The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff George Lamas filed suit against the defendant Freeman
Decorating Company ("Freeman") under the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"). Mr.
Lamas alleges race discrimination (Count I) and retaliation
(Count II). Jurisdiction in this case is based on 28 U.S.C. § 1331
and 1343. Freeman moves to dismiss Count I for failure to
state a claim under Fed. R.Civ.P. 12(b)(6). For the reasons set
forth below, the motion is granted.
Mr. Lamas, a Hispanic American, worked for Freeman as a laborer
and fork lift driver from 1987 until his discharge in June 1994.
On July 7, 1993, Mr. Lamas filed a charge with the Equal
Employment Opportunity Commission ("EEOC") and the Illinois
Department of Human Rights ("IDHR") claiming Freeman
discriminated against him because of his national origin. About a
year later (July 1, 1994), shortly after his discharge, Mr. Lamas
filed a second charge with the EEOC and IDHR alleging
retaliation. He claimed the reason given for his June 24
termination, insubordination, was a pretext and that he was fired
in retaliation for his earlier EEOC charge.
On February 27, 1998, the EEOC issued a dismissal and notice of
right to sue on the national origin charge. Mr. Lamas did not
file suit within the ninety-day limitation period. A dismissal
and notice of right to sue on the second EEOC charge
(retaliation) was issued on July 31, 1998. Mr. Lamas filed the
instant suit within the limitation period on October 28, 1998.
In general, a Title VII plaintiff may not include in a judicial
complaint any claims not included in her EEOC charge. McKenzie
v. Illinois Dep't of Transp., 92 F.3d 473, 481 (7th Cir. 1996)
(citing Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497,
500 (7th Cir. 1994)). The rule is designed (in part) to give the
EEOC and the employer an opportunity to settle the dispute
through conference, conciliation, and persuasion before the
claimant turns to the courts. Id. at 481-82; Babrocky v. Jewel
Food Co., 773 F.2d 857, 863 (7th Cir. 1985) (citation omitted).
In the instant case, the (July 1, 1994) EEOC charge that is the
basis of Mr. Lamas' complaint alleges only retaliation, not race
discrimination. Count I is therefore beyond the scope of Mr.
Lamas' EEOC charge and fails to state a claim.
Nevertheless, Mr. Lamas contends his retaliation charge
supports Count I because it refers to his earlier charge of
national origin discrimination.*fn1 He argues that Count I's
claim of race discrimination thus is like or reasonably related
to the EEOC retaliation charge and grows out of it, and therefore
falls within the scope of that charge. See Jenkins v. Blue Cross
Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976).
However, retaliation and discrimination are unrelated as a matter
of law, O'Rourke v. Continental Cas. Co., 983 F.2d 94, 97 (7th
Cir. 1993); Nair v. Bank of America Ill., 991 F. Supp. 940, 955
(N.D.Ill. 1997), and an administrative charge of one generally
cannot support a civil suit for the other, see Noreuil v.
Peabody Coal Co., 96 F.3d 254, 258 (7th Cir. 1996) (citations
omitted). The gist of a retaliation claim is that the employer
lashed out against an employee for exercising a right (here, the
filing of discrimination charges), not out of animosity for his
race or national origin. Nair, 991 F. Supp. at 954.
Mr. Lamas' second EEOC charge clearly alleges retaliation, not
national origin or race discrimination. In the section where he
indicated the nature of his grievance, he checked only the box
labeled "retaliation" and left blank the other boxes, including
those labeled "race" and "national origin." Further, in the space
labeled "date discrimination took place" he listed June 24, 1994,
the date of his discharge. Moreover, in the narrative section he
specifically alleges retaliation in violation of Title VII. Mr.
Lamas does mention his earlier national origin charge, but
apparently only to show Freeman's motivation for allegedly
retaliating against him. Finally, there are no factual
allegations from which a claim of national origin or race
discrimination could be inferred. See Nair, 991 F. Supp. at 954.
Count I of Mr. Lamas' complaint falls outside the scope of his
EEOC charge and thus fails to state a claim. Accordingly,