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February 13, 1997

JUDITH GUY, Plaintiff,
THE STATE OF ILLINOIS, McHENRY COUNTY, EDWARD FOLEY, G.TERENCE NADER and GARY PACK, in their individual and official capacities, Defendants.

The opinion of the court was delivered by: LEINENWEBER

 Plaintiff Judith Guy sued the State of Illinois and McHenry County for sexual harassment, sexual discrimination, and retaliatory discharge in violation of Title VII. Guy further sued Edward Foley, G. Terence Nader, and Gary Pack (collectively, the "individual defendants" ) for deprivation of her First and Fourteenth Amendment rights in violation of 42 U.S.C. § 1983. Pendent to these federal claims, plaintiff brings state law claims of defamation and intentional infliction of emotional distress. Defendants now move to dismiss all claims against them. Additionally, the individual defendants and McHenry County (collectively, the "McHenry defendants") have submitted a motion to cite additional authority in support of their motion to dismiss the state law claims.


 Plaintiff previously served as an assistant state's attorney ("ASA") with the McHenry County State's Attorney's Office. At that time, defendant Gary Pack was employed as McHenry County's State's Attorney and defendant G. Terence Nader was plaintiff's supervisor, serving as the Criminal Division Chief of that office. Defendant Edward Foley was employed as an assistant public defender for the McHenry County Public Defender's Office.

 Shortly after September 1, 1994, plaintiff was discharged from her position as an ASA. Plaintiff alleges that, while she was working as an ASA, she was subjected to differential treatment based on her gender, as well as sexual harassment. In addition, she alleges that her ultimate discharge stemmed from her complaints regarding this treatment. Subsequent to her dismissal, plaintiff filed a timely charge with the Equal Employment Opportunity Commission ("EEOC"). The EEOC ultimately issued a right to sue letter, leading to plaintiff's presentation of those claims to this court.


 When ruling on a motion to dismiss, federal courts adhere to the familiar standard of viewing the allegations of the complaint in the light most favorable to the plaintiff. Consequently, the court accepts all well-pleaded allegations as true and draws all reasonable inferences in favor of the plaintiff. Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1995); Codest Engineering v. Hyatt Int'l Corp., 954 F. Supp. 1224, 1996 U.S. Dist. LEXIS 19204, No. 94 C 7335, 1996 WL 745120, at *8 (N.D. Ill. 1996). The court will only dismiss a complaint for failure to state a claim if no relief could be granted under any set of facts that could be proven consistent with the allegations found in the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984).


 Because plaintiff is uncertain as to which defendant is her "employer" under Title VII, plaintiff asserts her Title VII claims -- including claims of sexual harassment, sexual discrimination, and retaliation -- against defendant McHenry County or, in the alternative, defendant State of Illinois. Both defendants move to dismiss the claims on the basis that plaintiff is not an employee under the Act, but rather is excluded from protection by 42 U.S.C. § 2000e(f). Section 2000e(f) defines the term "employee" for purposes of Title VII and excepts from its scope certain employees of state-elected officials, including "personal staff," "immediate advisor[s]," and "appointees on the policy making level." 42 U.S.C.A. § 2000e(f)(West 1994).

 No case within this Circuit has yet decided whether an ASA is excluded from Title VII's protection by § 2000e(f). However, Seventh Circuit precedent makes it clear that, in making this determination, the analysis is the same as that applied in the context of patronage ban exemptions. Americanos v. Carter, 74 F.3d 138, 144 (7th Cir. 1996)(citing Heck v. City of Freeport, 985 F.2d 305, 310 (7th Cir. 1993)). In Americanos, a former deputy attorney general sued the Attorney General of the State of Indiana, among others, for unlawful discrimination on the bases of national origin under Title VII, political affiliation under 42 U.S.C. § 1983, and age under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. The Court of Appeals affirmed the district court's grant of summary judgment in favor of the attorney general finding that the deputy attorney general's position was such that political loyalty to the attorney general was an appropriate requirement. 74 F.3d at 142. Although the court's discussion centered specifically around the political discrimination charge, the court affirmed the dismissal of all claims, stating that "'the reasons for exempting the office from the patronage ban apply with equal force to the requirements of the ADEA [and Title VII].'" Americanos, 74 F.3d at 144 (citing Heck, 985 F.2d at 310).

 In its discussion of the case, the Court of Appeals declared that the relevant inquiry involved an analysis of the "powers inherent in a given office, rather than the actual functions [that] the occupant of that office performed." Id. at 141 (quoting Heck, 985 F.2d at 309). The court found that, regardless of the work the deputy attorney general actually performed, the position was, at least, authorized to perform "any of the enumerated duties of the [Attorney General]" and was a "public representative of the office." Id. Because of this "direct ability to implement the policies and goals of the [Attorney General] . . . [the deputy attorney generals'] political loyalty to the AG [was] of the utmost importance" and was an appropriate consideration in employment decisions regarding the deputy attorney generals. 74 F.3d at 143.

 Furthermore, the court analogized the case to that of Livas v. Petka, where the Seventh Circuit held that political affiliation was a constitutionally permissible consideration in the hiring or firing of ASAs. 711 F.2d 798, 800-01 (7th Cir. 1983); see also Hernandez v. O'Malley, 98 F.3d 293, 295-96 (7th Cir. 1996)(reiterating holding of Livas). In Livas, the court based its holding in part on the fact that a prosecutor, such as a State's Attorney, who owes a duty to the public at large, relies on his subordinates, the ASAs, to implement his policies and that an ASA may, "in carrying out his or her duties, make some decisions that will actually create policy." Livas, 711 F.2d at 801. As stated recently by the Seventh Circuit, ASAs are "in a large office . . . the effective policy-makers for broad classes of matters." Hernandez, 98 F.3d at 295-96. It is apparent to this court that, based on this precedent, ASAs are "appointees on a policy-making level" under § 2000e(f).


 Plaintiff contends that, even if she is an exempt under Title VII, she is covered by the Government Employee Rights Act of 1991 ("GERA"), 2 U.S.C.A. § 1201 et seq. (West Supp. 1996). As part of the Civil Rights Act of 1991, Congress enacted the GERA, which "provide[s] procedures to protect the rights of certain government employees, with respect to their public employment, to be free of discrimination on the basis of race, color, religion, sex, national origin, age, or disability." Id. Although few cases have interpreted or discussed the GERA to date, Section 1220 of the GERA, entitled "Coverage of previously exempt State employees," apparently provides relief to those individuals who were previously exempt from the definition of "employee" under Title VII by § 2000e(f).

 However, in order for this court to have jurisdiction to hear a GERA claim, plaintiff must comply with the administrative procedures set forth in the Act. Under the GERA, the administrative procedures are quite different than those delineated under Title VII. Under the GERA, once a proper complaint has been filed with the EEOC, the Commission must determine whether a violation has occurred and issue a final order in accordance with the procedures set forth in the Administrative Procedure Act, 5 U.S.C. §§ 554-57. 2 U.S.C. § 1220(b)(1). At that point, "any party aggrieved by a final order" can obtain judicial review pursuant to 28 U.S.C. § 158. 2 U.S.C. § 1220(c). Consequently, the charging party must "await a determination by [the EEOC] prior to initiating legal action." McNulty v. New York City Dep't of Finance, 941 F. Supp. 452, 457 (S.D.N.Y. 1996). Although plaintiffs may seek review in the federal district court once the EEOC has made a determination, de novo review is unavailable. Id.

 In the present case, plaintiff submitted a timely EEOC charge that alleged violations of Title VII, and not the GERA. At the EEOC hearing, plaintiff's exemption from § 2000(e) protection and possible coverage under the GERA were not discussed. Plaintiff argues that because defendants did not raise the argument at that point, the district court should deem it waived. In the alternative, plaintiff asks this court to send the case back to the EEOC and compel the Commission to initiate administrative procedures.

 The court disagrees that defendants have waived their arguments by not addressing them in front of the EEOC. Since the proceeding before the EEOC was far from a full adversarial proceeding, defendant's legal arguments, although not raised at that point, are not waived for purposes of federal court review. See Garvey v. Dickinson College, 761 F. Supp. 1175, 1181 (M.D. Pa. 1991)(finding that defendant's failure to raise late-filing defense at agency proceeding did not result in waiver because administrative proceedings were non-adversarial in nature).

 As for plaintiff's request that the court order the EEOC to hear the present case, the court finds this route equally untenable. The court is without jurisdiction to remand the case to the EEOC at this juncture. Under the GERA, the federal district court only has jurisdiction to review administrative determinations once the issues have been hashed out at the administrative level. Plaintiff's argument that the EEOC should open its doors to plaintiff's GERA claim is more properly addressed to the agency itself. Since the EEOC has not issued an order pursuant to the procedures set forth in the GERA, this court lacks jurisdiction to hear plaintiff's GERA claims or compel the EEOC to ...

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