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December 24, 1985


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


Plaintiff, a Negro male, filed this multi-count suit against defendant, a social services organization operated by the Methodist Church. In Counts I and II, he alleges that defendant violated Title VII of the Civil Rights Act of 1964 by terminating him from his position as counselor on August 23, 1983, because of his race and religion. Plaintiff filed charges with the Illinois Human Rights Department and with the Equal Employment Opportunity Commission ("EEOC") on October 3, 1983, charging defendant with racial employment discrimination. The EEOC issued a Notice of Right to Sue which plaintiff received on May 11, 1984.

Count III, brought pursuant to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1976), alleges that he is a handicapped person, having a record of mental illness which defendant regarded as limiting his major life activities. However, plaintiff alleges he can perform the essential functions required of a counselor; he also alleges that he was discharged from his position as counselor because of his mental handicap. In Count IV, a pendent state law claim, plaintiff alleges the intentional infliction of emotional distress. He alleges that during his employment he was verbally harassed about his religion and his mental condition by his superiors and other employees. Further, he claims he was assaulted by unknown assailants who threw objects at him and damaged his car while he was at work, or while he was travelling to or from work. Defendant moves to dismiss, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction.

In its motion as to Counts I and II, defendant contends that it is not engaged in an activity affecting interstate commerce; and therefore, this court lacks subject matter jurisdiction. It argues that for Title VII to be applicable, the alleged wrongful activity must fall within the definitions in 42 U.S.C. § 2000e. Subparagraph (h) of that section states that industry affecting commerce means "any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce. . . ." Subparagraph (g) defines commerce as ". . . trade, traffic, commerce, transportation, transmission or communication among the several states. . . ." Defendant argues that it does not fall within these definitions because it is only a local concern: its board of trustees is made up of ministers of the Northern Illinois Conference of the United Methodist Church as well as members of local churches; it does not maintain any office or facility outside the state; it does not directly receive any federal funds; and it does not solicit funds outside the state or serve persons who live outside the state. Additionally, defendant asserts it is not a business or industry and does not charge for its services. Therefore, it thus concludes that the required interstate nexus does not exist.

In response to defendant's argument, plaintiff directs the court's attention to defendant's answers to interrogatories. Plaintiff asserts that defendant admitted purchasing various office supplies from companies such as Chemcraft, Public Office Supply, Shaw/Walker, Sears Roebuck and Co., W.J. Saunders and Holleb. Defendant also purchased office machines made by A.B. Dick, IBM, and Xerox. Plaintiff asserts that because these goods did not all originate in Illinois, defendant engaged in activity affecting interstate commerce. In further support of his argument, plaintiff refers the court to defendant's long-distance telephone bills between April 1983 and April 1984, wherein defendant was charged for telephone calls to such places as Pennsylvania, Connecticut, California, Texas, Wisconsin, North Carolina, Indiana, New York, etc. In response, defendant argues that its purchases of office supplies was a de minimis level of activity. Further, defendant states its out-of-state telephone bills amounted to $175.00, with many of the telephone calls resulting from unauthorized use by its wards. Thus, the issue as to Counts I and III is whether defendant engages in activity which affects interstate commerce so as to be subject to the provisions of Title VII, and to this court's jurisdiction.

As to Count III, defendant argues that since it receives no federal financial assistance, this court lacks jurisdiction because Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1976) is inapplicable to the facts alleged. The section states that:

  No otherwise qualified handicapped individual in the
  United States, as defined in section 706(7) of this
  title, shall, solely by reason of his handicap, be
  excluded from the participation in, be denied the
  benefits of, or be subjected to discrimination under
  any program or activity receiving Federal financial
  assistance. . . .

Section 505(a)(2), added to the Act by amendment via the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978, 29 U.S.C. § 794a(a)(2), makes available the "remedies, procedures and rights set forth in Title VI of the Civil Rights Act of 1964 . . . to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such. . . ."

Counts I and II, Title VII Claims

When jurisdictional allegations are questioned, the plaintiff has the burden of proving jurisdiction. Rosemound Sand & Gravel Co. v. Lambert Sand & Gravel Co., 469 F.2d 416 (5th Cir. 1972). Moreover, in a case involving a Title VII claim, the plaintiff has the burden of proving the requisite nexus with interstate commerce. Equal Employment Opportunity Commission v. California Teachers Association, 534 F. Supp. 209 (N.D.Cal. 1982). Further, where a party raises a factual question concerning the jurisdiction of the district court, that court may properly look beyond the jurisdictional allegations of the complaint and review whatever evidence has been submitted to determine whether subject matter jurisdiction exists. Grafon Corporation v. Hausermann, 602 F.2d 781 (7th Cir. 1979); Western Transportation Co. v. Couzens Warehouse & Distributors, Inc., 695 F.2d 1033 (7th Cir. 1982).

Shortly after the Civil Rights Act of 1964 was enacted, the Supreme Court addressed the interstate commerce requirement in Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964) and Heart of Atlanta Motel v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964). In Katzenbach, a restaurant corporation brought an action seeking enforcement of its rights under the Civil Rights Act of 1964. In determining whether Congress had authority to regulate certain purely local activities because they affected interstate commerce, the court, relying on the test supplied in Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), stated:

  But even if appellee's activity be local and though
  it may not be regarded as commerce, it may still,
  whatever its nature, be reached by Congress if it
  exerts a substantial economic effect on interstate
  commerce. Id. at 125, 63 S.Ct. at 89 [emphasis

The court concluded that frequent interstate travelers and $70,000 worth of food purchased by the restaurant, had a substantial economic effect on interstate commerce. In this way, the restaurant engaged in activity affecting interstate commerce, and thus was subject to regulation by Congress. Katzenbach, 379 U.S. at 294, 85 S.Ct. at 377. Accordingly, the question arises whether in this case, defendant's long-distance telephone calls totalling $175 and purchase of office supplies had a "substantial economic effect" on interstate commerce. In arguing ...

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