Pauls v. Elaine Revell, Inc.

• Decision Date: 20 September 1983
• Docket Number: No. 83 C3943.,83 C3943.
• Citation: 571 F. Supp. 1018
• Parties: Stella PAULS, Plaintiff, v. ELAINE REVELL, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

571 F. Supp. 1018

Stella PAULS, Plaintiff, v. ELAINE REVELL, INC., et al., Defendants.

No. 83 C3943.

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

September 20, 1983.

John Cushing, Ambrose & Cushing, P.C., Chicago, Ill., for plaintiff.

Scott A. Creswell, Cary S. Fleischer and Bruce J. Baker, Moss, Miller & Josephson, Ltd., Chicago, Ill., for defendants Herman and James Hoke.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Stella Pauls ("Pauls") sues Elaine Revell, Inc. ("Revell") and its Chairman Herman Hoke and President James Hoke (collectively "Hokes"), claiming she was dismissed by Revell because of her age and sex in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-34, and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2000e-17.¹ Hokes now move for dismissal pursuant to Fed.R.Civ.P. ("Rule") 12(b)(1) and 12(b)(6), asserting lack of subject matter jurisdiction. For the reasons stated in this memorandum opinion and order their motion is denied.

Complaint Allegations

Pauls is a 50-year-old woman who held various managerial positions at Revell from March 17, 1976 until August 27, 1982, when she was discharged. Following her termination Pauls filed a charge of unlawful sex and age discrimination with the Equal Employment Opportunity Commission ("EEOC"). As its factual allegations reveal, that EEOC charge plainly identified Hokes as the ones responsible for her allegedly discriminatory dismissal but named only Revell as the "Respondent":²

I. On 8/31/82, Respondent terminated me from my position as Vice President. I began working for Respondent March 17, 1976. I was denied Profit Sharing Benefits of $5,330.80.

II. The reason given by Mr. Herbert Hoke, Chairman, age 60, and James Hoke, President, age 38, for termination, was that Respondent was on the verge of bankruptcy and as of right now, they were letting me go. The reason given for denial of benefits was a change in Company Profit Sharing Policy.

III. I believe I have been discriminated against because of my age, 49, in that:

A) In September of 1982, Respondent filled the position I held as Vice-President, with Mike (last name unknown), age 32.

B) Respondent has recently terminated employees in the protective age (40-70) from Management positions. Their names are: Delores, age 58; Audrey, over 40, and Kate, over 50. In addition, Florence, Bookkeeper, over 40.

C) I was denied the Profit Sharing Benefits of $5,330.80.

D) Respondent's Profit Sharing Policy states that employees shall receive 100% of the benefits, when I began in March of 1976.

E) Respondent implemented a new Profit Sharing Benefits policy July 1, 1976. At the time of my termination, 8/31/82, Respondent only granted me 60% of my Profit Sharing Benefits.

On May 18, 1983 EEOC issued Pauls a Notice of Right To Sue, entitling her to seek redress in federal court within 90 days. Pauls timely filed this civil action.

Motion To Dismiss

Hokes argue Pauls' failure to name them in her EEOC grievance, as required by Section 2000e-5(f)(1)³ and Section 626(d),⁴ deprives this Court of subject matter jurisdiction over them. Analysis of that contention first requires a brief digression into the nature of those preconditions for bringing suit.

Until just last year federal courts, including our Court of Appeals, treated the Section 2000e filing requirements as jurisdictional prerequisites. See, e.g., Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, U.A., 657 F.2d 890 (7th Cir. 1981). But in Liberles v. County of Cook, 709 F.2d 1122, 1125 (7th Cir.1983) our Court of Appeals retracted that position, choosing instead to characterize those Title VII provisions as "conditions precedent" under Rule 9(c):⁵

In Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Court held that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." 455 U.S. at 393, 102 S.Ct. at 1132 (footnote omitted). Zipes' basis is the statutory language of 42 U.S.C. § 2000e-5(f)(3) (1976), the legislative history, and the fact that "a technical reading of Title VII would be `particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process,' Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972) at 527 92 S.Ct. at 619." 455 U.S. at 397, 102 S.Ct. at 1134. Further, by holding that timely filing is not jurisdictional, the Court "honored the remedial purpose of the legislation as a whole without negating the particular purpose of the filing requirement, to give prompt notice to the employer." Id. 455 U.S. at 398, 102 S.Ct. at 1135. Another purpose of the filing requirements is to secure voluntary compliance with the law. Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir.1969).

We agree with the reasoning of Jackson v. Seaboard Coast Line RR Co., 678 F.2d 992, 999-1010 (11th Cir.1982). In Jackson the court carefully reviewed the case law and legislative history of Title VII and concluded that it could "discern no rational basis for treating those Title VII action preconditions, i.e., the requirements of 42 U.S.C. § 2000e-5 (1976) that have not been considered from those that implicitly or explicitly have been held not to be jurisdictional." 678 F.2d at 1009 (footnote omitted). Accord Pinkard v. Pullman-Standard, 678 F.2d 1211, 1216-18 (5th Cir.1982). Further, if a defendant does not deny specifically and with particularity, as required by Fed.R.Civ.P. 9(c), the satisfaction of the Title VII lawsuit preconditions, the defendant cannot later assert that a condition precedent to the lawsuit has not been met. Jackson, 678 F.2d at 1010.

Liberles' analysis applies with equal force to Section 626(d), for ADEA procedural provisions generally receive the same interpretation as their Title VII counterparts. See Goodman v. Board of Trustees of Community College District 524, 498 F.Supp. 1329, 1336 (N.D.Ill.1980) (finding exception to Section 2000e-5(f)(1) applicable to Section 626(d)); Quinn v. Bowmar Publishing Co., 445 F.Supp. 780, 784-85 (D.Md.1978) (same).

Because the administrative charging requirements of Title VII and ADEA are non-jurisdictional, Pauls' satisfaction of those conditions precedent can be challenged under Rule 12(b)(6) (or Rule 56) but not Rule 12(b)(1).⁶ This Court will therefore evaluate Hokes' motion under Rule 12(b)(6) standards, accepting as true the well-pleaded Complaint allegations and any reasonable inferences favorable to Pauls.

Hokes correctly point out the general rule that a defendant can be sued under Title VII or ADEA only after he has been administratively charged. But that rule has been tempered by several exceptions, at least two of which are apposite here.⁷ For example, in Eggleston, 657 F.2d at 905, our Court of Appeals announced the rule should give way when the twin purposes of the EEOC charge are fulfilled:

1. to notify the accused party of the alleged violation and

2. to insure all parties involved have an opportunity to participate in EEOC's conciliation proceedings (which are designed to secure voluntary compliance with Title VII).

Specifically Eggleston teaches in that respect:

Where an unnamed party has been provided with adequate notice of the charge, under circumstances where the party has been given the opportunity to participate in conciliation proceedings aimed at voluntary compliance, the charge is sufficient to confer jurisdiction over that party.

That exception is plainly applicable, for the factors that convinced Eggleston to invoke the exception carry equal (if not greater) weight here. Eggleston involved a challenge to the admission requirements of a plumbers' apprenticeship program operated by the defendant Joint Apprenticeship Committee Local No. 130 U.A. ("JAC"), an unincorporated association allegedly controlled by the defendant Plumbers' Local Union No. 130 ("Local 130"). Eggleston plaintiffs' EEOC charge had named Local 130 but not JAC. Eggleston, 657 F.2d at 906, emphasis in original, found the charge had sufficiently apprised JAC of the alleged violation to meet the "notice" prong of the exception:

Our reference to the record convinces us that the JAC was sufficiently apprised of the charge to meet this notice requirement. We begin by noting that five members of the ten person JAC board have been appointed by Local 130. These five individuals, as of the date of Rose's 1975 charge, were all serving as officers within Local 130, while simultaneously serving on the JAC. Their positions within Local 130 include respectively: the business manager, the business representative, an executive board member, the vice-president, and the recording secretary. Moreover, the JAC coordinator has served as an elected officer in Local 130 since 1966, and has signed affidavits and other pleadings in this litigation in the JAC's behalf.

The charge itself, which named Local 130, clearly complained of discriminatory exclusion from the apprenticeship program. Given that the JAC administers the only apprentice program of record, the charge was sufficient to apprise both the EEOC and the JAC of the alleged discriminatory practices.

Such reasoning is even more compelling here:

1. Hokes themselves are the most important officers in Revell.

2. Pauls' EEOC charge not only focuses on conduct taken by Hokes, but it expressly identifies them as the ones through whom Revell effected the allegedly discriminatory dismissal.

In finding JAC had been afforded ample opportunity to conciliate, Eggleston reasoned (657 F.2d at 907, footnote omitted):

Upon balancing these policy considerations, we find that the JAC has been presented with a sufficient opportunity to conciliate. As soon as the JAC had notice of the charge, either through

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