REYNOLDS, District Judge.
This is an appeal from the dismissal without prejudice on July 8, 1977, of plaintiff-appellant Rohler's complaint and the denial on July 19, 1977, of her motion for reconsideration of the order of dismissal and for leave to file an amended complaint. We are asked to find that the district court abused its discretion in dismissing the complaint, albeit without prejudice, without granting leave to amend. As a result of the dismissal plaintiff was unable to proceed with her cause of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., because her ninety-day period for filing suit following receipt of notice of right-to-sue from the Equal Employment Opportunity Commission had expired.
The plaintiff filed a pro se complaint on September 27, 1976, on a form from the clerk's office entitled "Form to be Used by Persons Filing a Complaint Pro Se Under the Civil Rights Act, 42 U.S.C. § 1983." Under the heading "CAUSE OF ACTION", subpart D of which contains the printed statement "I allege that the following of my constitutional rights, privileges, or immunities have been violated:" the plaintiff typed in the following:
In answer to subpart E of the form, where it is printed "[t]he following facts form the basis for the allegations listed above in D," the plaintiff attached a typed insert sheet stating as follows:
Finally, under the printed subpart "F. REQUEST FOR RELIEF", plaintiff typed in "do not" in the space left blank in the printed provision for request for leave to proceed without prepayment of fees and costs pursuant to 28 U.S.C. § 1915.
The defendants filed an answer to the complaint in October, 1976. A pretrial conference was held the following May,
In its order of July 8, 1977, the district court found that the plaintiff had failed to state a claim under 42 U.S.C. §§ 1981, 1983 or 1985, "[s]ince her complaint, fairly construed, alleges only discrimination on the basis of sex and age." That portion of the order has not been appealed from and we do not consider it.
The district court also considered plaintiff's allegations in light of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
In the proposed amended complaint submitted on July 18, 1977, the plaintiff alleged that she had filed a complaint with the EEOC within 180 days of termination of her employment on August 25, 1972, that she received notice of dismissal of her complaint by the EEOC on June 29, 1976, and that she informed the Department of Labor of the unlawful practices of her employer in 1972, and it referred her to the EEOC to pursue her complaint. The district court declined to permit amendment of the complaint, stating that as it had lacked jurisdiction at the time that it dismissed the action, it was without authority to permit amendment.
Appellant claims that the district court erred in dismissing her complaint because of failure to cite appropriate statutory jurisdiction since she had offered a proposed amended complaint based on proper statutory allegations and containing the requisite allegations of exhaustion. She asserts that while the exhaustion of administrative
Under Rule 8(a)(1) of the Federal Rules of Civil Procedure, it is not essential that a complainant set forth the statutory basis for the court's jurisdiction in order for the court to assume jurisdiction, if the facts alleged provide a basis for the assumption of jurisdiction. Thus, "the court may sustain jurisdiction when an examination of the entire complaint reveals a proper basis for assuming jurisdiction other than one that has been improperly asserted * *." Wright & Miller, Federal Practice and Procedure, § 1206. See also, Stewart v. United States, 199 F.2d 517, 520 (7th Cir.1952); Sikora v. Brenner, 126 U.S.App.D.C. 357, 359, 379 F.2d 134, 136 (1967); Williams v. United States, 405 F.2d 951 (9th Cir.1969). Similarly under Rule 8(a)(2) it is not necessary that the plaintiff set forth the legal theory on which he relies if he sets forth sufficient factual allegations to state a claim showing that he is entitled to any relief which the court may grant. See Hostrop v. Board of Junior College District No. 515, 523 F.2d 569 (7th Cir.1975), cert. denied 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976); 2A Moore's Federal Procedure ¶ 8.14. As stated by this court in Janke Construction Company, Inc. v. Vulcan Materials Company, 527 F.2d 772, 776 (7th Cir.1976):
While it may impose a heavy burden on the trial court to require it to search a complaint for any claim which may be stated therein, it is a burden which must be undertaken. We believe that the district court has the duty under Rule 8(a) of the Federal Rules of Civil Procedure to read a complaint liberally and to determine whether the facts set forth justify it in taking jurisdiction on grounds other than those pleaded, if the stated grounds do not provide jurisdiction,
The district court found that the plaintiff herein had set forth a claim of discrimination on the basis of sex and age. We agree. Under a liberal construction of her complaint she had made out a claim that male and younger female employees were unlawfully given preferment by respondents
Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), which respondents cite in support of their argument about relation back of causes of action, is not relevant to the situation presented here. In that case the Supreme Court held that Title VII and 42 U.S.C. § 1981 create separate and independent causes of action and therefore the timely filing of an administrative complaint with the EEOC does not toll the statute of limitations on a § 1981 action.
The situation is entirely different where, as here, the plaintiff has asserted a Title VII claim but has failed to cite the proper statutory basis for her cause of action. The appellant Rohler is not attempting to relate back her sex and age discrimination claims to the filing date of a complaint setting forth a separate and independent cause of action. She is merely seeking to amend her complaint to conform the jurisdictional bases asserted to the factual allegations in the original complaint.
Respondents also cite Chambers v. Omaha Public School District, 536 F.2d 222 (8th Cir.1976) and Brennan v. University of Kansas, 451 F.2d 1287 (10th Cir.1971). Those cases are of no more assistance to them than Johnson. Chambers stands for the proposition that the reasoning in Johnson is equally applicable to an action brought pursuant to 42 U.S.C. § 1983 as to an action brought pursuant to 42 U.S.C. § 1981. The plaintiff in Brennan was attempting to amend his complaint at the appellate level to include a new, substantive federal claim in order to avoid dismissal of his original complaint on the basis of sovereign immunity.
Here the district court recognized that the factual allegations in the original complaint set forth a partial cause of action under Title VII and under the Age Discrimination in Employment Act. The judge properly attempted to examine the pleadings to determine whether there were sufficient facts presented to set forth a claim under either of these statutes, rather than limiting his review of the pleadings to the statutory section pursuant to which the action was purportedly brought. He decided that the plaintiff's failure to allege exhaustion of administrative remedies was a fatal jurisdictional defect in the complaint and he therefore dismissed the complaint for failure to state a claim upon which relief could be granted. Thus we are now presented with the questions whether it is essential to plead exhaustion of administrative remedies and, if so, whether it was an abuse of discretion for the district court to dismiss the action without leave to amend.
Here again the cases cited by respondents are inapposite. We do not doubt that failure to meet a statutory filing requirement may result in lack of federal jurisdiction. See Scott v. Railroad Retirement Board, 227 F.2d 684 (7th Cir.1955); Johnson v. Railway Express Agency, Inc., 489 F.2d 525 (6th Cir.1974), aff'd 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); Bomer v. Ribicoff, 304 F.2d 427 (6th Cir.1962). Nor do we dispute that exhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title VII and under the Age Discrimination in Employment Act. See Terry v. Bridgeport Brass Company, 519 F.2d 806 (7th Cir.1975); Harris v. National Tea Company, 454 F.2d 307 (7th Cir.1971); Choate v. Caterpillar Tractor Company, 402 F.2d 357 (7th Cir.1968). Those cases do not, however, answer the question whether failure to allege exhaustion is a defect sufficient to justify dismissal.
Rule 8 of the Federal Rules of Civil Procedure requires that the complaint set forth a short and plain statement of the grounds
In contrast, the motion to dismiss of respondents in this case did not "clearly [call appellant's] attention to the fatal fault in [her] complaint." Therefore the question arises whether, despite appellant's failure to allege exhaustion, leave to amend should have been granted.
Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend a complaint shall be freely given when justice so requires. The district court herein dismissed plaintiff's complaint on July 8, 1977, finding that she had failed to state a cause of action under 42 U.S.C. § 1983, and that while she had made out a claim of age and sex discrimination, she had failed to allege the requisite exhaustion of administrative remedies which was required to give the court jurisdiction over her discrimination claims. Thereafter on July 19, 1977, plaintiff's proposed amended complaint in which she set forth the requisite exhaustion having been submitted to the court, the court nonetheless refused to vacate its earlier order on the basis that it was without jurisdiction and therefore without authority to permit the amendment. The court's conclusion is faulty.
In Austin v. House of Vision, Inc., 385 F.2d 171 (7th Cir.1967), appeal after remand 404 F.2d 401, where the plaintiff failed to make several allegations necessary to state a claim under the antitrust laws and the district court denied leave to amend, this Court stated in reversing the decision of the district court:
Thus permission to amend a complaint should be refused only if it appears to a certainty that the plaintiff cannot state a claim upon which relief can be granted. Had it been apparent on the face of appellant's initial complaint that she had failed to exhaust administrative remedies and therefore that jurisdiction in the district court could never be established, dismissal without leave to amend would have been a proper remedy. When it does not affirmatively appear that there has been a failure to comply with jurisdictional prerequisites, however, then Rule 8 of the Federal Rules of Civil Procedure requires that leave to amend be given to allow the plaintiff to attempt to comply with the jurisdictional requirements. Gibson v. Kroger Company, supra, is not contrary, as in that case the plaintiff had ample notice of the jurisdictional defect in his complaint and nevertheless failed to seek leave to amend before the
One further point remains to consider. Respondents claim that appellant's claim of age discrimination is in any event barred by the applicable statute of limitations, and therefore that even had leave to amend been granted she would have been unable to state a claim entitling her to relief. We take no position. The issue of the statute of limitations not having been raised in the court below, this court will not consider it now. See Ohio Casualty Insurance Company v. Rynearson, 507 F.2d 573 (7th Cir.1974).
For the foregoing reasons, the judgment of the district court is vacated and this cause is remanded to the district court with directions to grant leave to the plaintiff to file an amended complaint, and for such further proceedings as may be deemed appropriate.
"(e) A charge under this section shall be filed [with the Equal Employment Opportunity Commission] within one hundred and eighty days after the alleged unlawful employment practice occurred * * *.
"(f)(1) * * * 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 * * *."
"(d) No civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days' notice of an intent to file such action. Such notice shall be filed—