source: Caselaw Access Project

author: ASPEN, District Judge.

license: Public Domain

text:
    Fekade Z. ZEWDE, Plaintiff, v. ELGIN COMMUNITY COLLEGE and Dennis Sienko, Defendants.
    No. 84 C 5598.
    United States District Court, N.D. Illinois, E.D.
    Dec. 21, 1984.

      John E. Juergensmeyer, Juergensmeyer & Associates, Elgin, 111., for plaintiff.
    S. Bennet Rodick, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge.

Fekade Zewde (“Zewde”), a black, Ethiopian man, has sued Elgin Community College (“Elgin”) and Dennis Sienko (“Sienko”) in a six-count complaint which alleges unlawful employment discrimination under various federal and state theories. Elgin and Sienko have moved to dismiss the suit, raising a host of challenges to the complaint. For the reasons stated below, the Court grants the motion in part and denies it in part.

I. Facts

The complaint alleges the following facts, which we assume to be true for the purposes of this motion. Elgin hired Zewde in June of 1977 as a Coordinator of the Adult Basic Education Program. Over the years, Zewde had been denied tenure and passed over for several job openings, such as Community Education Coordinator, Director of Adult Continuing Education and Affirmative Action Coordinator. During this time defendant Sienko had been Director of Occupational Relations for Elgin and had been responsible for its hiring and other personnel practices.

On December 18,1982, Zewde applied for the job of Director of Correctional Programs. Elgin rejected him and hired a white applicant, who was allegedly less qualified than him. In early June 1983, Zewde applied to be Director or Account Executive of Corrections Training. A three-person panel headed by Sienko interviewed him and told him he would be contacted. An hour later Sienko told Zewde that he had hired a different applicant. This applicant was White, also allegedly less qualified than Zewde. As of Fall 1983, Elgin employed only one Black full-time faculty member out of a total of 100. Elgin hired one more in 1984. At the end of June 1983, when Zewde’s most recent one-year employment contract expired, Elgin told Zewde that the funding for his position had dried up, and that his contract would not be renewed.

On September 21, 1983, less than 180 days following his June discharge, but 277 days after his December 18, 1982 rejection, Zewde filed a charge with the Equal Employment Opportunity Commission (“EEOC”), alleging discrimination on the basis of race and national origin. The charge named Elgin, but not Sienko, as a respondent. It alleged the December 1982 and June 1983 events, but did not mention the denial of tenure or the previous rejections. The EEOC later issued a “right to sue” letter, and Zewde then filed his six-count complaint with this Court. The first count alleges violations of Title VII and prays for punitive and compensatory damages. Count II is based upon 42 U.S.C. § 1983, alleges “constitutional” violations and also prays for punitive damages. Counts III and IV arise under 42 U.S.C. § 1981. Counts V and VI are pendent state law claims, alleging breach of contract and “wrongful discharge,” respectively. Elgin and Sienko have moved to dismiss the complaint, raising myriad challenges to each of the six counts. Below we will address the challenge to each count in order.

II. The Title VII Claim

Elgin argues that all or part of Title VII claim must be dismissed because (1) Zewde never filed a charge with the Illinois Department of Human Rights (“IDHR”); (2) all acts before the ones of June 1983 occurred more than 180 days before Zewde filed his EEOC charge; (3) Title VII forbids recovery of punitive and compensatory damages; (4) several of the acts alleged in the complaint fall outside the scope of the EEOC charge. In addition, Sienko argues that he must be dismissed as a defendant to Count I because he was not named as a respondent in the EEOC charge.

A. Failure to File With the IDHR

Elgin asserts that Zewde’s failure to file a charge with the IDHR demands dismissal under 42 U.S.C. § 2000e-5(c). However, Elgin concedes that Zewde did file a charge with the EEOC. It is well established that a layperson will not be punished for filing with the “wrong” agency first. Since Illinois is a “deferral” state, if the EEOC happens to receive the charges first, it may institute state administrative proceedings on behalf of the complainant by referring the charges to the state agency. See Love v. Pullman, 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1971); Stoecklein v. Illinois Tool Works, Inc., 589 F.Supp. 139, 144 n. 7 (N.D.Ill.1984); 2 Larson, Employment Discrimination, § 48.12 (1983). EEOC regulations require the' EEOC to refer charges automatically to the relevant state agency. 29 C.F.R. § 1601.13 (1983). Accordingly, we hold that Zewde instituted state proceedings by filing his charge with the EEOC, and we therefore deny Elgin’s motion to dismiss on that theory.

B. Limitations

Zewde filed his EEOC charge on September 21, 1983, which was within 180 days of his June rejection and discharge, but between 180 and 300 days of his December rejection. Elgin argues that the EEOC charge was timely filed only with respect to the June events, because the Illinois Human Rights Act (“IHRA”) imposes a 180 day limitation for filing with the IDHR. See Ill.Rev.Stat. ch. 68, ¶ 1-101 et seq. (1983).

Title VII grants jurisdiction to federal courts only if certain time limitations are met. An EEOC charge must normally be filed “within one hundred and eighty days after the alleged unlawful employment practice occurred...” 42 U.S.C. § 2000e-5(e). However, that period may extend to 300 days in a deferral state like Illinois. Id. In a deferral state, no EEOC charge may be filed “before the expiration of sixty days after proceedings have been commenced under state or local law, unless such proceedings have been earlier terminated. ..” 42 U.S.C. § 2000e-5(c). The District Courts in this district have split in their interpretations of these sections and the equivalent sections of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Compare O’Young v. Hobart Corporation, 579 F.Supp. 418 (N.D.Ill.1983) (Illinois complainants must file EEOC charge within 180 days because of limitations period of IHRA); Lowell v. Glidden-Durkee, Div. of SCM Corp., 529 F.Supp. 17 (N.D.Ill.1981) (same), with, Stoecklein v. Illinois Tool Works, Inc., 589 F.Supp. 139 (N.D.Ill.1984) (ADEA does not require complainant to begin state proceedings within 180 days in order to enjoy extended 300 day period for filing with the EEOC); Curto v. Sears, Roebuck & Co., 552 F.Supp. 891 (N.D.Ill.1982) (same). This issue is presently on appeal before the Seventh Circuit. Anderson v. Illinois Tool Works, Inc., 750 F.2d 791 (9th Cir.1984). In Stoecklein, supra, we decided the issue in the context of the ADEA, holding that Illinois complainants may file their EEOC charges (and, derivatively, their • IDHR charges) within 300 days of the last act of discrimination. 589 F.Supp. at 144. We see no reason to depart from that recent holding. As we recognized in that opinion, Title VII and the ADEA are nearly identical in their limitations periods, and opinions construing the filing requirements of one Act often apply as well to the other. Accordingly, we hold that Zewde need .not have filed his Title VII charge with the IDHR within 180 days of the last act of discrimination;

Title VII differs, however, in one material respect from the ADEA such that we cannot fully apply Stoecklein to this case. As we pointed out in Stoecklein, 589 F.Supp. at 143, Title VII requires a complainant to file a charge with the state 60 days before filing a charge with the EEOC, while the ADEA requires only that the state filing occur 60 days before filing a lawsuit. Compare 42 U.S.C. § 2000e-5(c), with, 29 U.S.C. § 633(b). We held in Stoecklein that the ADEA complainant could file his charge within the full time period allotted by that Act, i.e., 300 days. But because of the difference between Title VII and the ADEA as discussed above, we cannot simply apply the 300 day rule in this case. The Supreme Court has construed §§ 2000e-5(c) and 2000e-5(e) to require that a complainant file his state charges within 240 days of the alleged discriminatory act in order to preserve his or her federal rights. Mohasco Corp. v. Silver, 447 U.S. 807, 814 n. 16, 100 S.Ct. 2486, 2491, 65 L.Ed.2d 532 (1980). If the complainant files with the state agency between 240 and 300 days following the alleged discriminatory act, the EEOC charge will be deemed untimely unless that state agency actually terminated its proceedings before the 300th day. Id. Accordingly, consistent with Mohasco and with our previous holding in Stoecklein, we hold as follows: Despite the 180 day limitations period of the IHRA, a Title VII complainant may file his state charge any time within 240 days of the alleged discriminatory act. If, as in this case, the charge is filed between 240 and 300 days, the court must determine whether the state agency actually terminated its proceedings on or before the 300th day. If so, the charge was “timely” filed with the EEOC. If not, Mohasco compels dismissal.

In this case, Zewde filed his charge on September 21, 1983, which by our calculations was 277 days after the alleged December 18, 1982 act of discrimination. The record is silent on whether the IDHR terminated its proceedings regarding Zewde’s charge within 23 days after the filing. Thus, we cannot decide now whether Zewde’s charge was timely filed. Because this fact goes to our jurisdiction, we take the following action. We will dismiss Zewde’s Title VII claim insofar as it is based on the December 1982 or any earlier act of discrimination. If within 30 days Zewde provides the Court with proof that the IDHR actually terminated its investigation within 300 days of the December 18, 1982 act, he may move to reinstate that part of his claim.

In response to the above limitations arguments, Zewde argues that the December, 1982 and earlier discriminatory acts were part of a pattern of discrimination against him, amounting to a continual violation of Title VII, which culminated in his discharge on June 30, 1983. He claims that the time for filing his EEOC charge was tolled until the date he was fired, and thus his charge was filed within 180 days of the last discriminatory act. We disagree.

The Seventh Circuit surveyed the continuing violation doctrine in Stewart v. CPC International, Inc., 679 F.2d 117 (1982). The Court identified four types of situations subject to a continuing violation analysis. Id. at 120-1. Only the fourth of these appears to apply to this case. In this paradigm, the plaintiff alleges that the employer has for some time secretly discriminated against the plaintiff or class. Only a series of discrete acts exposes the discriminatory policy or practice. Id. at 121. Like the plaintiff in Stewart, Zewde alleges this “Type 4” continuing violation. He argues that the several rejections of his applications for various positions reveal a pattern of unlawful discrimination, culminating in his discharge, which took place less than 180 days before he filed his EEOC charge. Haying artificially categorized the “type” of continuing violation theory Zewde is advancing, we must determine what violations in this category warrant protection. On the one hand, Zewde was allegedly confronted over his six or so years at Elgin with several discrete discriminatory acts— denials of job applications and refusals of tenure. Arguably, he either knew or should have known of the discrimination before June, 1983. But on the other hand, the first few rejections might not have reasonably alerted Zewde to possible discrimination. It might take several rejections for one to realize or suspect that decisions are being made on the basis of a forbidden factor. In sum, this tension reduces to this question: “What event, in fairness and logic, should have alerted the average lay person to act to protect his rights, or when ... should [he] have perceived that discrimination was occurring” ? Elliott v. Sperry Rand Corp., 79 F.R.D. 580, 585 (D.Minn.1978).

In an attempt to focus this confusing area of Title VII law, the Fifth Circuit delineated three, non-exclusive factors to consider in deciding whether a “continuing violation” existed:

The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring (e.g., a biweekly paycheck) or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence. Does the act have the degree of permanence which should trigger an employee’s awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?

Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (1983).

We think that, on balance these factors weigh against a finding of continuing violation. First, as to subject matter, the acts are related — a series of rejections of applications for various positions. The complaint alleges five denials of his job applications, the last two being the December, 1982 and June, 1983 rejections. While a connected series of acts might usually help the Title VII plaintiff’s case under the first Berry factor, we think these connections hurt Zewde’s cause at least as much as they help it. Given the steady series of rejections, “in fairness and logic” he reasonably should have been wary of the possibility of discrimination sooner.

Moving to frequency, the second factor, we find that the alleged denials are “more in the nature of isolated employment decisions.” Zewde has alleged several discrete, irregular decisions to deny his job applications, not a series of regular, recurring acts.

Finally, the third factor, “the degree of permanence” of the decision also weighs against a finding of continuing violation. “Absent special circumstances, a single act by an employer adverse to an employee’s interest, such as discharge, layoff, or failure to transfer or promote, begins the running of the statute of limitations. ..” London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir.1981). While, as we said before, just one or two denials of job applications might not always trigger the limitations clock, in this case the repeated denials were bold enough and permanent enough to have earlier sparked Zewde’s awareness of his duty to assert his rights. Accordingly, we hold that the June, 1983 discharge was not part of a “continuing violation” of Title VII such that the 180/300 day filing period should have been tolled until that date. Thus, relief for the earlier alleged acts of discrimination is time barred.

C. Compensatory and Punitive Damages

Elgin moves to strike Zewde’s prayers in Count I for punitive and compensatory damages. We grant this motion. We have previously held that Title VII does not permit recovery of punitive or compensatory damages. Seidel v. Chicago Savings and Loan Ass’n, 544 F.Supp. 508, 510 (N.D.Ill.1982); see also, e.g., DeGrace v. Rumsfeld, 614 F.2d 796, 808 (1st Cir.1980).

D. The Individual Defendant

Sienko seeks dismissal as a defendant to the Title VII claim because (a) he was not named as a respondent to the EEOC charge, and (b) the complaint does not state a claim for relief against him.

Normally, a Title VII suit cannot be brought against an individual not named as a respondent in the EEOC charge. See 42 U.S.C. § 2000e-5(f)(l). This requirement is jurisdictional because of the notice and conciliation purposes the charge serves. See Eggleston v. Chicago Journeymen Plumbers, 657 F.2d 890, 905 (7th Cir.1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982). While this rule does contain exceptions, see e.g., Eggleston, 657 F.2d at 905-08, we do not think this case falls within any of the exceptions. See Wright v. Methodist Youth Services, Inc., 511 F.Supp. 307, 310 (N.D.Ill.1981). In any event, given the unavailability of compensatory and punitive damages, Sienko would play no real role as an individual Title VII defendant. At most he is merely an agent of the real party in interest, Elgin. Accordingly, he is dismissed as a Title VII defendant.

III. The § 1983 Claim

A. Exclusivity of Title VII

Elgin’s most significant challenge to Zewde’s claim under 42 U.S.C. § 1983 comes from its argument that Title VII precludes Zewde from stating a concurrent claim for relief under § 1983. Elgin’s contentions can be sketched as follows: Title VII represents a comprehensive Congressional scheme to combat employment discrimination, a plan which contains several intricate parts — the EEOC notice and conciliation functions, the strict time limits, the lack of jury trials, the prohibition of punitive and compensatory damages. Elgin argues that a plaintiff allowed to assert substantially identical rights under § 1983 instead of Title VII can elude the latter’s various restrictions merely by using the § 1983 pleading label. Elgin concludes that in order to protect the integrity of Title VII in public employment, Congress implicitly intended that Title VII occupy the employment discrimination field to the exclusion of § 1983. That is, Title VII reveals an implied congressional intent to repeal a concurrent cause of action for employment discrimination cognizable under § 1983. Elgin relies principally upon two Supreme Court cases in support of its theory. Middlesex County Sewerage Authority v. National Sea Clammers, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981); Great American Fed’l Savings & Loan Ass’n v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). In addition, a district court in this Circuit recently addressed this issue, holding that Title VII precludes assertion of a claim under § 1983 based on identical facts. Torres v. Wisconsin Department of Health and Social Services, 592 F.Supp. 922, 927-31 (E.D.Wis. 1984) (Warren, J.). We disagree with Elgin, and we hold that Zewde may state a claim for deprivation of constitutional rights under § 1983, even though the facts underlying that claim are essentially the same as those supporting the Title VII claim.

In Novotny, the Supreme Court held that 42 U.S.C. § 1985(3) may not be invoked as a cause of action to redress violations of Title VII. The case involved a suit against private individuals, and directly implicated no federal constitutional rights. Recognizing that § 1985(3) itself creates no substantive rights, the court posed the issue in that case as “whether rights created by Title VII may be asserted within the remedial framework of § 1985(3).” 442 U.S. at 377; 99 S.Ct. at 2351 (court’s emphasis). Answering in the negative, the Court reasoned that by using § 1985(3) to assert Title VII rights, but no independent rights, a plaintiff could escape the various requirements of Title VII. 442 U.S. at 375-6, 99 S.Ct. at 2350-1. Significantly, two members of the Novotny majority of six wrote separate concurrences to emphasize that § 1985(3) would still be available to plaintiffs asserting constitutional violations independent of Title VII. 442 U.S. at 380-81, 99 S.Ct. at 2353 (Powell, J. concurring); 442 U.S. at 384-85, 99 S.Ct. at 2354-55 (Stevens, J., concurring).

In Sea Clammers, the Supreme Court held that the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (“FWPCA”) does not imply a private right of action for damages. The Court further held that 42 U.S.C. § 1983 also does not create a right of action for violations of the FWPCA, despite § 1983’s language authorizing remedies for violations, under color of state law, of the “constitution and laws of the United States.” See Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980) (§ 1983 generally authorizes suits to redress violation by state officials of rights created by federal statutes). The Court found that in passing the FWPCA Congress had impliedly repealed the right of action of § 1983 as it applies to the FWPCA. The remedial scheme of the FWPCA was comprehensive, reasoned the court, demonstrating the Congressional intent to preclude the very broad § 1983 right of action. 453 U.S. at 20; 101 S.Ct. at 2626-27.

Elgin argues that the logic and spirit of Novotny and Sea Clammers demand that we conclude that Title VII precludes concurrent relief under § 1983. It points out the similarities, between §§ 1983 and 1985(3). Both are “shells,” creating rights of action but no substantive rights. Like the plaintiff in Novotny, Zewde and others suing their state or municipal employers could use § 1983 to avoid the comprehensive procedural and substantive scheme of Title VII. Similarly, Elgin contends that we should follow Sea Clammers and hold that Title VIPs comprehensive remedial scheme sufficiently demonstrates that Congress impliedly repealed the § 1983 right of action insofar as it overlaps Title VII. These were the primary arguments which persuaded Judge Warren when he recently addressed the issue in Torres.

These arguments that Novotny and Sea Clammers apply here by analogy are flawed. In neither case was the plaintiff asserting constitutional rights or substantive rights other than those created by Title VII or the FWPCA. §§ 1985(3) and 1983 were merely conduits in those cases for asserting the Title VII or FWPCA rights. As such, it made sense to imply a congressional intent to prevent plaintiffs from using artful pleading to evade those statutes’ restrictions. The analogy to this case would be powerful if Zewde were merely reasserting his statutory, Title VII rights via the § 1983 conduit. However, the complaint alleges a constitutional violation via § 1983, not a statutory Title VII violation. We need not decide the difficult issue reserved by the Seventh Circuit in Huebschen, see n. 8, supra, that is, whether a plaintiff may assert a Title VII claim via § 1983, because we hold that a plaintiff may state a constitutional claim under § 1983 even if it stems from the same operative facts as a Title VII claim.

A close reading of Novotny supports this holding. As noted above, two concurring Justices in Novotny — necessary to maintain the majority — distinguished claims based upon violations of separate constitutional provisions from those based solely on violations of Title VII. This distinction is implicit in the language of the Novotny majority opinion itself. The Court held that rights “created by Title VII,” 442 U.S. at 377, 99 S.Ct. at 2351 (emphasis added), could not be asserted via § 1985(3). However, Zewde is asserting rights “created by” the Fourteenth Amendment, not by Title VII. Thus, the holding and logic of Novotny do not control here. Zewde is not using § 1983 to assert Title VII rights and thereby wiggle around the statutory requirements. He is using § 1983 to assert constitutional rights.

Similarly, the holding and spirit of Sea Clammers do not run contrary to our holding. It is one thing to say, as the Supreme Court did in that case, that a comprehensive and specific statute like the FWPCA demonstrates implicit congressional intent to repeal the § 1983 right of action for violations of that statute. It is quite another thing to say, as Elgin does, that the comprehensive Title VII framework demonstrates implicit Congressional intent to repeal the § 1983 right of action for concurrent violations of the Constitution. Arguably, Courts should require express legislative intent to repeal statutory rights of action for constitutional violations. At the very least, judges should be more hesitant to find an implied repeal of a constitutional right of action than to find one of a statutory violation. In any event, we do not believe that in passing Title VII Congress meant to repeal the concurrent right of action for Constitutional violations.

The sparse legislative history on this issue suggests that Congress did not foreclose concurrent rights of action under § 1983 and Title VII. The Supreme Court has held several times that the legislative histories of the modern Civil Rights Statutes show that Congress did not silently repeal the concurrent substantive rights granted in the post-Civil War Civil Rights Acts. The Civil Rights Act of 1968 did not repeal the property rights guaranteed by the Civil Rights Act of 1866, now found at 42 U.S.C. § 1982. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413-17, 88 S.Ct. 2186, 2189-91, 20 L.Ed.2d 1189 (1968). Similarly, a unanimous Court held that “the remedies available under Title VII and under [42 U.S.C.] § 1981, although related, and although directed to most of the same ends, are separate, distinct, and independent.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 461, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975). Significantly, the Novotny Court took pains to distinguish that case from those eases which upheld concurrent substantive rights to relief. The Novotny Court noted:

Another difference between those cases and this one is to be found in the legislative history of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1968. As the Court noted in Johnson v. Railway Express Agency, supra, and Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189, the Civil Rights Acts of 1866 and 1871 were explicitly discussed during the course of the legislative debates on both the Civil Rights Act of 1968 and the 1972 amendments to the 1964 Act, and the view was consistently expressed that the earlier statutes would not be implicitly repealed. See Johnson v. Railway Express Agency, supra, at 457-459, 88 S.Ct., at 2212-2213; Jones v. Alfred H. Mayer Co., supra, at 413-417, 88 S.Ct., at 2189-2191. Specific references were made to §§ 1981 and 1983, but, significantly, no notice appears to have been taken of § 1985. See case below, 584 F.2d 1235, 1252 n. 86.

442 U.S. at 377, n. 21, 99 S.Ct. at 2351 (emphasis added). The Court summarized the relevant legislative history in Alexander v. Gardner-Denver Co., 415 U.S. 36, 47-49, 94 S.Ct. 1011, 1019-20, 39 L.Ed.2d 147 (1974):

[Legislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination. In the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq., Congress indicated that it considered the policy against discrimination to be of the “highest priority.” Newman v. Piggie Park Enterprises, Inc., supra, 390 U.S., [400] at 402, 88 S.Ct. [964] at 966 [19 L.Ed.2d 1263]. Consistent with this view, Title VII provides for consideration of employment-discrimination claims in several forums. See 42 U.S.C. § 2000e-5(b) (1970 ed., Supp. II) (EEOC); 42 U.S.C. § 2000e-5(c) (1970 ed., Supp. II) (state and local agencies); 42 U.S.C. § 2000e-5(f) (1970 ed., Supp. II) (federal courts). And, in general, submission of a claim to one forum does not preclude a later submission to another. Moreover, the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes. The clear inference is that Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination.

When it originally passed Title VII, the Senate rejected an amendment which would have made Title VII the exclusive federal remedy for most unlawful employment practices. Id. at 48-49, n. 9, 94 S.Ct. at 1019-20, citing, 110 Cong.Rec. 13650-13652 (1964). It rejected a similar amendment in passing the 1972 Amendments to Title VII, the Amendments which made state and municipal employers subject to Title VII. Id. “The report of the Senate Committee responsible for the 1972 Act explained that [neither] the provisions regarding the individuals’ right to sue under Title VII, nor any of the other provisions of this bill, are meant to affect existing rights granted under other laws.’ S.Rep. No. 92-415, p. 24 (1971).” Id. In sum, we think the relevant legislative history, as well as a close reading of Supreme Court precedent, shows that in enacting or amending Title VII Congress did not intend to repeal the § 1983 right of action for concurrent federal constitutional violations by state officials.

In reaching a contrary holding, the Torres court relied on two other Supreme Court cases. 592 F.Supp. at 928-29. Neither case contradicts our holding. In Preiser, the Court held that a state prisoner could use only 28 U.S.C. § 2254, not § 1983, to secure release from prison for violations of federal constitutional rights. The Court noted that by asserting the relevant constitutional right via § 1983 instead of § 2254, the prisoner could avoid the statutory requirement of exhausting state remedies, thus working a de facto repeal of § 2254. This case is distinguishable from Preiser in the same way it was from Novotny and Sea Clammers. As in those cases, the plaintiff in Preiser was asserting the same substantive right via § 1983 as he could have asserted via a more specific statute. In contrast, Zewde is alleging distinct substantive rights via Title VII and § 1983. Moreover, § 1983 does not work a de facto repeal of Title VII as it did to § 2254 in Preiser. While the two provisions overlap a good deal in the employment context, § 1983 touches only state action, and even then, it reaches only intentional violations, not disparate impact cases. Compare Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), with Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

While more like this case than Preiser was, Brown also does not command a different result. In Brown the Court held that § 717 of Title VII, 42 U.S.C. § 2000e-16, revealed a congressional intent that it be the exclusive administrative and judicial scheme for redress of federal employment discrimination. The Court grounded its holding in the legislative history of that part of the 1972 Amendments to Title VII which extended its coverage to federal employees. 425 U.S. at 827-33, 96 S.Ct. at 1965-68. Congress had believed in 1972 that federal employee victims of employment discrimination had no effective judicial remedy. The Court concluded from this fact that Congress created § 717 to provide the sole, comprehensive scheme of redress for federal employment discrimination. Id. at 829, 96 S.Ct. at 1966. Thus, in Brown, there was no question of implied or express repeal of an existing and clear legislative grant of redress for constitutional violations; nothing akin to § 1983 had been on the books for federal employees. In contrast, this case does raise a question of implied repeal. When Congress extended Title VII to state and municipal employees, it certainly knew about § 1983’s right of action for constitutional violations under color of state law, but it did not expressly repeal that right. As we noted earlier, there is legislative history suggesting that Congress intended that § 1983 — which does not cover federal employees — remain in full force. In sum, Brown is limited to federal employment discrimination; it does not extend to the municipal discrimination alleged in this case.

As our discussion of the Supreme Court precedent suggests, and as Judge Warren noted in Torres, the Supreme Court has been sending “mixed messages” about exclusivity of Title VII. Two lines of cases exist which suggest opposing outcomes, one which Judge Warren reached and one which we reach. Despite the tension in the above Supreme Court cases, we believe that neither that precedent nor the legislative history of Title VII warrants a finding that Congress silently repealed § 1983’s right of action for unconstitutional employment discrimination by state or local officials. Like Judge Warren, we “trust that the court of appeals for this circuit and perhaps the Supreme Court will one day tell us all who is right.” 592 F.Supp. at 931.

B. Punitive Damages Under §§ 1983 and 1981

Elgin argues that Zewde may not recover punitive damages from it, a municipal body. We agree. After surveying the legislative history of § 1983, the Supreme Court has held that the statute reaffirmed the general common law rule insulating municipalities from punitive damages. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). In dictum the Court suggested the possibility of one exception to this general rule: where “taxpayers are directly responsible for perpetrating an outrageous abuse of constitutional rights.” Id. at 267 n. 29, 101 S.Ct. at 2760. The complaint does not allege or imply such a situation of taxpayer abuse. Therefore, we strike Zewde’s prayer in Count II for punitive damages from Elgin. Accord Danielson v. DuPage Area Vocational Educational Authority, 595 F.Supp. 27, 31 (N.D.Ill.1984) (Getzendanner, J.)

For similar reasons, we strike Zewde’s prayer in Count IV for punitive damages from Elgin. Newport News applies as strongly to claims against municipalities under § 1981 as those brought under § 1983. See Heritage Homes of Attleboro, Inc. v. Seekonk Water Dist., 670 F.2d 1 (1st Cir.1982), cert. denied, 457 U.S. 1120, 102 S.Ct. 2934, 73 L.Ed.2d 1333 (1982); Holly v. City of Naperville, 571 F.Supp. 668, 673-75 (N.D.Ill.1983); Ferguson v. Joliet Mass Transit District, 526 F.Supp. 222, 223-25 (N.D.Ill.1981). While one district court has reached the opposite result, see Boyd v. Shawnee Mission Public Schools, Unified School District No. 512, Johnson County, 522 F.Supp. 1115 (D.Kan. 1981), that court recently overruled that case. Lee v. Wyandotte County, Kansas, 586 F.Supp. 236, 240 (D.Kan.1984). We follow this now unanimous body of opinions.

Elgin also seeks to strike the prayer for punitive damages as it relates to Sienko, the individual defendant. The complaint does not specify whether Sienko is being sued in his official or individual capacity, although Zewde states in his brief that he is suing Sienko as an individual. Zewde is entitled to sue Sienko in either or both capacities. See Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982); Holly, 571 F.Supp. at 673. If Zewde is suing Sienko in his official capacity, he cannot recover punitive damages under Newport. See Holly, 571 F.Supp. at 673. But if Zewde is suing Sienko as an individual, he may pray for punitive damages, if Sienko acted with evil motive or intent, or with reckless or callous indifference to Zewde’s federally protected rights. See Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983).

Elgin concedes that punitive damages may be recovered under § 1983 from a municipal official sued in his individual capacity, but it argues that Zewde’s complaint fails to allege a claim supporting punitive relief from Sienko. Specifically, Elgin states that the complaint is deficient because it does not expressly allege that Sienko acted with the necessary evil intent or recklessness. We consider this argument below in the context of defendants’ more general assertion that the complaint fails to sufficiently allege a claim for relief under §§ 1983 and 1981.

C. Failure to State a Claim Under §§ 1983 and 1981

Sienko argues that the complaint fails to state a claim for relief against him. Specifically, he argues that the complaint does not expressly allege “that Mr. Sienko took any action whatsoever against the Plaintiff on the basis of his race.” Paragraph 17 of Count II states that “Defendants,” a term which includes Sienko, discriminated against Zewde because of race in making the various alleged job decisions. Because this allegation satisfies the liberal notice pleading standards of Fed.R.Civ.P. 8(a)(2), we deny this part of Sienko’s motion.

Similarly, the complaint supports Zewde’s prayer for punitive damages from Sienko. While the complaint does not track the language of Smith v. Wade, supra, and use the terms “evil intent” or “callous indifference,” it does allege intentional and repeated discrimination on the basis of race. • These allegations suffice to support a prayer for punitive relief because “an inference fairly may be drawn [from them] that evidence on these material points will be introduced at trial.” Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648, 654 (7th Cir.1984), quoting, 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1216 at 121-23 (1969). Intentional and repeated discrimination plainly imply “evil intent,” or at the least, “callous indifference to federally protected rights.” Accordingly, we deny Sienko’s motion to strike Zewde’s prayers for punitive relief from him.

IV. The Two § 1981 Claims

Counts III and IV of the complaint state identical claims under § 1981. We agree with Elgin that only purposeful discrimination violates § 1981, and therefore only Count IV is viable. General Blds. Contractors Ass ’n. v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982). Accordingly, we dismiss Count III.

V. The Breach of Contract Claim

Zewde concedes that he had worked under the terms of an express contract, which expired on June 30,1983, when Elgin failed to renew the contract. Nevertheless, he alleges a pendent breach of contract claim based on “an implied contract for employment whereby he would provide his services for money and other benefits.” He also alleges that this contract contained an implied covenant that Elgin would not act in bad faith in terminating the contract. He asserts that a discharge based upon racial discrimination is in bad faith, thus breaching the contract. We agree with Elgin that Illinois law demands dismissal of this contract claim.

First, we do not think that Zewde has sufficiently alleged the existence of an implied, at-will contract of employment. “Generally, an employment agreement is formed when one party promises to render services in exchange for the other party’s promise to pay wages. If the agreement does not specify a definite duration it will last for as long as is mutually satisfactory____” Martin v. Federal Life Ins. Co., 109 Ill.App.3d 596, 600, 65 Ill.Dec. 143, 147, 440 N.E.2d 998, 1002 (1982). As noted above, Zewde’s express employment agreement expired on June 30, 1983. He does not allege that an at-will agreement was created afterward by continued payment of wages. Nor does he allege that some kind of renewal clause existed in the written agreement. We do not see how an implied contract of at-will employment could have co-existed with an express contract for a definite duration. We conclude that all of Zewde’s contractual rights expired with his express contract.

Even if Zewde had an implied contract with Elgin, Illinois law precludes recovery under a contract theory. Zewde is correct that Illinois courts imply a covenant of good faith and fair dealing in all contracts, including ones for employment. See, e.g., Criscione v. Sears Roebuck & Co., 66 Ill.App.3d 664, 668, 23 Ill.Dec. 455, 458, 384 N.E.2d 91, 94 (1978). Nevertheless, Illinois courts have consistently ruled that the parties to an employment at-will contract may terminate it for a good reason, a bad reason or no reason at all. See, e.g., Cuerton v. Abbot Laboratories, Inc., 111 Ill.App.3d 261, 263, 66 Ill.Dec. 906, 910, 443 N.E.2d 1069, 1073 (1982); Criscione, 66 Ill.App.3d at 669-70, 23 Ill.Dec. at 460, 384 N.E.2d at 95. At first glance, these two principles seem to clash, but Judge Hart has suggested a reconciliation which, we believe, is consistent with how an Illinois court would approach the problem. See Gordon v. Matthew Bender & Co., Inc., 562 F.Supp. 1286, 1288-90 (N.D.Ill.1983). The “good faith” principle does not have an independent life, and does not independently create a cause of action. “Instead [it] comes into play in defining and modifying duties which grow out of specific contract terms and obligations. It is a derivative principle.” Id. at 1289; accord Martin v. Federal Life Ins. Co., 109 Ill.App.3d 596, 605, 65 Ill.Dec. 143, 150, 440 N.E.2d 998, 1005 (1982) (covenant of good faith is primarily a rule of construction). It gives way to specific contract provisions which directly contradict it. Gordon, 562 F.Supp. at 1289-90. Thus, the usual rule, that an at-will agreement is terminable for any reason, controls. Otherwise, that rule would be meaningless. Id. at 1290. We therefore conclude that Zewde has not stated a claim for relief for breach of an implied contract, even if such a contract had been created. See also Payne v. AHFI/Netherlands B.V., 522 F.Supp. 18, 23 (N.D.Ill. 1980) (rule in Illinois is that employment at-will relationship is terminable for any reason, good or bad).

VI. The Wrongful Discharge Claim

Count VI alleges a general tortious theory of wrongful discharge, based principally on a violation of Article I, § 17 of the Illinois Constitution of 1970. After receiving Elgin’s motion to dismiss, Zewde requested in his memorandum leave to amend his complaint to bring his wrongful discharge claim under the Illinois Human Rights Act, Ill.Rev.Stat., ch. 68, ¶ 1-101 et seq. (1983) (“IHRA”). We take it, then, that Zewde has withdrawn Count VI as now alleged, and we will not address Elgin's attack on it. As for Zewde’s request for leave to amend, we are not sure that by mentioning it in his memorandum he has properly brought the motion to the Court’s attention. See Fed.R.Civ.P. 7(b); Local Rule 12. But even assuming that motion is properly before the Court, we deny it because Zewde cannot state a claim for relief via his proposed amendment.

A complaint must exhaust the administrative procedures of the IHRA before filing a court action for violations of that Act. See Armstrong v. Freeman United Coal Mining Co., 112 Ill.App.3d 1020, 1022-23, 68 Ill.Dec. 562, 564, 446 N.E.2d 296, 298 (1983); Ill.Rev.Stat. ch. 68, 11 8-111 (1983); Curtis v. Continental Illinois National Bank, 568 F.Supp. 740, 742-43 (N.D.Ill.1983). Zewde concedes that he never instituted proceedings with the IDHR, a necessary step under the IHRA. While this failure was not fatal to his Title VII claim, it would warrant dismissal of any claim he might bring under the IHRA. Therefore, we deny Zewde leave to amend Count VI of his complaint to allege a claim under the Illinois Human Rights Act.

VII. Conclusion

Defendants’ motion to dismiss is granted in the following respects: (1) Count I is dismissed insofar as it alleges Title VII violations which occurred before the June 1983 job application denial and discharge; (2) the prayers in Count I for punitive and compensatory damages are stricken; (3) Sienko is dismissed as an individual defendant to Count I; (4) the prayers for punitive relief in Counts II and IV from Elgin are stricken; (5) Counts III, V and VI are dismissed. In all other respects, the motion to dismiss is denied. It is so ordered.

      . Zewde holds an M.S. degree, is working toward a Ph.D. and has four years of correctional program experience. The person hired was a part-time drafting instructor, who holds only a B.S. degree and who has no correctional program experience.

      . 42 U.S.C. § 2000e-5(c) provides:
      In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (b) of this section by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated____

      . The first type was that addressed in United Airlines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), where the Supreme Court rejected a "present-effects-of-past-discrimination” continuing violation theory. The second type is when an employer's job decision, for example, a decision about tenure or promotion, takes place over a period of time, making it hard to discern the “day” of the "violation.” The third situation occurs when an employer has a general, open policy which has not yet applied to the individual' complainant. The fourth type, which describes this case, is discussed in the text.

      . In light of this holding, we need not address Elgin’s argument that the alleged acts preceding December 18, 1982 fall outside the scope of Zewde's EEOC charge.

      . Of course, under our holding above, Zewde may still be able to recover for the alleged acts of December 18, 1982, if he can prove that the IDHR terminated its investigation before the 300th day following those alleged acts. In any event, while Zewde cannot recover under Title VII for the earlier alleged acts of discrimination, those acts might provide some evidence that the June 1983 acts were discriminatory.

      . 42 U.S.C. § 2000e-5(f)(l) provides in part:
      If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved. (Emphasis added).

      . Since we grant Sienko's motion because of his first argument, we need not address his second one.

      . 42 U.S.C. § 1985(3) states:
      (3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws;

        it * * * * *
      in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

      . Despite the strength of this analogy, one Court in this Circuit has held that a plaintiff may allege a Title VII violation via § 1983. Huebschen v. Dept. of Health & Social Services, 547 F.Supp. 1168, 1173-75 (W.D.Wis.1982), rev’d and remanded on other grounds, 716 F.2d 1167 (7th Cir.1983). On appeal, the Seventh Circuit did not reach that issue. See 716 F.2d at 1170.

      . While the complaint plainly alleges constitutional violations in Count II, it does not state what constitutional right has been violated. Because it alleges race-based job discrimination, we assume that Zewde is alleging a violation of the Equal Protection Clause of the Fourteenth Amendment.

      . See Fitzpatrick v. Bitzer, 427 U.S. 445, 449 n. 2, 96 S.Ct. 2666, 2668, 49 L.Ed.2d 614 (1976).

      . See Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

      . Article I, § 17 of the Illinois Constitution of 1970 states:
      All persons shall have the right to be free from discrimination on the basis of race, col- or, creed, national ancestry and sex in the hiring and promotion practices of any employer or in the sale or rental of property.


text:
    Juan DIAZ, Plaintiff, v. CITY OF CHICAGO, Thomas Braham, James Zarno, William Duffy and Chicago Police Department Intelligence Division Officers #216, #393 and #541, Defendants.
    No. 84 C 7863.
    United States District Court, N.D. Illinois, E.D.
    Dec. 26, 1984.
    Richard M. Gutman, Chicago, 111., for plaintiff.
    Peter Fitzpatrick, James Montgomery, Chicago, 111., for defendants.

      Thomas Braham, Chicago, 111., pro se.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge.

During the summer of 1966, plaintiff Juan Diaz (“Diaz”) was the leader of a civil rights organization called the Spanish Action Committee of Chicago (“SACC”). Diaz alleges in this civil rights suit that the Intelligence Division of the Chicago Police Department conducted a secret operation in 1966 to destroy SACC and its leaders, including Diaz. As a result of these alleged efforts to destroy SACC and its leaders, Diaz claims that the defendants violated his First and Fourteenth Amendment rights and that he suffered mental anguish, public humiliation and emotional harm.

In June of 1984, another judge in this district presided over a seven-day jury trial in the case Spanish Action Committee of Chicago v. City of Chicago, No. 80 C 4714 (“the SACC case”). The SACC case involved precisely the same factual situation as the present case. The complaints in the two cases are virtually identical; both state claims under 42 U.S.C. § 1983 for violations of the same federal constitutional rights. Although Diaz was not named as a plaintiff in the SACC case, SACC (an unincorporated association) sued on behalf of itself and its members, and Diaz participated actively in the trial.

Presently before the Court is defendants’ motion to strike and dismiss Diaz’s suit on various grounds: res judicata, collateral estoppel, laches and the statute of limitations. For the reasons set forth below, defendants’ motion is granted.

The related doctrines of res judicata and collateral estoppel embody the fundamental precept of common law adjudication that a right, question or fact put in issue and directly determined by a court of competent jurisdiction cannot be disputed in a later suit between the same parties or their privies. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). Res judicata and collateral estoppel relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources and, by preventing inconsistent decisions, encourage reliance on adjudication. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980); Montana, 440 U.S. at 153-54, 99 S.Ct. at 973-74.

Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. McCurry, 449 U.S. at 94, 101 S.Ct. at 414. The Seventh Circuit Court of Appeals has identified three elements of res judicata: (1) a final judgment on the merits in an earlier action; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in the two suits. Lee v. City of Peoria, 685 F.2d 196, 199 (7th Cir.1982). The first two factors are clearly present here. The jury in the SACC case returned a verdict, and the court entered final judgment. The cause of action is the same in the two suits because each action arises from the same set of operative facts. Lee, 685 F.2d at 200. Thus, the sole question in this case is whether the same parties or their privies are involved.

Defendants first argue that res judicata bars Diaz from bringing this action because he was a party in the SACC case. They acknowledge that he was not denominated as a plaintiff, but stress that SACC sued on behalf of itself and its members —and that Diaz was certainly a member in 1966 when the allegedly illegal activities occurred. Diaz was more than an ordinary member of SACC. Thus, defendants also assert that Diaz should be considered a party for res judicata purposes because he sat at the plaintiffs’ table at trial, was introduced as the representative of SACC and took the stand to testify at length about his injuries.

In support of their contentions about Diaz’s status as a party, both defendants and Diaz cite Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), in which the Supreme Court discussed the standing of an association to sue on behalf of itself and its members. Under the principles enunciated in Warth, SACC was in fact able to assert the associational rights of all its members, Diaz included. There is no question that SACC purported to do this, both in its complaint and at trial. See, e.g., SACC Trial Transcript at 363-64 (“As I have often explained, we are suing because when the organization’s rights were violated, all of its members’ freedom of association to associate with a group that they belonged to was also violated. All the members of the Spanish Action Committee had their individual associational rights violated.”) However, Diaz argues that Warth also holds that an association has no standing to sue for damages which are unique ;o a single member. See Warth, 422 U.S. at 515-16, 95 S.Ct. at 2213-14. Thus, Diaz asserts, SACC could not have represented him at trial, because his injuries differed from those of other members.

Given the holding in Warth that an association member must join an action as a separate party to recover particularized damages, we cannot say that Diaz was, in this sense, a party in the SACC case. Nevertheless, the fact remains that SACC represented Diaz’s First Amendment right of association in the earlier litigation. It is apparent, then, that cases such as Warth which address only issues of standing shed little light on the questions of preclusion present in this case. We thus turn to the case law dealing directly with preclusion issues.

Several recent cases illustrate “a loosening of the traditional and sometimes artificial limitations on the application of res judicata and collateral estoppel doctrines.” Gerrard v. Larsen, 517 F.2d 1127, 1134 (8th Cir.1975); see also United States v. ITT Rayonier, Inc., 627 F.2d 996, 1003 (9th Cir. 1980); Jackson v. Hayakawa, 605 F.2d 1121, 1126 (9th Cir.l979), cert. denied, 445 U.S. 952, 100 S.Ct. 1601, 63 L.Ed.2d 787 (1980). For example, in Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979), the Supreme Court held that one who is not a party still may be bound by a prior action if he had a sufficient interest in and control over the action. Id., 440 U.S. at 154, 99 S.Ct. at 974. Other courts have gone even further, not requiring a nonparty to have control over the earlier litigation, but simply inquiring whether the nonparty fairly and actively participated in the first action. E.g., Pinto Trucking Service, Inc. v. Motor Dispatch, Inc., 649 F.2d 530, 532 (7th Cir.1981); ITT Rayonier, 627 F.2d at 1003; Gerrard, 517 F.2d at 1135; Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 459 F.Supp. 507, 518 (S.D. Fla.1978), aff'd, 621 F.2d 1340 (5th Cir. 1980), aff'd in part and reversed in part, 458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982); see also 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4456 (1981) (“Any [association] member who actively participated in the first action should also be barred, without insisting on the same degree of involvement that is required by ordinary standards of participation and control.”) (footnote omitted); 1B J. Moore, J. Lucas & T. Currier, Moore’s Federal Practice If 0.411[6] (2d ed. 1984).

In holding a nonparty bound because of his participation in an earlier proceeding, some courts have spoken of an expanding motion of privity. E.g., Gerrard, 517 F.2d at 1134 (fair and adequate participation in the prior adjudication is “functional privity”). Other authorities, including the Restatement (Second) of Judgments, have abandoned the term “privy” altogether. See Montana, 440 U.S. at 154 n. 5, 99 S.Ct. at 974 n. 5. Regardless of the nomenclature used, we believe Diaz is barred by the SACC action from bringing this case.

We have already noted that Diaz participated extensively in the SACC trial. He was one of SACC’s primary witnesses, and his injuries were identified with the injuries suffered by SACC and its other members. His presence in court at counsel table as SACC’s representative, while perhaps not enough to make him a party, demonstrates how closely related Diaz’s and SACC’s interests were. Indeed, as explained above, some of his interests were actually represented by SACC in the earlier action.

There is no doubt that Diaz knew about the SACC case from its inception. However, Diaz has offered no good reason for failing to join that action as a separate party to seek whatever special damages to which he may have been entitled. To the contrary, when asked why Diaz did not sue on his own behalf before now, his attorney (who also represented SACC earlier) stated, “Mr. Diaz didn’t want to, your Honor.” Such reticence is not without its costs. As the Eighth Circuit observed,

In this era of overcrouded dockets the courts have a positive duty to restrict needless relitigation of issues. As Justice White has noted, “[t]he broader question is whether it is any longer tenable to afford a litigant more than one full and fair opportunity for judicial resolution of the same issue.” Blonder-Tongue Laboratories Inc. v. University of Illinois Foundation, supra, 402 U.S. [313] at 328, 91 S.Ct. [1434] at 1442 [28 L.Ed.2d 788 (1971)].

Gerrard, 517 F.2d at 1134.

Various courts have either held or suggested that the opportunity to intervene may be enough to bind a person not a party. See, e.g., Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 114, 88 S.Ct. 733, 740, 19 L.Ed.2d 936 (1968); Penn-Central Merger and N. & W. Inclusion Cases, 389 U.S. 486, 88 S.Ct. 602, 19 L.Ed.2d 723 (1968); Cummins Diesel Michigan, Inc. v. The Falcon, 305 F.2d 721 (7th Cir.1962); Treasure Salvors, 459 F.Supp. at 516. Unlike the nonparties in some of these cases, however, Diaz did not merely have notice of the other proceeding. Diaz actively participated in the SACC case, so preclusion of his action is even more appropriate.

We agree with the Eighth Circuit that “[i]n light of the changing application of the concepts of res judicata and collateral estoppel, the question of who should be bound by a prior adjudication ought to be resolved on a case by case basis by an examination of underlying facts and circumstances rather than by reliance solely upon the formal status of persons against whom an estoppel is asserted.” Gerrard, 517 F.2d at 1135 (citation omitted). The underlying facts and circumstances of this case lead the Court to the inescapable conclusion that Diaz should be bound by the SACC action. Accordingly, defendants’ motion to dismiss is granted. It is so ordered.

      . Because we find that Diaz is barred by the doctrine of res judicata, we need not reach the laches and statute of limitations arguments. Nor, for the reasons set forth in this opinion, do we need to engage in a separate analysis of the doctrine of collateral estoppel.

      . See 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4456 (1981) ("The decisions that recognize such standing have not yet grappled with thé preclusion questions that are bound to follow.”) (footnote omitted).
      One such decision in the Seventh Circuit is Chicago-Midwest Meat Association v. City of Evanston, 589 F.2d 278, 281 n. 3 (7th Cir. 1978); cert. denied, 442 U.S. 946, 99 S.Ct. 2895, 61 L.Ed.2d 318 (1979).

      . Diaz admits that his testimony was necessary at the SACC trial because "one of the major ways that defendants attempted to discredit SACC was by discrediting SACC’s leader Juan Diaz.”

      . Two other individual SACC members were named as separate parties.


author: ASPEN, District Judge:

text:
    Robert J. BILKA, Plaintiff, v. PEPE’S INC., Defendant.
    No. 84 C 4065.
    United States District Court, N.D. Illinois, E.D.
    Jan. 9, 1985.

      Robert J. Bilka, pro se.
    Lawrence Reich, Lederer, Reich, Sheldon & Connelly, Chicago, 111., for plaintiff.
    Mark L. Shapiro, Vincent A. Lavieri, Rudnick & Wolfe, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Robert J. Bilka (“Bilka”), a former accountant for defendant Pepe’s Inc. (“Pepe’s”), has sued Pepe’s under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. He alleges discrimination on the basis of his national origin: American. Pepe’s has moved to dismiss the complaint for failure to state a claim for relief and for lack of jurisdiction. For the reasons stated below, the motion is granted in part and denied in part.

For the purposes of this motion to dismiss, we assume that the facts alleged in the complaint are true. We cannot grant the motion unless it appears beyond doubt that Bilka can recover on no set of facts consistent with his allegations. See Hishon v. King & Spalding, — U.S.-, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). With these standards in mind, we turn to the complaint.

Pepe’s employed Bilka as an accountant from January 1981 through April 13, 1983, when it fired him, allegedly because he is an American. Beginning in August 1983, agents of Pepe’s made threats to Bilka warning him against taking any legal action. The complaint does not disclose what the nature of these threats were. Apparently fearful, Bilka did not file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) until February 9, 1984, 302 days following his discharge.

The complaint (as twice amended) contains three counts. Count I alleges national origin discrimination violating Title VII. Count II is a state law claim, alleging breach of contract for failure to give Bilka a 10% pay raise in 1983. Count III is a separate Title VII claim which alleges that Pepe’s has given Bilka’s prospective employers negative references since Bilka filed this action. This reprisal allegedly constitutes a separate violation of Title VII. Pepe’s has moved to dismiss all three counts.

Count II must be dismissed because it obviously does not come within the Court’s pendent jurisdiction. The breach of contract claim plainly does not derive from the same nucleus of operative facts as either Title VII claim. Accordingly, the Court lacks subject matter jurisdiction over that claim. See United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966).

Pepe’s argues that Count I must also be dismissed because the EEOC charge upon which it is based was filed late. We disagree. It is undisputed that the charge was filed 302 days after the last act of discrimination. Normally, of course, in a “deferral-state” like Illinois, a federal court lacks jurisdiction over a Title VII claim if a claimant files an EEOC charge later than the 300th day. See 42 U.S.C. § 2000e-5(c), (e). However, as Pepe’s concedes, this 300-day limit is not jurisdictional in the absolute, but rather is akin to a statute of limitations and as such “is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). We think that the complaint’s allegations of threatened reprisal, if true, estop Pepe’s from raising the limitations issue. If, as we must assume, Pepe’s made these threats, and if Bilka relied reasonably on these threats in hesitating to go to the EEOC, then Pepe’s must be estopped from invoking the limitations issue, which they allegedly created in the first place by their unlawful threats of reprisal.

Pepe’s does not confront the allegations of threats in connection with the limitations issue. Instead, it cites a test for equitable tolling set forth in Wolfolk v. Rivera, 729 F.2d 1114 (7th Cir.1984), and argues that Bilka does not satisfy this test; the limitations period should be tolled when a claimant is ignorant of facts supporting a discrimination charge because of “circumstances beyond his control.” 729 F.2d at 1117; see also Vaught v. R.R. Donnelley & Sons Co., 745 F.2d 407, 410-11 (7th Cir.1984). We agree that Bilka does not satisfy the Wolfolk test, but Pepe’s is firing at the wrong target. The issue here is estoppel, which focusses not on Bilka’s knowledge of the facts underlying the discrimination but on Pepe’s alleged misbehavior and Bilka’s reliance on it. The Wolfolk test is relevant when the claimant argues that the statute must be tolled because he or she did not know of the facts. This ignorance may or may not toll the limitations clock, depending on whether “circumstances beyond the claimant’s control,” which might include some employer conduct, cloaked the relevant facts. But the Wolfolk test is not the only one which may toll the statute. Zipes makes clear that claimant may invoke a whole range of equitable arguments, including estoppel, to toll the statute. Estoppel was not an issue in Wolfolk. Moreover, Wolfolk involved federal employment discrimination, which allows for narrower exceptions to the limitations requirement. “[P]rivate employees may have a wider range of equitable exceptions at their disposal under Zipes ...” 729 F.2d at 1119. In sum, regardless of Bilka’s knowledge of the alleged discrimination, Pepe’s may be estopped from raising the limitations issue because of its own alleged misconduct.

Defendant also argues that Count I must be dismissed for failure to state a claim upon which relief may be granted. Specifically, Pepe’s argues that national origin discrimination against Americans is not actionable under Title VII. We disagree. Title VII outlaws, without exception, discrimination based on “national origin.” 42 U.S.C. § 2000e-2(a)(l). We see no reason for reading an exception into the statute. The rare case when proved of an employer discriminating against an employee for being born an American is no less reprehensible than discriminating against one for being born an Italian, Mexican or any other nationality. To our knowledge, just one other reported case has addressed this issue directly. See Thomas v. Rohner-Gehrig, 582 F.Supp. 669, 674-75 (N.D.Ill. 1984) (Grady, J.). We agree with the Thomas court’s analysis, and its conclusion that “employment discrimination against American citizens based merely on country of birth, whether that birthplace is the United States or elsewhere, contradicts the purpose and intent of Title VII.” 582 F.Supp. at 675.

Pepe's argues alternatively that the complaint does not allege enough facts to support the claim of national origin discrimination. Pepe’s points out that in Thomas the complaint alleged that the defendant was a foreign-owned corporation, and that the plaintiffs were replaced by Swiss and German employees. In contrast, Bilka’s complaint merely alleges that he was fired because of his “national origin— American.” We believe that the complaint, while sparse, alleges enough to satisfy the notice pleading requirements of the Federal Rules. We note first that Thomas did not rely on the above factual allegations or discuss pleading requirements in reaching its holding. Moreover, we do not think the specific Thomas facts are necessary to recovery. It might be, for example, that an American employer would prefer foreign workers because of a bias that they are more docile than Americans.

More importantly, we recently denied a motion to dismiss a similar allegation of discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. See Oxman v. WLS-TV, 595 F.Supp. 557, 562-63 (N.D.Ill.1984). In Oxman the plaintiff merely alleged that he had been fired “on the basis of his age which was 60.” Id. at 562. The defendant argued that the complaint was deficient for not alleging the prima facie elements of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 824, 36 L.Ed.2d 668 (1973). We rejected this argument because proving the McDonnell-Douglas prima facie elements is not a prerequisite to recovery in every ADEA or Title VII case. Id. at 563. Applying the liberal notice pleading standard of Conley v. Gibson, supra, we denied the motion to dismiss because it was not beyond doubt that the plaintiff could prove no set of facts entitling him to relief. Id.

This case mirrors Oxman. Bilka’s bare allegation of national origin discrimination is similar to Oxman’s allegations of age discrimination. By demanding that Bilka allege that Pepe’s is foreign owned or that Pepe’s replaced him with a foreign employee, Pepe’s essentially is arguing that Bilka allege the elements of a McDonnell-Douglas prima facie case. As we held in Ox-man, that is not necessary under Title VII or Fed.R.Civ.P. 8(a)(2). This is not to say we approve of such naked pleading or that such brevity will always satisfy the Rules. But we think in this case that Pepe’s has adequate notice on the general basis of Bilka’s claim and should be able to prepare a response.

Finally, Pepe’s argues that Count III fails to state a claim for relief for retaliation. Count III alleges in part that “[s]ince the filing of his national origin charge with the EEOC and this lawsuit by [Bilka], [Pepe’s] has retaliated against [Bilka] by giving negative references to employment agencies and prospective employers.” Bilka alleges that this conduct violates § 704(a) of Title VII, 42 U.S.C. § 2000e-3(a). That section provides:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

Title VII defines an “employee” as “an individual employed by an employer.” 42 U.S.C. § 2000e(f). Pepe’s concludes from these two sections that Bilka has not stated a claim for relief under § 704(a) because the alleged reprisals occurred long after the end of the employment relationship; thus, Bilka was no longer an “employee,” and Pepe’s could not have committed “an unlawful employment practice” under § 704(a). We disagree with this overly literal interpretation of the statute.

In Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir.1977), the Court held that an employer violates § 704(a) when it gives bad references in retaliation for a former employee’s assertion of Title VII rights. Rejecting the argument that § 704(a) does not apply to “former employees,” the court concluded that “[t]he argument is based on a literal reading of the statute which, if followed, would result in a narrow interpretation of the statute not justified by its legislative history. A statute which is remedial in nature should be liberally construed.” Id. at 1165. Other courts have also held that a former employee may state a claim for relief under § 704(a) based on reprisal. See Pantchenko v. C.B. Dolge Co., Inc., 581 F.2d 1052, 1055 (2d Cir.1978); Czarnowski v. Desoto, Inc., 518 F.Supp. 1252, 1257 (N.D.Ill.1981) (Flauiri, J.). We think these opinions correctly interpret Title VII in a way which furthers its remedial purposes. Section 704 was plainly written to protect employees who assert Title VII rights. If an employee asserts her rights after the relationship is over, her assertion nevertheless grows out of that relationship. “[T]he statute prohibits discrimination related to or arising out of an employment relationship, whether or not the person discriminated against is an employee at the time of the discriminatory conduct.” Pantchenko, 581 F.2d at 1055. If Pepe’s narrow reading of the statute were correct, employers could easily retaliate against former employees against whom they have discriminated. Section 704(a) was obviously written to prevent employers from chilling employees’ assertions of Title VII rights, and the section should be read broadly to protect former employees as well as current employees.

In conclusion, Pepe’s motion to dismiss Count II is granted. In all other respects, its motion to dismiss is denied. It is so ordered.

      . The fact that Bilka filed his charge with the EEOC rather than with the appropriate Illinois administrative agency does not bar this suit. In a "deferral” state like Illinois, the EEOC automatically refers charges to the state agency for initial consideration. See Zewde v. Elgin Community College, 601 F.Supp. 1237, 1240 (N.D.Ill. 1984); Stoecklein v. Illinois Tool Works Corp., 589 F.Supp. 139, 144 n. 7 (N.D.Ill.1984).

      . As we have previously held in Zewde and Stoecklein, see n. 1 above, under Mohasco Corp. v. Silver, 447 U.S. 807, 814 n. 16, 100 S.Ct. 2486, 2491, 65 L.Ed.2d 532 (1980) a plaintiff must file his EEOC charge within 240 days of the last discriminatory act in order to be sure of corn-plying with the time requirements of the Act. The plaintiff may file the charge later than 240 days if the relevant state agency terminates its proceedings on or before the 300th day. See Zewde, 601 F.Supp. at 1241-1242. As noted below, Bilka filed his charge three weeks after the last alleged threat of retaliation. Thus, because we toll the statute on equitable grounds below, the charge was filed well within the 240-day Mohasco limit.

      . As noted earlier, the complaint alleges that Pepe’s began making threats in August 1983. The EEOC charge states that the threats continued until January 20, 1984, three weeks before Bilka filed his charge. At this point we do not know what the nature of these threats was. It might be that Pepe’s threatened to "blacklist" Bilka, as Count III alleges they later did. While most of an employer’s usual threats — firing, demotion, pay-cut — lose their bite after the employment ends, we cannot say as a matter of law that a former employer has no weapons with which he can reasonably frighten the former employee. See Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1166 (10th Cir.1977) (recognizing that retaliation against former employees is both factually possible and actionable under Title VII).

      . While these threats that occurred before the charge was filed possibly violate § 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), Bilka has not set forth a separate claim for relief based on these threats.

      . In so holding, we express no opinion on the facts. If no threats occurred, or if Bilka's reliance on them was unreasonable, then the limitations requirement may preclude this lawsuit. Because this threshold issue goes to our jurisdiction, we will dispose of it first. The parties should be prepared to proceed with this issue in an expedited manner.

      . In Earnhardt v. Com. of Puerto Rico, 744 F.2d 1 (1st Cir.1984), the Court affirmed the district court’s finding of national origin discrimination against an American. The case does not discuss the issue of whether Title VII forbids such discrimination.

      . Bilka’s EEOC charge states additional facts:
      I was informed that I was being fired because I was too American. I was told I had too many American ideas, e.g.; (sic) union activities, teaching the Mexican workers English and how to file tax returns etc.
      At this point we are not sure whether these facts amount to "national origin discrimination" as meant in Title VII. Being fired for having ideas which are labelled "American" is not the same as being fired for being born American. However, Title VII arguably can be read broadly to include such discrimination. We do not now express an opinion on this issue, pending further development of the facts surrounding Bilka’s discharge.

      . In Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648, 654 (7th Cir.1984), the Court commented that the very broad pleading standard of Conley “has never been taken literally.” Yet after Sutliff was decided, the Supreme Court reiterated the Conley standard in Hishon, supra. Without citing Hishon, the Seventh Circuit followed Sutliff in Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.1984). One court in this district has criticized the Seventh Circuit’s reading of Conley. See Biggus v. Southmark Mgt. Corp., 582 F.Supp. 883, 885 n. 3 (N.D.Ill.1984). Fortunately, we need not choose between the conflicting standards of the two higher courts, because we think the complaint satisfies the arguably narrower Sutliff test:
      The complaint must contain either direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested or intended by the pleader, or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.

        Sutliff, 727 F.2d at 654. The complaint directly alleges the ultimate fact of national origin discrimination. Given the strictures of Rule 11, we may fairly infer that evidence bolstering this allegation will be introduced at trial. See n. 7 above.

      . Pepe’s relies on Ferguson v. Mobil Oil Corp., 443 F.Supp. 1334, 1339 (S.D.N.Y.1978). Ferguson held that "blacklisting” a former employee is not prohibited under § 703(a) or (d) of Title VII, 42 U.S.C. 2000e-2(a), (d). The Court did not discuss whether such actions would violate § 704(a). To the extent Ferguson conflicts with our holding, we decline to follow it.