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PETERS v. FANSTEEL

May 11, 1990

EDWIN S. PETERS, Plaintiff,
v.
FANSTEEL, INC., Defendant



The opinion of the court was delivered by: LINDBERG

 GEORGE W. LINDBERG, UNITED STATES DISTRICT JUDGE.

 Defendant, Fansteel, Inc. has filed a motion pursuant to FRCP Rule 12(b)(1) to dismiss plaintiff's two count complaint for age-discrimination arguing that this court lacks subject matter jurisdiction. For the reasons stated herein, defendant's motion is denied as to Count I and granted as to Count II.

 For purposes of a motion to dismiss, the court takes the allegations of the complaint as true and all reasonable inferences therefrom and 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, the motion to dismiss will be denied. Miller v. Advanced Studies, Inc., 635 F. Supp. 1196 (N.D. Ill. 1986). Plaintiff was born August 17, 1935. Plaintiff was employed by defendant from 1967 until he was terminated on July 10, 1987. Plaintiff was 53 years old when he was terminated. Plaintiff had performed his duties satisfactorily. Defendant advertised to fill plaintiff's position. Plaintiff applied for the vacancy. Defendant hired a 24 year old to fill the position. Plaintiff filed a charge of age-discrimination with the Equal Employment Opportunity Commission (EEOC) on November 21, 1987. Plaintiff does not allege that he filed a charge of age-discrimination with the Illinois Department of Human Rights (IDHR). In plaintiff's response to defendant's motion to dismiss, plaintiff concedes he did not file a charge with IDHR. Count I of plaintiff's complaint alleges that defendant's actions amounted to illegal age-discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA). 29 U.S.C.A. §§ 621 et seq. (West 1985). Count II of plaintiff's complaint also seeks damages from defendant based upon a violation of the Illinois Human Rights Act. Ill. Rev. Stat. ch. 68, par. 1-101 et seq. (Smith-Hurd 1989).

 Section 626(d) of the ADEA provides in relevant part:

 
No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. Such a charge shall be filed --
 
(1) within 180 days after the alleged unlawful practice occurred; or
 
(2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.

 (emphasis added.) 29 U.S.C.A. § 626(d) (West 1985). Section 633(b) provides in relevant part:

 
In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated:

 (emphasis added.) 29 U.S.C.A. § 633(b) (West 1985). In states, like Illinois which has a state agency, the IDHR, authorized to remedy prohibited acts of age-discrimination, a plaintiff must file a charge of age-discrimination with both the EEOC and the state agency before the plaintiff will be allowed to file a civil suit under the ADEA in federal court. 29 U.S.C.A. §§ 626(d), 633(b); Smith v. General Scanning, Inc., 832 F.2d 96 (7th Cir. 1987).

 Before addressing defendant's arguments as to Count I, the court needs to clarify an apparent misconception of law by defendant. The administrative filing requirements of the ADEA, while mandatory, are not jurisdictional requirements but conditions precedent to bringing a suit in the federal courts. Husch v. Szabo Food Service Co., 851 F.2d 999 (7th Cir. 1988). Therefore, the filing requirements are subject to waiver, estoppel and equitable tolling. Husch, 851 F.2d 999. The court will treat defendant's motion as a motion to dismiss for failure to state a claim. FRCP Rule 12(b)(6).

 In the instant case, it is admitted by plaintiff in response to defendant's motion that plaintiff did not personally file a charge of age-discrimination with the IDHR. Defendant argues that the court must dismiss plaintiff's claim under the ADEA. However, since the filing requirements are not jurisdictional and therefore are subject to equitable tolling, the court is not required as a matter of law to dismiss plaintiff's claim. Husch v. Szabo Food Service Co., 851 F.2d 999, 1003 (7th Cir. 1988). Additionally, the court need not address the application of these equitable doctrines at this stage of the proceedings because as ...


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