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
"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
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.
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.
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
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
"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