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April 24, 1990


The opinion of the court was delivered by: NORGLE


 Plaintiff, the United States Equal Employment Opportunity Commission ("EEOC") brings this action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. 621 et seq., as it is authorized to do under Section 7(b), 29 U.S.C. § 626(b), against defendants, the City Colleges of Chicago, *fn1" and the Board of Trustees of Community College District 508 ("City Colleges") and the Cook County College Teachers Union, Local 1600, AFT, AFL-CIO ("Union"). *fn2" The EEOC alleges that defendants are party to a collective bargaining agreement containing an early retirement program which violates Section 4(a) of the ADEA, 29 U.S.C. § 623(a), by providing older faculty members with "reduced early retirement benefits (relative to younger persons similarly situated) on the basis of age." Specifically, the EEOC alleges that

(a) the early retirement program provides lump sum payments for accumulated sick pay based on a lower percentage of accumulated sick pay for retirees age 65 and over than for retirees under age 65; and
(b) the early retirement program provides a lower level of group insurance benefits to older persons based on age because it provides no coverage after the time of retirement for retirees age 65 and over, and because of those persons who retire between the ages of 55 and 64 older persons receive fewer years of coverage based on their ages. *fn3"

 First Amended Complaint, para. 8. According to the EEOC, the result of these benefit differentials is that employees are "forced" to retire by age 65. The EEOC seeks both damages and injunctive relief.

 Subsequent to the filing of this action, the defendants have negotiated a four year successor collective bargaining agreement which contains a "tentative" successor early retirement program. Counterclaim for Declaratory Judgment, para. 6. The Union has requested that the EEOC "review" the tentative successor early retirement plan, but the EEOC has declined. *fn4" The Union has filed a counterclaim for a declaratory judgment, pursuant to 28 U.S.C. § 2201 (the "Declaratory Judgment Act"), adjudicating the legality of the tentative successor early retirement program under the ADEA. A copy of the tentative successor early retirement program is attached as an exhibit to the counterclaim. The tentative successor early retirement program differs from the early retirement program challenged by the EEOC.


 On a motion to dismiss, the allegations of the complaint, as well as the reasonable inferences to be drawn from them, are taken as true. Doe v. St. Joseph's Hosp., 788 F.2d 411 (7th Cir. 1986). The plaintiff need not set out in detail the facts upon which a claim is based, but must allege sufficient facts to outline the cause of action. Id. The complaint must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory. Mescall v. Burrus, 603 F.2d 1266 (7th Cir. 1979). The court is not required to accept legal conclusions either alleged or inferred from pleaded facts. Carl Sandburg Village Condominium Ass'n No. 1 v. First Condominium Development Co., 758 F.2d 203, 207 (7th Cir. 1985). Dismissal under Rule 12(b)(6) is improper 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. Papapetropoulous v. Milwaukee Transport Services, Inc., 795 F.2d 591, 594 (7th Cir. 1986).

 The EEOC moves to dismiss the Union's Counterclaim on the grounds that, since the counterclaim fails to present an existing case or controversy, the court lacks subject mater jurisdiction over it. See Lewis v. Continental Bank Corp., 494 U.S. 472, 110 S. Ct. 1249, 1253-54, 108 L. Ed. 2d 400 (1990).

The Declaratory Judgment Act provides: In a case of actual controversy within its jurisdiction, . . ., any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration. . .

 28 U.S.C. § 2201. The Declaratory Judgment Act did not (and could not) alter the requirement, contained in Article III of the Constitution, that the jurisdiction of the federal courts extends only to adjudicating actual cases or controversies. See Crowley Cutlery v. United States, 849 F.2d 273, 276 (7th Cir. 1988); Vickers v. Henry County Savings & Loan Assoc., 827 F.2d 228, 230-31 (7th Cir. 1987) ("In the context of cases in which, . . ., declaratory relief is sought, the traditional test of justiciability has been whether 'there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warranty the issuance of a declaratory judgment.'").

 In its counterclaim, the Union simply concludes that: "An actual controversy exists within the scope of 28 U.S.C. § 2201 over the validity of said successor agreement under the ADEA." Counterclaim, para. 9. Yet, conspicuous by their absence are allegations of any facts which would support this conclusion. Rather, the opposite conclusion - the lack of an actual case or controversy - is inescapable.

 The EEOC's ADEA action does not attack the successor early retirement program. This is because the successor early retirement program is not in effect. Note the Union's candid labeling of it as a "tentative" successor. Thus, not only is it not in effect, it may never become effective. *fn5" See Counterclaim, para. 7. The tentative successor early retirement program has not been challenged under the scheme created by ADEA by any City College faculty member or the EEOC. There is no "existing legal dispute." There can be none over the subject of the counterclaim prior to the tentative successor early retirement program becoming effective. The ...

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