
    Gordon L. PUCKETT, et al., Plaintiffs, v. UNITED AIR LINES, INC., et al., Defendants. Kenneth C. KUECKER, et al., Plaintiffs, v. UNITED AIR LINES, INC., et al., Defendants.
    Nos. 84 C 5013, 85 C 3755.
    United States District Court, N.D. Illinois, E.D.
    Dec. 19, 1988.
   MEMORANDUM ORDER

PRENTICE H. MARSHALL, District Judge.

United’s motion to strike plaintiffs’ exhibits 60 and 61 attached to plaintiffs’ reply brief in support of its motion for summary judgment regarding the Directed Account Plan is denied. We assume United’s motion is predicated upon Rule 56(e) which provides:

Supporting and opposing affidavits shall be made on personal knowledge [and] shall set forth such facts as would be admissible in evidence____

Fed.R.Civ.P. 56(e). United, however, has misapplied this dictate.

Plaintiffs have attached copies of the EEOC’s report concerning the alleged discriminatory provisions of the DAP to its reply brief in support of its motion for summary judgment. Plaintiffs reference the exhibit as support for its position that the ADEA prohibits cessation of contributions at age sixty. Plaintiffs’ Reply Brief at 10 & 12.

The exhibit is not an affidavit upon which plaintiffs rely to establish a material fact. Indeed, as the parties’ Rule 12(e) statements show, there are no disputed material facts. There is therefore no “trier of fact” at this point; we are merely deciding whether, based on the facts to which the parties agree, plaintiffs are entitled to judgment as a matter of law. In this posture, the EEOC report’s admissability under the rules of evidence is irrelevant. Plaintiffs exhibit is no different than a copy of a court opinion attached to a brief for convenience and persuasive effect.

We are aware that our determination of United’s liability is de novo and that EEOC findings are nonbinding. See generally Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974). Nonetheless, United’s proffered authority does not prohibit bringing an adverse EEOC ruling to the attention of the judge in his legal capacity, and there is simply no basis in the Federal Rules of Civil Procedure for “striking” exhibits attached to a party’s brief for persuasive effect.

ORDER

United Air Lines motion to strike plaintiffs’ exhibits 60 and 61 attached to plaintiffs’ reply brief in support of their motion for summary judgment regarding the Directed Account Plan is denied.  