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June 8, 1993



The opinion of the court was delivered by: WAYNE R. ANDERSEN

Plaintiff, the United States Equal Employment Opportunity Commission (EEOC), brings a motion for partial summary judgment and defendant, General Motors Corporation (GM), brings a cross-motion for summary judgment pursuant to Fed. R. Civ. P. 56. For the following reasons, EEOC's motion is granted and GM's motion is denied.

 The facts are undisputed. Since 1941, GM has had an "open door" policy, an informal dispute resolution procedure, through which salaried employees *fn1" may seek investigation and resolution of employment-related problems. Under the "open door" policy, an employee makes a complaint to his or her supervisor. If not resolved, GM staff members in the personnel department at the employee's facility investigate and attempt to resolve the complaint. If the employee is dissatisfied with the Personnel Director's determination at the local facility or divisional level, he or she may request review by GM's Central Office in Detroit, Michigan. The Central Office reviews the charge and, if necessary, reinvestigates. A final determination is then made as to whether GM will voluntarily provide a remedy to the employee's satisfaction.

 When an employee files a claim with the EEOC or another administrative agency, GM "defers" allowance of use by an employee of the "open door" policy until the matter is resolved with the agency. GM staff in the local personnel department still investigate the charge and report their findings to the Central Office, but a determination is made as to whether and to what extent GM will resolve the complaint through the EEOC's conciliation procedures, rather than through its own procedures. Thus, the "open door" procedure is unavailable to a salaried employee once he or she files a grievance with the EEOC or another agency.

 In this case, Mr. Irvin Talbert, in accordance with the "open door" policy, wrote to GM's Vice President of Personnel Administration concerning his being laid off. Within days, Mr. Talbert filed a charge of discrimination with the EEOC regarding the same issue. Pursuant to GM's policy, Mr. Talbert was informed that the personnel office could not respond to his "open door" policy complaint while his charge was pending with the EEOC, but that he would be free to pursue resolution of his complaint through the "open door" policy if he chose to withdraw his EEOC charge. Mr. Talbert then filed another charge with the EEOC, alleging that GM's policy regarding "open door" procedures constituted unlawful retaliation.

 The EEOC and GM were unable to resolve the charge in conciliation, and the EEOC filed suit on behalf of Mr. Talbert and others similarly situated pursuant to 42 U.S.C. § 2000e-5(f)(1) and 29 U.S.C. § 626(b) *fn2" , alleging that GM's termination of an employee benefit in response to an EEOC filing is discriminatory in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Title VII), and Section 4(d) of the Age Discrimination and Employment Act, 29 U.S.C. § 621, et seq. (ADEA). GM maintains that its deferral of its "open door" procedures pending the outcome of an EEOC charge does not constitute an adverse action and therefore is not discriminatory under Title VII or under the ADEA.

 EEOC brings a motion for partial summary judgment in which it asks the court to enter a judgment that GM's practice of suspending its procedures violates federal law; to enjoin GM from suspending its "open door" procedures while an employee or former employee has a charge pending with the EEOC; to reopen its "open door" process to persons whose EEOC charges are still pending and who were denied access to the process because they had filed EEOC charges; to order GM to advise employees of the above orders by posted notice or otherwise; and to strike GM's second and third affirmative defenses to EEOC's complaint.

 GM brings a motion for summary judgment asking the court to enter judgment in its favor on all of the claims asserted in the complaint, or in the alternative, to limit the remedy to prospective relief only.


 Summary judgment is appropriate when the movant demonstrates "the absence of a genuine issue as to any material fact, and for these purposes the material . . . lodged must be viewed in the light most favorable to the opposing party." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The nonmoving party may not merely rest on its pleadings, but must demonstrate, through specific evidence, that there remains a genuine issue of triable fact. Lister v. Stark, 942 F.2d 1183, 1187 (7th Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims . . . . Celotex, 477 U.S. at 323-24.

 Title VII and the ADEA

 Section 704(a) of Title VII provides that it is unlawful "for an employer to discriminate against any of his employees . . . because he [the employee] has made a charge . . . under this subchapter." 42 U.S.C. § 2000e-3(a). Section 4(d) of the ADEA states that it is unlawful "for an employer to discriminate against any of his employees . . . because such individual . . . has made a charge . . . under this chapter." 29 U.S.C. § 623(d).

 EEOC maintains that GM's suspension of its in-house dispute resolution procedures discriminates against salaried employees who file charges with the EEOC and against employees who may wish to file with the EEOC, but are deterred from doing so by GM's policy of denying access in violation of the above provisions. EEOC cites EEOC v. Board of Governors of State Colleges and Univs., 957 F.2d 424, 427-29 (7th Cir. 1992), in support of its assertion that GM may not suspend an employee benefit in response to the employee filing a charge with the EEOC. In Board of Governors, the court held that Section 4(d) of the ADEA prohibited a collective bargaining agreement from providing that an employee's grievance would no longer be processed if the employee filed a charge of ...

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