The opinion of the court was delivered by: LINDBERG
GEORGE W. LINDBERG, UNITED STATES DISTRICT JUDGE
This matter is before the court on defendant's, A.E. Staley Manufacturing Co. (Staley), motion for summary judgment pursuant to FRCP Rule 56. Defendant contends that plaintiff, Alvin W. Cohn (Cohn), failed to file a timely charge of age discrimination with the Equal Employment Opportunity Commission (EEOC) and therefore, plaintiff's action in this court is barred. For the following reasons, defendant's motion is denied.
As of April 1986, plaintiff was employed as the Vice Chairman of CFS Continental, an unincorporated operating division of Staley Continental, Inc.
On April 8, 1986, Cohn and Staley entered into a ten-page "management retention agreement" (Agreement). The Agreement used the age of 65 as a basis for reducing the amount of benefits received by Cohn in the event he was terminated within 36 months of a change of control. The relevant paragraph of the Agreement, paragraph 2, provided:
2. If a Change of Control of Staley occurs and Executive [Cohn] is terminated without Cause or Constructively Terminated from the employ of Staley (or its successor) during the thirty-six (36) months following such Change in Control, then Executive shall be paid and provided each of the following:
B. He [Cohn] and his dependents shall continue to be covered until thirty-six (36) months after the date of such termination or until Executive reaches 65 years of age, whichever occurs first, by all survivor rights and insurance and benefit programs of Staley (or its successor) in type and amount at least equivalent to that provided to him and his dependents by Staley immediately prior to the Change of Control; provided that, if participation in any one or more of such arrangements is not possible under the terms thereof, Staley (or its successor) will provide substantially identical benefits outside the programs. The cost of this coverage will be paid by Staley (or its successor). The coverage hereunder shall be in addition to any coverage to which Executive may become entitled under Staley's post-retirement medical insurance program.
Based upon the parties' statements of uncontested material facts, Cohn was 64 when the Agreement was signed and turned 65 on August 9, 1986. A change in control, as defined in the Agreement occurred on or about May 8, 1988 when Tate & Lyle PLC acquired Staley.
On August 1, 1988, Sysco Corporation acquired from Staley the CFS Continental business where Cohn was vice chairman. On October 31, 1988, Cohn was terminated from his employment with CFS Continental and/or Sysco. Staley, pursuant to the Agreement, made certain payments to Cohn. Staley, pursuant to the Agreement, did not pay Cohn the benefits set forth in paragraph 2A(ii), 2A(iii) and 2B, because those benefits were reduced to zero because Cohn was over 65 years of age.
On December 7, 1988, Cohn filed a charge of age discrimination against Staley with the Illinois Department of Human Relations and the EEOC, alleging that Staley's denial of the lump sum payments under paragraphs 2A(ii), ...