The opinion of the court was delivered by: Getzendanner, District Judge.
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.
Compliance with these limitations is jurisdictional.
Moore v. Sunbeam Corp.,
, 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§ 858 (repealed July 1, 1980).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
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.
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.
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.
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
This Court agrees with the reasoning of the Sixth Circuit,
and finds that the alleged unfair employment practices
occurred on or before February 18, 1977.
Because the limitation period began to run on February
18, 1977, plaintiff's formal charge was not filed with the
EEOC within the 180-day federal period. The date of filing
with the EEOC was September 24, 1977, 218 days after the
time began to run. (See Affidavit of Delores Mabane, ¶ 3.)*fn2
The filing of the charge was thus untimely unless the extended
300-day filing period is applicable.
Plaintiff contends that the extended filing period is
applicable in this case because state proceedings were
begun within the state limitation period. The undisputed
facts and the relevant law do not support this contention.
Lowell's husband delivered a formal charge to the EEOC
office on September 1, 1977, without having previously
filed a complaint with the FEPC. This submission to the
EEOC initiated state proceedings. See Love v. Pullman Co.,
404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972). The initiation
of state proceedings, however, was not timely.
The state filing period, like the federal begins on the
date that the unfair employment practice was allegedly
committed. Ill.Rev.Stat., ch. 48, § 858(a). In the case of a
continuing violation, the period begins on the date of the last
injury. See Montgomery Ward & Co. v. Fair Employment
Practices Commission, 49 Ill. App.3d 796, 8 Ill.Dec. 297,
365 N.E.2d 535 (1st Dist. 1977). As previously discussed, the Court
finds that the last injury to Lowell occurred on February 18,
1977. This was 218 days before any state proceedings were
initiated, and thus untimely. As a result, the issue becomes
whether failure to initiate state proceedings in a timely
fashion precludes application of the extended filing period.
Plaintiff argues that the extended filing period in
deferral states such as Illinois applies regardless of
whether the claimant has filed a timely charge with the state
agency. She maintains that the only prerequisite is that the
claimant file with the state. Defendant, in contrast, argues
that the 300-day filing period is not available to plaintiff
because she did not file with the FEPC within the 180 days, as
required by state law.
The Seventh Circuit held that the plaintiff had initiated
state proceedings by submitting a charge to the EEOC on
October 19, 1967, even though he had not previously filed
a complaint with the FEPC. The submission to the EEOC,
unlike the submission in the present case, was within the
state limitation period. As a result, this Court is
presented with an issue that was not present — and thus not
decided — in Moore: Whether failure to initiate state
proceedings in a timely fashion precludes application of the
extended filing period.
Plaintiff argues that, even assuming that the unfair
employment practice occurred on February 18th and that her
charge was not filed with the EEOC until September 24th (a
period of 218 days), the cited language from
Mohasco permits filing in a deferral state in all cases within
This argument fails for three reasons. First, as with
Moore, Lowell's case differs from Mohasco in one crucial
respect. In Mohasco, the plaintiff had initiated state
proceedings within the state limitation period, which was one
year. The Court did not decide whether failure to file within
the state period could preclude application of the extended
federal filing period.
The Court rejects this position. The argument that a
claimant becomes entitled to the extended filing period,
which is designed to allow plaintiffs to exhaust their
state remedies without jeopardizing their federal rights,
merely because she filed a meaningless, time-barred charge
with the state agency strikes this Court as illogical. To
so hold would be to reduce the state filing to a procedural
Other jurisdictions that have addressed this precise
question have all held that a failure to file state charges
in a timely fashion prevents a complainant from availing
herself of the extended filing period, at least where the
state and non-extended federal filing periods are the
The plaintiff in Dubois argued "that once she has filed
charges with the appropriate state agency — whether timely or
not — she is entitled to the benefit of [the] extended federal
filing period." Id. at 974. The Court reasoned that the state
agency's rejection of the complaint as untimely was not a
"termination" of the state proceeding within the meaning of the
statute and therefore concluded that such a rejection did not
trigger the extended filing period. The Dubois court stated:
In Mobley v. Acme Markets, Inc., 473 F. Supp. 851, 857 (D.Md.
1979), the court considered the same issue and determined that
"the rule in [the Fourth] Circuit is that the state charges
must be timely filed under state law to trigger the longer,
300-day time limit for filing charges with the EEOC."
The question whether an untimely filing with a state
agency will trigger the extension of the EEOC filing
deadline also arose in Mills v. National Distillers Products
Co., 435 F. Supp. 72 (S.D.Ohio 1977). The Mills court stated:
"The judicial precedent appears too clear for
extended discussion; and this Court concludes
that the question must be answered in the
negative." Id. at 75.
The court reasoned that the extension is only applicable
where the plaintiff instituted proceedings before a state
agency with authority to grant relief, and that a state
agency has no authority to act when an untimely charge has
In DeGideo v. Sperry-Univac Co., 415 F. Supp. 227, 230
(E.D.Pa. 1976), the court determined that a claimant had
initiated state proceedings within the meaning of the statute
only when a charge has been filed with the state agency within
the state limitation period. The court stated: "Where, as here,
a charge is not timely filed with the appropriate state agency,
the purpose for allowing the extended federal filing period is
not served, since there is nothing before the state agency to
process." The court concluded that a failure to file timely
state charges deprived the district court of subject matter
This Court agrees with the reasoning of these opinions.
Accordingly, the Court holds that plaintiff's failure to
file with the FEPC within 180 days of the alleged unfair
employment practice precludes plaintiff from relying on the
extended 300-day period to file her charge with the EEOC.
Plaintiff likewise failed to file with the EEOC within 180
days. Thus, defendant's motion to dismiss for lack of
jurisdiction is granted.
ON MOTION TO RECONSIDER
This is a sex discrimination case under Title VII,
42 U.S.C. § 2000e et seq. Plaintiff Nancy Lowell has moved the
Court to reconsider its decision granting the motion to dismiss
of defendant Glidden-Durkee. The Court granted defendant's
motion after finding that plaintiff had failed to file her
employment discrimination charge with the Equal Employment
Opportunities Commission ("EEOC") within the applicable time
period. The facts are set out in the Court's memorandum opinion
and order of March 16, 1981.
Plaintiff argues two bases for reconsideration. She
argues, first, that the court incorrectly determined when
the filing period began to run, and secondly, that the
recent case of Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct.
2486, 65 L.Ed.2d 532 (1980), requires the application of the
300-day extended filing period in this case.
Regarding the commencement of the filing period,
plaintiff states in her memorandum that:
". . . this court found that the effective date
of plaintiff's termination was February 18,
1977,. . . rather than March 11, 1977, the date
plaintiff advised her supervisor as being
effective date of her resignation."
This is incorrect. The court accepted as true for the
purposes of the motion to dismiss plaintiff's allegation
that the effective date of her termination was March 11,
1977. The filing period, however, commences on the date of
the alleged discriminatory conduct, which may or may not
coincide with the actual termination of employment.
Plaintiff contends she voluntarily resigned; thus the
date she tendered her resignation is not dispositive. On
the basis of plaintiff's affidavits, the court concluded
that it was undisputed that defendant's alleged
discriminatory conduct caused plaintiff to give notice of
her resignation on February 18, 1977. Any injury plaintiff
suffered must have been suffered by her at least by that
date, and that date marks the commencement of the filing
As a consequence, plaintiff's corollary argument, that
she was misled by defendant into believing that March 11,
1977, was her termination date and therefore defendant
should be estopped from contending that the filing period
began prior to that date, is also unavailing. Plaintiff's
understanding with regard to her effective termination
date has no bearing on the date she claims to have suffered
discrimination. It is the date of injury that marks the
beginning of the filing period.
The alleged discriminatory conduct occurred on or before
February 18, 1977. On September 1, 1977, plaintiff's
husband delivered her formal charge to the Chicago Regional
EEOC office. This initiated state proceedings, but was
untimely because it was 195 days after the alleged
discriminatory conduct and Illinois has a 180-day filing
period. Charges were not "filed" with the EEOC itself,
within the meaning of Mohasco Corp. v. Silver, 447 U.S. 807,
100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), until September 24,
1977, 218 days after the alleged discriminatory conduct.
Plaintiff's second argument is that her federal filing
was timely because it was within the 300-day extended
filing period available to claimants in deferral states
such as Illinois. Plaintiff contends that the extended
filing period applies even though she failed to file
charges with the Illinois Fair Employment Practices
Commission within the 180-day state limitation period.
Plaintiff relies principally on Mohasco Corp. v. Silver,
447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980).
In support of her motion for reconsideration, plaintiff
relies on a recent decision of the Third Circuit which was
not considered by this Court in its original opinion. In
fact, very recently several courts have interpreted
Mohasco as requiring that the comparable extended filing period
available under the Age Discrimination in Employment Act,
29 U.S.C. § 621-34, applies to all plaintiffs in deferral states,
regardless of the timeliness of their filing with state
agencies. Davis v. Calgon Corp., 627 F.2d 674 (3d Cir. 1980);
Ewald v. Great Atlantic & Pacific Tea Co., 644 F.2d 884 (6th
Cir. 1981); Ciccone v. Textron, Inc., 651 F.2d1 (1st
Cir. 1981). This Court, however, continues to be unpersuaded
that Mohasco mandates the rule advanced by plaintiff.
A literal reading of certain language in Mohasco does support
plaintiff's contention that all plaintiffs in deferral states
may claim the extended filing period, regardless of their
compliance with state filing periods. The Mohasco Court stated:
". . . in deferral States . . . Congress in
effect gave complainants an additional 60 days
in which initially to file a charge and still
ensure preservation of their federal rights. In
other words, . . . a complainant in such a
deferral State could have filed on the [240th]
day, and then filed with the EEOC on the
[300th] day at the end of the 60-day deferral
period, while a complainant in a non-deferral
State had to file on the [180th] day with the
EEOC." 100 S.Ct. at 2495.
This language, however, which is dicta, must be considered
in light of the facts in Mohasco. In that case, the state
filing period was 365 days. The Mohasco complainant could have
filed on the 240th day, and that filing would have been timely
under the state filing period. The Mohasco Court thus was
concerned with the situation where the state filing period
exceeded the 180-day filing period for non-deferral states.
This conclusion is reinforced by a careful reading of
footnotes 16 and 19 of the Mohasco opinion. In footnote 16, the
"Olson [an Eighth Circuit case] held that in order
to preserve his rights under Title VII, a
complainant must under all circumstances initially
file his charge with either a state fair employment
practices agency or the EEOC within 180 days of
the discriminatory occurrence. . . .
"As indicated n. 19, infra, we believe that the
restrictive approach exemplified by Olson, is not
supported by the statute." (emphasis added).
The Mohasco Court was rejecting a line of cases that had held
that plaintiffs must file with the state agencies within 180
days in order to claim the extended federal filing period. The
court labeled this rule as "restrictive" because it did not
accommodate those states having state filing periods in excess
of 180 days.
Footnote 16 goes on to state:
"Under the Moore [v. Sunbeam Corp., 459 F.2d 811
(7th Cir. 1972)] decision, which we adopt today, a
complainant in a deferral State . . . need only
file his charge within 240 days of the alleged
discriminatory employment practice in order to
insure that his federal rights will be preserved."
This sentence is ambiguous at best. Neither the Seventh
Circuit in Moore nor the Supreme Court in Mohasco considered
whether the applicability of the extended federal filing period
depended on the timeliness of the state filing. In neither case
was the timeliness of the state filings at issue. As neither
Court addressed the precise question presented here, this Court
is not bound by dicta in those opinions. See 1B Moore, Federal
Practice ¶ 0.402.
In footnote 19, the Mohasco Court again noted that language
in Title VII "has been construed to require that the filing
with the state agency be made within 180 days." In again
rejecting this rule, the court cites with favor Doski v. M.
Goldseker Co., 539 F.2d 1326 (4th Cir. 1976). That case dealt
specifically with the situation, also present in Mohasco, where
the state filing period exceeded 180 days. In Doski,
the Court adopted the argument "that as long as the charges are
timely filed under the state agency's own regulations, the
300-day filing period with EEOC applies." Id. at 1329. The
Mohasco court's reliance on Doski reinforces this Court's
conclusion that the Mohasco Court did not address the issue
whether the 300-day filing period applies when the state filing
in a state having a 180-day filing period is not
A footnote in the recent case of Delaware State College v.
Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980),
lends further support to this conclusion. Footnote 13 in Ricks
"In its brief before this court, the EEOC as
amicus curiae noted that Delaware is a state with
its own fair employment practices agency. According
to the EEOC, therefore, Ricks was entitled to 300
days to file his complaint. . . . Because we hold
that the time limitations periods commenced to run
no later than June 26, 1974, we need not decide
whether Ricks was entitled to 300 days to file
under Title VII. Counting from the June 26 date,
Ricks' filing with the EEOC was not timely even
with the benefit of the 300-day period." (emphasis
If Mohasco had determined, as plaintiff contends, that all
complainants in deferral states are entitled to the 300-day
filing period, then the Court in Ricks would have had no need
in any case to "decide whether Ricks was entitled to 300 days
to file." If plaintiff were correct, that issue would have been
foreclosed by Mohasco.
Having determined that Mohasco does not mandate the rule
argued by plaintiff, the Court further concludes that policy
considerations weigh against allowing plaintiffs in deferral
states that have state filing periods of 180 days to claim the
extended federal filing period, when their state filing was
To rule in plaintiff's favor would be to rule that any
plaintiff in a deferral state becomes entitled to the
extended filing period simply by filing a charge with the
state agency, even though that charge is without any
significance because it is time-barred. Such a result flies
in the face of the purpose behind the extended filing
period, which is to allow state agencies the initial
opportunity to consider and resolve employment
Where the state filing period is less than 180 days,
there is some reason for disregarding the untimeliness of
the state filing for purposes of preserving the plaintiff's
federal rights; state procedural rules should not be
construed to abridge federal rights. But where, as here,
the state filing period is the same as the federal filing
in non-deferral states, there are no such countervailing
considerations. Moreover, to allow plaintiffs in cases
where the state filing period is 180 days extra time in
which to bring charges strikes the court as unfair to those
complainants in non-deferral states who must act within 180
days or forfeit their federal rights.
Mohasco carves out an exception to the 180-day limitation
period: where the state filing period exceeds 180 days,
plaintiffs do get extra time in which to bring charges. This,
however, is in furtherance of the purpose behind the deferral
provision — to give state agencies the first chance to deal
with employment discrimination. Where a plaintiff has precluded
state review by failing to file timely state charges, and where
the state gives such plaintiff at least 180 days to initiate
state proceedings, there is no justification for allowing the
plaintiff an extended filing period.
Plaintiff also cites the opinion in Lemar v. EEOC, No. 80 C
4920 (N.D.Ill. January 23, 1981) (mem. op.) and current EEOC
regulations as support for plaintiff's argument that the
300-day filing period is applicable. This court, however, is
unpersuaded by the reasoning in Lemar. Moreover, the EEOC
regulation cited by plaintiff, which states that a charge is
filed with the EEOC upon receipt, is contrary to the holding in
Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 2490
n. 12, 2496, 65 L.Ed.2d 532 (1980).
For the foregoing reasons, plaintiff's motion to
reconsider the court's order granting defendant's motion to
dismiss is denied.