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ELBAZ v. CONGREGATION BETH JUDEA

July 6, 1992

SHULA G. ELBAZ, Plaintiff,
v.
CONGREGATION BETH JUDEA, INC., an Illinois not-for-profit corporation, Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Defendant Congregation Beth Judea, Inc. ("Congregation") seeks to dismiss plaintiff Shula G. Elbaz' one-count complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Elbaz' complaint alleges that the Congregation's failure to renew her employment contract constituted retaliatory discrimination prohibited by Title VII, 42 U.S.C. §§ 2000e to e-17 (1988), *fn1" and the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (1988). *fn2" The Congregation claims that dismissal is proper for lack of subject matter jurisdiction and failure to state a cause of action. For the reasons set forth below, the motion is denied.

 I.

 A motion to dismiss should not be granted unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102 2 L. Ed. 2d 80 (1957); see also Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir. 1988); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985), cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. Ed. 2d 574 (1986). We take the "well-pleaded allegations of the complaint as true and view them, as well as all reasonable inferences therefrom, in the light most favorable to the plaintiff." Balabanos v. North Am. Inv. Group, Ltd., 708 F. Supp. 1488, 1491 n.1 (N.D. Ill. 1988) (citing Ellsworth).

 II.

 Elbaz is a citizen of the United States whose country of national origin is Israel. She was employed by the Congregation, an Illinois not-for-profit corporation, from July 1, 1978 through June 30, 1991. As its education director, Elbaz administered a religious school for the children of members of the Congregation.

 On or about October 25, 1990, Elbaz complained to her superiors about what she perceived to be discriminatory treatment. Specifically, she objected to the Congregation's practice of not timely making its employer contributions to her retirement plan, particularly as compared to its timely contributions to the retirement plans of the Congregation's rabbi and cantor--both of whom were male, non-Israeli employees. Six weeks later (on or about December 12, 1990), unsatisfied with the Congregation's reaction to her complaints, Elbaz directed her attorney to demand that the Congregation remedy its discriminatory treatment. Within days (on or about December 20, 1990), the Congregation verbally informed Elbaz that it would not renew her employment contract. On June 30, 1991, Elbaz' term of employment expired and she was terminated.

 Elbaz maintains that this failure or refusal to renew her employment contract was in retaliation for her retirement plan complaints. On or about August 30, 1991, she filed charges against the Congregation with the Equal Employment Opportunity Commission ("EEOC") and the Illinois Department of Human Rights ("IDHR"), alleging discrimination based on sex and national origin. She claims that she was not properly compensated according to contractual provisions dealing with severance pay, vacations, work-related expenses, and salary, that she was not compensated for her 1990-91 pension contributions (although the rabbi and cantor were), and that she was demeaningly referred to as "the 'Israeli.'" The EEOC issued a right to sue notice on November 29, 1991, which Elbaz received on December 16, 1991. She brought the instant action on February 21, 1992.

 III.

 The Congregation offers five arguments in support of its motion to dismiss, which we address in turn:

 (1) Untimeliness of Charge. The Congregation contends that Elbaz' charge of discrimination was untimely filed, and that this untimeliness dooms her complaint (at least as to its Title VII component) because it constitutes a "failure of the prerequisite of jurisdiction." Memorandum at 3. The argument is that 42 U.S.C. § 2000e-5(c) and (e) impose certain filing requirements for "jurisdictional purposes." Id.

 As a general proposition, § 2000e-5(e) provides that an aggrieved person must make a charge of discrimination with the EEOC within 180 days after the alleged unlawful employment practice occurred. However, if the charge is initially instituted with an appropriate state or local agency, the aggrieved person has 300 days within which to file with the EEOC. To avoid premature federal intervention, § 2000e-5(c) provides that a charge may not be filed with the EEOC "before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated. . . ."

 Given the 60-day waiting period in § 2000e-5(c), which the Supreme Court has determined must be tacked on to the actual EEOC filing date, Mohasco Corp. v. Silver, 447 U.S. 807, 817, 100 S. Ct. 2486, 2492-93, 65 L. Ed. 2d 532 (1980), the Congregation argues that Elbaz tarried too long, having waited either 313 days (based on December 20, 1990) or 369 days (based on October 25, 1990) to file with the EEOC. Because Elbaz' filing ...


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