author: ELLEN B. BURNS, District Judge.

text:
    Renee LIBIN, et al. v. TOWN OF GREENWICH, et al.
    Civ. No. B-84-805(EBB).
    United States District Court, D. Connecticut.
    Dec. 10, 1985.

      Martin Margulies, University of Bridgeport Law School, Bridgeport, Conn., Ralph D. Clifford, Stamford, Conn., Martha Stone, Shelley Geballe, Hartford, Conn., for plaintiffs.
    John E. Meerbergen, Valerie A. Luoma, William T. Lapcevic, Joseph P. Secóla, Greenwich, Conn., for defendants.
   RULING ON MOTION FOR PRELIMINARY INJUNCTION

ELLEN B. BURNS, District Judge.

This case requires the court to decide whether a volunteer fire company may place a cross on the facade of a firehouse as part of a display' celebrating the Christmas holiday. Some may view this' case as much ado about nothing — several lawyers filing mounds of paper to resolve a symbolic dispute. Others, viewing the same case, will see a momentous struggle between values that are basic to the moral fiber of our nation. It is the duty of this court to take a dispassionate approach to the controversy — to recognize that symbols speak important messages, but to view those symbols in the context of this particular case.

I. Facts

The following facts appear to be undisputed. The Cos Cob Volunteer Fire Company (the “Company”) has decorated the fire station on the Post Road in Greenwich for the Christmas holiday for at least the past thirty years. Although the composition of this Christmas display has varied over the years, a three by five foot illuminated cross has always played a central role. Past displays have included decorated trees, a star, and candy canes. Sev- * eral of these ornaments have disappeared during the past few years so that the cross, together with three wreaths and a few strings of lights, now constitute the entire Christmas display.

The charter of the Town of Greenwich (the “Town”) establishes a Fire Department (the “Department”) under the supervision and control of the First Selectman. The Board of Selectmen is authorized to make rules and regulations to govern the Department and its members. The Greenwich Municipal Code divides responsibility for different geographic regions within the Town among several volunteer fire companies. The Code recognizes that the Department consists of both volunteer and paid members and establishes the Chief of the Town Fire Department (the “Chief”) as supervisor of the volunteer companies and the paid firemen. Greenwich Municipal Code, Art. 14. The Chief is authorized to adopt rules and regulations that are not inconsistent with regulations adopted by the Board of Selectmen and also not inconsistent with the by-laws of the volunteer fire companies. The regulations adopted by the Chief require equal treatment of paid and volunteer personnel of the Department “while recognizing that differences inherent in volunteer and paid employment may affect the impact of some practices.” Greenwich Fire Department Rules and Regulations, § 1-9.

The Town provides the Company with firefighting and emergency vehicles, liability insurance, fuel and firefighting equipment. The Company also owns some equipment. The Town provides eight paid employees to man the Cos Cob firehouse to insure around-the-clock coverage. The Town provides the members of the Company with worker’s compensation insurance, as required by state law. Conn.Gen.Stat. § 7-314a. The Town is also liable for any damages caused by members of the Company in the performance of their duties. Conn.Gen.Stat. § 7-308. The Company administers its own budget with its own funds and does not require approval of the Board of Selectmen before making expenditures. The Town owns the firehouse in question and permits the Company to use the building without payment of rent. The Town also pays for all utility and maintenance expenses for the building.

II. Standards for Preliminary Relief

The standard for granting a preliminary injunction in this circuit is well established. The party seeking the injunction must first establish that it will experience irreparable injury if the requested relief is not granted. Holt v. Continental Group, Inc., 708 F.2d 87, 90 (2d Cir.1983). To establish such irreparable injury based upon a First Amendment violation the party must show that “ ‘First Amendment interests were either threatened or in fact being impaired at the time the relief was sought.’ ” American Postal Workers Union v. United Postal Service, 766 F.2d 715, 722 (2d Cir. 1985), (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976)).

If irreparable injury is established, the party seeking the injunction must then show the likelihood that it will succeed on the merits. If it can show a probability of success, the preliminary injunction should issue. Coca Cola Co. v. Tropicana Products, Inc., 690 F.2d 312, 314 (2d Cir.1982). The injunction should also issue if the party seeking the relief raises sufficiently serious questions going to the merits to make them a fair ground for litigation and shows a balance of hardships tipping decidedly in its favor. Id.

The plaintiffs have alleged that the defendants have violated their rights under the establishment clause of the First Amendment by placing a cross on Town property. A continuing violation of First Amendment rights has frequently been held to establish irreparable injury per se. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976) (plurality opinion); 414 Theater Corp. v. Murphy, 499 F.2d 1155, 1160 (2d Cir.1974); Annunziato v. New Haven Bd. of Alderman, 555 F.Supp. 427, 432 (D.Conn.1982). There is no question that a violation of the plaintiffs’ First Amendment rights cannot be remedied by an award of monetary damages. The alleged violation of plaintiffs’ rights under the establishment clause would constitute irreparable injury if proven. Annunziato, supra. Therefore, it is only necessary to address plaintiffs’ likelihood of success on the merits.

III. Likelihood of Success on the Merits

A. Cos Cob Fire Company as a State Actor

By its terms, the First Amendment is only a limitation upon the federal government’s authority to establish or promote religion. However, the Fourteenth Amendment’s limitation upon the authority of the states to deprive their citizens of due process has long been held as imposing the strictures of the First Amendment upon the States. Wallace v. Jaffree, — U.S. -,-, 105 S.Ct. 2479, 2486, 86 L.Ed.2d 29 (1985); Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).

The question of whether or not the Company is a state actor for First Amendment purposes is important for two reasons. First, if the Company is a state actor, it is barred by the First and Fourteenth Amendments from taking any action which violates the establishment clause. Second, as a state actor the Company cannot assert its own First Amendment right to free expression as a defense to any establishment clause violation. This second point is of great significance in light of the Second Circuit’s recent decision in McCreary v. Stone, 739 F.2d 716 (1984), aff’d by an equally divided court, — U.S. -, 105 S.Ct. 1859, 85 L.Ed.2d 63 (1985).

In McCreary, a private citizen group sought permission from the Village of Scarsdale to place a creche in a public park during the Christmas holiday season. Although the village had given permission for such a display in years past, it changed its policy and refused to grant permission. The citizen group sued, claiming they had been deprived of their First Amendment right to free expression. The Second Circuit ruled that, once a municipality opens a public forum to its citizens, it cannot bar access to that forum simply because of the religious nature of the intended speech. McCreary, 739 F.2d at 727, 730.

If the Company is, in fact, a private actor, it may well claim that it cannot be prevented from putting up a cross in a public forum.

Although there is little law on the subject, it must be obvious that a state actor does not have a First Amendment right of free expression, at least in those situations in which such a right would conflict with the First Amendment rights of citizens. See Yudoff, When Government Speaks, 42-50 (1983). This result is implicit in all of the cases of the United States Supreme Court involving the establishment clause. In all of those cases the Court limited itself to resolution of the single question of whether the government’s action amounted to the establishment or promotion of religion. There was no discussion of any countervailing right inherent in the governmental agency to express its views on religion. Furthermore, the guarantees contained in the Bill of Rights are limitations on the rights of the government for the benefit of its citizens. These provisions cannot be construed as a grant to government of the very powers which the Constitution sought to limit.

An examination of the facts of this case shows that the Company is in fact a state actor. In Janusaitis v. Middlebury Volunteer Fire Department, 607 F.2d 17 (2d Cir.1979), the court analyzed whether a Connecticut volunteer fire department was a state actor subject to the strictures of the First Amendment. After analyzing state law, the governing structure of the volunteer fire department, and the interrelationship between the fire department and the town, the court found that the department was a state actor. Id. at 25. The court based its analysis primarily upon the “public function” test set forth in Jackson v. Metropolitan Edison Company, 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) and Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). The court observed that state law authorized towns to assume responsibility for fire protection, and once such responsibility was assumed it became a public function, even though that function may be delegated to a volunteer organization. Janusaitis, 607 F.2d at 24.

The defendants seek to distinguish themselves from the fire department involved in Janusaitis. First they argue that there is no agreement between the Town and the Company as required by Conn.Gen.Stat. § 7-301. However, the statute does not require a written agreement. A review of the Town Charter, Municipal Code, Fire Department Rules and Regulations, and the Company’s By-laws demonstrates an implicit agreement between the Town and the Company. The history of the relationship and the official recognition of the role of volunteer fire companies establish a clear understanding that volunteer companies will be the major force in protecting the Town from the hazards of fire. The documents earlier referred to establish a close interconnection between the paid Town fire officials, the board of selectmen, and the volunteer companies. In fact these interconnections appear to be more significant than those presented in Janusaitis. The near “symbiotic relationship” between the Town and the Company requires the conclusion that the Company is, in fact, a state actor. Janusaitis at 22, (citing Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961)).

B. Standards For Establishment Clause Analysis

The parties appear to agree that this case is controlled by the analysis set forth by the Supreme Court in the case of Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). In Lynch, the City of Pawtucket, Rhode Island, erected a large Christmas display in a privately owned park located in the city’s major business district. The display included, among other things, a Santa Claus house, reindeer pulling Santa’s sleigh, a Christmas tree, carolers, cut-out figures of numerous characters, hundreds of colored lights, and a creche. The plaintiffs challenged the inclusion of the creche in the display, arguing that the creche was a purely religious symbol, the use of which in a municipally sponsored display violated the establishment clause.

The Court analyzed the plaintiffs’ argument under the approach which it had established in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). This approach entails a three-pronged analysis. First, the court determines whether there is a secular purpose for the governmental action. If there is no secular purpose, the governmental action is invalid. Lynch, 465 U.S. at 679, 104 S.Ct. at 1362. If a secular purpose is found, the Court proceeds to determine whether the “primary effect” of the governmental action is to advance religion. Id. at 681, 104 S.Ct. at 1363. If the effect of the action is merely an incidental, indirect, or remote benefit to religion, it will withstand scrutiny under this second prong. Id. at 683, 104 S.Ct. at 1364. Finally, the court determines whether the governmental action will lead to excessive entanglement between religion and the state.

In Lynch the Court found that display of the creche involved the secular purpose of celebrating the National Holiday, Christmas. Id. at 681, 104 S.Ct. at 1363. Although the Court noted that a creche may have a religious meaning, it also has a secular meaning because it “depicts the historical origins of this traditional event long recognized as a National Holiday.” Id. at 680, 104 S.Ct. at 1363. It further found that the availability of alternative, non-religious symbols to celebrate the holiday did not transform a permitted secular purpose to a forbidden non-secular one. Id. at 681, n. 7, 104 S.Ct. at 1363, n. 7. The Court also found that, although the creche may serve to advance religion, such an effect was merely incidental to the legitimate secular purpose of celebrating the origins of the National Holiday. Id. at 681, 104 S.Ct. at 1363. Finally, the Court agreed with the trial court’s finding that the inclusion of the creche in a Christmas display did not involve excessive entanglement between religion and government. Id.

The parties agree that the instant case also presents no question of excessive entanglement between religion and government. However, they strongly disagree as to whether the display of the cross has a valid secular purpose and whether the primary effect of that display is the advancement of religion.

C. Does The Cross Serve A Secular Purpose?

Plaintiffs argue that no secular purpose is served by the display of the cross on the firehouse. Recognizing that the Supreme Court found a secular purpose in the display of the creche in Lynch, supra, the plaintiffs have steadfastly maintained that “a cross is not a creche.” This self-evident statement is shorthand for the plaintiffs’ view that, although a creche is symbolic of the historic event celebrated by Christmas, the birth of Christ, the cross is representative of his death and has no symbolic connection with the Christmas holiday except as a religious symbol.

The defendants argue that the display of the cross is identical in effect to the display of the creche in Lynch. The creche and the cross, they argue, are religious symbols that have become closely associated with the Christmas holiday. If the cross is the same as a creche for purposes of celebrating Christmas, then it follows that the secular purpose found in Lynch will be equally applicable to the case at bar.

In Lynch the Court made clear its view that a governmental act passes the first prong of the Lemon test if it has a secular purpose, even though that act may also have a religious purpose and the secular purpose could be accomplished without resort to a religious symbol. 465 U.S. at 678-85, 104 S.Ct. at 1361-65. Cf. Wallace v. Jaffree, — U.S.-,-, 105 S.Ct. 2479, 2490, 86 L.Ed.2d 29 (1985) (“the First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion.”)

The Court found just such a secular purpose in the display of the creche in Lynch. It noted that there has been a long history in which religious customs have become intertwined with governmental activities. As examples it cited the motto “In God We Trust” used on our currency; the phrase “One nation under God” used in the pledge of allegiance, and the celebration of Thanksgiving and Christmas, two national holidays with religious origins. The court considered the symbolism of the creche in light of this history. It is unquestioned that the holiday of Christmas celebrates the birth of Jesus Christ. It therefore appeared altogether fitting that a municipality celebrate that National Holiday with symbols referring to its origin.

When viewed in this context, the Lynch case is readily distinguishable from the one now before the court. The creche in Lynch had a symbolic meaning, the birth of Christ, connecting it to the holiday of Christmas quite apart from any religious significance that it might otherwise have. To the contrary, the only connection that a cross has to Christmas is as a religious symbol. There simply is no historical connection of a cross to Christmas except as a symbol of those Christian religions which accept Jesus Christ as a central figure.

Defendants have attempted to argue that, when viewed in the entire context of the firehouse display and of the larger display involving the Cos Cob business district, the cross takes on the secular purpose of adding to the blaze of light and color which is part of the traditional Christmas celebration. Of course, in viewing the purpose of the display of a cross, the court must look to the context of the Christmas holiday season. Lynch, 465 U.S. at 679-80, 104 S.Ct. at 1362; McCreary v. Stone, 739 F.2d at 729. However, the fact that the cross contributes to the light and color with which the Town celebrates Christmas is insufficient to establish a secular purpose. If this were true, any message, regardless of its religious content, would fall within the secular purpose of celebrating Christmas if brightly and colorfully lit at night.

Defendants have further argued that, even if the cross is not a symbol connected to the historical origins of Christmas, it has nevertheless become a symbol traditionally associated with the holiday. Even if true, this alone does not establish a secular purpose. It is undeniable that Christmas is a religious as well as a secular holiday. To many, the celebration of Christmas is a celebration of the very origin of their religion. To these people, an association between Christmas and the cross, the preeminent symbol of the religion founded by him whose birth is celebrated, is a natural one to make. But this association exists only because of the religious meaning of the cross.

Because the cross has no meaning in the context of the celebration of Christmas except as a religious symbol, there can be no secular purpose for including it in a Christmas display. The Company’s use of the cross in its display therefore fails to pass the first prong of the Lemon test.

D. Is The Primary Effect of the Cross the Advancement of Religion?

The second step of the Lemon analysis is the determination of whether the challenged conduct has the primary effect of advancing religion. A mere incidental endorsement of religion does not violate the establishment clause. In her concurring opinion in Lynch, Justice O’Conner adopted a useful method of analysis to help determine whether the primary effect of governmental action is to advance religion. 465 U.S. at 687-88, 104 S.Ct. at 1366-67. To determine the effect of the government’s action it is necessary to determine the message that the action actually conveys to its citizens. Id. at 690, 104 S.Ct. at 1367. “What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion.” Id.

In following this analysis with respect to the creche, Justice O’Conner found that the government’s celebration of a public holiday by use of “a traditional symbol of the holiday” could not “fairly be understood to convey a message of endorsement of religion.” Id. at 693, 104 S.Ct. at 1369. Unlike the creche, a cross is not a symbol associated with the historical origins of Christmas or with its secular celebration. In order to connect the symbol of the cross to Christmas, one must look beyond .the historical event celebrated by the holiday and into the religious meaning of the cross as a symbol of Christianity. The government’s use of a cross to celebrate Christmas serves as an invitation to its citizens to make this religious connection. Such an invitation can be construed as a message endorsing the religious beliefs that allow the connection to be made.

Because the action of the Company in putting up a cross has the appearance of giving the government’s mark of approval to a particular religious belief, that action fails the second prong of the Lemon test.

IV. Conclusion

As with most cases involving First Amendment rights, this case focuses our attention on strongly held and conflicting values. The Supreme Court has recognized that “[w]e are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952). Yet the First Amendment demands that the government maintain a stance of neutrality toward religion. See Lemon v. Kurtzman, 403 U.S. at 622, 91 S.Ct. at 2115. This neutrality requires that government accommodate all religious views, without showing a particular preference or hostility toward any. Lynch, supra 465 U.S. at 671, 104 S.Ct. at 1358.

The Cos Cob Volunteer Fire Company wishes to continue to display a cross as part of its holiday docorations as it has for some thirty years. To many members of this Company no doubt the cross has great meaning as a religious symbol, a meaning that they are proud to share with the citizens of their Town. However, as a representative of the municipal government, the Company is bound by the First Amendment to take a neutral stand with respect to religion.

The cross, in the context of Christmas, is a purely religious symbol. Unlike a creche, it has no historical connection to the holiday. The only purpose served by the display of the cross, even in the context of the Christmas holiday, is to express religious sentiment. The primary effect of the display is to give the appearance of governmental endorsement of particular religious views. Because of this purpose and this effect, display of the cross violates the plaintiffs’ rights under the First and Fourteenth Amendments.

The plaintiffs have established that they will be irreparably harmed by the display of a cross on the Cos Cob firehouse. They have also established a probability that they will prevail on their claims. Accordingly, plaintiffs’ motion for a preliminary injunction is granted and the defendants are enjoined from displaying a cross on the Cos Cob firehouse.

SO ORDERED.

      . The Company and Town have steadfastly maintained that the facade of the firehouse is a public forum, at least for the purposes of putting up seasonal displays. Although the court finds this contention weak on the record as it now stands, the finding that the Company is a state actor obviates the need to address the public forum question.

      . The Company also claims that it is different from the Middlebury Fire Department because it owns some of the equipment it uses. However, it is undisputed that it also uses a substantial amount of equipment owned by the Town as well as the Town-owned firehouse. Furthermore, although the Company owns some equipment, the Town is ultimately responsible for insuring that that equipment is properly maintained. See Rules and Regulations, § 7-9.3.1. The Company also argues that the Town does not pass upon its expenditures as it does other Town agencies. However, this slight anomaly does not counter the great abundance of factors weighing in favor of finding state action.

        The Company also makes the novel argument that because the Rules and Regulations have not been challenged and upheld as valid, they should be disregarded in analyzing the relationship between the Town and the Company. This argument flies in the face of the presumption of validity accorded administrative regulations promulgated pursuant to express statutory authority. Forester v. Consumer Product Safety Comm’n, 559 F.2d 774, 783 (D.C.Cir.1977). At least until the Rules and Regulations are challenged and found to be without effect, this court must presume their validity.

      . The court doubts that defendants would argue that the message “Jesus Christ Is The Savior of Mankind” would meet the secular purpose test if brightly lit during the Christmas season. However, a brightly lit star, symbolic of the Star of Bethlehem, would meet this test.

      . The defendants have submitted an affidavit of a clergyman who states that it is his “pastoral view that the cross is not exclusively a religious or Christian symbol — it has been accepted in the ethos of our nation as a nonreligious symbol of peace and goodwill — the very things many people celebrate at Christmas.” The plaintiffs, on the other hand, have submitted the affidavits of several ministers, a rabbi and theologians who attest that the cross is primarily a religious symbol and has no connection with the holiday of Christmas except as a religious symbol.
      Webster’s International Dictionary (2d ed., unabridged) lists nineteen meanings for the noun “cross.” Eight of these refer to its religious symbolism. None of the definitions refer to its use as a symbol of peace and goodwill. Although not dispositive, this conforms to the court’s own experience that the cross is primarily a religious symbol. Any secondary meaning as a symbol of peace appears to be derived from the teachings of Christ as set forth in the tenets of the Christian religions to which the cross is sacred.

      . A majority of the Court appears to have adopted this approach. See Wallace v. Jaffree, — U.S. at-, n. 42, 105 S.Ct. at 2490 n. 42.


source: Caselaw Access Project

author: SHADUR, District Judge.

license: Public Domain

text:
    Valerie PROFFIT, Plaintiff, v. KEYCOM ELECTRONIC PUBLISHING, Defendant.
    No. 85 C 3299.
    United States District Court, N.D. Illinois, E.D.
    Dec. 11, 1985.
    On Motion to Reconsider Jan. 31, 1986.

      Ronald B. Schwartz, Chicago, 111., for plaintiff.
    Claudia J. Lovelette, Mark A. Stang, Burke, Bosselman & Weaver, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Valerie Proffit (“Proffit”) sues Keycom Electronic Publishing (“Keycom”), charging race-motivated employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 20006-17. Keycom has moved under Fed.R.Civ.P. (“Rule”) 12(b)(6) to dismiss three of Proffit’s claims. For the reasons stated in this memorandum opinion and order, Keycom’s motion (converted to one under Rule 56) is granted.

Facts

In October 1982 Proffit, a black female, began working for Keycom as a departmental assistant. She points to several occurrences over the following two-year period as racially discriminatory:

1. In August 1983 Keycom’s Vice President Bob Taller (“Taller”) began recruiting an executive assistant. Although Taller promised to interview Proffit for that position, he never did so. Eventually Taller hired a white executive assistant.
2. In April 1984 Keycom sent a white departmental assistant to a trade show but did not send Proffit.
3. In May 1984 Bob Burk interviewed Proffit for a higher position, but he promoted a white worker to that spot.
4. In July 1984 Taller again began recruiting an executive assistant. This time Taller did interview Proffit, but he hired a white worker with less seniority than Proffit to fill the position.

On October 5, 1984 Keycom fired Proffit.

Proffit complained to the relevant federal and state agencies on two separate occasions. On June 8, 1984 she filed a charge (“Charge I,” D.Ex. B) with both the Illinois Department of Human Rights (“IDHR”) and EEOC, claiming Keycom had denied her promotion because of her race beginning in February 1984. Nearly a year later (on May 15, 1985) Proffit submitted an “Intake Questionnaire” (P.Ex. A) to EEOC, saying Keycom had discharged her in retaliation for filing Charge I. Two weeks later EEOC sent Proffit a proposed draft of a formal charge document encompassing that retaliation claim, asking that she sign and return the charge if it was satisfactory. Nearly 2lk months passed without any action by Proffit. Then on August 11 she signed the charge (“Charge II,” P.Ex. C) and filed it with EEOC. In turn EEOC proceeded on August 22 in accordance with the applicable regulation (Reg. § 1601.-14(a)):

1. Pursuant to the well-known sharing agreement between the state and federal agencies, EEOC transmitted a copy of Charge II to IDHR (D.Ex. D).
2. EEOC also sent a copy of Charge ■ II to Keycom (D.Ex. E).

Timeliness and Scope of Proffit’s Filings

Keycom advances three arguments to limit Proffit’s claims in this action:

1. Though Keycom’s allegedly retaliatory discharge occurred on October 5, 1984, Proffit neglected to file a charge with EEOC until August 11, 1985 — 310 days later. That filing failed to comply with Title VIPs time limits under Section 2000e-5(e).
2. Neither Charge I nor Charge II spoke of the allegedly discriminatory refusal to send Proffit to a trade show in April 1984.
3. Charge I contains no claim that Keycom discriminatorily denied Proffit an interview for possible promotion in August 1983.

Those asserted flaws will be dealt with in turn.

1. Proffit’s Retaliatory Discharge Claim

Section 2000e-5(e) provides a complainant must file a discrimination charge with EEOC:

1. within 180 days, or
2. in deferral states — states that have established their own agencies to remedy discrimination claims — within 300 days,

after the alleged discriminatory act. Absent special circumstances (not asserted here), no plaintiff who fails to file a timely charge with EEOC can maintain a Title VII suit. Martinez v. United Automobile, Aerospace & Agricultural Implement Workers of America, Local 1373, 772 F.2d 348, 350 (7th Cir.1985).

Proffit waited until August 11, 1985— 310 days after her October 5, 1984 discharge — to file a formal charge with EEOC. That formal charge fell outside the 300-day limitation period prescribed by Section 2000e-5(e). Keycom says Proffit consequently cannot include a claim for retaliatory discharge in this Title VII action.

Proffit retorts the Intake Questionnaire she submitted May 15, 1985 — 222 days after her discharge — constitutes a sufficient “charge” under Section 2000e-5(e) and thus satisfies the 300-day filing requirement. Keycom counters with two contentions:

1. Under EEOC’s regulations and for its own purposes, an Intake Questionnaire is not treated as a “charge.”
2. Even if the Intake Questionnaire were viewed as a “charge,” Proffit’s failure to file it with IDHR within 180 days bars a Title VII suit based on the allegedly retaliatory discharge.

Both positions have merit, as the ensuing discussion shows.

(a) Intake Questionnaire

Section 2000e-5(b) provides in part:

Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires.

Reg. § 1601.12(b) establishes the minimum requirements for the contents of a charge:

Notwithstanding the provisions of paragraph (a) of this section [outlining the required contents of a charge], a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of.

Proffit’s Intake Questionnaire clearly contained enough information to satisfy Reg. § 1601.12(b): It identified Proffit and Keycom as the relevant parties and described the alleged discriminatory act as “Retaliation due to discrimination charges I filed with [I]DHR.” Proffit relies on Casavantes v. California State University, Sacramento, 732 F.2d 1441 (9th Cir.1984) to argue the Intake Questionnaire’s content alone should determine its status as a charge, regardless of any other circumstances surrounding Proffit’s failure to file a timely formal charge. Casavantes, id. at 1443 did indeed reject the argument — advanced by Keycom in this case — that an Intake Questionnaire simply solicits general information, while only an actual charge formally invokes EEOC’s jurisdiction:

We find the University’s position overly formalistic. We observe that the same regulation permitting wide latitude in the content of the charge also includes an amendment procedure____
Consequently, while Casavantes’s questionnaire was not signed or verified, those deficiencies were cured by amendment when the formal charge document was filed on April 14, 1979. We are thus led to the inescapable conclusion that the completed Intake Questionnaire, in the context of both the amendment procedures and the liberality to be ascribed to the procedural requirements, is sufficient to constitute a charge.

This Court finds Casavantes wholly unpersuasive as a rule of decision for this case. It has several serious deficiencies toward that end.

First, of course, there is the fundamental principle that implementing regulations or administrative procedures cannot override their authorizing statute. And here Section 2000e-5(b) specifically mandates that a charge “shall be in writing under oath or affirmation,” though it then gives EEOC the power to prescribe the informational content and form of the sworn charge. EEOC’s Intake Questionnaire (its Form 283) calls for the complainant's signature, but it is not (as is the Charge of Discrimination itself, EEOC Form 5) signed under oath. Thus irrespective of EEOC’s administrative view of the Intake Questionnaire, it does not satisfy the controlling statutory definition. Casavantes’ notion of a curative amendment— somehow made retrospective to a date before the complainant filed any charge faithful to the statute’s requirement — really bends the statute out of shape (another “hard case” making “bad law”?).

That conclusion — which is really dispositive — is reinforced by EEOC’s regulations and the treatment they accord to the Intake Questionnaire, as contrasted with the sworn charge. Reg. § 1601.6 distinguishes between the general submission of information to EEOC and the actual filing of a charge:

The commission shall receive information concerning alleged violations of Title VII from any person. Where the information discloses that a person is entitled to file a charge with the Commission, the appropriate office shall render assistance in the filing of a charge.

Indeed, the Intake Questionnaire itself (P.Ex. A) states EEOC uses it to determine the existence of “potential charges,” to provide “pre-charge counseling” and “to solicit information to enable the Commission to avoid the intake of matters not within its jurisdiction.”

It is scarcely surprising that Proffit’s Intake Questionnaire did not “initiate action” by EEOC. EEOC’s “Charge and Complaint Analysis” (P.Ex. D) shows EEOC placed the Intake Questionnaire in a “Suspense File.” Reg. §§ 1601.13(a)(5) and 1601.14(a) required EEOC to send to IDHR and to Keycom copies of any charge filed by Proffit — and EEOC never forwarded copies of the Intake Questionnaire to anyone. Once Proffit did file a formal charge, however, EEOC did send copies of that document to IDHR (D.Ex. D) and to Key-com (D.Ex. E). Hence only Proffit’s formal charge triggered action by EEOC— providing further confirmation that EEOC’s regulations and its procedures conform to the underlying statute, so that Proffit’s unsworn Intake Questionnaire did not stop the limitations clock from running.

In any event, EEOC’s May 29 letter— sent the 236th day — clearly told Proffit she should sign and return the formal charge within 30 days. Had Proffit acted promptly, she would have filed her charge no later than the 266th day — well within the 300-day period. Proffit offers no explanation of why she waited almost three months to file the formal charge. In light of Proffit’s unexplained delay, this Court sees no reason to stretch the meaning of a “charge” to include an Intake Questionnaire.

(b) Failure To Make a Timely Filing with IDHR

Section 2000e-5(e) sets up a dual timetable for the filing of charges. Though it first speaks of a 180-day limitation, it goes on to establish an extended filing period in “deferral states” — such as Illinois — that have a state agency competent to grant relief for employment discrimination:

[I]n 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 from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred____

What Keycom focuses on in that respect is Proffit’s need to have “initially instituted proceedings” with IDHR — a prerequisite to her ability to invoke a 300-day calendar for EEOC filing. Keycom argues Proffit’s failure to file the Intake Questionnaire with IDHR within 180 days of her termination (the time required by state law) bars any Title VII suit based on that termination, even if the Intake Questionnaire were considered a proper “charge.”

In fact Proffit never filed the Intake Questionnaire with IDHR. But this Court has consistently held the filing of a charge with EEOC automatically satisfies the state filing requirement as well. Judge Aspen’s opinion in Zewde v. Elgin Community College, 601 F.Supp. 1237, 1240-41 (N.D.Ill.1984) (citations omitted) states the reason succinctly:

It is well established that a layperson will not be punished for filing with the “wrong” agency first. Since Illinois is a “deferral” state, if the EEOC happens to receive the charges first, it may institute state administrative proceedings on behalf of the complainant by referring the charges to the state agency____ EEOC regulations require the EEOC to refer charges automatically to the relevant state agency. 29 C.F.R. § 1601.13 (1983). Accordingly, we hold that Zevtde instituted state proceedings by filing his charge with the EEOC, and we therefore deny Elgin’s motion to dismiss on that theory.

Even so, and even if Proffit’s Intake Questionnaire (filed 222 days after her discharge) were viewed as having been (1) the equivalent of a “charge” and (2) filed with IDHR, Proffit still did not meet Illinois’ 180-day limitation period. Keycom therefore urges that even with the benefit of the most favorable assumptions, Proffit’s failure to initiate timely state proceedings precludes application of Title VII’s extended 300-day filing period.

No Supreme Court decision has directly addressed that issue. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 753, 99 S.Ct. 2066, 2070, 60 L.Ed.2d 609 (1979) considered the parallel requirement in the Age Discrimination in Employment Act (“ADEA,” 29 U.S.C. §§ 621-634) and concluded:

[T]he grievant is not required by § 14(b) [the ADEA provision] to commence the. state proceedings within time limits specified by state law.

Our Court of Appeals has recently concluded Oscar Mayer compelled “[t]he rule that the timeliness of [an ADEA] plaintiff’s state charge is irrelevant to whether he gets the extended 300-day federal charge-filing period____” Anderson v. Illinois Tool Works, Inc., 753 F.2d 622, 626 (7th Cir.1985).

Anderson, id. at 627 also suggested in dictum the same rule applies in Title VII actions. It adverted to Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), where (in the course of holding a submission to EEOC before initiation of state proceedings did not constitute a “filing” with EEOC) the Supreme Court said (id. at 814 n. 16, 100 S.Ct. at 2491 n. 16):

[A] complainant in a deferral State having a fair employment practices agency over one year old need only file his charge within 240 days of the alleged discriminatory employment practice in order to insure that his federal rights will be preserved.

Anderson, 753 F.2d at 627 commented:

Presumably, if the Court thought that the complainant was also required to file a timely state charge it would have said so, or at least not said that filing within 240 days was all the complainant was required to do.

Even more recently, however, our Court of Appeals has made plain the issue remains an open one despite the Anderson dictum. It held in Martinez, 772 F.2d at 352:

[I]n a state that has an administrative statute of limitations shorter than 180 days, a timely filing is not required to preserve one’s federal rights.

But Martinez, id. at 351-52 also said a distinction might well be drawn between states whose statute of limitations is shorter than the federal 180-day period (as in Martinez) and states with a filing period of 180 days or longer (such as Illinois). Three considerations have led this Court to find such a distinction is appropriate (despite its rejection in several other circuits).

First, Anderson’s dictum has really read too much into the earlier-quoted Mohasco footnote. Lowell v. Glidden-Durkee, Division of SCM Corp., 529 F.Supp. 17, 21-22 (N.D.Ill.1981) (emphasis in original) tells why that footnote did not really speak to an untimely filing in a deferral state such as Illinois:

First ... Lowell’s case differs from Mohasco in one crucial respect. In Mohasco, the plaintiff had initiated state proceedings within the state limitation period, which was one year. The Court did not decide whether failure to file within the state period could preclude application of the extended federal filing period. Furthermore, in the footnote cited, the Court was rejecting a line of cases that held that a claimant must file with the state agency within 180 days in every case in order to claim the extended filing period. The Court stated that this rule was too restrictive because it did not take into account deferral states that had a filing period longer than 180 days. In such cases, a claimant could file with the state more than 180 days after the injury complained of and still be within the state limitation period. As long as the claimant filed with the EEOC before 300 days had passed, the charge would be timely. But the footnote did not address the present case, where the state limitation period was equal to the federal, and plaintiff failed to file a timely charge with the state.

Second, Title VII reflects a far more meaningful policy of deferral to state agencies than the purely token state-filing provision of ADEA. Section 2000e-5(c) requires a complainant in a deferral state to give the state 60 days to consider his or her claim before he or she files with EEOC. ADEA confers no such 60-day period of exclusive jurisdiction on the states {Oscar Mayer makes it clear, as does a mere reading of ADEA, that no substantive significance at all attaches to the ADEA claimant’s state filing). Hence the pursuit of a federal ADEA remedy despite an untimely state filing involves no encroachment on any deferral policy. In sharp contrast (and as Martinez, 772 F.2d at 350-51 suggested), if a Title VII plaintiff were allowed to evade state procedures while pursuing his or her federal remedy, that would fly in the face of the purpose behind the extended filing period in deferral states. As Lowell, 529 F.Supp. at 22 put it:

The argument that a claimant becomes entitled to the extended filing period, which is designed to allow plaintiffs to exhaust their state remedies without jeopardizing their federal rights, merely because she filed a meaningless, time-barred charge with the state agency strikes this Court as illogical. To so hold would be to reduce the state filing to a procedural sham.

Third, Mohasco, 447 U.S. at 821, 100 S.Ct. at 2494 (quoting Moore, 459 F.2d at 825 n. 35) itself pointed out:

But neither [Title VII] nor anything else in the legislative history contains any “suggestion that complainants in some States were to be allowed to proceed with less diligence than those in other states.”

In those terms, to allow a plaintiff to obtain the benefit of the extended 300-day federal filing period without complying with a state’s 180-day filing period would indeed enable deferral-state plaintiffs to “proceed with less diligence” than claimants in non-deferral states. That would frustrate Congress’ entire purpose by permitting a total sidestepping of the state process that gave rise to Title VII’s extended filing time in the first instance.

This entire line of analysis finds direct support in the statutory language as well. Section 2000e-5(e) provides the 300-day extended filing period applies:

in a case ... [where] the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice____

As O’Young v. Hobart Corp., 579 F.Supp. 418, 421 (N.D.Ill.1983) (citation omitted) says:

Strictly speaking, where the claimant files a time-barred claim with the state agency, the agency is not an agency authorized to grant or seek relief with respect to that complaint____ Consequently, plaintiff is not entitled to the benefit of the extended 300 day filing period. In sum, this Court concludes Proffit’s

Intake Questionnaire — even if it were read as a “charge” — could not support a lawsuit covering its claim (one for retaliatory discharge) because Proffit failed to file the Questionnaire within 180 days. Even indulging the fiction that “filing” the Questionnaire with EEOC was also a state filing (despite EEOC’s nontransmission of the document to IDHR), the untimeliness of that “filing” precluded state review. No justification exists for allowing Proffit to benefit from an extended filing period, where a grievant in a non-deferral state would have forfeited his or her federal rights by not acting within 180 days.

2. April 198k Trade Show

Proffit also alleges Keyeom discriminatorily refused to send her to a trade show in April 1984. Keyeom responds that Prof-fit’s failure to have included that claim in either of her EEOC charges bars a Title VII suit based on that claim.

Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir.1985) (quoting Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir.1976)) (citations omitted) states the applicable test:

All claims of discrimination are cognizable that are “ ‘like or reasonably related to the allegations of the charge and growing out of such allegations.’ ” ... The standard is a liberal one in order to effectuate the remedial purposes of Title VII, which itself depends on lay persons, often unschooled, to enforce its provisions.

Proffit’s trade show claim does not meet that test.

Proffit’s June 1984 EEOC charge focused solely on discrimination in Key-com’s promotion policies. That might reasonably also embrace discrimination in transfer policies and perhaps even in salaries. But a claim that Keycom sent a white worker rather than Proffit to a trade show is not “closely linked” (Babrocky, 773 F.2d at 865) to a charge of discriminatory promotion policies. Proffit does not allege attending the trade show was a step towards promotion. Allegedly discriminatory denial of a job benefit — the opportunity to attend a trade show — does not “relate to” or “grow out of” the claim of discriminatory promotion practices contained in Proffit’s Charge I. Hence Proffit’s Title VII action cannot include that claim.

3. August 1983 Interview

Finally, Proffit also grounds her Title VII action on Taller’s allegedly discriminatory refusal to interview Proffit in August 1983. Once again Keycom urges Proffit’s failure to include that claim in Charge I bars suit on that incident.

As with the trade show incident, Proffit argues the denial of the interview is cognizable under Charge I because the event was “like or reasonably related” to the other allegations of discriminatory promotion practices contained in that charge. Babrocky, 773 F.2d at 864. Though that is of course true, the August 1983 interview occurred at least 281 days before Proffit’s June 8, 1984 filing of Charge I with IDHR. That places the alleged discrimination outside both Illinois’ 180-day filing period and the federal 240-day limit discerned in Mohasco, 447 U.S. at 814 n. 16, 100 S.Ct. at 2491 n. 16. Proffit cannot use the Jenkins-Babrocky “like or reasonably related” standard to work backward in time, thus circumventing the statutory filing deadlines. Carried to its logical extension, her argument would abolish the whole notion of limitations — for any new act of discrimination would dredge up and render actionable every long-outlawed historical occurrence of the same kind.

Proffit next argues Keycom engaged in a continuous course of discrimination against her. Hence she claims the August 1983 incident is not time-barred under a “continuing violation” theory.

Stewart v. CPC International, Inc., 679 F.2d 117, 120 (7th Cir.1982) identified the appropriate “continuing violation” theory applicable to discriminatory promotion practices:

In the first situation, “continuing violation” is the term used to describe the rule that a violation of Title VII occurs, and triggers the time limit for filing a charge, when the employee knew or should have known that he or she was discriminated against. This rule is applied in cases, usually involving hiring or promotion practices, where the employer’s decision-making process takes place over a period of time, making it difficult to pinpoint the exact day the “violation” occurred.

By definition Proffit knew of the asserted violation in question when Keycom informed her sometime in August 1983 that she would not receive an interview from Taller. That places the discriminatory act well beyond the filing period. Keycom’s alleged later failure to promote Proffit to other positions does not transform its earlier discriminatory act into a “continuing” violation. As Garcia v. Rush Presby terian-St. Luke’s Medical Center, 80 F.R.D. 254, 262 (N.D.Ill.1978) properly held:

Thus, while acts which were not the basis of the EEOC charges may be relevant as background [for] the timely claims, they may not themselves constitute the basis for imposition of liability.

Accordingly Proffit cannot rely on the August 1983 refusal to interview her as a separate claim in this Title VII action.

Conclusion

There is no genuine issue of material fact, and Keycom is entitled to a judgment as a matter of law, as to the three assertedly discriminatory acts that are the subject of its current motion. Proffit’s claims based on those acts are dismissed from this action.

ON MOTION TO RECONSIDER

This Court’s December 11, 1985 memorandum opinion and order (the “Opinion”) dismissed three of Proffit’s claims grounded in Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17. Now Proffit has filed a motion requesting this Court to reconsider its dismissal of Proffit’s retaliatory discharge claim. Although Profitt’s objections certainly merit brief discussion, they do not call for modification of the Opinion.

Proffit urges reconsideration because, she claims:

1. This Court’s treatment of Section 2000e-5(b)’s “oath or affirmation” requirement fell “outside the adversarial issues presented to the Court by the parties.”
2. Our Court of Appeals’ decision in Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th Cir.1968) dispensed with the “oath or affirmation” requirement.

Neither of those contentions is persuasive.

Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983) tells why motions for reconsideration — not provided for specifically anywhere in the Federal Rules of Civil Procedure — are seldom appropriate. One of the limited functions for such a motion, recognized in Above the Belt, is to deal with the situation where “the Court ... has made a decision outside the adversarial issues presented to the Court by the parties.” But Proffit is a bit less than candid in suggesting this Court introduced the verification issue. Proffit’s memoranda on the original motion explicitly placed substantial reliance on Casavantes v. California State University, Sacramento, 732 F.2d 1441 (9th Cir.1984) to argue the Intake Questionnaire constitutes a sufficient “charge” under Section 2000e-5(e). And the real gravamen of Casavantes’ conclusion to that effect (id. at 1443) was that Section 2000e-5(b)’s verification requirement should not impair the Intake Questionnaire’s sufficiency as a “charge.” It was of course necessary for this Court, in dealing with Casavantes’ analytical underpinnings (and deciding not to follow that case under the circumstances here), to address the verification issue.

Proffit next cites Choate —not previously cited to this Court — to argue this Court cannot use Section 2000e-5(b)’s “oath or affirmation” mandate to conclude her Intake Questionnaire did not constitute a formal charge. Choate, 402 F.2d at 359 did indeed refuse to insist on strict compliance with the “under oath” requirement:

We are of the view that the district court was in error in holding that its jurisdiction to entertain the suit depended upon whether the charge of discrimination filed with the Commission was under oath. Basic to our view is the fact that the “under oath” requirement relates to the administrative procedures which are conducted by the Commission and which precede any court action. The statute gives the Commission no enforcement powers through the adjudicatory process. It allows the Commission only to investigate charges and attempt to gain compliance by informal methods of conference, conciliation, and persuasion. Enforcement of the rights of aggrieved parties resides exclusively in the federal courts. When the statute is thus considered, it is clear that the requirement for verification of charges lodged with the Commission relates solely to the administrative rather than to the judicial features of the statute. We believe that the provision is directory and technical rather than mandatory and substantive.

However, Proffit’s reliance on Choate is misplaced for several reasons.

First, the Seventh Circuit decided Choate at a time when most courts viewed Title VII’s time limitations as a jurisdictional prerequisite to the commencement of a civil suit in federal court. Our Court of Appeals’ decision in Choate to treat the lack of an “oath or affirmation” as a mere technical defect really stemmed from two considerations:

1. EEOC had itself requested the plaintiff to swear orally to the truth of her charges. Hence the absence of a timely charge verified in writing stemmed from EEOC’s actions — not the plaintiff’s (402 F.2d at 359).
2. Because most courts considered the absence of a timely written charge a jurisdictional defect, an unwary plaintiff could not invoke any equitable considerations and would suffer innocently for EEOC’s oversights (see the related discussion on another timing issue, id. at 361).

Zipes v. TWA, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (footnote omitted) has since corrected the lower courts’ earlier treatment of untimely filing with EEOC as a jurisdictional flaw:

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

Thus, unlike the plaintiff in Choate, Proffit can invoke equitable doctrines of waiver, estoppel and equitable tolling to bolster her claim an unverified Intake Questionnaire can constitute a charge. But the Opinion, 625 F.Supp. at 404-05 has already exposed the reason Proffit has no call on the equitable conscience:

In any event, EEOC’s May 29 letter— sent the 236th day — clearly told Proffit she should sign and return the formal charge within 30 days. Had Proffit acted promptly, she would have filéd her charge no later than the 266th day — well within the 300-day period. Proffit offers no explanation of why she waited almost three months to file the formal charge. In light of Proffit’s unexplained delay, this Court sees no reason to stretch the meaning of a “charge” to include an Intake Questionnaire.

It is also worth noting that Choate dealt with the original language of Title VII (Pub.L. No. 88-352, Title VII, § 706(a), 78 Stat. 253, 259 (1964)):

Whenever it is charged in writing under oath by a person claiming to be aggrieved____

That prefatory language was stated as the prelude to EEOC action. Its form was then changed by the 1972 amendments to Title VII to a statutory mandate:

Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires.

Indeed Keycom’s current responsive memorandum accurately points out (Mem. 1) the oath or affirmation is the only requirement the statute actually spells out — everything else about the charge, but not that necessary ingredient, is delegated to EEOC to prescribe. Normal principles of statutory construction would dictate it is not open to EEOC also to prescribe the absence of what the statute compels — to waive the one ingredient the statute does not leave to EEOC.

Finally, Choate itself relied in part on EEOC’s own treatment of the unverified complaint in that case as a charge (402 F.2d at 360) (footnote omitted):

If the Commission undertakes to process a charge which is not “under oath,” we perceive no reason why the district court should not treat the omission of the oath as a permissive waiver by the Commission. To deny relief under these circumstances would be a meaningless triumph of form over substance.

But the Opinion, 625 F.Supp. at 404 (footnotes omitted) has already pointed out that was not true of Proffit’s Intake Questionnaire:

It is scarcely surprising that Proffit’s Intake Questionnaire did not “initiate action” by EEOC. EEOC’s “Charge and Complaint Analysis” (P.Ex. D) shows EEOC placed the Intake Questionnaire in a “Suspense File.” Reg. §§ 1601.13(a)(5) and 1601.14(a) required EEOC to send to IDHR and to Keycom copies of any charge filed by Proffit — and EEOC never forwarded copies of the Intake Questionnaire to anyone. Once Proffit did file a formal charge, however, EEOC did send copies of that document to IDHR (D.Ex. D) and to Keycom (D.Ex. E). Hence only Proffit’s formal charge triggered action by EEOC — providing further confirmation that EEOC’s regulations and its procedures conform to the underlying statute, so that Proffit’s unsworn Intake Questionnaire did not stop the limitations clock from running.

In sum, Proffit’s reliance on Choate does not compel reconsideration of the Opinion. This Court adheres to its original decision.

One last (and obvious) point merits brief mention in that respect. Even if this Court were to read Proffit’s Intake Questionnaire as a “charge” (as it does not), Proffit’s failure to file the Questionnaire within 180 days bars her Title VII suit based on the allegedly retaliatory discharge. Because the Opinion also rested on that equally sufficient alternative ground, Proffit’s motion for reconsideration could not change the ultimate result.

Conclusion

Proffit’s motion for reconsideration is denied. This Court reaffirms the Opinion.

      . All further citations to Title VII will simply take the form "Section — .” Regulations drawn from 29 C.F.R. will be cited "Reg. § —.”

      . Keycom Mem. 1 originally invoked Rule 12(b)(1) to seek dismissal for lack of subject matter jurisdiction. But Keycom focuses on Title VII’s requirement that a timely charge be filed with the Equal Employment Opportunity Commission ("EEOC’’). Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-98, 102 S.Ct. 1127, 1132-35, 71 L.Ed.2d 234 (1982) teaches that requirement functions as a statute of limitations rather than as a jurisdictional barrier. Thus Keycom’s motion should more properly have been labeled a Rule 12(b)(6) motion to dismiss for failure to state a claim (and Keycom R.Mem. 1 n. 1 so acknowledges).

      . Keycom's motion submitted materials external to the Complaint, and Proffit responded in kind. As is permitted (though not required) by the last sentence of Rule 12(b), this opinion treats Key-com’s motion as one for partial summary judgment under Rule 56.

      . Both parties’ evidentiary submissions (see n. 3) address only Proffit’s compliance or noncompliance with Title VII’s administrative filing requirements, not with the substantive merits of her claims. As to the latter, this opinion takes the Rule 12(b)(6) approach of accepting the Complaint’s allegations as true. Needless to say, no actual findings of fact are 'made or implied by that procedure.

      . Illinois is a deferral state. See Reg. § 1601.-74(a).

      . Casavantes’ "inescapable conclusion” would be the despair of a logician. Before the regulation’s amendment procedure can come into play, the document to be amended must itself be a “charge.” Casavantes thus "proves” that the Intake Questionnaire is a charge by assuming the very proposition sought to be proved. To be sure, the regulation does speak of amending a charge “to cure technical defects or omissions, including failure to verify the charge____” But whatever may be said of treating as only "technical” a non-verification of a document designed and labeled as a charge, it truly strains the language to accord the same treatment to a document that is not so designed and specifically does not contemplate its own verification.

      . See Moore v. Sunbeam Corp., 459 F.2d 811, 822 (7th Cir.1972) (emphasis added), where our Court of Appeals rejected plaintiff's argument that a letter he sent to EEOC constituted a filed charge:
      [W]e would not regard that type of communication as an adequate filing of the charge which is intended to initiate action by the EEOC. The letter was not addressed to the Commission, it did not request the EEOC to take any action, and if indeed a copy was received by the EEOC, it was not interpreted by that agency as a charge.

      . It is worth remembering that Zipes, while rejecting the filing of a charge as a jurisdictional bar, specifically sustained the requirement as a statute of limitations. One of the purposes of every statute of limitations is timely notice to the adverse party — to prescribe a rule for retention of records, to permit investigation while memories are still relatively fresh and so on. Hence it is not surprising that EEOC’s regulations require prompt transmittal of every charge to the employer. That purpose is disserved by treating an internal EEOC document, which never sees the light of day, as a timely charge. Understandably the regulations do not do so, and this Court will not either.

      . Proffit tries to avert the impact of the statute and regulations by an affidavit from an EEOC Unit Supervisor, Frank Keller:
      1. characterizing the Intake Questionnaire as a "sufficient charge” filed May 15;
      2. characterizing that “charge” as having been "perfected” August 14 by the "signed and sworn charge on EEOC Form 5"; and
      3. labeling the failure to notify both Key-com and IDHR of the asserted May 15 “charge,” instead sending those notices within ten days after the August 14 date, as having been done ”[t]hrough inadvertence."
      In all candor, that has a somewhat disingenuous ring — especially when the asserted "inadvertence” actually conformed to EEOC’s own regulations. But even if the affidavit is accepted at face value, internal office procedures cannot override the statute and regulations that constitute the bible to whose commandments an agency must conform.

      . By contrast, the Casavantes plaintiff did not even receive a letter from EEOC until well after the 300-day period had ended. However, he did return a signed charge to EEOC three days after he received it. 732 F.2d at 1442.

      . Whether Proffit did so is critical because even if May 15, 1985 were accepted as the EEOC charge date, it would be more than 180 days— though less than 300 days — after Proffit was fired.

      . Ill.Rev.Stat. ch. 68, § 7-102(A)(l).

      . True enough, Reg. § 1601.13 says otherwise: (3) Charges arising in jurisdictions having a 706 Agency but which charges are apparently untimely under the applicable state or local statute of limitations are filed with the Commission upon receipt. Such charges are timely filed if received by the Commission within 300 days from the date of the alleged violation. Copies of all such charges will be forwarded to the appropriate 706 Agency.
      Although administrative regulations are entitled to consideration as an aid to statutory construction, they must be rejected where (as here) they are inconsistent with the statute. Mohasco, 447 U.S. at 825, 100 S.Ct. at 2496.

        . As with the claim next discussed, this holding does not implicate any ruling as to the admissibility of evidence of Keycom’s asserted discriminatory conduct — as for example to show its intent, which is of course relevant to the charges that are within the scope of Proffit's Title VII action.

      . Illinois did not terminate its proceedings on Charge I until IDHR dismissed that charge at Proffit’s request on November 16, 1984 — well over 300 days after the August 1983 event (D.Ex. G).

      . All further citations to Title VII will simply take the form "Section — .” Regulations drawn from 29 C.F.R. will be cited "Reg. § — .”

      . This opinion will assume familiarity with the Opinion. It will not repeat either the Opinion’s factual statement or its substantive analysis, except to the extent required for current discussion.

      . Proffit Mem. at 3 and Proffit Supp. Mem. at 2.

      . (Footnote in original Opinion.)
      By contrast, the Casvantes plaintiff did not even receive a letter from EEOC until well after the 300-day period had ended. However, he did return a signed charge to EEOC three days after he received it. 732 F.2d at 1442.

      . Regulation § 1601.9 echoes that requirement: A charge shall be in writing and signed and shall be verified.

      . Proffit's motion to reconsider also asserts: [T]he EEOC insists that Mrs. Proffit’s Intake Questionnaire constitutes a charge.
      That subject has already been addressed by Opinion, 625 F.Supp. at 404 n. 9. Without extending the discussion unduly, this Court notes Keycom’s current memorandum is also correct in pointing out (Mem. 7) the affidavit on which Proffit relies does not state on affiant Keller’s personal knowledge (a prerequisite for an admissible evidentiary affidavit) that EEOC's nonmailing of the Intake Questionnaire to Keycom and the state agency was "through inadvertence” (rather than because the Intake Questionnaire was not, and was not really treated by EEOC as, a "charge”).