Curto v. Sears, Roebuck and Co., No. 82 C 1576.

• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
• Writing for the Court: Diana C. White, Fox & Grove, Chicago, Ill., for defendant
• Citation: 552 F. Supp. 891
• Parties: Frank T. CURTO, Plaintiff, v. SEARS, ROEBUCK AND CO., a New York corporation, Defendant.
• Decision Date: 15 December 1982
• Docket Number: No. 82 C 1576.

552 F. Supp. 891

Frank T. CURTO, Plaintiff,
v.
SEARS, ROEBUCK AND CO., a New York corporation, Defendant.

No. 82 C 1576.

United States District Court, N.D. Illinois, E.D.

December 15, 1982.

552 F. Supp. 892

Rudy J. Huizenga, Donnelly & Associates, P.C., Detroit, Mich., Elizabeth H. Seidman, Chicago, Ill., for plaintiff.

Diana C. White, Fox & Grove, Chicago, Ill., for defendant.

MEMORANDUM OPINION

PRENTICE H. MARSHALL, District Judge.

This case presents two important questions under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34 (1976 & Supp. II 1978). We must decide what the time limit is for filing an age discrimination complaint under the ADEA with the Equal Opportunity Employment Commission ("EEOC") in a state which provides an administrative remedy for age discrimination, and to what extent a complainant must cooperate with the state administrative agency in order to preserve his or her right to file suit under the ADEA. While the issues may sound esoteric and hypertechnical, their resolution is important to the ability of persons to preserve their rights under the ADEA.

I

Defendant Sears, Roebuck and Co. hired plaintiff Frank T. Curto as an "assistant to the Vice-President" on May 1, 1970. On April 21, 1980, plaintiff was informed that he would be discharged effective July 31, 1980. At the time, plaintiff was 58 years old. Plaintiff alleges that he was a highly competent employee and that he was terminated because of his age, while younger employees in comparable positions who were no more competent than plaintiff were permitted to keep their jobs.

On July 31, 1980, as scheduled, plaintiff lost his job. On December 12, 1980, 235 days after the allegedly unlawful employment practice at issue here,¹ counsel for plaintiff sent charges of age discrimination against defendant to the EEOC and the Illinois Department of Human Rights ("IDHR") by certified mail. On December 22, 1980, 245 days after the alleged discrimination took place, plaintiff signed a sworn charge thereby formally commencing proceedings before the IDHR.² On April 8, 1981, IDHR notified plaintiff that it had scheduled a conference on his charge for April 20. On April 16, the conference was postponed at plaintiff's request. Plaintiff never requested a new conference date. Throughout June and July, an investigator for IDHR attempted to contact plaintiff, but neither plaintiff nor his counsel returned the investigator's calls. On September 4, 1981, plaintiff's IDHR charge was dismissed at his request. This lawsuit followed.³ Defendant's motion for summary judgment is now pending before the court.⁴

II

The first ground for defendant's motion is that plaintiff failed to file his EEOC

552 F. Supp. 893

charge in a timely manner. Defendant contends that the ADEA requires plaintiff to file his EEOC charge within 300 days of the alleged discrimination at issue and that he failed to do so. In order to evaluate defendant's position the procedural prerequisites to suit contained in the ADEA must be examined

A

The general rule of timeliness contained in the ADEA is found in § 7(d) of the Act, 29 U.S.C. § 626(d) (Supp. II 1978).⁵

No civil action may be commenced by an individual under this section until 60 days after a charge has been filed with the Secretary of Labor. Such charge shall be filed —

(1) within 180 days after the alleged unlawful practice occurred; or

(2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.

Section 14 of the ADEA, 29 U.S.C. § 633 (1976), in turn provides,

(a) Nothing in this chapter shall affect the jurisdiction of any agency of any State performing like functions with regard to discriminatory employment practices on account of age except that upon commencement of action under this chapter such action shall supercede any State action.

(b) In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated: Provided, That such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State law. If any requirement for commencement of such proceedings is imposed by a State authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for purposes of this subsection at the time such statement is sent by registered mail to the appropriate State authority.

In Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), the Supreme Court construed the analogous provisions of Title VII of the Civil Rights Act of 1964, which provide that a charge of employment discrimination prohibited by Title VII be filed with the EEOC within 180 days of the alleged discriminatory practice or within 300 days in a state which prohibits such practices. In these "deferral states," the statute provides that a charge may not be filed with the EEOC until at least sixty days after the complainant has commenced proceedings under state law.⁶ In Mohasco,

552 F. Supp. 894

the plaintiff filed charges with the EEOC and the state deferral agency 291 days after the alleged unlawful employment practice. The Court first held that plaintiff had satisfied the deferral requirement. It noted that Title VII requires only that a complainant initially institute proceedings under state law in order to gain the benefit of the 300 day extended period for filing charges with the EEOC. By filing with the state agency on the 291st day, plaintiff had satisfied this requirement. See 447 U.S. at 815-17, 100 S.Ct. at 2492.⁷

The Court then turned to the question whether plaintiff's EEOC filing had been timely.

The answer is supplied by subsection (c), which imposes a special requirement for cases arising in deferral States: "no charge may be filed under subsection (b) by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the state or local law, unless such proceedings have earlier been terminated ...." Thus, in terms, the statute prohibited the EEOC from allowing the charge to be filed on the date plaintiff commenced state proceedings. Although, as the Court held in Love v. Pullman Co., it was proper for the EEOC to hold plaintiff's "complaint in `suspended animation,' automatically filing it upon termination of the State proceedings," that means that the charge was filed on the 351st day, not the 291st. By that time, however, the 300-day period had run and the filing was therefore untimely.

447 U.S. at 817, 100 S.Ct. at 2492 (first brackets and emphasis in original) (footnote and citation omitted) (quoting 42 U.S.C. § 2000e-5(c) (1976) and Love v. Pullman Co., 404 U.S. 522, 526, 92 S.Ct. 616, 618, 30 L.Ed.2d 679 (1972)). Since Mohasco construes the statute to prohibit filing with the EEOC until at least sixty days after filing with the state deferral agency, its practical effect is to require a Title VII complainant to file charges with the state agency within 240 days of the alleged unlawful employment practice, in order to ensure that his or her EEOC charge will be timely filed. See 447 U.S. at 814 n. 16, 100 S.Ct. at 2491 n. 16. This result was required in order to effectuate the congressional purpose in creating different timeliness rules for deferral states.

The legislative history identifies only one reason for treating workers in deferral States differently from workers in other States: to give state agencies an opportunity to redress the evil at which federal legislation was aimed, and to avoid federal intervention unless its need was demonstrated. The statutory plan was not designed to give the worker in a deferral State the option of choosing between his state remedy and his federal remedy, nor indeed simply to allow him additional time in which to obtain state relief. Had that been the plan, a simple statute prescribing a 90-day period in

552 F. Supp. 895

non-deferral States and a 210-day period in deferral States would have served the legislative purpose. Instead, Congress chose to prohibit the filing of any federal charge until after State proceedings had been completed or until 60 days had passed, whichever came sooner.

447 U.S. at 821, 100 S.Ct. at 2494 (footnote omitted).

B

Prior to Mohasco, a number of courts had held that the ADEA required a complainant to commence proceedings under state law in a deferral state within 180 days of the alleged discriminatory employment practice, reasoning that Congress could not have intended that ADEA plaintiffs in deferral states have more time to file initial charges than plaintiffs in nondeferral states, who must file charges with the EEOC within 180 days. See Ewald v. Great Atlantic & Pacific Tea Co., 620 F.2d 1183, 1186-87 (6th Cir.), vacated, 449 U.S. 914, 101 S.Ct. 311, 66 L.Ed.2d 143 (1980); Ciccone v. Textron, Inc., 616 F.2d 1216 (1st Cir.), vacated, 449 U.S. 914, 101 S.Ct. 311, 66 L.Ed.2d 143 (1980); Gabriele v. Chrysler Corp., 573 F.2d 949, 955 (6th Cir.1978), vacated, 442 U.S. 908, 99 S.Ct. 2819, 60 L.Ed.2d 273 (1979); Bonham v. Dresser Industries, Inc., 569 F.2d 187, 194 (3d Cir. 1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978). But see Bean v. Crocker National Bank, 600 F.2d 754 (9th Cir.1977); Paxton v. Lanvin-Charles of the Ritz, Inc., 434 F.Supp. 612 (S.D.N.Y.1977).

Mohasco undermined this approach.⁸ Mohasco held that a Title...