Opinion
No. 96 C 7628
March 11, 1999
MEMORANDUM ORDER AND OPINION
Plaintiff Taro R. Advani ("Advani") charged Defendant Andrew Corporation ("Andrew") with unlawful age and national origin discrimination and retaliatory discrimination in violation of 29 U.S.C. § 621 et seq. and 42 U.S.C. § 2000e. Andrew now moves the court to dismiss Advani's complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. For the reasons set forth below, the court (1) denies defendant's motion to dismiss Counts I and II and (2) grants defendant's motion to dismiss Count III.
Background
In ruling on a motion to dismiss, the court "accepts as true the factual allegations of the complaint." Lashbrook v. Oerkfitz, 65 F.3d 1339, 1343 (7th Cir. 1995) (citations omitted). Advani alleges that Andrew unlawfully discriminated against him on the basis of his age and national origin and terminated him solely for those reasons. (Compl. ¶ 19, 47.) Advani began employment with Andrew in February of 1988. (Compl. ¶ 7.) Advani received two promotions throughout his employment, one in 1989 and one in 1992, when Andrew promoted him to design engineer. (Compl. ¶ 7.) Advani performed all his assigned job duties in a satisfactory manner, and only after working for Andrew for six years did Advani receive his first below average performance review. (Compl. ¶ 8-9.) Advani believed that Andrew treated him differently than others similarly situated who were younger and not of Indian national origin. (Compl. ¶ 15-44.) Engineers not of Indian national origin were given salary increases, overtime pay, and offices suited to their positions. (Compl. ¶ 40.) Advani complained of this discrimination. (Compl. ¶ 41.) After issuing his complaint, he received his first negative performance review. (Compl. ¶ 10.) On October 18, 1995, Andrew fired Advani, explaining that he was terminated due to poor work performance. (Compl. ¶ 11-12.) At that time, Advani was 58 years old and was the only person of Asian descent working in the Project Engineering Department. (Compl. ¶ 13, 39.)
Advani filed a charge with the Illinois Department of Human Rights ("IDHR") on February 21, 1996, and the IDHR cross-filed the charge with the Equal Employment Opportunity Commission ("EEOC"). (Compl. ¶ 4.) In the charge, Advani alleged age discrimination and national origin discrimination and listed October 18, 1995 as the only date on which this discrimination occurred. In describing the particulars of the charge, Advani alleged that Andrew discriminated against him on the basis of age and national origin by discharging him, even though he had a good work performance record. He also noted that his record was similar to another non-Indian, younger design engineer who was not terminated.
Advani requested a right to sue notice from the EEOC on August 13, 1996 and received it on August 27, 1996. He then filed a complaint with this court. Andrew moves to dismiss Advani's complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. Andrew argues that the court lacks jurisdiction to hear Advani's complaint for three reasons: (1) the right to sue notice was invalid because the EEOC issued it before the 180 day investigation period expired; (2) Counts I and II of Advani's complaint must be dismissed since Advani admitted that his claims are based solely on Andrew's discriminatory retaliation; and (3) Count III must be dismissed because it alleges retaliation, a claim not included in Advani's earlier EEOC charge.
Motion to Dismiss
Andrew improperly bases its motion to dismiss on Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The motion is more appropriately brought as a Rule 12(b)(6) motion for failure to state a claim and the court will treat it as such. By making reference to Advani's deposition, Andrew invites the court to covert this motion into a Rule 56 motion for summary judgment. The court however declines this invitation. The complaint contains sufficient information for the court to issue a ruling on defendant's 12(b)(6) motion. Therefore, the court will not consider Advani's deposition testimony.
A motion to dismiss tests the sufficiency of the complaint, not the merits of plaintiff's suit. See United States v. Brickman, 906 F. Supp. 1164, 1167 (N.D. Ill. 1995) citing Triad Assocs., Inc. v. Chicago Housing Authority, 892 F.2d 583, 586 (7th Cir. 1989) cert. denied, 498 U.S. 485 (1990). On a motion to dismiss under Rule 12(b)(6), the court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the plaintiff. Zinerom v. Burch, 494 U.S. 113, 118 (1990). The court will dismiss a claim only if "it appears beyond a doubt that [plaintiff] can prove no set of facts in support of his claim which would entitle him to relief." Colfax Corp. v. Illinois State Toll Highway Authority, 79 F.3d 631, 632 (7th Cir. 1996).
Analysis
Andrew moves this court to dismiss Advani's complaint on three separate grounds, (1) that Advani has not exhausted the administrative remedies under Title VII; (2) that Advani's claims of age and national origin discrimination are based on retaliation; and (3) that Advani is barred from making all discrimination claims since he did not allege retaliation in his EEOC charge.
A. Early Right to Sue Notice
Andrew argues that because Advani failed to adhere to the Title VII administrative requirements, he is barred from bringing this suit. Advani requested and received early issuance of a right to sue letter from the EEOC. Andrew argues that, as a result, the notice is invalid. The court disagrees. Plaintiff's receipt of an early right to sue letter does not deprive the court of jurisdiction. See Menchaca v. American Medical Response of Illinois, Inc., ¶ F. Supp. 2d 971, 972 (N.D. Ill. 1998); Baker v. Gardner, Carton Douglas, No. 97 C 2649, 1997 WL 781712, *2 (N.D. Ill. Dec. 12, 1997).
Under Title VII, 42 U.S.C. § 2000e-5(f)(1), the EEOC is given 180 days to investigate a charge of discrimination filed with the commission. If the EEOC has not filed a civil action after 180 days, the commission must notify the claimant of his right to sue. 42 U.S.C. § 2000e-5(f)(1). Pursuant to a work sharing agreement with the IDHR, Advani's charge could not be filed with the EEOC "before the expiration of 60 days after proceedings have been earlier terminated." 42 U.S.C. § 2000e-5(c). During that 60 day period in which the state agency has jurisdiction, the EEOC holds the charge in "suspended animation." See Love v. Pullman Co., 404 U.S. 522, 526 (1972). After the 60 days expires, or if the state agency first terminates its investigation, the EEOC automatically files the charge. See Mohasco Corp. v. Silver, 447 U.S. 807 (1980) (concluding that plaintiff's charge is filed with the EEOC after the expiration of the 60 day period in which the state agency had jurisdiction). Therefore, the 180 day period begins after the EEOC takes over jurisdiction from the state agency. It is not until this 180 day period has expired that the EEOC should issue a right to sue letter, permitting plaintiffs to file their Title VII claims in district court.
Advani did file his complaint before the 180 day EEOC investigation period expired. He filed his charge with the IDHR on February 22, 1996. The EEOC automatically filed the charge on April 22, 1996, following expiration of the 60 day IDHR investigation period. The EEOC therefore had 180 days from April 22, 1996 to complete its investigation and to file a civil action. However, Advani requested and received his right to sue notice on August 27, 1996, only 157 days after the charge was filed with the EEOC.
While Title VII does require exhaustion of administrative remedies, it is well-established that early issuance of a right to sue notice does not create a jurisdictional bar. The Supreme Court has held in Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court." Id. at 393. Courts have read Zipes to mean that the administrative requirements set forth in Title VII are conditions precedent rather than jurisdictional prerequisites. Although the Seventh Circuit has yet to rule on the issue, this court has consistently relied upon other circuit court decisions which maintain that the EEOC's early issuance of a right to sue letter does not deprive the court of jurisdiction. See Menchaca, ¶ F. Supp.2d at 972; Baker, 1997 WL 781712 at *2, relying upon Sims v. Trus Joist MacMillan, 22 F.3d 1059, 1063 (11th Cir. 1994) andBryant v. California Brewers Association, 585 F.2d 421, 425 (9th Cir. 1978) vacated and remanded on other grounds, 444 U.S. 598 (1980).
Therefore, although the EEOC issued Advani's right to sue notice early, this failure to adhere strictly to adminstrative requirements do not deprive this court of jurisdiction. Furthermore, since the remaining 23 days of the 180 day period have now expired, it is pointless to require Advani to obtain a second right to sue notice. Therefore, Andrew's motion to dismiss Advani's entire complaint for failure to exhaust administrative remedies must fail.
See Rolark v. University of Chicago Hospitals, 688 F. Supp. 401 (N.D. Ill. 1988) (holding that the plaintiff is not required to go back to the EEOC for a second right to sue notice since the 180 day period had expired by the time the motion was brought before the court); Allen v. Schwab Rehabilitation Hospital, 509 F. Supp. 151, 154 (N.D. Ill. 1981).
B. Age and National Origin Discrimination Charges
Andrew next argues that Counts I and II of Advani's complaint, in which he alleges age and national origin discrimination must be dismissed because Advani testified in his deposition that these claims are based solely on retaliation. Andrew argues that since Advani failed to allege retaliation in his EEOC charge, none of his claims are properly before the court. The court disagrees.
As the court ruled earlier, Advani's complaint provides sufficient basis for a ruling on defendant's 12(b)(6) motion to dismiss. Therefore, looking only to Advani's complaint and EEOC charge, his claims of age and national origin discrimination must be "like or reasonably related to the allegations of the [EEOC] charge."Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir. 1976). There must be a "reasonable relationship between the allegations in the charge and the claims in the complaint, and the claim in the complaint can reasonably be expected to grow out of an EEOC investigation of the allegations in the charge." Cheek v. Western and Southern Life Insurance Co., 31 F.3d 497, 500 (7th Cir. 1994). In order to find a reasonable relationship, there must be a factual relationship between the allegations in the charge and the claim in the complaint. Id. at 501. Therefore, at a minimum, the two must "describe the same conduct and implicate the same individuals." Id.
Advani's EEOC charge reads, in pertinent part,
"On October 18, 1995, I was discharged from my position as design engineer. I was hired in 1988. Don Dufour (30's) Manager told me I was discharged because I did not meet their expectation. I believe that I have been discriminated against because of my age, 58 and national origin, India, in that: I had a good work performance record. My work performance was similar if not better than that of Dale Brauer (40's) Design Engineer, but he was not discharged."
In Counts I and II of his complaint, Advani claims that Andrew treated him differently than others similarly situated who were younger and not of Indian national origin, and that Andrew terminated him to hire younger, Caucasian males.
The fact that Advani fails to mention retaliation in his EEOC charge as it may relate to his claim of discriminatory discharge is not fatal, as defendant argues. Advani's complaint is open to two possible interpretations. Under one interpretation, Advani alleges retaliatory discharge. In another, Advani alleges simple discriminatory discharge. For the purpose of this motion, the court need not determine which interpretation is correct. Drawing all reasonable inferences in favor of Advani, the court reads the complaint as alleging simple discriminatory discharge. Under this interpretation, the fact that Advani does not mention retaliation in his EEOC charge does not bar him from alleging discriminatory discharge on the basis of age and national origin in the complaint.
Having concluded that failure to charge retaliatory discrimination does not amount to an EEOC bar, the court finds that a reasonable relationship does exist between Advani's EEOC charge of age and national origin discrimination and Counts I and II of his complaint. The allegations in the complaint almost mirror the EEOC charge and the two clearly arise from the same set of facts and implicate the same individuals. Since Counts I and II of Advani's complaint are reasonably related to the allegations in his EEOC charge, the court denies Andrew's motion to dismiss Counts I and II.
C. Retaliation
Next, Andrew argues that Count III of Advani's complaint alleging retaliation must be dismissed because Advani failed to allege retaliation in his EEOC charge. The EEOC charge appears to have included only allegations of age and national origin discrimination. In addition, Advani failed to mark the box for retaliation. Therefore, Andrew contends that Advani's retaliation claim is not properly before the court. The court agrees.
Generally, "a Title VII plaintiff may bring only those claims that were included in her EEOC charge." McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 483 (7th Cir. 1996). In McKenzie, the Seventh Circuit applied the standard established in Jenkins and held that retaliatory acts occurring before plaintiff has filed her EEOC charge can and must be included in the charge. Id. McKenzie's complaint contained allegations of retaliation occurring before she filed her EEOC charge. However, she neglected to make mention of any retaliatory discrimination in the EEOC charge. Like Advani, the plaintiff in McKenzie also failed to check the box at the top of the IDHR form to indicate that she had suffered retaliation. The court reasoned, "because each of those incidents of retaliation could have been — and should have been — included in her administrative charges, they cannot now serve as the basis of the retaliation claim alleged in her complaint." Id. Having failed to charge retaliation in her IDHR charge, the court dismissed her retaliation claim for acts allegedly occurring prior to her initial filing. Id.
Following McKenzie, this court must dismiss Advani's retaliation claim. In his complaint, Advani claims that Andrew retaliated against him for lodging complaints of discriminatory behavior. However, he failed to allege retaliation in his EEOC charge, even though the retaliatory acts Advani complains of took place before he filed the charge. The EEOC charge serves the dual purpose of affording the EEOC an opportunity for conciliation and putting the employer on notice of the conduct. Id. To allow Advani to raise his retaliation claim now, in his complaint, would undermine the first of these purposes. Advani had the opportunity to allege retaliatory acts in his EEOC charge and failed to do so. Therefore, Advani may not bring his retaliation charge and the court grants defendant's motion to dismiss Count III.
Conclusion
Thus, for the reasons set forth above, the court reads Andrew's 12(b)(1) motion to dismiss for lack of subject matter jurisdiction as a 12(b)(6) motion to dismiss for failure to state a claim and denies Andrew's motion to dismiss Counts I and II, but grants its motion to dismiss Count III. The court instructs the parties to discuss settlement prior to the next scheduled court date.