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EEOC v. BOARD OF GOVERNORS OF STATE COLLEGES & UNI

May 2, 1990

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
BOARD OF GOVERNORS OF STATE COLLEGES AND UNIVERSITIES and UNIVERSITY PROFESSIONALS OF ILLINOIS, Defendants



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 The Equal Employment Opportunity Commission ("EEOC") has brought this action against the Board of Governors of State Colleges and Universities ("Board") and the University Professionals of Illinois ("Union"). The EEOC alleges that the defendants' collective bargaining agreement violates the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(d). Currently before the Court is the EEOC's motion for partial summary judgment on the issue of liability and the Board's motion for summary judgment. For the reasons given below, we grant summary judgment in favor of the Board.

 Background

 Since 1977, the Board, which oversees the operations of five state universities, has recognized the Union as the sole representative of academic employees. The relationship between these parties is governed by a collective bargaining agreement ("CBA"). Among the provisions of this agreement is a grievance procedure through which employees can seek redress of violations of the contract.

 However, the CBA also includes a provision which allows the Board to terminate grievance procedures if the employee institutes proceedings involving the same subject matter in another forum. Article 17.2 of the CBA provides:

 
If prior to filing a grievance hereunder, or while a grievance proceeding is in progress, an employee seeks resolution of the matter in any other forum, whether administrative of judicial, the Board or any university shall have no obligation to entertain or proceed further with this matter pursuant to this grievance procedure.

 On April 9, 1984, Raymond Lewis filed a grievance pursuant to the CBA. Lewis was a faculty member at Northeastern Illinois University who was denied tenure. In his grievance, he complained that the President of the University had improperly interpreted and applied the criteria for tenure determinations.

 While this grievance was pending, Lewis filed a charge with the EEOC, alleging that he had been denied tenure on the basis of his age. When the Board learned that Lewis had filed a charge with the EEOC, it invoked Article 17.2 of the CBA and suspended the grievance proceedings. Lewis subsequently updated his EEOC charge to include a charge that the Board had retaliated against him for filing an ADEA charge.

 Although Lewis and the Board settled their dispute, the EEOC subsequently filed this action against the Board and the Union. The EEOC charges that, since 1979, the Board has violated § 4(d) of the ADEA by terminating the grievances of those employees who filed charges or complaints under the ADEA. The EEOC seeks to enjoin the Board from engaging in any practice that discriminates against employees who have asserted their rights under the ADEA.

 Shortly after the suit was filed, the Board filed a motion to dismiss for failure to state a claim upon which relief could be granted. The Board contended that Article 17.2 was included in the CBA in order to prevent the potential inconsistent results of litigating in two forums and to save time, effort and money. Judge Susan Getzendanner, to whom this case was originally assigned, denied the motion. She held that the EEOC had stated a prima facie case of retaliation. In addition, Judge Getzendanner suggested that the Board's arguments relating to the purposes of Article 17.2 constituted an affirmative defense that raised issues not properly addressed on a motion to dismiss. However, she expressed doubt as to whether the justifications presented by the Board were legally sufficient to rebut a prima facie case of retaliation. EEOC v. Bd. of Gov. of State Colleges & Univ., 665 F. Supp. 630 (N.D.Ill. 1987) ("BOG I").

 After Judge Getzendanner issued this opinion, the EEOC moved for partial summary judgment on the issue of liability. Judge Getzendanner resigned shortly after issuing this opinion, and this case was reassigned to us. We held the Board's good faith justifications for including Article 17.2 in the CBA could constitute a defense to the EEOC's claim of retaliation. E.E.O.C. v. Bd. of Gov. of State Colleges & Univ., 706 F. Supp. 1377, 1384 (N.D.Ill. 1989) ("BOG II"). This holding rested on the Seventh Circuit's opinion in Rose v. Hearst Magazines Division, The Hearst Corp., in which the Court stated that, "if [an employer] acted in good faith, it cannot be logically held to have retaliated against [an employee]." 814 F.2d 491, 493 (7th Cir. 1987). We found that the evidence produced by the Board created an issue of fact as to their good faith, and we warned the EEOC that we would grant summary judgment in favor of the Board if it could not rebut this evidence. The parties have responded to this admonition by filing the current motions.

 Discussion

 The Seventh Circuit has held that an employer acting in good faith cannot logically be held to have retaliated against an employee. Rose v. Hearst Magazines Div., The Hearst Corp., 814 F.2d 491, 493 (7th Cir. 1987). Unfortunately, the Court has not explained how the concept of "good faith" should be applied on a case by case basis. Because the Board contends that its good faith precludes a finding ...


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