Koman v. Sears

595 F. Supp. 935, 36 Fair Empl. Prac. Cas. (BNA) 1690, 1984 U.S. Dist. LEXIS 22761
CourtDistrict Court, C.D. Illinois
DecidedOctober 15, 1984
DocketNo. 84 C 5754
StatusPublished

This text of 595 F. Supp. 935 (Koman v. Sears) is published on Counsel Stack Legal Research, covering District Court, C.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Koman v. Sears, 595 F. Supp. 935, 36 Fair Empl. Prac. Cas. (BNA) 1690, 1984 U.S. Dist. LEXIS 22761 (C.D. Ill. 1984).

Opinion

MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This action under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-34 (1982), is before the court on the motion of defendants to dismiss for plaintiff’s failure to file timely state charges with the Illinois Department of Human [936]*936Rights (IDHR). Specifically, the issue is whether plaintiffs failure to commence state administrative proceedings until after this suit was brought precludes him from taking advantage of the extended 300 day period for contacting the EEOC allowed under § 626(d)(2) of the ADEA. Although the question of construction is close, the court holds that plaintiff is so precluded, and grants defendant’s motion.

Plaintiff Walter Roman, a Chicago resident, was employed by defendant Sears from January, 1955 until July 7, 1981, when he was discharged from his position as Producer/Operations in Sears’ Audio Visual Department. Plaintiff has alleged that he was discharged because of his age, in willful violation of 29 U.S.C. § 623(a)(1). On March 12, 1982, 248 days after his discharge, plaintiff filed charges of age discrimination with the EEOC. The present action was filed on July 5, 1984. Defendants moved to dismiss on the ground that the plaintiff had never commenced state proceedings and therefore did not meet the statutory prerequisites under 29 U.S.C. § 623(b) for bringing a civil ADEA suit. Defendants further argued that the plaintiff's filing with the EEOC after 180 days was untimely, and therefore that the jurisdictional prerequisites of § 626 were also not satisfied. In response, plaintiff filed charges with the IDHR on August 2, 1984. Because this date was more than two and a half years after the 180-day limitations period for filing such charges had run, see Ill.Rev.Stat., ch. 68, § 7-102(A)(1) (1982), the IDHR promptly dismissed the charges. Plaintiff now argues that this filing, albeit untimely, is sufficient to preserve his federal rights under the ADEA, and that his EEOC filing was timely because made within 300 days of the date of discrimination.

The general requirements of timeliness under the ADEA are found in §§ 7(d) and 14(b) of the Act, 29 U.S.C. §§ 626(d) and 633(b). Section 7(d),, 29 U.S.C. § 626(d), provides:

No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Commission. 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(b) of the Act, 29 U.S.C. § 633(b), in turn provides:

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____

Neither party has disputed that the Illinois Department of Human Rights meets the requirements of a “State authority” as defined in § 633(b). Plaintiff has not urged any equitable grounds for tolling the time period, nor has he argued that his submission to the EEOC initiated state proceedings within the meaning of § 633(b). See Moore v. Sunbeam Corp., 459 F.2d 811 (7th Cir.1972) (submission to EEOC within state limitations period “initiates” state proceedings within meaning of Title VII). Rather, the sole issue for decision is whether plaintiff can invoke the 300 day period of § 626(d)(2) without having made any effort within that same period to initiate state administrative proceedings.

In Oscar Mayer & Co. v. Evans, 441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), the Supreme Court held that ADEA plaintiffs in deferral states to which § 14(b) is applicable must initiate state administrative proceedings prior to filing suit in federal court. The Court also held, however, that [937]*937§ 14(b) does not require those proceedings to be commenced within the time specified by state law, id. at 762, 99 S.Ct. at 2074, and suggested that the plaintiff in that case be allowed to comply with § 14(b) by filing a complaint with the state commission while the federal court held his suit in abeyance. Id. at 764-65, 99 S.Ct. at 2075-76. Subsequently, in Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), the Court stated in dicta that a Title VII plaintiff, under provisions analogous to § 7(d) of the ADEA, need not necessarily commence state proceedings within 180 days in order to obtain the extended filing period of 300 days. Id. at 816 n. 19, 100 S.Ct. at 2492 n. 19. In light of these two cases, plaintiff argues that timeliness of the state filing is not necessary in order to invoke the longer 300 day period allowed plaintiffs in deferral states such as Illinois.

As all parties are aware, the argument put forth by plaintiffs is identical to one this court has rejected in the context of Title VII. Lowell v. Glidden-Durkee, Division of SCM Corp., 529 F.Supp. 17 (N.D. Ill.1981). In Lowell, I held that a Title VII plaintiff who had not filed state proceedings until 218 days after her unlawful discharge, 38 days after the state limitation period of 180 days had run, could not claim advantage of the 300 day extended period provided in § 706(e) of the Civil Rights Act, 42 U.S.C. § 2000e-5(e). That decision was recently reaffirmed by this court, Daniels v. City of Aurora, No. 83 C 7878, slip op. (April 23, 1984), and has been followed by most courts in this district despite considerable authority to the contrary. See Matos v. Anheuser-Busch, Inc., No. 83 C 7103, slip op. (N.D.Ill. March 21, 1984) (citing cases). In Minogue v. Marsh & McLennan, Inc., No. 83 C 3674, slip op. (N.D.Ill.7/24/84), appeal docketed, No. 84-2560 (7th Cir. 9/12/84), Judge Hart applied Lowell to an ADEA case.

I have reviewed the decision in Lowell

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Related

Oscar Mayer & Co. v. Evans
441 U.S. 750 (Supreme Court, 1979)
Mohasco Corp. v. Silver
447 U.S. 807 (Supreme Court, 1980)
Lowell v. Glidden-Durkee, Div. of SCM Corp.
529 F. Supp. 17 (N.D. Illinois, 1981)
Moore v. Sunbeam Corp.
459 F.2d 811 (Seventh Circuit, 1972)
Loudoun Times-Mirror v. Arctic Co.
449 U.S. 1102 (Supreme Court, 1981)
Kuhn v. United States
452 U.S. 916 (Supreme Court, 1981)

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Bluebook (online)
595 F. Supp. 935, 36 Fair Empl. Prac. Cas. (BNA) 1690, 1984 U.S. Dist. LEXIS 22761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koman-v-sears-ilcd-1984.