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OTTERBACHER v. NORTHWESTERN UNIV.

November 18, 1993

RUPERT OTTERBACHER, Plaintiff,
v.
NORTHWESTERN UNIVERSITY and DR. GERALDINE GARNER, as agent of Northwestern University, and individually, Defendants.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is the motion of defendants Northwestern University ("Northwestern") and Dr. Geraldine Garner ("Garner") (collectively "defendants") to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For reasons outlined below, the court grants the motion in part and denies the motion in part.

 FACTS

 According to the complaint, plaintiff Rupert B. Otterbacher ("Otterbacher"), hired by Northwestern University in October 1975, possessed a satisfactory performance record during his sixteen and one half years of service. Notwithstanding his unblemished record, Otterbacher was discharged on May 29, 1992. Otterbacher was sixty-one years of age at the time of the discharge. His successor was a younger, female employee who Otterbacher alleges was less qualified for the position. Otterbacher thus claims the discharge was illegally prompted by his age and sex.

 Although Otterbacher's work performance was satisfactory, Garner allegedly complained that Otterbacher was not getting along with her or other female employees in the Co-op Department and accused Otterbacher of being too old to perform his duties. Otterbacher also alleges that Garner imposed unrealistic and unreasonable deadlines and demands upon Otterbacher. Garner discharged Otterbacher but allegedly informed Northwestern's Associate Vice President of Personnel that Otterbacher resigned. Garner further told Otterbacher that he was discharged because of a lack of communication between them.

 Sometime after the discharge, Otterbacher met with the Associate Vice President. During this meeting, the Associate Vice President told Otterbacher that Garner informed him Otterbacher had resigned. Otterbacher denied that he resigned and announced that Garner fired him. Also, Otterbacher played tape recordings of some of the telephone messages Garner allegedly left on his answering machine, but Northwestern took no action.

 On June 12, 1992, Otterbacher filed a charge of age and sex discrimination (the "Charge") with the Equal Employment Opportunity Commission ("EEOC") naming only Northwestern as the respondent. The body of the Charge, however, mentions Garner, and Garner participated in the ensuing EEOC investigation of Northwestern. The EEOC issued a Notice of Right to Sue letter on April 19, 1993. Otterbacher filed a five-count complaint against both Northwestern and Garner in July 1993 alleging age and sex discrimination, intentional interference with contractual relationship, intentional infliction of emotional distress, and invasion of privacy. Defendants' motion addresses each claim.

 DISCUSSION

 I. Age and Sex Discrimination Counts.

 Defendants claim this court does not possess jurisdiction over Otterbacher's claims against Garner under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. because Otterbacher did not name Garner as a respondent in the Charge. A plaintiff is precluded from naming in a discrimination suit a person whom the plaintiff failed to name in a charge of discrimination filed with the EEOC. Schnellbaecher v. Baskin Clothing Co, 887 F.2d 124, 126 (7th Cir. 1989). Although identifying individuals or entities in a charge is a prerequisite to filing suit against them, it is not a jurisdictional requirement. Id. at 126; Babrocky v. Jewel Food Co., 773 F.2d 857, 863-64 (7th Cir. 1985). Rather, the requirement is more akin to a statute of limitations. Schnellbaecher, 887 F.2d at 126. *fn1"

 An exception to the requirement that a civil litigant be first named in an EEOC Charge exists where "an unnamed party has been provided with adequate notice of the charge, under circumstances where the party has been given the opportunity to participate in conciliation proceedings aimed at voluntary compliance." Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 905 (7th Cir. 1981), cert. denied, 455 U.S. 1017, 102 S. Ct. 1710, 72 L. Ed. 2d 134 (1982). To effectuate the remedial purposes of the anti-discrimination laws, courts construe EEOC charges with "utmost liberality"; thus a plaintiff may join all parties sufficiently named or alluded to in the factual statement of an EEOC charge. 657 F.2d at 906.

 Because the Charge must be read with utmost liberality, the court finds that Garner falls into the exception to the requirement that defendants be first named in the EEOC charge. First, Garner possessed actual notice of Otterbacher's Charge against Northwestern. Garner, Otterbacher's supervisor, was shown a copy of the Charge and also ...


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