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
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 ...