1999 but then failed to attend the conference (M. Ex. 1). On
September 16 IDHR mailed Morris a letter asking that he supply a
reason for his nonattendance and telling him that his charge
would be dismissed if he did not respond by October 16, 1999
(id.). That mailing also included an EEOC letter advising Morris
to cooperate within 30 days, failing which his federal charge
could be dismissed (id.). On September 29, 1999 Morris left a
message with IDHR’s staff stating that he got confused about the
date of the factfinding conference (id.).

After receiving the Notice of Dismissal, on October 26, 1999
Morris filed a request for review with IDHR’s Chief Legal Counsel
(M. Ex. 2). In support of that request Morris stated that “I
simply got the dates mixed up” (id.). He went on to say that on
October 19 he had spoken with an IDHR investigator and told him
that the papers he received had someone else’s name on them

(id.).4 As a result the investigator re-sent the papers, and

4 Tt isn’t entirely clear just which papers received by

Morris had a different claimant’s name on them. Morris has
submitted an October 19, 1999 fax from IDHR employee Gloria Polk
to Jewel representative Anthony Bowden that has as its subject
“1999CF2375-Gerald Morris” and that states (M. Ex. 4):

Due to an administrative error, you were mailed the
wrong notice of dismissal. Here is the correct copy.
If you need to speak to me, I can be reached at 312-
814-6363. Sorry for any inconvenience this may have
caused you.

Morris’ memorandum contends that the papers IDHR sent Morris
about the factfinding conference were addressed to a different
complainant and that the papers IDHR sent Jewel regarding the

4


review and reverse the IDHR and EEOC determinations that he
failed to cooperate. In that respect IDHR’s Chief Legal Counsel
found that Morris’ claim of mistake as to the date of the
factfinding conference (after he had twice confirmed that he
would attend) did not excuse his failure to attend and amounted
to a failure to proceed. And pursuant to the workshare
agreement, EEOC adopted IDHR’s determination that Morris failed
to cooperate.

Again Morris had open to him, but he failed to pursue,
further avenues for relief from those determinations.® This
Court declines his invitation to engage in a type of collateral
attack on those decisions. In sum, Morris’ failure-to-rehire
claim is dismissed because of his failure to exhaust his
administrative remedies as to that claim.

Conclusion

With Morris’ failure-to-rehire claim as well as his putative
class claims having been dismissed, this action is now limited to
his individual claim of discriminatory termination as stated in
Charge No. 210990467. Because so much of the SAC is now

surplusage, and because some paragraphs of the now-dismissed

6 Thus M. Ex. 3 412 (part of the ruling by IDHR’s Chief
Legal Counsel rejecting Morris’ administrative appeal of the
dismissal of his charge) expressly notified him of his right to
seek state court review of that ruling. And 29 C.F.R. §1601.76
gives a claimant the right to seek EEOC review of the propriety
of a state agency’s dismissal before EEOC follows suit. Morris
took neither of those steps.


Jewel argues that Morris failed to exhaust the claims based
on Charge No. 21B991818 because he failed to cooperate with the
IDHR investigation. That failure in turn led to EEOC’s dismissal
of that charge for failure to cooperate.

Numerous district court decisions (many unreported) have
ruled that a failure to cooperate with EEOC constitutes a fatal
failure to exhaust administrative remedies (see, e.g., Dates v.
Phelps Dodge Magnet Wire Co., 604 F.Supp. 22, 27 (N.D. Ind.
1985), Haydt v. Loikits, No. CIV. A. 99-4342, 2000 WL 1848598
(E.D. Pa. Dec. 19). All of those decisions have rejected the
notion that EEOC’s pro forma issuance of a right-to-sue letter
when it terminates its processing because of such a failure to
cooperate constitutes a ticket of entry to the federal court.®
Haydt, 2000 WL 1848598, at *2 (internal quotation marks and
citation omitted) summarizes the rationale:

Plaintiff’s failure to cooperate with the EEOC rendered

the Commission unable to investigate effectively her

charge and carry out its congressional mandate. To

allow plaintiffs to bring their Title VII claims in

federal court under such circumstances would be to

allow them to emasculate Congressional intent by short

circuiting the twin objectives of investigation and

conciliation.

Morris really does not quarrel with that persuasive

5 Two of this Court's colleagues, though dealing with very

different factual circumstances that called for different
outcomes, have also expressly approved that principle: Prior v.
United States Cellular Corp., 46 F.Supp.2d 808, 810 (N.D. fll.
1999); Burton v. Great Western Steel Co., 833 F.Supp. 1266, 1273
(N.D. Ill. 1993).



Morris received them on October 21 (id.). On April 24, 2000
IDHR‘s Chief Legal Counsel issued an order denying Morris’ appeal
and sustaining IDHR’s dismissal for failure to proceed (M. Ex.
3). Morris then requested and was given a right-to-sue letter
from EEOC.

Failure To Exhaust Remedies

Zugay v. Progressive Care, S.C., 180 F.3d 901, 902 (7 Cir.
1999) (internal citations omitted) sets forth the well-settled
prerequisites to filing a Title VII lawsuit:

It is well-established that before filing a lawsuit under
Title VII, a plaintiff must (1) timely file a charge with
the EEOC, and (2) receive a right to sue letter from the
EEOC. The plaintiff then has 90 days from receipt of the
right to sue letter to bring suit in federal court. In
addition, in a state like Illinois, which provides an
administrative remedy for employment discrimination, a
plaintiff must give the state agency an opportunity to
conciliate the employment dispute before pursuing federal
remedies.

And Gibson v. West, 201 F.3d 990, 994 (7th Cir. 2000) teaches
that “the failure to exhaust administrative remedies is a
precondition to bringing a Title VII claim in federal court,
rather than a jurisdictional requirement.” Thus the components
of the exhaustion requirement are subject to equitable defenses

(id.).

dismissal also referred to a different complainant. Given the
dates mentioned in Morris’ request for review, however, it seems
more plausible that IDHR sent both Morris and Jewel the wrong
dismissal papers and that it is those papers, not the papers
regarding the factfinding conference, to which Morris now refers.
But that issue makes no difference in any event.

5


To be sure, this Court noted two years ago in Keogh v.
Heineken U.S.A., Inc., No. 99 C 4019, 1999 WL 639171 (N.D. I1l.
Aug. 16)--and it remains true today--that in this Circuit a
claimant need not wait 180 days before requesting an EEOC right-
to-sue letter. Indeed, writing for a Tenth Circuit panel earlier
this year in Walker v. United Parcel Serv., Inc., 240 F.3d 1268,
1274-77 (10% Cir. 2001), this Court has expressed its own lack
of agreement with the contrary view expressed in Martini v.
Federal Nat’l Mortgage Ass’n, 178 F.3d 1336, 1340-48 (D.C. Cir.
1999). But where as here a claimant chooses to pursue the
administrative process but then affirmatively frustrates the
agency’s efforts to investigate the charge, thus triggering a
dismissal of the charge for failure to cooperate, sound policy
calls for the denial of the claimant’s later effort to file suit
in federal court: Allowing such an action to proceed (1) would
thwart Title VII’‘s purpose of encouraging informal conciliation
and relatedly (2) would reward claimants who first invoke and
then waste EEOC’s limited resources. This Court therefore finds
that Moore’s failure to exhaust his administrative remedies calls
for the judicial rejection of his claim.

As a fallback position in that regard, Morris also argues
that his appeal of IDHR’s October 12, 2000 dismissal of his
charge evidenced his willingness to continue to cooperate with

the IDHR investigation. In effect Morris wants this Court to


Minute Order Form (06/97)

. >

United States District Court, Northern District of Illinois

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge Milton I. Shadur than Assigned Judge
CASE NUMBER 01 C 2099 DATE 8/16/2001
CASE Gerald Morris, etc. vs. Albertson, Inc.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.}
DOCKET ENTRY:
qd) a Filed motion of [ use listing in “Motion” box above.]
Q) Q Brief in support of motion due
(3) oOo Answer brief to motion due . Reply to answer brief due.
4 o Ruling/Hearing on__ set for at
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
(6) ao Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(©) Oo Trial[set for/re-set for] on at
(8) im [Bench/Jury trial] [Hearing] held/continued to at
(9) 0 This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) (CiGeneral Rule21 CIFRCP41(a)(1) CO FRCP41(a)(2).
ao % [Other docket entry] Enter Memorandum Opinion and Order. Jewel’s 12(b)(6) motion to dismiss
is granted. With Morris’ failure-to-rehire claim as well as his putative class claims having been
dismissed, this action is not limited to his individual claim of discriminatory termination as stated in
Charge No. 210990467. Because so much of the SAC is now surplusage, and because some paragraphs
of the now-dismissed claims are no doubt relevant to the surviving claim, Morris’ counsel is ordered to
prepare a self-contained Third Amended Complaint at the time he as scheduled his motion.
(1) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. umber ot otices
| Notices mailed by judge’s staff. AUG 17 2001

Notified counsel by telephone. * dre dockela

kK

8/16/2001

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge. aL

date mailed notice

courtroom OL AUG 16 Pit 3:47
deputy’s

initials

SN oN

Date/time received in
central Clerk’s Office.

mailing deputy initials



claims are no doubt relevant to the surviving claim, Morris’
counsel is ordered to prepare and tender a self-contained Third
Amended Complaint at the time that he has scheduled for

presentment of his motion referred to in n.2.

Vo Mle OE. car

Milton I. Shadur
Senior United States District Judge

Date: August 16, 2001

10


reasoning, arguing instead that it does not apply because he
cooperated with IDHR for the requisite 60 days and, indeed, he
never stopped cooperating with it (M. Mem. 5). To that end he
seeks to rely on Zugay, where the plaintiff voluntarily withdrew
her IDHR charge after it had been pending for 77 days but less
than one month before a scheduled factfinding conference and
before receiving her right-to-sue letter from EEOC. Zugay, 180
F.3d at 902-03 held that plaintiff had exhausted her state
administrative remedies because she had cooperated with IDHR for
longer than the 60 day deferral period, giving the agency the
opportunity to reach the merits of her claim.

Morris urges that his situation is comparable because he too
cooperated with IDHR well in excess of 60 days (149 days elapsed
between the filing of Morris’ charge and the scheduled
factfinding conference). But there is an obviously material
difference: Zugay did not involve an express finding of a
failure to cooperate on the employee’s part, triggering a
dismissal of the employee’s charge.

Here IDHR was conducting its investigation on behalf of both
itself and EEOC pursuant to the workshare agreement (see 42
U.S.C. §2000e-8(c) and 29 C.F.R. §1601.77)). So when Morris
failed to cooperate with IDHR’s investigation, he also
effectively denied EEOC the ability to investigate and conciliate

his charge.


filed with or by the Illinois Department of Human Rights (“IDHR”)
or EEOC, this Court takes judicial notice of them. And for the
reasons given below, those documents do not call for a different
result in any event.

Background

Morris has filed two charges of discrimination with IDHR
and, by operation of a workshare agreement,* with EEOC. Charge
No. 210990467, filed on November 9, 1998, asserts that Morris was
“subjected to different terms and conditions of employment” and
was ultimately discharged on the basis of his race (SAC Ex. 1).
Charge No. 21B991818, filed on April 20, 1999 and then amended on
July 15 and August 3 of the same year, asserts that race
discrimination was at work in Jewel’s refusal to rehire Morris on
January 25, 1999 (SAC Ex. 2).

As to Charge No. 21B991818, EEOC responded to Morris’
request by issuing a right-to-sue letter on February 28, 2001
(SAC Ex. 5). ‘“EEOC’s notice reflects (through a check in the
appropriate box) that its file on that charge was closed due to
Morris’ failure to cooperate (id.).

In that regard, IDHR’s October 12, 1999 Notice of Dismissal
for Failure To Proceed says that Morris twice agreed to attend a

factfinding conference scheduled for 9:00 a.m. on September 16,

3 For a description of the IDHR-EEOC workshare agreement,

see Sofferin v. American Airlines, Inc., 923 F.2d 552, 554 (7th
Cir. 1991).


administrative remedies as to that charge.* For the reasons
stated in this memorandum opinion and order, Jewel’s motion is
granted.

Rule 12(b) (6) Standard

For present purposes this Court accepts the SAC's
well-pleaded factual allegations as true and draws all reasonable
inferences in Morris’ favor (Sherwin Manor Nursing Ctr., Inc. v.
McAuliffe, 37 F.3d 1216, 1219 (7th Cir.1994)). And under Rule
12(b) (6) no claim will be dismissed unless "it is clear that no
relief could be granted under any set of facts that could be
proved consistent with the allegations" (Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984), quoting Conley v. Gibson, 355
U.S. 41, 45-46 (1957)).

Because for Rule 12(b) (6) purposes this opinion must credit
Morris’ allegations as true, what follows in the Background
section is drawn primarily from the SAC and its exhibits. This
opinion also cites to exhibits attached to Morris’ responsive
memorandum as “M. Ex.--,” even though Jewel contends that those

submissions are improper. Because most of those are documents

2 Jewel initially sought to dismiss SAC Count V as well

because Morris had not yet received a Notice of Right to Sue from
Equal Employment Opportunity Commission (“EEOC”) on Charge No.
210990467, which was the basis for the Count V claim. On

July 23, 2001 EEOC issued a right-to-sue letter on that charge,
and Jewel concedes that such issuance moots its motion to dismiss
Count V (J. R. Mem. 2). Moore’s counsel has now noticed up a
motion to supplement the SAC to incorporate the new right-to-sue
letter.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

GERALD MORRIS, etc.,

}
Plaintiff,
v. No. 01 ¢ 2099
)
ALBERTSON, INC., et al., } DOCKETED
Defendants. ) AUG 1 7 2001

MEMORANDUM OPINION AND ORDER

Gerald Morris (“Morris”) and Nina Moore (“Moore”) have sued
Albertson, Inc. and Jewel Food Stores, Inc. (collectively
“Jewel,” treated as a singular noun for convenience) under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e to 2000e-17
("Title VII”), each of them charging Jewel with racial
discrimination (both Morris and Moore are African-American) .*
Jewel has filed a Rule 12(b) (6) motion to dismiss part of Morris’
claims--his allegation of Jewel's race-discriminatory failure to

rehire him--on the ground that Morris has failed to exhaust his

1 Each of Morris and Moore initially sought to bring both

individual and class claims. This Court’s July 23, 2001 oral
ruling granted Jewel’s motion to dismiss Moore from Counts I and
II of the Second Amended Complaint (“SAC”) on the ground that her
EEOC charges-even when read expansively according to the teaching
of Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167
(7th Cir.1976) (en banc)--did not contain class-wide allegations
(see Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127-28
(7th Cir. 1989)). For the same reason, Morris cannot act on
behalf of a class. Hence SAC Counts I and II are dismissed in
their entirety, without any need for notice to putative class
members under Fed. R. Civ. P. (“Rule”) 23(e).