such an impairment, or (iii) is regarded as having such an impairment.’” Whitehead,
1992 WL 159184, at *2 quoting (29 U.S.C. § 706(7)(B)). In order to be considered
“qualified” an “employee must ‘(1) satisfy the legitimate prerequisites for that al temative
position, and (2) be able to perform the essential functions of that position with or
without reasonable accommodations.”” Ozlowski, 237 F.3d at 840 quoting (Dalton v.
Subaru-Isuzu Automotive, Inc,, 141 F.3d 667, 678 (7th Cir. 1998)).

In his complaint, Plaintiff alleges that he is entitled to relief because he has a
“physical impairment” and was discriminated against because of this impairment.
However, this is not sufficient to establish a valid claim, because Plaintiff fails to
adequately plead that he is a “handicapped individual” within the meaning of the
Rehabilitation Act. See Jackson v. Sears Logistics Servs. Inc., 1997 WL 701347, at *1
(ND. Il). 1997). Mr. Virgil has never explained his “physical impairment” as
substantially limiting his major life activities. Nor has he alleged that he has a record of
such an impairment or that his employer regarded him as having such an impairment. In
fact, Mr. Virgil has never explained his “impairment” at all. Therefore, Plaintiff has
failed to cstablish that his condition qualifies him for protection under the Rehabilitation
Act. See Whitehead, 1992 WL 159184, at *2.

Furthermore, Plaintiff has not alleged that he was “qualificd” for the position.
There have been no facts regarding the requirements for the position or Mr. Virgil’s
ability to perform the essential functions of the position. The complaint is completely

void of any discussion about the position from which he was terminated. See Ozlowski,

237 F.3d at 840.



receipt of the right to sue notice from the EEOC by the plaintiff. See Houston v. Sidley &
Austin, 185 F.3d 837, 839 (7th Cir, 1999); Saunders v, Am. Warehousing Servs., Inc.,
2003 WL 21266652, at *2 (N.D.TIl. 2003). Mr. Virgil received a final decision by the
EEOC on August 10, 2001. (Compl. { 8(b)). According to the EEOC guidelines, the
decision letter stated that Plaintiff had 90 calendar days from the date of receipt to file a
civil action in district court. (Letter from EEOC p.1), This action was filed on
November 13, 2001, which is more than 90 days after receipt of the letter. See Fed. R.
Civ. Proc. 6(a); 29 C.F.R. § 1614.407(c). Additionally, the plaintiff has not alleged that
the time should have been tolled for any reason during the period between August 10,
2001 and November 13, 2001. Therefore, this action is untimely.

Even though this action is untimely, the Court feels compelled to discuss the
action pursuant to the motion to dismiss. Defendant interprets the second amended
complaint as attempting to set out a claim under the Rehabilitation Act of 1973 and
argues that this claim should be dismissed because Plaintiff has not plead the essential
elements. Defendant assumes the claim would be brought under the Rehabilitation Act
instead of the Americans with Disabilities Act (“ADA”) because “the ADA specifically
excludes government employers.” Ozlowski v. Henderson, 237 F.3d 837, 842 (7th Cir.
2001). Under the Rehabilitation Act, “a plaintiff is entitled to relief if he or she is an
‘otherwise qualified handicapped individual’ for the purposes of the Act and was
terminated because of this handicap.” Whitehead, 1992 WL 159184, at *2 quoting (29
US.C. § 794; Reynolds v. Brock, 815 F.2d 571, 573 (9th Cir. 1987)). “A handicapped
individual is defined as any person who ‘(i) has a physical or mental impairment which
substantially limits one or more of such person’s major life activities, (ii) has a record of

3



Lastly, while Mr, Virgil alleges that he was discriminated against because of his
physical impairment, he never alleges that his termination was solely based on his
impairment. In fact, he states that management made the decision “to reprimand and fire
me for failure to maintain a regular schedule.” (Compl. p.1), This calls into question the
esscntial element of termination being because of the handicap. See Whitehead, 1992
WL 159184, at *2.

Defendant also interprets the complaint as attempting to set out a claim for
physical assault committed by Mr. Virgil’s former supervisor. Again, Plaintiffhas failed
to allege any facts showing an assault. In addition, this claim is improper because the
exclusive remedy for any common law claim against a federal employce acting within
the scope of his or her employment is a suit against the United States under the Federal
Tort Claims Act (“FTCA”). 28 U.S.C. §§ 1346(b), 2679(b)(1); Apampa v. Layng, 157
F.3d 1103, 1104 (7th Cir. 1998); Sullivan v, Freeman, 944 F.2d 334, 335 (7th Cir. 1991).
Accordingly, the Postmaster General is not subject to suit under the FTCA. See id.

CONCLUSION
For the reasons set forth above, Defendant’s motion to dismiss is granted and

Plaintiff's complaint is dismissed with prejudice.

SO ORDERED ENTERED: Ws Os

Ronald A. Guzman
United States Judge

5



= Minute Qeder Farm (06°97)

* J. Lest United States District Court, Northern District of Illinois

ame v! ec Si Other
say Magia de Ronald A. Guzman than Assigned USE
CASE NUMBER 01. C8738 DATE 9/3/2003
CASE ORLONDO D. VIRGIL vs. JOHN E, POTTER, Postmaster General,
TITLE

[In the following box (a) indicate the purty filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nuture
of the motion being presented.

MOTION:

DOCKET ENTRY:

qd) Oo Filed motion of [ use listing in “MotionTM box above.]

(2) Oo Brief in support of motion due

(3) oO Answer brief to motion duc___. Reply to answer briefduc_____.

(4) Qa Ruling/Hearingon set for at

(8) O Status hearing{held/continued to] [set for/re-set for]on set for at

(6) oO Pretrial conference[held/continued to] [set for/re-set for)on set for__— at
(7) oO Trial[set for/re-set for]on at

(8) a [Bench/Jury trial} [Hearing] held/continuedto__— at

(9) QO This case is dismissed [with/without] prejudice and without costs[by/agrecment/pursuant to}

OOFRCP4(m) ClLocal Rule 41.1 CUFRCP41(a\(1) CFRCP41(a)(2).

(10) Ml [Otherdocketentry] Enter Memorandum Opinion and Order: Defendant’s motion to dismiss [24-1]
is granted and Plaintiff's complaint is dismissed with prejudice.

(ll) of {For further detail sce order attached to the original minute order.)

No notices required, advised in open court.

No notices required.

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Notices mailed by judge's staff, SEP 1 1 208

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

EASTERN DIVISION
ORLONDO D. VIRGIL, )
)
Plaintiff, )
) No. 01 C 8738
v )
) Judge Ronald A. Guzman
) YER
JOHN E. POTTER, Postmaster General, ) Rote on
United States Postal] Service, } SEP 12 MOI
Defendant. ) ,

MEMORANDUM OPINION AND ORDER

Pending is Defendant John E. Potter, Postmaster General’s motion to dismiss the
second amended complaint pursuant to Fed. R. Civ. Proc. 12(b)(6) for failure to state a
claim upon which relief may be granted. For the reasons set forth below, this motion is
granted,

BACKGROUND FACTS

Even though the plaintifi’s alleged facts may not be considered “well pleaded,”
they must be taken as true for the purpose of this motion. Plaintiff alleges that he
sustained a work related injury which caused him to make medical leave requests. (Am.
Compl. p.1). Plaintiff further alleges that in considering his requests for medical leave,
the management physically harassed and discriminated against him because of a physical
ailment. (/d.) The plaintiff seeks punitive and compensatory damages in excess of

$250,000 as well as full reinstatement and back pay.

4%)



DISCUSSION

A complaint may be dismissed under Fed. R. Civ. Proc. 12(b)(6) if it appears
beyond a reasonable doubt that it states no actionable claim - that there are no facts to
support the allegations. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-1 (1972);
Lockhart v, United States, 961 F.Supp. 1260, 1264 (N.D. Ind. 1997); Whitehead v.
Webster, 1992 WL 159184, at *1 (N.D. Ill. 1992). In deciding a Rule 12(b)(6) motion,
the court is required to view allegations in the complaint as true and construe them in the
light most favorable to the non-moving party, Lockhart at 961 F.Supp. at 1264. In
addition, complaints by pro se parties should not be held to the stringent standards of
pleadings drafted by lawyers. See Maines v. Kerner, 404 U.S, at 520. However, even
under Fed, R. Civ. Proc, 8(a) notice pleading and the liberal standard applied to pro se
pleadings, all complaints must include allegations of all the material clements of the
claim(s). Strauss v. City of Chicago, 760 F,2d 765, 768 (7th Cir. 1985).

In its motion to dismiss, Defendant raises a threshold issue of timeliness.
Defendant alleges that Mr. Virgil’s claim is untimely under the Rehabilitation Act
because he failed to file his complaint within the 90 day period set by the Equal
Employment Opportunity Commission (“EEOC”). (Def.’s Mot. Dismiss { 6). This
Court agrees. The filing of an EEOC charge within the 90 day period is “not a
jurisdictional prerequisite to be filed as a federal lawsuit, but rather, is more akin to a
statute of limitations and subject to .., equitable tolling under appropriate
circumstances.” Baumgardner v. County of Cook, 2001 WL 881246, at *3 (N.D. Ill.
2001) quoting (Hentosh v. Herman M. Finch Univ. of Health Sciences, 167 F.3d 1170,
1174 (7th Cir. 1999)). In the Seventh Circuit, the 90 day period begins to run upon

2