S.C. ยง 626 (b). The State of Illinois argues that Congress places great emphasis on the EEOC's duty to engage in informal methods of conciliation and has deprived Illinois of its opportunity to comply voluntarily with the Act. In support, the State cites Art. 6, Sec. 15 of the Illinois Constitution which gives the Illinois Supreme Court the power to recall a mandatorily retired Associate Judge for judicial service. Such a statute is not relevant to the present dispute which involves mandatory retirement on the basis of age in the first instance and not the possibility of returning to the bench following a competency determination by the Supreme Court. Conciliation efforts were made prior to the commencement of this litigation and the State's arguments do not warrant this court's dismissal of the matter under Federal Rule of Civil Procedure 12(b)(1). See generally, EEOC v. Prudential Federal Savings and Loan Ass'n., 763 F.2d 1166, 1169 (10th Cir. 1985) cert. denied 474 U.S. 946, 88 L. Ed. 2d 289, 106 S. Ct. 312 (1985). The remaining issue to be resolved by the court is whether appointed associate judges are exempt from the ADEA. If associate judges are excluded, the state law does not violate the ADEA and the State's motion should be granted.


 In order to have a claim dismissed under Rule 12(b)(6), the moving party must meet a high standard. Under the "simplified notice pleading" of the Federal Rules of Civil Procedure, the allegations of a complaint should be construed liberally and "the complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); see also Lewis v. Local Union No. 100 of Laborers' Intern. Union of North America, AFL-CIO, 750 F.2d 1368 (7th Cir. 1984). When considering a defendant's motion to dismiss the Court must view the complaint's ...

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