Osborn v. EJ Brach, Inc., 94 C 1999.

• Decision Date: 29 June 1994
• Docket Number: No. 94 C 1999.,94 C 1999.
• Citation: 864 F. Supp. 56
• Parties: Frank OSBORN, Plaintiff, v. E.J. BRACH, INC. and John Klepper, Defendants.
• Court: U.S. District Court — Northern District of Illinois

864 F. Supp. 56

Frank OSBORN, Plaintiff, v. E.J. BRACH, INC. and John Klepper, Defendants.

No. 94 C 1999.

United States District Court, N.D. Illinois, Eastern Division.

June 29, 1994.

Frank Osborn, pro se.

Kenneth Roy Dolin, Brenda J. Murphy, Jenner & Block, Chicago, IL, for defendants.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Plaintiff Frank Osborn has filed this pro se suit against E.J. Brach Corporation and John Klepper. Although difficult to decipher, it appears that Osborn is alleging that defendants wrongfully refused to allow him to return to his regular job after assigning him light duty in the wake of an injury. Moreover, Osborn complains that defendants failed to follow procedures for reassignment set forth in the relevant collective bargaining agreements. Defendants seek to dismiss the complaint in its entirety, arguing that (1) to the extent Osborn seeks relief under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., he has failed to comply with the prerequisites for filing suit, and (2) to the extent Osborn seeks to state a claim under § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, his claim is untimely. For the following reasons, we grant defendants' motion and dismiss this action.

I. Factual Background

Given the muddled nature of Osborn's pleadings, the facts of this case are less than clear. As best we can discern, before early 1992, Osborn was a building engineer for Brach. Due to an unspecified injury, he was placed on light duty as an elevator operator. However, on April 7, 1992, Osborn received a release from his doctor indicating that he could return to a modified work schedule. Although John Klepper, the Labor Relations Manager, allegedly accepted the release, Osborn claims that Klepper refused to return him to his original job. According to Osborn, Klepper was unsure whether Osborn was capable of performing the work.

As an alternative, Klepper proposed that Osborn fill a vacancy recently created by a co-worker's retirement. Although the job paid the same, Osborn was reluctant and informed Klepper that he would only take the job if Klepper posted the opening as a permanent position and permitted bidding, as required under the collective bargaining agreement. Klepper complied, but required Osborn to stay on light duty (which involved fewer hours at a lower hourly rate) until the bidding process was completed (approximately one month).

Osborn objected to this treatment and filed a grievance to recover the pay differential, which was not supported by the union. On July 10, 1992, Osborn filed a complaint with the City of Chicago Commission on Human Relations, which dismissed his claim for lack of substantial evidence and further denied his request for review. Osborn has not alleged, nor is there any indication, that he ever filed a charge with either the Equal Employment Opportunity Commission or with the Illinois Department of Human Relations.

II. Discussion

Although Osborn neglects to set forth the basis for his claim, defendants have gamely attempted to identify the probable statutory underpinnings of his complaint. Defendants conclude that Osborn most likely seeks to recover damages under the ADA.¹ Alternatively, defendants suggest that Osborn might be trying to state a claim under § 301 of the LMRA.² Significantly, Osborn does not challenge either of these characterizations of his suit. Accordingly, we will evaluate defendants' motion as presented—i.e. as a motion to dismiss claims filed under the ADA and § 301 of the LMRA.

A. ADA

Defendants argue that, as with Title VII claims, a prerequisite to suit under the ADA is the filing of a timely charge with the EEOC and the receipt of a right to sue letter. In support, defendants point to the ADA itself, which adopts the procedures set forth in Title VII. See 42 U.S.C. § 12117(a).³ Among those procedures adopted by the ADA, is § 2000e-5, which provides that a plaintiff must file a timely charge with the EEOC and receive a right-to-sue letter before filing a civil suit. See E.E.O.C. v. Harris Chernin, Inc., 10 F.3d 1286, 1288 n. 3 (7th Cir.1993) ("In order to maintain a claim under Title VII, a plaintiff must file charges with the EEOC, receive a Right-To-Sue-Letter, and act upon it.") (citing, Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974)).

Although neither the Seventh Circuit nor the District Courts of the Northern District of Illinois have directly addressed this issue, several other District Courts have ruled that § 12117(a) acts to make the filing of a timely EEOC charge and the receipt of a right to sue letter prerequisites to suit under the ADA. See Kent v. Director, Missouri Dept. of Elementary and Secondary Education, 792 F.Supp. 59, 61-62 (E.D.Mo.1992) (because ADA adopted Title VII procedures, including § 2000e-5(f)(1), ADA claim time-barred where plaintiff failed to file timely EEOC charge); Sherman v. Optical Imaging Systems, Inc., 843 F.Supp. 1168, 1179-80 (E.D.Mich.1994) (same). Indeed, the language of § 12117(a) is clear and the procedure is equally sensible in the ADA context as in the Title VII universe. Accordingly, we find that, before filing a civil suit, a claimant must file a timely EEOC charge and receive a right-to-sue letter. Here, Osborn neither alleges that he has filed a charge with the EEOC, nor does he attach a right to sue letter from that agency. Without either of these, Osborn fails to satisfy prerequisites to suit under the ADA and we dismiss his claim.⁴

B. § 301 of the LMRA

It may also be that Osborn seeks to recover under § 301 of the LMRA. In his complaint, Osborn accuses defendants of punishing him for asserting his rights under the collective bargaining agreement (i.e. for forcing Keppler to comply with the notice and bid procedure). Additionally, Osborn bemoans his union's refusal to support him when he filed a grievance. However, if Osborn is attempting to state a claim under § 301 of the LMRA, he runs afoul of the statute of limitations. The Supreme Court has ruled that hybrid § 301 claims (that is, actions against an employer for breaching the collective bargaining agreement and against the union for breaching it duty of fair representation under the agreement's dispute resolution procedures) must be brought within six months.⁵DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 168-72, 103 S.Ct. 2281, 2293-94, 76 L.Ed.2d 476 (1983)....