United States District Court, Northern District of Illinois, Eastern Division
April 27, 1999
NANCY C. PRIOR, PLAINTIFF,
UNITED STATES CELLULAR CORP., AND GEORGE GEOTSALITIS, DEFENDANTS.
The opinion of the court was delivered by: Gettleman, District Judge.
MEMORANDUM OPINION AND ORDER
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
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
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,
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
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 VII
action."). A plaintiff likewise should not suffer because the
federal commission and the state agency do not coordinate with
Ordinarily, the state agency has exclusive jurisdiction over an
alleged unlawful employment practice claim for 60 days after
proceedings have been initiated. 42 U.S.C. § 2000e-5(c) and (d).
IDHR sent plaintiff the letter requesting a fact-finding
conference approximately 52 days after plaintiff filed her claim.
At this point, however, EEOC had already issued plaintiff a right
to sue letter, thereby vesting jurisdiction in the federal
Defendant is correct that the mere receipt of a right to sue
letter does not necessarily mean that a plaintiff has exhausted
her administrative remedies, and does not automatically confer
jurisdiction. "When the plaintiff himself is at fault for
depriving EEOC of the opportunity to investigate and conciliate
his charge, he cannot invoke the court's jurisdiction solely on
the basis of his receipt of his right to sue." Duncan, 1995 WL
530652, at *3. When a plaintiff gives EEOC a chance to reconcile
her claim, however, and the commission "through some fault or
finding of its own, [is] unable to resolve the grievance, . . .
courts have held that receipt of a `Notice of Right to Sue'
letter is enough to invoke jurisdiction regardless of the reasons
for issuance of the notice." Dates, 604 F. Supp. at 27.
Once jurisdiction has vested, a state agency should not be able
to deprive the court of jurisdiction by deciding to investigate a
claim at some later date. See Burton, 833 F. Supp. at 1273
("[T]his court had subject matter jurisdiction at the time
plaintiff filed suit. Such jurisdiction, well-founded at the
inception of the case, cannot be taken away at the whim of a
state agency which suddenly decides to investigate an 18 month
old charge."). Plaintiff justifies her failure to cooperate by
arguing that had she complied with IDHR's request and attended
the fact-finding hearing, all but twelve of the ninety days she
had been given to file a complaint in federal court would have
expired. She argues further that her filing time would surely
have expired before the state-level administrative process was
Although the professional, courteous course of action would
have led plaintiff to notify IDHR that she had received a right
to sue letter and was pursuing her claim in federal court,
plaintiff should not lose her right to sue in federal court
because EEOC and IDHR did not coordinate their efforts to
investigate her charge. Cf. Choate v. Caterpillar Tractor Co.,
402 F.2d 357, 361 (7th Cir. 1968) ("the complainant should not be
made to be the innocent victim of a dereliction of statutory duty
on the part of the commission."). Had plaintiff participated in
IDHR's proposed fact-finding exercise before filing suit, the
ninety day limitation period would likely have expired. Plaintiff
should not be faulted or penalized for preserving the right to
sue conferred by the EEOC in its December 8, 1998, letter.
Plaintiff's failure to respond to the state agency, therefore,
did not nullify her right to sue or deprive this court of
III. Count II: Battery Claim
Plaintiff alleges that defendant Geotsalitis intentionally
pushed her into a desk in November 1997. Defendant argues that
plaintiff's claim is time-barred because her deposition testimony
suggests that the incident actually occurred in 1994.
Illinois has a two-year statute of limitations for personal
injury claims. See 735 ILCS 5/13-202; Russell v. NMB
Technologies, Inc., 1993 WL 112557, at *4 n. 2 (N.D.Ill. April
9, 1993). In response to her own attorney's rather confusing
deposition questions, plaintiff stated that Geotsalitis pushed
her into a desk in 1994, and that he repeated this behavior at
least one other time after 1994. Defendant did not attempt to
elicit a clearer response from plaintiff at her deposition and
does not submit any evidence that plaintiff is suing over the
1994 incident or that no later incident occurred. Because
plaintiff alleges in her complaint that she is suing for an
incident that occurred in 1997, the court denies defendants'
motion for summary judgment on plaintiff's battery claim.
For the foregoing reasons, the court denies defendants' motion
for summary judgment on both counts. The status report previously
set for May 12, 1999, is vacated. All discovery is to be
completed by June 18, 1999. This matter is set for a report on
status and to set a trial date on June 22, 1999, at 9:00 a.m.