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LOWELL v. GLIDDEN-DURKEE

March 16, 1981

NANCY H. LOWELL, PLAINTIFF,
v.
GLIDDEN-DURKEE, DIVISION OF SCM CORPORATION, A NEW YORK CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Getzendanner, District Judge.

MEMORANDUM OPINION AND ORDER

This is a sex discrimination case, brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff Nancy H. Lowell was employed by defendant Glidden-Durkee from 1971 through early 1977 as a personnel clerk. According to the allegations of Lowell's complaint, defendant harassed and intimidated her solely because of her cooperation with the United States Energy Research and Development Administration ("ERDA") in its investigation of sex discrimination by defendant.

The amended complaint alleges that as a result of defendant's conduct, Lowell tendered her resignation on February 18, 1977. She claims this was a constructive discharge. See ¶ 11 of Count I. Plaintiff also claims in Count II the same conduct constituted continuous discrimination.

Glidden-Durkee has moved to dismiss the amended complaint under Rule 12(b)(1), F.R.Civ.P., for lack of subject matter jurisdiction. Defendant argues that plaintiff failed to file charges with the EEOC within the applicable time limits and that she failed to exhaust her state remedies. Both parties have submitted memoranda and affidavits in support of their positions.

The undisputed facts, as revealed by the pleadings and the affidavits, are as follows. On Friday, February 18, 1977, Lowell orally advised her supervisor that she was resigning effective March 11, 1977. Plaintiff contends that her resignation was effective as of March 11, 1977. However, on Tuesday, February 22, 1977, Lowell's supervisor instructed her not to return to work on Monday, February 28, 1977, and Friday, February 25, was the last day on which Lowell actually worked. Lowell was given two weeks termination pay and her insurance coverage was carried through March, 1977.

On September 1, 1977, plaintiff's husband personally delivered plaintiff's formal charge to the Chicago Regional EEOC office.*fn1 The EEOC referred this charge to the Illinois Fair Employment Practices Commission ("FEPC") on September 13, 1977. On September 20, 1977, the FEPC declined jurisdiction. The charge was then filed with the EEOC on September 24, 1977.

    ". . . in a case of an unlawful employment
  practice with respect to which the person
  aggrieved has initially instituted proceedings
  with a state or local agency with authority to
  grant or seek relief . . . such charge shall be
  filed . . . within three hundred days after the
  alleged unlawful employment practice
  occurred . . ."

In "deferral" states having a state agency competent to grant relief for employment discrimination, the statute requires that:

    "No charge may be filed under . . . this
  section by the person aggrieved 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).

Compliance with these limitations is jurisdictional. Moore v. Sunbeam Corp., 459 F.2d 811, 821 n. 26 (7th Cir. 1972).

Illinois at the time had a 180-day limitation period for complaints filed with the FEPC. Ill.Rev.Stat., ch. 48, § 858 (repealed July 1, 1980).

Defendant argues that any alleged unfair employment practice occurred on or before February 18, 1977, when the "constructive discharge," plaintiff's oral notice of resignation, occurred. If defendant's argument is correct, then the statute of limitations for both the state and federal cause of action ran out on August 17, 1977, before the plaintiff filed with the EEOC or the FEPC. Defendant further argues that the extended 300-day limitations period is not available to plaintiff.

Plaintiff counters by arguing that the limitations period began to run on March 11, 1977, the date she claims as her "effective" resignation date. Plaintiff further contends that the delivery of the formal charge to the EEOC on September 1, 1977, constituted a timely "initiation" of her state remedy and that as a result the extended period does apply. Alternatively, plaintiff argues that even if she failed to initiate state proceedings within the limitation period, the extended period applies because Illinois is a deferral state.

The relevant issues are (1) whether plaintiff filed within the federal 180-day limitation period; (2) whether plaintiff initiated state procedures within the limitation period; and (3) whether the 300-day extended period applies to all charges filed in Illinois, even if not timely under the state procedure. Determination of the first two issues depends on establishing when the limitation period began to run and when it was tolled.

The Commencement of the Filing Period

For purposes of the motion to dismiss, the Court accepts Lowell's argument that she voluntarily resigned her position at Glidden-Durkee and that this resignation was effective on March 11, 1977. Under the statute, however, the "effective" date of her resignation is not the crucial date. The statute provides that the limitation period begins on the date "the alleged unlawful employment practice occurred." Thus, the inquiry must focus on the last possible date on which an unlawful employment practice could have occurred. See Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); Krzyzewski v. Metropolitan Government of Nashville, 584 F.2d 802 (6th Cir. 1978).

In Count I of her complaint, plaintiff alleges a "constructive discharge." She alleges that defendant's discriminatory treatment forced her to resign. The acts complained of necessarily occurred before February 18, 1977, the date on which she gave notice of resignation.

In Count II, plaintiff alleges continuing discrimination by defendant. However, again, any discriminatory conduct by defendant caused her no further injury after February 18, 1977. Even looking at the facts most favorably to plaintiff, no discriminatory conduct can have occurred beyond February 25, 1977, the last day on which she was physically present at work.

Plaintiff argues that she was paid through March 11, 1977, that her insurance coverage extended through March, and that March 11 was used as her termination date for reference purposes. She contends this establishes that the filing period began on March 11, 1977.

In Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), however, the Supreme Court stated:

  "Determining the timeliness of [plaintiff's]
  EEOC complaint . . . requires us to identify
  precisely the `unlawful employment practice' of
  which he complains. . . . Mere continuity of
  employment, without more, is insufficient to
  prolong the life of a cause of action for
  employment discrimination." 101 S.Ct. at
  503-04.

In that case, the plaintiff had been informed on June 26, 1974, that he would not be offered tenure. Plaintiff then accepted a one-year "grace" contract that expired on June 30, 1975. The Court determined that the challenged conduct was the refusal of tenure and from this concluded that the filing period began on June 26, 1974.

Applying this analysis to the present case, the employment practices of which Lowell complains all occurred prior to February 18, 1977. That date marks the commencement of the limitation period.

This conclusion is reinforced by Krzyzewski v. Metropolitan Government of Nashville, 584 F.2d 802 (6th Cir. 1978). In that case, plaintiff was terminated on August 15th, which was her last day of work, but she was paid for accrued time through August 29th. The Sixth Circuit held that the limitation period began on August 15th. The court reasoned that a rule penalizing a company for giving an employee severance pay or other benefits such as extended insurance coverage should be viewed with disfavor.

  "We think the better rule is one which seeks to
  determine when the alleged unlawful employment
  practice actually occurred rather than
  accepting the administrative data shown on an
  ...

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