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MELENDEZ v. ILLINOIS BELL TEL. CO.

August 15, 1994

CARMELO MELENDEZ, Plaintiff,
v.
ILLINOIS BELL TELEPHONE COMPANY, Defendant.



The opinion of the court was delivered by: BRIAN BARNETT DUFF

 The plaintiff Carmelo Melendez ("Melendez") brought this action on August 8, 1990. In his Third Amended Complaint *fn1" , the plaintiff alleged that the defendant, Illinois Bell Telephone Company ("Illinois Bell"), had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and the Civil Rights Act of 1871, 42 U.S.C. Sec. 1981. More specifically, the plaintiff alleges discriminatory hiring practices on the part of the defendant through the use of a preemployment examination.

 Following a trial in September of 1993 on the Section 1981 claim, the jury returned a verdict in favor of the defendant. This court entered judgment on September 9, 1993 for the Section 1981 claim and later amended judgment on December 8, 1993. *fn2" The plaintiff initially filed a motion for a new trial which was subsequently withdrawn on February 11, 1994. *fn3" (Pl. Reply, p.1). The Title VII claims are bench issues *fn4" on which the court has yet to rule.

 At issue for the purposes of this opinion is the binding effect of the jury's verdict on the Section 1981 claim as to the remaining Title VII claims brought under the theories of disparate treatment and disparate impact. *fn5"

 I. Subject Matter Jurisdiction

 The defendant raises an initial matter in asserting that this court lacks subject matter jurisdiction to resolve the Title VII claims because the plaintiff is not entitled to backpay and does not seek reinstatement. (Def. Ans. Third Amend. Comp., 2nd Aff. Def. and Post-hrg. brief, p.8 n.4). It is noteworthy that the defendant does not cite any case law in support of this proposition.

 There is nothing in the provision which covers relief available under the statute which suggests that these factors are determinative of the court's subject matter jurisdiction. See 42 U.S.C. Section 2000e-5(g). Moreover, with respect to the remedy of reinstatement, given that the position for which the plaintiff applied, Manager, Urban Affairs, has been abolished reinstatement is not an option. (Def. Sum. of Case, p. 6).

 Similarly, the determination of whether the plaintiff is entitled to backpay will be made following the hearing on the disparate impact claim. Whether or not the plaintiff is entitled to such an award is not the deciding factor of the court's subject matter jurisdiction. See Mustafa Al-Alamin v. Gramley, 926 F.2d 680 (7th Cir. 1991) (federal courts possess broad but not limitless powers to remedy constitutional violations, however, as an initial matter, the federal court must find that a constitutional violation exists).

 This court has considerable, though not unlimited, discretion to remedy discriminatory practices under Title VII :

 
Where an employer has engaged in a pattern or practice of unlawful discrimination, affirmative and mandatory relief is required to ensure full enjoyment of the right to equal employment opportunity. 42 U.S.C. sec. 2000e-6(a). In such cases, the court has not only the power but the duty both to enjoin future discrimination and as far as possible to require the elimination of the continuing effects of past discrimination.

 U.S. v. City of Chicago, 411 F. Supp. 218, 242 (1976) [J. Marshall], cert denied 434 U.S. 875, 98 S. Ct. 225 (1977); See Philbin v. General Electric Capital Auto Lease, Inc., 929 F.2d 321, 323 (7th Cir. 1991) (Title VII is remedial legislation which must be construed liberally).

 The plaintiff has requested relief which the court has discretion to award if it finds that the plaintiff's claim has merit and the court deems the relief appropriate. *fn6" Therefore, the plaintiff's entitlement to backpay, which has yet to be determined by the court, and his failure to request reinstatement do not affect this court's subject matter jurisdiction.

 Rather, jurisdiction is conferred upon this court pursuant to 42 U.S.C. Section 2000e-5(f) and 28 U.S.C. Section 1343. Section 2000e-5(f)(3) of Title 42 provides in relevant part that :

 Given that the plaintiff alleges that the unlawful employment practice was committed in Illinois *fn7" , pursuant to the above section, this court has jurisdiction.

 In further support of this conclusion, Section 1343 of Title 28 provides that the district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person :

 
(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;
 
(4) To recover damages to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.

 With that preliminary issue resolved, the court now considers the preclusive effect of the jury's verdict on the Section 1981 claim with respect to the plaintiff's Title VII claims.

 II. Statute of Limitations

 As a second threshold issue, the defendant asserts that the plaintiff's Title VII claims are barred in whole or in part by the applicable statute of limitations. *fn8" (Def. Ans. Third Amend. Comp., p.9). The defendant raises this as its First Affirmative Defense *fn9" to the Third Amended Complaint but offers no argument as to the applicability of this defense to the Title VII claims. (Def. Ans. Third Amend. Comp., p.9).

 Section 2000e-5(e) *fn10" governs the limitations periods for Title VII claims and provides, inter alia, that the limitations period for filing with the EEOC is 180 days in states without their own agencies to which employment discrimination complaints can be directed. 42 U.S.C. sec. 2000e-5(e). For "deferral" states such as Illinois, however, which have their own agencies with the authority to administer ...


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