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GEHRT v. UNIVERSITY OF ILL. AT URBANA-CHAMPAIGN

July 11, 1997

KAREN GEHRT, PLAINTIFF,
v.
UNIVERSITY OF ILLINOIS AT URBA NA-CHAMPAIGN COOPERATIVE EXTENSION SERVICE, DEFENDANT.



The opinion of the court was delivered by: McDADE, District Judge.

  ORDER

Before the Court are Defendant's Objections [Doc. # 19] to the Report and Recommendation of the Magistrate Judge [Doc. # 18] denying in part and granting in part Defendant's Motion to Dismiss [Doc. # 2].

In short, Plaintiff Karen Gehrt filed a four count Complaint against Defendant University of Illinois at Urbana-Champaign (Cooperative Extension Service alleging: (I) sexual harassment under Title VII; (II) violations of the Equal Pay Act; (III) age discrimination under the ADEA; and (IV) retaliation under Title VII. Defendant filed a motion to dismiss all counts of the Complaint on the following bases: (1) all counts were barred by the Eleventh Amendment; (2) the Complaint lacked a sufficient factual basis; (3) the Complaint requested relief which could not be awarded;(4) Plaintiff failed to exhaust her administrative remedies; and (5) the limitations period had expired on some of the claims presented. Because one of the asserted bases for dismissal was Defendant's Eleventh Amendment immunity, the United States Government intervened in the lawsuit to brief that issue.

The Magistrate Judge issued his Report and Recommendation on May 22, 1997, recommending that all prayers for punitive damages should be stricken from the Complaint but that the motion to dismiss should be denied in all other respects. Defendant objected to the Magistrate Judge's recommendations regarding Eleventh Amendment immunity, exhaustion of administrative remedies, timeliness of administrative remedies, and timeliness of Plaintiff's claims under the Equal Pay Act. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), the Court shall make a de novo determination of those portions of the Report and Recommendation to which timely objections were made.

Eleventh Amendment Immunity

The Court agrees with the Magistrate Judge's well-reasoned and well-researched decision that none of Plaintiff's claims are barred by the Eleventh Amendment.*fn1 Both precedent and reason dictate such a result. Initially, the Court rejects Defendant's interpretation of the two elements for Congressional abrogation of sovereign immunity set forth in Seminole Tribe of Florida v. Florida, 517 U.S. 609, 116 S.Ct. 1114, 1123, 134 L.Ed.2d 252 (1996). Under that decision, the Court need ask only two questions: (1) whether Congress has unequivocally expressed its intent to abrogate the immunity, and (2) whether Congress has acted pursuant to a valid exercise of power. Id.

Defendant argues that the second element requires Congress to have expressly passed the legislation pursuant to the Fourteenth Amendment. Defendant draws support for this argument from a portion of Seminole Tribe which states: "[O]ur inquiry into whether Congress has the power to abrogate unilaterally the States' immunity from suit is narrowly focused on one question: Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate?" (emphasis added). However, nothing in this isolated passage dictates such a result. The term "passed" may simply denote the actual passage of the legislation, not the intent of Congress to abrogate Eleventh Amendment immunity through a particular constitutional provision.

There is ample precedent to support the Court's understanding of this second element. "The question of the constitutionality of actions taken by Congress does not depend on recitals of the power which it undertakes to exercise." Woods v. Cloyd W. Miller, Co., 333 U.S. 138, 144, 68 S.Ct. 421, 424, 92 L.Ed. 596 (1948). The Court need only discern some legislative purpose or factual predicate to support the exercise of the "appropriate legislation" clause of the Fourteenth Amendment. EEOC v. Wyoming, 460 U.S. 226, 243 n. 18, 103 S.Ct. 1054, 1064 n. 18, 75 L.Ed.2d 18 (1983). This does not mean that Congress need actually recite the words "section 5" or "Fourteenth Amendment" or "equal protection." Id. In absence of an explicit statement by Congress negating its power under the Fourteenth Amendment, the crucial inquiry is whether the objectives of the Act were within the scope of the Fourteenth Amendment. Mills v. State of Maine, 118 F.3d 37, 43-44 (1st Cir. 1997); EEOC v. Elrod, 674 F.2d 601, 608 (7th Cir. 1982). See, e.g., Fullilove v. Klutznick, 448 U.S. 448, 476-78, 100 S.Ct. 2758, 2773-75, 65 L.Ed.2d 902 (1980) (upholding legislation under the Fourteenth Amendment even though statute and legislative history did not refer to it); Fitzpatrick v. Bitzer, 427 U.S. 445, 453 n. 9, 96 S.Ct. 2666, 2670 n. 9, 49 L.Ed.2d 614 (1976) (relying upon legislative history to reconstruct probable intent of Congress in relying on Fourteenth Amendment).

Indeed, Defendant's interpretation confuses the first and second prongs of the Seminole Tribe test by incorporating the intent element of the first factor into the "appropriate legislation" requirement of the second. However, the first factor has never required Congress to specifically designate which provision of the Constitution it is using to abrogate the State's sovereign immunity; it must only express "its intent to abrogate" in the Act itself. Seminole Tribe, 517 U.S. at ___, 116 S.Ct. at 1123. Thus, even in Seminole Tribe, the Court found a clear legislative intent to abrogate the States' immunity under the Indian Gaming Regulatory Act simply because Congress had made "numerous references to the `State'" in the text of the statute. Id. at ___ _ ___, 116 S.Ct. at 1123-24.

That being said, the Court must now address Congress' abrogation of each of the statutes at issue in this case under the two-part test set forth in Seminole Tribe: the Age Discrimination in Employment Act (ADEA), the Equal Pay Act (EPA), and the Civil Rights Act of 1991. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121, 104 S.Ct. 900, 919, 79 L.Ed.2d 67 (1984); Henry v. Metropolitan Sewer Dist., 922 F.2d 332, 337 (6th Cir. 1990).

Age Discrimination in Employment Act

Ample precedent from both the Seventh Circuit and other circuit courts of appeals dictate, that both prongs of the Seminole Tribe test for abrogation have been met with respect to the ADEA.*fn2 See Davidson v. Board of Governors of State Colleges and Univs. for Western Ill. Univ., 920 F.2d 441, 443 (7th Cir. 1990); Heiar v. Crawford County, 746 F.2d 1190, 1193-94 (7th Cir. 1984); EEOC v. County of Calumet, 686 F.2d 1249, 1251-53 (7th Cir. 1982); Elrod, 674 F.2d at 604-09; see also Hurd v. Pittsburg State Univ., 109 F.3d 1540, 1543-46 (10th Cir. 1997); Ramirez v. Puerto Rico Fire Serv., 715 F.2d 694, 698-701 (1st Cir. 1983). Most recently, Chief Judge Posner in Crawford v. Indiana Dept. of Corrections, 115 F.3d 481, 487 (7th Cir. 1997), reinforced the continuing vitality of these cases after Seminole Tribe in finding that the Americans with Disabilities Act sufficiently abrogated sovereign immunity under the Fourteenth Amendment. If Defendant wishes to challenge these rulings, it must do so before the Seventh Circuit directly.

The Court does wish to address two specific arguments raised by Defendant. Defendant first argues that because the ADEA amendments of 1974 were passed pursuant to the Commerce Clause, they cannot now be presumed to have been passed pursuant to the Fourteenth Amendment. This is wrong for at least three reasons. First, there was no explicit reference by Congress to a specific constitutional provision as authority to extend coverage of the ADEA to the States. Elrod; 674 F.2d at 605. Neither of the cases cited by Defendant held that the ADEA amendments of 1974 actually were passed pursuant to the Commerce Clause, only that Congress could have done so as a valid exercise of its legislative power. See Gregory v. Ashcroft 501 U.S. 452, 467-68, 111 S.Ct. 2395, 2404-05, 115 L.Ed.2d 410 (1991); Wyoming, 460 U.S. at 243, 103 S.Ct. at 1064.

Second, as discussed above, there is no requirement under Seminole Tribe that Congress attribute its intent to abrogate to any specific provision of the Constitution. It is Congress' power to pass "appropriate legislation" under the Fourteenth Amendment that matters. Wyoming, 460 U.S. at 243 n. 18, 103 S.Ct. at 1063 n. 18; Woods, 333 U.S. at 144, 68 S.Ct. at 424. Thus, Defendant's discussion of the first element requiring a "simple but stringent tests" for Congress' intent to abrogate, Seminole Tribe, 517 U.S at ___, 116 S.Ct. at 1123, is irrelevant to the discussion whether Congress had the power to abrogate sovereign immunity pursuant to the Fourteenth Amendment. Id. at ___, 116 S.Ct at 1124.

Third, nothing prohibits Congress from passing legislation pursuant to the power given it in more than one provision of the Constitution: see, e.g., Wyoming, 460 U.S. at 243, 103 S.Ct. at 1064 (refusing to decide whether the ADEA, could be upheld under the Fourteenth Amendment as well as the Commerce Clause); Crawford; 115 F.3d at 487 ("the Americans with Disabilities Act is an exercise of Congress's power under section 5 of the Fourteenth Amendment (as well as under the commerce clause))"; Elrod; 674 F.2d at 603 n. 1 (finding that the ADEA would be a constitutional exercise of, Congress' Commerce Clause powers as well as under the Fourteenth Amendment).

Defendant's second argument is that Congress cannot protect certain classes of persons by enacting legislation pursuant to the Equal Protection Clause if the Supreme Court has not already created a suspect class subject to heightened scrutiny (i.e. race or gender). Defendant relies upon Wilson — Jones v. Caviness, 99 F.3d 203, 210 (6th Cir. 1996), in which the Sixth Circuit held that the Fair Labor Standards Act (FLSA) could not have been passed pursuant to the Fourteenth Amendment as it was aimed to remedy "a mundane `discrimination' between private- and public-sector workers" which did not touch "central, obvious Fourteenth Amendment concerns." The court reasoned:

  We think it best to "regard as an enactment to enforce" the
  Equal Protection Clause, in the absence of explicit comment
  by Congress, only efforts to remedy discrimination against
  a class of persons that Fourteenth Amendment jurisprudence has
  already identified as deserving special protection.

Id. The court noted, however, that its "opinion might be different if Congress made findings that a particular group needed legal protection to remedy some sort of invidious discrimination not directly addressed by federal precedent." Id. at 210 n. 4.

Defendant asserts that because the Supreme Court has always subjected age to rational basis rather than heightened scrutiny review, Gregory, 501 U.S. at 470, 111 S.Ct. at 2406; Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313-14, 96 S.Ct. 2562, 2566-67, 49 L.Ed.2d 520 (1976), it too should be subject to the rationale of Wilson — Jones that Congress cannot legislate about that class of persons pursuant to the Equal Protection Clause. However, Defendant ignores the caveat set forth by the Wilson — Jones court that Congressional findings as to the need for protection of a group subject to invidious discrimination would be enough to invoke Congress' power under the Fourteenth Amendment. 99 F.3d at 210 n. 4. That is precisely the case we have here.

In passing the 1974 amendments to the ADEA, both the House and Senate committees expressly found that "[d]iscrimination based on age . . . can be as great an evil in our society as discrimination based on race or religion . . . Especially in the employment field, discrimination based on age is cruel and self-defeating; it destroys the spirit of those who want to work and it denies the National [sic] the contribution they could make if they were working." Elrod; 674 F.2d at 605 citing S.Rep. No. 93 — 690, 93d Cong., 2d Sess. 55 (1974); H.R.Rep. No. 93 — 913, 93d Cong., 2d Sess., reprinted in (1974) U.S. Code Cong. & Ad. News 2811, 2849. Because of these specific findings, Congress could validly pass its age discrimination legislation pursuant to the Equal Protection Clause even under the rationale of Wilson — Jones.

Defendant also believes that its theory of heightened scrutiny review is supported by the Supreme Court's decision in Oregon v. Mitchell 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970), as discussed in a recent law review article by Professor Ronald D. Rotunda of the University of Illinois College of Law. In Oregon, the Court considered challenges to various provisions of the Voting Rights Act Amendments of 1970 which lowered the minimum voting age in state and local elections from 21 years of age to 18 under the rationale of age discrimination under the Equal Protection Clause. Professor Rotunda asserts that a majority of the Justices in Oregon — Harlan, Black, Stewart, Burger and Blackmun — arrived at the same conclusion that Congress could not independently define the reach of the Equal Protection Clause by creating new suspect classes subject to legislative protection.

While, the Court finds Professor Rotunda's argument interesting, it must ultimately disagree that this was the import of Oregon. It is true that the five justices listed above agreed that the Equal Protection Clause could not justify Congress' lowering of the voting age from 21 to 18. However, as the Government points out, Justices Black and Harlan relied upon considerations relevant to voter qualifications in particular when they found that Congress did not have the authority to lower the voting age. Id. at 130, 200-09, 91 S.Ct. at 267-68, 302-08. Thus, those two opinions cannot be used to justify a broad prohibition on Congress' power to enact legislation pursuant to the Equal Protection Clause of the Fourteenth Amendment.

The three remaining Justices — Justice Stewart, Chief Justice Burger, and Justice Blackmun — do not constitute a majority which could have a precedential impact on future cases. Moreover, it is unclear whether even they intended to proscribe Congressional power as broadly as Defendant contends. Justice Stewart noted in his concurring opinion that the Fourteenth Amendment itself provides for sanctions where the right to vote "is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States . . ." Id. at 295 n. 14, 91 S.Ct. at 349 n. 14 (emphasis added by Justice Stewart). Thus, it was virtually impossible for Congress to have relied upon the Fourteenth Amendment as a basis for lowering the voting age below 21. Id. This idiosyncratic context in which the opinion was being written may provide the distinction between Oregon and other cases which have failed to follow it.

Indeed, as Professor Rotunda laments, the lower federal courts after Oregon have paid no heed to this aspect of the opinion. Certainly, the Seventh Circuit has not felt constrained by this fragmented decision and in County of Calumet; indicated its rejection of such an idea:

  A construction of s 5 that would require a judicial determination
  that the enforcement of the state law precluded by Congress
  violated the [Fourteenth] Amendment, as a condition of sustaining
  the congressional enactment, would depreciate both congressional
  resourcefulness and congressional responsibility for implementing
  the Amendment. It would confine the legislative power in this context
  to the insignificant role of abrogating only those state laws that
  the judicial branch was prepared to adjudge unconstitutional, or of
  merely informing the judgment of the judiciary by particularizing
  the "majestic generalities" of s 1 of the Amendment.
  Under [Katzenbach v.] Morgan,
  [384 U.S. 641, 651, 86 S.Ct. 1717, 1723-24, 16
  L.Ed.2d 828 (1966)], the proper question
  is whether the ADEA as applied to state
  and local government is "appropriate" legislation
  under section 5 to enforce the
  Equal Protection Clause. Legislation is
  appropriate if it is "plainly adapted" to
  enforce the Fourteenth Amendment and is
  "not prohibited by but is consistent with
  the `letter and spirit of the constitution.'"
  The appellants do not seriously challenge
  the ability of the ADEA to satisfy this test.
  This court recently held in Elrod that the
  law is plainly sufficient. Congress is given
  great deference in selecting the measures
  necessary, and appropriate to secure the
  guarantees of the Fourteenth Amendment.

686 F.2d at 1252 (internal citations omitted). Thus, at least to this Court, the issue has become quite academic.

Equal Pay Act

The Court finds that the Magistrate Judge has adequately set forth the reasons why both prongs of the Seminole Tribe abrogation test have been met with respect to the EPA. This view has recently been confirmed by the Sixth Circuit in Timmer v. Michigan Dept. of Commerce, 104 F.3d 833 (6th Cir. 1997). the only court of appeals to have reached the issue after Seminole Tribe.

Once again, Defendant challenges this ruling on the basis that the EPA was enacted pursuant to the Commerce Clause, not the Fourteenth Amendment. As discussed above, this argument must fail because the second element of Seminole Tribe focuses on Congress' power to enact the legislation pursuant to the Fourteenth Amendment, not its intent to do so. Wyoming, 460 U.S. at 243 n. 18, 103 S.Ct. at 1064 n. 18; Woods, 333 U.S. at 144, 68 S.Ct. at 424. Moreover, even if it is true that the EPA was passed pursuant to Congress' commerce clause powers, Marshall v. City of Sheboygan, 577 F.2d 1, 2 (7th Cir. 1978), this does not prevent Congress from having acted under the Fourteenth Amendment also. Wyoming, 460 U.S. at 243, 103 S.Ct. at 1064; Crawford; 115 F.3d at 487. The Seventh Circuit in Marshall even noted that two other courts of appeals had upheld the legislation as a valid exercise of power pursuant to the Fourteenth Amendment but saw no need to reach that question. 577 F.2d at 6 n. 19. Indeed, the EPA and 1974 Amendments to the ADEA have very much in common regarding the manner in which they were enacted. It follows that the Seventh Circuit would treat the two statutes consistently as exhibiting Congress' intent and power to abrogate sovereign immunity under the Fourteenth Amendment.

Civil Rights Act of 1991

Again, the Court agrees with the Magistrate Judge that the Civil Rights Act of 1991, 42 U.S.C. § 1981a, properly abrogates the State's sovereign immunity. In Fitzpatrick, the Supreme Court found that the 1972 Amendments to Title VII of the Civil Rights Act of 1964, which allowed private plaintiffs to recover certain equitable money damages against the State, such as backpay and attorney's fees, abrogated states' sovereign immunity pursuant to the Fourteenth Amendment. 427 U.S. at 447-48, 96 S.Ct. at 2667-68. The Court found that Congress had the power to authorize federal courts to award such damages against the State as a means of enforcing the substantive guarantees of the Fourteenth Amendment. Id. at 448, 96 S.Ct. at 2667-68.

At issue here is the Civil Rights Act of 1991 which, among other things, expanded the remedies of Title VII to include compensatory damages "against a respondent who engaged in unlawful intentional discrimination" under Title VII. Defendant contends that this statute meets neither of the two prongs set out in Seminole Tribe. First, he asserts that the statute does not contain a clear intent to abrogate sovereign immunity. However, as pointed out by the district court in Blankenship v. Warren County, Va., 931 F. Supp. 447, 450 (W.D.Va. 1996), section 1981a must be read in conjunction with Title VII itself in order to have any real meaning. While technically a separate statutory provision, the preamble to section 1981a makes clear that it was intended to amend Title VII. Id. The only reasonable way in which to define the term "respondent" in section 1981a is to turn to Title VII which defines respondent as including State employers. Id. Thus, the two statutes must be read in pari materia and the requisite intent to abrogate is present.

Defendant also challenges section 1981a as not being "appropriate legislation" under the Fourteenth Amendment because it imposes a direct financial burden on state coffers, rather than simply proscribing conduct. However, this is precisely what the 1972 Amendments to Title VII accomplished, and the Supreme Court in Fitzpatrick upheld them as an appropriate means of enforcing the substantive guarantees of the Fourteenth Amendment. 427 U.S. at 448, 96 S.Ct. at 2667-68. There is simply no basis to distinguish between the equitable monetary damages at issue in Fitzpatrick and the compensatory damages at issue here; both serve the common purpose of punishing and deterring States from violating the equal protection guarantee of the United States Constitution.

Seminole Tribe itself makes clear that the relief sought by a plaintiff suing a State is irrelevant to the question whether Congress has the power to abrogate States' immunity under the Eleventh Amendment. ___ U.S. at ___, 116 S.Ct. at 1124. Thus, Defendant's citation to Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985), and Hess v. Port Auth., 513 U.S. 30, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994), is inapposite. Those cases are also distinguishable. Green involved the propriety of retrospective monetary relief in actions against individual state officials, 474 U.S. at 68, 106 S.Ct. at 425-26 citing Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), but not in actions against the State itself, as is the case here. Likewise, Hess involved the question whether the Defendant corporation could be considered a "State" agency at all for purposes of Eleventh Amendment immunity 513 U.S. at 52, 115 S.Ct. at 406. Here, there is no question that the University of Illinois is a State actor subject to the Eleventh Amendment. Thus, the question of abrogation was never broached in those cases.

In sum, the Court adopts the Magistrate Judge's recommendation that Congress abrogated States' sovereign immunity under each of the statutes at issue here. Therefore, Plaintiff suit may proceed on all Counts.

Exhaustion and Timeliness of Administrative Remedies*fn3

Under both Title VII and the ADEA, a plaintiff in a deferral State such as Illinois is required to file an EEOC charge within 300 days of the time that she knew or should have known of the facts that would support such a charge of discrimination. Doe v. R.R. Donnelley & Sons, Co., 42 F.3d 439, 445 (7th Cir. 1994); Kuemmerlein v. Board of Educ. of Madison Metro. Sch. Dist., 894 F.2d 257, 261 (7th Cir. 1990); 29 C.F.R. § 1601.13 (Title VII), § 1626.7 (ADEA). Plaintiff here concedes that "her damages are limited to events which occurred within 300 days prior to filing the original charge of discrimination." Unlike the Magistrate Judge, the Court sees no distinction between the term "damages" as opposed to "claims." The upshot of Plaintiff's statement is that she is not seeking relief for any discriminatory actions that occurred more than 300 days prior to the filing of her charge. The Court will hold Plaintiff to that concession.

Aside from the limitations issue, there is another restriction imposed upon a plaintiff in federal court: generally, she may bring only those claims that were included in her EEOC charge. Harper v. Godfrey Co., 45 F.3d 143, 147-48 (7th Cir. 1995); Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994) Although this rule is not jurisdictional, it is a condition precedent with which Title VII plaintiffs must comply. Cheek, 31 F.3d at 500.

The Seventh Circuit allows a plaintiff to raise in her complaint all grounds that are: (1) "like or reasonably related" to those brought in the original administrative charge, and (2) can be reasonably expected to grow out of an administrative investigation of those charges. Harper, 45 F.3d at 148; Cheek, 31 F.3d at 500; Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en banc). The first prong requires that there be a factual relationship between the claims; they must, at a minimum, describe the same conduct and implicate the same individuals. Harper, 45 F.3d at 148; Cheek, 31 F.3d at 501. Moreover, the discriminatory conduct must be described with some degree of specificity in the charge. Cheek, 31 F.3d at 502. The second part of the test necessarily requires some amount of speculation as to what the EEOC might or might not discover in the course of an investigation. Id. at 500.

Here, Plaintiff filed her original charge on December 2, 1994, checking the boxes for discrimination based on race, sex, age and retaliation. Plaintiff described the discrimination as commencing on December 1, 1992, and continuing through the present date. Plaintiff asserted that she had been discriminated against under Title VII, the ADEA and the EPA on the following three bases: "(1) The Respondent allowed a male co-worker to continually harass me; (2) The Respondent pays a male co-worker more than me; and (3) I was removed from my job and replaced by a young, Black female."

More specifically, Plaintiff alleged as follows:

  I began working for the Respondent in
  1973 and currently work as a Nutrition
  Educator. Since November, 1991 until
  July, 1994 a male co-worker continually
  harassed me.*fn4 I was also paid less money
  than he. In July, 1994 I was removed
  from the position of EFNEP Educator and
  in August, 1994 I was informed I would be
  issued a terminal contract with the Respondent
  unless I can find other employment,
  On several occasions and most recently
  on April 5, 1994 I have complained
  to the Respondent about the discrimination
  and harassment I have received.
  The Respondent has taken no action
  against the co-worker who harassed me.
  The Respondent stated he made more than
  me because he has moved his family three
  or four times. The Respondent removed
  me from the position of EFNEP Educator
  because of financial and management problems.
  The Respondent stated I would be
  given a terminal contract because I currently
  hold an interim position.

On May 15, 1995, Plaintiff amended her charge to include the following sentence at the end of the first paragraph: "On March 27, 1995, I was advised of my termination because my 95-96 contract had not been renewed."

Plaintiff's Complaint in this Court alleges as follows. Since March 1973, Plaintiff Karen Gehrt ("Gehrt") has worked in some capacity for Defendant University of Illinois Cooperative Extension Service (ICES). From September 1982 through September 1994, she had the title "Extension Educator — Limited Resource Families" for the Expanded Food and Nutrition Education Program (EFNEP). The EFNEF program is a federally funded program aimed at educating low income and minority families in Champaign County, Illinois.

In 1992, ICES hired Dennis Thompson ("Thompson") to be the Unit Leader of the Champaign County unit responsible for giving leadership to the local education mission.*fn5 Thompson was given this position despite his previous interpersonal problems and discriminatory conduct toward a female co-worker. According to Gehrt, ICES hired Thompson 4in a conspiracy to sabotage the EFNEP program and her employment with ICES. Thompson immediately began a pattern of "harassment, intimidation and defamation" against Gehrt. He filed numerous false charges against Gehrt with their supervisor, Regional Director Bea Bagby ("Bagby"). Gehrt confronted Thomas, Bagby, Bill McNamara (Assistant to the Director of ICES), and her "various supervisors" in an attempt to put an end to Thomas' conduct. As a result, both Gehrt and Thomas were removed from their positions. Thus, in July 1994, Gehrt was removed from the EFNEP program and in September 1994, was made the Extension Educator for the Nutrition and Wellness program. After serving in that position for less than 24 months, her employment with ICES was terminated.

In her sex discrimination claim in Count I, Plaintiff asserts the following specific instances of Defendant's discriminatory conduct toward her:

  (a) Beginning in 1992, her male supervisor
      gave her below average performance
      reviews and pay increases so that she
      was earning only 80% of the average
      male's pay in the same position;
  (b) At the time Thompson was hired, he
      was paid nearly 50% more than Gehrt;
  (c) When Thompson and Gehrt were
      transferred from their positions, Gehrt
      was placed into a short term job which
      would end in her unemployment, but
      Thompson was ...

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