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Equal Employment Opportunity Commission v. Harvey L. Walner & Associates

July 31, 1996






Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 C 1355 George M. Marovich, Judge.

Before POSNER, Chief Judge, and KANNE and EVANS, Circuit Judges.

KANNE, Circuit Judge.



The Equal Employment Opportunity Commission is charged with enforcing Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. sec. 2000e et seq., which is designed to ensure equal employment opportunities for all Americans. One barrier to equal opportunity is the insidious occurrence of sexual harassment, and the record of this case does suggest a pattern of sexual harassment by the defendants. Yet, however deserving the defendants may be of EEOC's scrutiny, the manner in which the Commission prosecuted this case has resulted in its early demise. In this appeal, we must determine whether the district court correctly analyzed EEOC's allegations in its decision awarding summary judgment to the defendants. Despite our concerns regarding the defendants' pattern of conduct as alleged by EEOC, we conclude that the district court correctly awarded summary judgment to the defendants as a matter of law.


The facts relevant to this appeal are undisputed. EEOC filed its complaint against the law firm of Harvey L. Walner & Associates and Harvey L. Walner, the sole owner of the firm, on March 2, 1995, alleging that the defendants had engaged in unlawful employment practices in violation of 42 U.S.C. sec. 2000e-2(a) and 42 U.S.C. sec. 1981. *fn1 EEOC based its complaint upon a charge of discrimination that Patricia G. Shepard, a former Walner employee, had filed with EEOC on February 17, 1993. The complaint alleged that since at least 1984 Walner "discriminated against a class of female employees because of their sex by creating a hostile environment based on sexual harassment and by constructively discharging them." EEOC sought injunctive relief, compensatory and punitive damages, and costs.

Prior to filing the lawsuit, EEOC sent a letter to Walner's counsel on February 23, 1995, in an attempt to "conciliate" *fn2 its claims. The letter outlined what EEOC believed to be the essentials of its case at that time. It identified five of Walner's former employees (in addition to Shepard) alleged to have suffered sexual harassment and/or to have been constructively discharged: Colleen Deutsch, Rosemary Hopkins, Ramona Olvera, Laurine Pala, and Diana Soto. The letter suggested that EEOC's investigation was continuing:

We have not yet been able to determine whether other female employees have been subjected to sexual harassment or constructively discharged based on sexual harassment.

EEOC requested social security numbers, home addresses, and phone numbers of fifteen current or former Walner employees, and we presume this request manifested an ongoing investigation.

Only two of the five women identified in the letter had ever filed charges of discrimination with EEOC. Neither Hopkins, who had worked for Walner for only one month in 1984; Deutsch, who had resigned in 1989; nor Olvera, who had been laid off in 1991, ever filed charges. Pala and Soto had resigned in July and September 1992, respectively. Both Pala and Soto had filed charges with the EEOC, but they subsequently settled their claims against Walner and withdrew their charges with EEOC's consent. See 29 C.F.R. sec. 1601.10.

In its February 23 letter, EEOC disclaimed any intent to seek either monetary relief for Pala or Soto, who had settled their claims, or compensatory or punitive damages for Hopkins, Deutsch, or Olvera because their alleged exposure to the harassment preceded the effective date of the Civil Rights Act of 1991, 42 U.S.C. sec. 1981.

Walner filed what it styled a "Motion to Strike and Dismiss" on May 23, 1995, in which it asked that the district court strike the claims of the women identified in the letter and dismiss EEOC's complaint with respect to Shepard's claim without prejudice to her ability to perfect claims for individual relief. In support of this motion, Walner attached the following exhibits: the February 23 letter from EEOC, Shepard's charge of discrimination, and a letter from Walner's counsel to the EEOC dated September 21, 1994.

Nowhere does Walner identify any provision of the Federal Rules authorizing the court to take the action sought. The request to strike is puzzling because EEOC never referenced in its complaint any allegations specifically concerning the five women identified in the February 23 letter. Since three of those women never filed charges with EEOC and two withdrew their charges, it is unclear exactly which "claims" Walner imagined as the object of this motion. The request for dismissal probably contemplated FED. R. CIV. P. 12(b)(6), which authorizes dismissal for failure to state a claim upon which relief may be granted. At any rate, in ruling on Walner's motion, the district court did treat the February 23 letter as substantially incorporated in EEOC's complaint to the extent that it alleged the basis for EEOC's claim of discrimination against a class of persons--in this case, female employees.

EEOC filed a response to Walner's motion to which it attached a copy of Shepard's charge of discrimination and copies of two letters from EEOC to Walner's counsel. One of these letters was EEOC's formal determination that there was "reasonable cause to believe that [Walner] discriminated against females as a class by subjecting them to sexual harassment, and by constructively discharging them." The second letter evidenced the failure of efforts at conciliation. Because both parties had introduced materials not only external to the pleadings but also necessary to the disposition of Walner's motion, the court converted Walner's motion to a motion for summary judgment under FED. R. CIV. P. 56, citing Tregenza v. Great American Comm. Co., 12 F.3d 717, 718 (7th Cir. 1993), cert. denied, 114 S. Ct. 1837 (1994).

The district court concluded that there was no dispute as to any material facts and that Walner was entitled to judgment as a matter of law on EEOC's claim of classbased discrimination. In arriving at this conclusion, the district court determined that EEOC was barred from bringing an action based upon the allegedly discriminatory conduct against the several women identified in EEOC's February 23 letter. Because only Shepard's charge could be a sound basis for EEOC's complaint, the district court reasoned that the allegations of ...

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