by the principle that the Rehabilitation Act is a remedial le gislation that must be construed liberally
to effectuate its purpose.” Johnson, 47 F.3d at 917.

At issue in this case is whether the court should consider the first EEO complaint or the
second EEO complaint as the relevant administrative action. VA contends the relevant
administrative action is the first EEO complaint. See Def. Ex. 2D at 2. The first EEO complaint
raises allegations of racial discrimination and reprisal that occurred on April 16, 1999. Id VA
points to the federal complaint and claims Mays’ alleged disability discrimination also occurred on
that day. It is undisputed that the first EEO complaint does not contain any allegations of disability
discrimination. Because of Mays’ failure to include the disability discrimination allegations in the
first EEO complaint, she is barred from asserting those claims according to VA.

In response, Mays has produced evidence of a second EEO complaint that was filed on June
29, 2000. Pl. Facts ¢ 10. This second EEO complaint contains allegations of disability
discrimination. /d. Ina notice of acceptance of her claim, the ORM credited the date of the filing of
the second EEO complaint to the first inital contact by Mays with an EEO counselor about disability
discrimination on December 16, 1999. Pl. Ex. D; 29 C.F.R §1614(a)(1). Since Mays’ second EEO
complaint stated that the date of the occurrence of disability discrimination was December 5, 1999,
the ORM noted the second EEO complaint was filed within the 45-day time limit. Id. Mays claims
this second EEO complaint demonstrates she has exhausted her administrative remedies.

VA urges the court to ignore the second EEO complaint. VA asserts the second EEO
complaint raises issues of discrimination that are factually different from Mays’ federal complaint.
Additionally, VA contends Mays’ second EEO complaint alleges incidents of discrimination that

began on December 5, 1999, whereas the disability discrimination allegations in Mays’ federal


Oa Be et, sel

the receipt of an investigative file or final decision.
CONCLUSION
The motion for partial summary judgment on the disability discrimination claims is

denied.

August 17, 2001 ENTER:

Shag Conlon

United States District Judge


4
1

DISCUSSION

I. Standard of Review

Summary judgment is proper when the moving papers and affidavits show there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); King v. National Human Res. Comm.,
218 F.3d 719, 723 (7th Cir. 2000). Once a moving party has met its burden, the non-movant must
go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.
R. Civ. P. 56(€); Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). The court considers the
record as a whole and draws all reasonable inferences in the light most favorable to the nonmoving
party. Bay v. Cassens Transp., Co., 212 F.3d 969, 972 (7th Cir. 2000). A genuine issue of material
fact exists when the evidence is sufficient to support a reasonable jury verdict in favor of the
nonmoving patty. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip
Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000).
Il. Exhaustion of Remedies

VA contends that Mays has failed to timely exhaust her administrative remedies. Under the
Rehabilitation Act, federal employees must notify an EEO counselor of discriminatory conduct
within 45 days of its occurrence. 29 C.F.R. § 1614.105(a)(1). This requirement is interpreted as a
statute of limitations and not as a jurisdictional prerequisite. Johnson v. Runyon, 47 F.3d 911, 917
(7th Cir. 1995). However, the regulation allows for exceptions. An extension of the time limit may
be available if the plaintiff shows that despite due diligence she was prevented by circumstances
beyond her control from contacting the counselor within 45 days. 29 C.F.R. §1614.105(a)(2). A

court’s determination whether a plaintiff has satisfied the exhaustion requirement “must be governed


complaint began earlier. See Def Ex. B. The court will address each of these arguments in turn.

First, a review of the second EEO complaint demonstrates that it contains allegations of
disability that are the same as those alleged in this case. See Pl. Ex. B. The second EEO complaint
states that VA “failed to accommodate the disability of Ms. Mays,” and “failed to engage in the
interactive process to find a reasonable accommodation.” Jd. These claims are similar to Counts Il,
IV, and V that alleged incidents of disability discrimination for West Side’s failure to accomodate
her disability by placing her in other professional positions, and West Side’s failure to discuss
reasonable accomodations with Mays.

Second, VA is incorrect in its assertion that the federal complaint raises claims that occurred
only on April 16, 1999. The federal complaint refers to incidents that occurred well after that date,
and the date of the filing of the first EEO complaint on June 1, 1999. It alleges that on September
15, 1999, VA offered her a nonprofessional position as a Program Support Clerk because of her
disability. Cmpt. { 19. The complaint also states from that time until November 16, 1999, Mays
made a number of requests to discuss a reasonable accomodation but West Side rejected her
attempts. Jd. at | 20. Notably, it was impossible for Mays to allege these incidents in the first EEO
complaint on June 1, 1999 because they had not yet occurred.

Moreover, the second EEO complaint form required Mays to state the “Date of Occurrence
(include the most recent date(s))” of the discrimination. Pl. Ex. B. In response, Mays entered
“12/05/99.” The record reflects that Mays was transferred to a clerical position on December 5,
1999. Affidavit of Jamie G. Sypulski (“Spypulski Aff.”) at ] 4, Pl. Ex. 1. That incident forms part
of Mays’ allegations in her federal complaint that VA has failed to offer reasonable accomodations

by offering Mays a nonprofessional clerical position. Cmpt. 19. Viewing this evidence in the light


iz

‘Mitate Order Foi (06/97)

United States District Court, Northern District of Illinois

siiie Magee Judge Suzanne B. Conlon “than hsigned Judge
CASE NUMBER 01C 1418 DATE 8/17/2001
CASE MAXCENE MAYS vs. ANTHONY PRINCIPI, SECRETARY OF VETERANS
TITLE AFFAIRS
Lin the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented, }
DOCKET ENTRY:
() ao Filed motion of [ use listing in “Motion” box above.]
(2) Qa Brief in support of motion due
(3) o Answer brief to motion due___. Reply to answer brief due
(4) oO Ruling/Hearing on __set for_at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on setfor at.
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on setfor_ sc at_
(7) Oo Trial[set for/re-set forlon___at
(8) Qa [Bench/Jury trial] [Hearing] held/continued tot.
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4¢n) OGeneral Rule21 FRCP41(a)(1) 0 FRCP41(a)(2).

cee | [Other docket entry] _ The motion for partial summary judgment [4-1] as to counts III, IV, and V is

denied. ENTER MEMORANDUM OPINION AND ORDER.

13. Clow

qi) oa

{For further detail see order (on reverse side offattached to) the original minute order.]

No notices required, advised in open court.

ices required,
No notices required, number of notices

J | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices. &

Mail AO 450 form.

Copy to judge/magistrate judge.

Oi AUG 20 PH & Ih
se deputy
initials

Date/time received in
central Clerk’s Office

mailing deputy initial



es a A SN

most favorable to Mays, the date listed in the second EEO complaint refers to the most recent
occurrence of disability discrimination and not the date when discrimination began.

Mays’ federal complaint does gives rise to some confusion by stating in the jurisdictional
statement that VA issued a final agency action decision on November 30, 2000. Cmpt. ¥ 5.
Presumably, Mays is referring to the first EEO complaint. See Def. Ex. 2A. Mays has advanced
evidence ofa second EEO complaint that adequately sets forth allegations that are the subject of the
present action. Furthermore, VA’s present position is contrary to its pastactions. VA has submitted
the final agency action on the second EEO complaint by the VA’s Office of Employment
Discrimination Complaint Adjudication (‘OEDCA”). See Def. Ex. 11. That action was dismissed

because, pursuant to 29 C.F.R § 1614.107(a)(3), the OEDCA found that Mays’ second EEO action

“was the subject of a civil action in this court. The VA’s OEDCA stated the “cause of action

contained in the complainant’s civil action encompass all of the claims accepted for investigation
in this complaint.” Id. at 2. The VA’s own agency finding provides further support for the
conclusion that the second EEO complaint is the relevant administrative remedy. Finally, the court
notes Mays has sought to address her claims at the administrative level. Allowing her claim to
proceed is consistent with the remedial purpose of the Rehabilitation Act. Horrell v. Henderson, No.
98 C 7239, 2000 WL 1831584, at *4 (N.D. Ill. Dec. 13, 2000) (citing Johnson, 47 F.3d at 917).
Accordingly, the second EEO complaint is the relevant administrative action. Mays claims
that she had not received a copy of her investigative file at the time she filed her federal complaint
in this court. Pl. Facts (12. The record indicates the ORM did not issue its final agency decision
until July 30, 2001. Pl. Ex. 11. Pursuant to 29 C.F.R. § 1614.407(b), Mays could bring this civil

action because 180 days had passed since the time of the filing of the second EEO complaint without


my

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
MAXCENE MAYS )
)
Plaintiff, ) | No.01C 1418
)
v. ) Suzanne B. Conlon, Judge
)
ANTHONY PRINCIPI, )
SECRETARY OF VETERANS AFFAIRS ) by
) Ad hy
Defendants. E,
efendants. ) A ue 2 Tép

/ 2004

MEMORANDUM OPINION AND ORDER

Maxcene Mays sues her employer Department of Veteran Affairs (“VA”) under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Rehabilitation Act of 1973, 29
U.S.C, §701 et seq. for discrimination based on race in the terms and conditions of her employment
(Count J), retaliation (Count 1), and disability discrimination (Count III-V). VA moves for partial
summary judgment on Counts III, IV and V asserting that Mays has not exhausted her administrative
remedies.

BACKGROUND

Mays, an African-American female, began working at VA’s Chicago Health Care System,
West Side Division (“West Side”) as a registered nurse in 1992. In 1997, Mays suffered a workplace
injury to her neck and shoulder. Defendant’s 56.1 Statement of Facts (“Def. Facts”) at 92. Asa
result of the injury, Mays was given a light duty assignment in the triage section of the Emergency

Room. Jd On June 1, 1999, Mays filed a formal Equal Employment Opportunities (“EEO”)


s

complaint (“the first EEO complaint”) alleging racial discrimination and reprisal with VA’s Office
of Resolution Management (“ORM”). id. at 4. The allegations were based on: (1) her transfer to
anon-nursing position in triage because of an on-going investigation regarding allegations of; patient
abuse; (2) a counseling statement given to Mays by her supervisor regarding Mays’ overuse of sick
leave; and (3) VA’s failure to disclose to Mays the results of the investigation of patient abuse. Id.
In her first EEO complaint, Mays did not claim she suffered any discrimination or adverse
employment action because of her alleged disability. Def. Facts § 6.

On January 12, 2000, Mays requested that ORM amend the June 1, 1999 complaint to
include a charge of disability discrimination. Id. at { 7. ORM denied the request because “the
allegations of disability discrimination and resulting investigations would be much different than
those of racial discrimination and reprisal.” Jd. at 8. Mays then filed a second EEO complaint with
VA’s ORM on June 29, 2000 asserting disability discrimination claims. Plaintiffs Rule 56.1
Statement of Facts (“Pl. Facts”) at § 10; Pl. Ex. B.

Mays brought this action against VA alleging racial discrimination, retaliation, and disability
discrimination on February 28, 2001. In her jurisdictional statement, Mays alleges that she “filed
timely administrative charges of employment discrimination with the VA. The VA issued a final
agency decision on November 30, 2000.” Complaint (“Cmpt.”) 45. The federal complaint raises
three counts of disability discrimination: VA failed to engage in the interactive process to determine
a reasonable accommodation (Count Il); VA failed to accommodate her disability (Count TV); and
(3) VA did not offer her a number of professional positions at West Side because of her disability

(Count V).