The opinion of the court was delivered by: NORGLE
CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE
These consolidated cases challenge the July 1986 discharge of plaintiff Donald Rosenthal ("Rosenthal"), by defendant Chernin from his job as manager of Chernin's Mail Order and Customer Service ("MOCS"). Rosenthal, who had worked his way up in the Chernin business since being hired as a shoe salesman in 1962, was fifty five years old when he was discharged. Chernin replaced Rosenthal with a series of women in their early twenties, none of whom remained long at the job. Ultimately, Rosenthal's former position was filled by Mr. Mike Raftenburg, aged in his late sixties.
On December 1, 1986, Rosenthal filed a charge against Chernin with the EEOC, alleging age and sex discrimination. On June 29, 1988, after investigating Rosenthal's claim, the EEOC issued a Letter of Determination finding both age and sex discrimination. On July 1, 1988, Rosenthal filed a pro se complaint against Chernin in the Cook County Circuit Court, challenging his termination. Rosenthal then retained counsel who, on October 31, 1988, amended his complaint to allege age and sex discrimination. Also on October 31 1988, the EEOC filed a complaint in federal district court alleging that Chernin had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. The amended complaint in Rosenthal's private action against Chernin was removed to federal court on November 7, 1988, and on March 20, 1989, was consolidated with the EEOC action.
On August 2, 1990, this court granted Chernin's motion for summary judgment on Rosenthal's ADEA claim on the grounds that Rosenthal's first amended complaint, filed October 31, 1988, was barred by ADEA's two year statute of limitations and did not relate back to the filing date of Rosenthal's original pro se complaint.
On September 24, 1990, Chernin filed the present motion for summary judgment on EEOC's ADEA and Title VII claims. In its motion, Chernin argues that this court's summary judgment in favor of Chernin on Rosenthal's ADEA claim precludes the EEOC from maintaining its ADEA claim, by the doctrine of res judicata. Chernin also argues that once an employee has filed a private Title VII action against his employer, the EEOC is not authorized to maintain an independent Title VII action against that employer, but may only intervene in the private action. The parties briefed the motion before Magistrate Judge Edward A. Bobrick to whom this case had been assigned for disposition of all pre-trial motions.
On December 12, 1990, the Magistrate Judge submitted to this court his report and recommendation to grant in part and deny in part Chernin's motion. The Magistrate Judge's recommendation held that EEOC's ADEA claim was not barred by principles of res judicata, because "the EEOC's claim is not technically identical to Mr. Rosenthal's and . . . the EEOC was not a party, or in privity with a party, in Mr. Rosenthal's claim." December 12, 1990, Report and Recommendation ("Recommendation"), p. 5. The Magistrate Judge reasoned that because the EEOC is charged with protecting the public, its interests are broader than those asserted by individual victims of discrimination. He nevertheless held that because Rosenthal's private claim for damages (as opposed to injunctive relief) under ADEA had previously been dismissed, the EEOC was barred from obtaining such a damage recovery on Rosenthal's behalf.
The Magistrate Judge also held that the sex discrimination claim in Rosenthal's first amended complaint (filed in state court) barred the EEOC from filing a separate Title VII claim. He concluded that summary judgment should be entered against the EEOC on its Title VII claim, and that the EEOC should be granted leave to intervene in Rosenthal's Title VII action.
Upon the submission of a magistrate judge's report and recommendation on a motion for summary judgment, the district judge shall make a de novo determination upon the record and may accept, reject or modify the recommended decision. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). In making this determination, the judge must look at all the evidence contained in the record and retains final authority over determination of the dispositive motion. Delgado v. Bowen, 782 F.2d 79 (7th Cir. 1986).
Rule 56 (c) of the Federal Rules of Civil Procedure provides that summary judgment:
shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the ...