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VAN BLYENBURGH v. ABBOTT LABS.

March 13, 1995

HANS VAN BLYENBURGH, Plaintiff,
v.
ABBOTT LABORATORIES and IVAN KOLESIK, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Hans Van Blyenburgh brings this four count action, alleging that he was discriminated against on the basis of age, national origin, and disability, and claiming that defendants violated the provisions of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. ยง 1001 et seq. Presently before the court is defendants' motion to dismiss Count I of the complaint, which we have converted to a motion for summary judgment. For the reasons set forth below, defendants' motion is granted.

 I. Background

 On October 2, 1992, plaintiff Hans Van Blyenburgh filed a charge of discrimination with the Illinois Department of Human Rights ("IDHR") and the Equal Employment Opportunity Commission ("EEOC"). On the charge form, Van Blyenburgh checked the boxes marked "AGE" and "DISABILITY" as the basis for the alleged discrimination. He did not check the box marked "NATIONAL ORIGIN." In the charge, he explained the "particulars" of the alleged discrimination as follows:

 
Discrimination due to age - over 50 years old and discharged; job was replaced by an individual who is younger, and no valid reason for discharge was ever given.
 
Employee Van Blyenburgh was handicapped and was discharged in part due to status as handicapped person.
 
The privacy of Mr. Van Blyenburgh was invaded by the employer consultation and review of confidential medical records of employee.

 Van Blyenburgh provided no further allegations or elaboration in his charge to the EEOC.

 After receiving a right to sue letter, Van Blyenburgh filed the present action, including claims based on the alleged age and disability discrimination identified in his EEOC charge, as well as a claim based on national origin discrimination. *fn1" Defendants moved to dismiss, asserting that the national origin claim had not been presented in the EEOC charge. In support, they attached a copy of the charge to their motion to dismiss. Noting that the charge had not been attached to the complaint, and that it was only referred to in passing in the text of the complaint, we questioned whether the issue was appropriately raised in a motion to dismiss. In an overabundance of caution, we converted defendants' motion to a motion for summary judgment pursuant to Fed. R. Civ. P. 12(b), and provided both parties an opportunity, as required by that rule, to supplement the materials they had already provided the court. *fn2" The parties have essentially rested on their previous filings, and we therefore reach the merits of the summary judgment motion.

 II. Summary Judgment Standard

 Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Rule 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991).

 III. Discussion

 As noted in our earlier opinion, filing of a charge of discrimination with the EEOC is a condition precedent to filing a lawsuit in federal court. See Van Blyenburgh, No. 94 C 5976, slip op. at 1. There are two reasons for this requirement: "it gives the employer some warning of the conduct about which the employee is aggrieved, and it affords the agency and the employer an opportunity to attempt conciliation without resort to the courts." Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992) (citing Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir. 1985)). As a result, "the scope of the subsequent judicial proceedings is limited by the nature of the charges filed with the EEOC." Rush, 966 F.2d at 1110. Claims of discrimination that are ...


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