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KOPEC v. CITY OF ELMHURST

April 17, 1997

RICHARD T. KOPEC, Plaintiff,
v.
THE CITY OF ELMHURST, a municipal corporation; and THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF ELMHURST, Defendants.



The opinion of the court was delivered by: DENLOW

 Defendant, Board of Fire and Police Commissioners of the City of Elmhurst ("Board"), moves to dismiss Plaintiff's Amended Complaint on the basis that Plaintiff's Amended Complaint naming the Board is time barred under the Age Discrimination in Employment Act of 1978, 29 U.S.C. § 626(d) and § 633(b). The Board raises two issues. First, the Board claims Plaintiff's charge of discrimination filed against it on August 12, 1996, with the Equal Employment Opportunity Commission ("EEOC") is time barred pursuant to 29 U.S.C. § 626(d) because it was filed more than 300 days after the alleged unlawful practice occurred. Second, the Board argues that Plaintiff's Amended Complaint naming the Board was filed less than 60 days after Plaintiff filed its EEOC charge against the Board, and is time barred pursuant to 29 U.S.C. § 633(b). For the reasons set forth below, the Court denies the Board's Motion to Dismiss.

 I. BACKGROUND FACTS

 On April 30, 1996, Plaintiff, Richard Kopec, filed a complaint against the City of Elmhurst ("City") alleging that the City discriminated against him based on his age under the Age Discrimination in Employment Act of 1967 ("ADEA"). Plaintiff claims that this alleged discrimination occurred on September 6, 1995, when the City refused to hire him as a full time police officer (Amended Complaint, P21). On October 12, 1995, Plaintiff appeared at the EEOC and filed a charge of discrimination against the City (Affidavit of Richard T. Kopec ("Kopec Aff."), P3). At that time, Plaintiff did not name the Board in its EEOC charge (Kopec Aff., P3). On January 29, 1996, the EEOC issued Plaintiff a right to sue letter against the City (Kopec Aff., P11, Ex. 3).

 Sometime after receiving the right to sue letter, Plaintiff discovered that the Board was a necessary defendant because of its substantial involvement in the City's hiring decisions (Kopec Aff., P4). Plaintiff then filed an additional charge with the EEOC on August 12, 1996, naming the Board as a defendant (Kopec Aff., P14). The EEOC issued a right to sue letter against the Board on August 29, 1996 (Kopec Aff., P16-17). On September 6, 1996, Plaintiff filed a Motion for Leave to File an Amended Complaint naming the Board. This Court granted Plaintiff's Motion on November 14, 1996, and Plaintiff filed the Amended Complaint that day.

 The Board now moves to dismiss Plaintiff's Amended Complaint on the grounds that (1) Plaintiff improperly filed a charge of discrimination against the Board more than 300 days after the alleged unlawful practice occurred pursuant to 29 U.S.C. § 626(d), and (2) Plaintiff's Amended Complaint naming the Board was filed less than 60 days after a charge of unlawful discrimination was filed with the EEOC against the Board in violation of 29 U.S.C. § 633(b).

 II. STANDARD OF REVIEW1

 Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265 (1986).

  When reviewing the record on summary judgment, the court must draw all reasonable inferences in the light most favorable to the nonmovant. Hill v. Burrell Communications Group, Inc., 67 F.3d 665, 667 (7th Cir. 1995). To avert summary judgment, however, plaintiff "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, (1986). A dispute about a material fact is genuine only if the evidence presented is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A summary judgment proceeding is not a vehicle for the resolution of factual disputes; it is designed to determine whether there is any material dispute of fact that requires a trial. Id. If no reasonable jury could find for the party opposing the motion, it must be granted. Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995).

 III. DISCUSSION

 A. Plaintiff's Failure to File Within 300 Days of Alleged Unlawful Conduct

 Plaintiff failed to file a charge against the Board with the EEOC within 300 days of the alleged unlawful discrimination as generally required by 29 U.S.C. § 626(d). Plaintiff failed to name the Board at the same time it named the City in its original discrimination charge (Kopec Aff., Ex. 1). Before precluding Plaintiff's suit against the Board, the Court must determine whether Plaintiff had sufficient reason for failing to name the Board within the 300 day statutory period. Hamilton v. Komatsu Dresser Indus., Inc., 964 F.2d 600, 605 (7th Cir.), cert. denied, 506 U.S. 916, 113 S. Ct. 324, 121 L. Ed. 2d 244 (1992).

 In general, a party not named in an EEOC charge may not be sued under the ADEA. Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir. 1989). Although identifying individuals or entities in a charge of discrimination is a prerequisite to filing suit, it is not a jurisdictional requirement, but rather a statute of limitations. Id. It is well settled that the limitations period of the ADEA is not absolute, but subject to equitable modification. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 1132, 71 L. Ed. 2d 234 (1982); Chakonas v. City of Chicago, 42 F.3d 1132, 1135 (7th ...


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