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April 27, 1999


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


Plaintiff Nancy Prior has filed a two-count second amended complaint against defendants United States Cellular Corp. ("USCC") and George Geotsalitis, alleging sex discrimination in violation of Title VII (Count I) and battery (Count II). Defendants have filed a motion for summary judgment, arguing: (1) the court does not have subject matter jurisdiction over plaintiff's Title VII claim because plaintiff has failed to exhaust her administrative remedies; and (2) plaintiff's battery claim is time-barred.


On October 27, 1997, plaintiff filed an initial charge of discrimination against USCC with the Equal Employment Opportunity Commission ("EEOC") and the Illinois Department of Human Rights ("IDHR"). On December 8, 1997, EEOC issued plaintiff a right to sue letter. On December 18, 1997, IDHR sent plaintiff notice that it had scheduled a fact-finding conference on her charge for February 24, 1998. Plaintiff did not attend that conference. On March 3, 1998, plaintiff filed the present suit, and on March 10, 1998, IDHR dismissed plaintiff's discrimination charge at her request.*fn1


I. Summary Judgment Standard

Summary judgment is appropriate where "there is no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). This standard places on the movant the burden to point to evidence in the record that demonstrates that there are no genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the burden then shifts to the non-moving party to set forth specific facts to show that there is a genuine issue for trial. Fed.R.Civ.P. 56(c). The court must address all facts in the light most favorable to the moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

II. Count I: Title VII Claim

Defendant argues that the court does not have jurisdiction over the instant suit because plaintiff failed to cooperate with IDHR. Title VII requires a plaintiff to exhaust her administrative remedies before bringing suit in federal court. The Seventh Circuit treats this exhaustion requirement as jurisdictional. See Bullard v. Sercon Corp., 846 F.2d 463, 468 (7th Cir. 1988). "[T]he failure to cooperate with the appropriate administrative agency during its investigative stage divests a federal court of subject matter jurisdiction." Duncan v. Consolidated Freightways Corp. of Delaware, 1995 WL 530652, at *3 (N.D.Ill. Sept.7, 1995).

Plaintiff responds that she did not intentionally evade the administrative proceedings. Rather, she failed to cooperate because she had already received a right to sue letter from EEOC. Plaintiff argues that once she received this letter, she had only ninety days to file suit. See 42 U.S.C. § 2000e-5(f)(1). She points out that the fact-finding conference was scheduled to take place a mere twelve days before the statutorily-mandated ninety day period expired, and opines that it is unlikely that IDHR could have resolved her claim before she lost her right to sue.

Defendant cites a number of cases holding that a court does not have jurisdiction over a plaintiff's claim when the plaintiff refused or failed to cooperate with the state agency, and later received a right to sue letter from EEOC. The timing of the events in the instant case, however, distinguishes it from the cases defendant cites. In Zugay v. Progressive Care, No. 97 C 7915 (N.D.Ill. July 8, 1998), the state agency scheduled a fact-finding conference, plaintiff voluntarily withdrew her claim from the state agency before the conference was held, EEOC issued a right to sue notice, and the plaintiff filed suit. The court held that the plaintiff had failed to exhaust her administrative remedies because she had prevented the state agency from adjudicating her claim.

Similarly, in Dates v. Phelps Dodge Magnet Wire Co., 604 F. Supp. 22 (N.D.Ind. 1984), EEOC sent the plaintiff a letter instructing her to cooperate with the state agency, but the plaintiff failed to respond to the state agency's requests for information. EEOC dismissed the plaintiff's claim solely because she had refused to work with the state agency. The court held: "Where, as here . . . the plaintiff herself is at fault for depriving EEOC of its opportunity to investigate and conciliate her charge, the plaintiff cannot invoke the court's jurisdiction solely on the basis of the fact that she has received notice of her right to sue." Id. at 27; see also Anderson v. Aurora Township, 1997 WL 534265, *3 (N.D.Ill. Aug.20, 1997) (dismissing plaintiff's suit for lack of jurisdiction because "the IDHR attempted to contact plaintiffs to follow through with an investigation . . . well before the issuance of the right to sue letter and the filing of the present lawsuit.") (reversed on a motion to reconsider after new facts surfaced).

The instant case is different from the cases discussed above because EEOC issued plaintiff a right to sue letter before IDHR attempted to schedule the fact finding conference. This scenario resembles that in Burton v. Great Western Steel Co., 833 F. Supp. 1266 (N.D.Ill. 1993), in which the plaintiff filed a charge and subsequently received a right to sue letter from EEOC and filed suit. Over a year later, IDHR contacted the plaintiff to arrange a conference. Burton held that, IDHR's efforts notwithstanding, the plaintiff had exhausted his administrative remedies by the time he filed his lawsuit. Judge Alesia noted that the outcome turned on the timing of the right to sue letter, and, in dicta, distinguished the case from a hypothetical whose facts resembled the Zugay/Dates scenario. See id. at 1273 ("If the IDHR had contacted plaintiff before he received his `Right to Sue' letter and plaintiff failed to respond, the court would agree with the defendant that the plaintiff would not have exhausted his administrative remedies.").

The instant case is not identical to Burton, because at the time IDHR contacted plaintiff, she had received her right to sue letter but had yet to file suit. Nevertheless, a plaintiff should not suffer because the federal commission does not try to conciliate her claims. See, e.g., Sedlacek v. Hach, 752 F.2d 333, 335 (8th Cir. 1985) ("[C]ourts have repeatedly stated that attempted conciliation by the Commission is neither a jurisdictional prerequisite nor a condition precedent to judicial review of the Commission's determination of a Title ...

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