Elbaz v. Congregation Beth Judea, Inc., 92 C 1352.

• Decision Date: 06 July 1992
• Docket Number: No. 92 C 1352.,92 C 1352.
• Parties: Shula G. ELBAZ, Plaintiff, v. CONGREGATION BETH JUDEA, INC., an Illinois not-for-profit corporation, Defendant.
• Court: U.S. District Court — Northern District of Illinois

812 F. Supp. 802

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

No. 92 C 1352.

United States District Court, N.D. Illinois, E.D.

July 6, 1992.

Mark S. Simon, Chicago, IL, for plaintiff.

Orin S. Rotman, Stein and Rotman, Chicago, IL, for defendant.

MEMORANDUM OPINION AND ORDER

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),¹ and the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (1988).² 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 "wellpleaded 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 was not timely, the argument concludes, this court lacks subject matter jurisdiction over her federal suit.

The fundamental flaw in the Congregation's thesis is its notion that Title VII's filing requirements are jurisdictional. They are not. Indeed, the Congregation's attorney skirts dangerously close to Rule 11 thin ice in making that argument, because the Supreme Court soundly rejected it a decade ago:

We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling....

... The provision specifying the time for filing charges with the EEOC appears as an entirely separate provision, and it does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-94, 102 S.Ct. 1127, 1132-33, 71 L.Ed.2d 234 (1982); see also Sofferin v. American Airlines, Inc., 713 F.Supp. 1219, 1226 (N.D.Ill.1989) (citing Zipes), aff'd, in part, rev'd, in part, 923 F.2d 552 (7th Cir.1991). The Congregation's attorney fails to cite either Zipes or Sofferin (and also fails, as might be guessed, to argue that there is a sound basis for limiting or overturning those decisions with respect to the jurisdiction issue), but, then again, so does Elbaz' counsel. The bottom line is that neither attorney, but especially the Congregation's, appears to have reasonably inquired into the existing law in this area, a situation we will closely monitor as this suit progresses.

Additionally, we count 253 days in the period between December 20, 1990 and August 30, 1991, a span of time that may well constitute timely filing without resort to an inquiry into waiver, estoppel, or equitable tolling principles. Apparently, the IDHR and the EEOC have a "work-sharing agreement whereby the IDHR will waive its exclusive 60-day right to process charges initially processed by the EEOC upon notification and deferral of the charge to the IDHR by the EEOC." Sofferin, 713 F.Supp. at 1224;³ see also Complaint ¶ 9 (Elbaz filed charges with IDHR "pursuant to a work sharing agreement" it and the EEOC). While the precise parameters of the instant situation are not set forth by the parties (and might well be inappropriate in a dismissal context anyway), "a state agency's waiver of its exclusive § 2000e-5(c) 60-day period ... pursuant to a work-sharing agreement with the EEOC, is a termination within the meaning of § 2000e-5(c) and thereafter the EEOC immediately may deem the charge filed." Sofferin, 713 F.Supp. at 1224 (citing EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 125, 108 S.Ct. 1666, 1676, 100 L.Ed.2d 96 (1988)). In other words, the IDHR's work-sharing agreement with the EEOC may well be a § 2000e-5(c) termination such that Elbaz is within the 300-day § 2000e-5(e) "statute of limitations"-type filing period.

In any event, we would not dismiss the complaint on the basis of the Congregation's ill-conceived jurisdictional argument. And given the state of the law regarding state agency work-sharing agreements and termination, a summary judgment argument (as in Sofferin) is not likely to succeed, either.

(2) Congregation as Employer. The Congregation maintains that "Elbaz has failed to allege in the complaint that Congregation Beth Judea is an `employer' as defined in 42 U.S.C. § 2000e(b) or to allege any facts which might lead to that conclusion." Memorandum at 4. In pertinent part, § 2000e(b) defines "employer" as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year...." To the extent that the Congregation's "challenge" is merely a contention that Elbaz' complaint fails to contain a necessary allegation, it is rejected, since Elbaz' charge of discrimination, Complaint Exh. B, asserts that the Congregation has twenty-five employees.

To the extent, however, that the Congregation actually contests Elbaz' claim that it is a § 2000e(b) employer, this is a factual question that cannot be decided in a motion to dismiss. Thus, while we reject the most obvious interpretation of the Congregation's contention here, and find that Elbaz meets any sort of cursory challenge, the Congregation may, of course, move for summary judgment, if it wishes, on the explicit argument that it is not, in fact, a § 2000e(b) employer.

(3) Suit Beyond Scope of EEOC Charge. The Congregation insists that Elbaz' complaint "should be dismissed as being beyond the scope...