actually prepared the response. (/d.) In reply, the USPS argued that, even accepting as true Mr.
Burchett’s contention that he did not receive the February 13, 2002 Decision, the Second
Complaint, namely the operative complaint in Case No. 03 C 1325, was still untimely. (/d. § 45.)

Case No. 03 C 1325 was reassigned to this Court upon taking the bench in March 2004.
(id. 1 46.) In an order dated July 16, 2004, this Court invited Mr. Burchett to file a brief
explaining why his complaint should not be dismissed for his failure to timely contact the EEOC.
(id. (citing D.E. 19).) In response, Mr. Burchett argued that he was not formally fired from his
job at USPS until shortly before he contacted the EEO, or, in the alternative, that the “continuing
violation” doctrine rendered his complaints timely. (/d. 47.) Once again, although Mr.
Burchett filed his response “pro se,” attorney LeVert actually prepared the response. (/d.)

During the course of a series of hearings, the Court asked Mr. Burchett to ask Mr. LeVert
to attend a forthcoming status conference. (Id. § 48.)"° At a November 15, 2004 hearing, Mr.
LeVert entered a formal appearance in this case, and the Court permitted the Government to file
a second motion to dismiss. (/d.) After full briefing on the second motion to dismiss, the Court
denied the motion without prejudice because the Court could not rule without looking to facts
that were outside the pleadings. (/d.) The Court then permitted structured discovery on the

threshold issues related to the timeliness of the Second Complaint. Ud.) The Government argues

'© In reviewing the file (the case was reassigned to the instant Court upon taking the
bench), the Court noted that certain ministerial documents (e.g., certificates of mailing) and
similarities of certain fonts and use of legal terms suggested that an attorney might be involved in
the preparation of Mr. Burchett’s denominated pro se filings. Accordingly, the Court asked Mr.
Burchett to request Mr. LeVert (whose name appeared on certain certificates of service or
mailing) if he could come to a status so the subject could be discussed. Shortly thereafter, Mr.
LeVert filed an appearance.

20


Furthermore, Mr. Burchett has, in a written filing, represented to the district court that the
September 23, 2002 Letter “in its overall tenor and tense informed plaintiff of: (1) a right to file
suit within 90 days; (2) where to file suit; (3) how to get legal representation; and (4) some
procedural points of filing suit.” (D.E. 14 at 2; see also Pl. Resp. § 26.) Mr. Burchett
represented to the district court that he “regarded that letter as his ‘right to sue’ letter, and he
acted in accordance with that belief by filing suit [i.e., Case No. 02 C 9070 before Chief Judge
Kocoras] within 90 days from the date of the letter.” (D.E. 14 at 3; see also P|. Resp. 25.) In
addition, Mr. Burchett has represented to the district court that, back in 2002, he told attorney
LeVert that he had received a right-to-sue letter from the EEOC and attorney LeVert advised Mr.
Burchett of the elements of a disability discrimination claim and the filing deadline for bringing
suit on such a claim. (D.E. 14 at 7n.1; see also Pl. Resp. § 26.) Mr. Burchett’s First Complaint,
docketed before Chief Judge Kocoras as Case No. 02 C 9070, and his Second Complaint,
docketed before Judge Leinenweber as Case No. 03 C 1325, both represented that the September
23, 2002 Letter from the EEOC was Mr. Burchett’s right-to-sue letter, and he attached a copy of
the September 23, 2002 Letter to the First Complaint. (PI. Resp. | 35; Def. SF, Ex. 14.)

As noted above, Mr. Burchett now attempts to reverse course on his prior representations
and to contend that the September 23, 2002 Letter suffers from technical deficiencies, such that it
should not actually be understood to be sufficient to function as he has contended in the past.

In this regard, a review of the relevant statutes reveals that there is no “statutorily mandated”
content of a notice of the right to sue. Section 2000e-16(c) of Title 42 merely states that the
aggrieved federal employee shall bring a civil action “within 90 days of receipt of notice of final

action taken by a department, agency or unit....” /d. Section 2000e-5(f)(1) of Title 42, which

41


discrimination. (PI. Resp. § 29.) Mr. Burchett did not appeal Chief Judge Kocoras’s December
27, 2002 final judgment, nor did he file any motion to vacate that judgment. (/d. 4 30.) Instead,
Mr. Burchett waited until January or February 2003, at which time he asked attorney LeVert
about Chief Judge Kocoras’s final judgment. (/d. § 31.) Attorney LeVert reviewed the judgment
and advised Mr. Burchett to file a “Motion to Vacate the Final Judgement and for Leave to File
an Amended Complaint” that would remove any reference to a personality conflict. (/d.) Mr.
Burchett did not follow attorney LeVert’s advice or file such a motion to vacate the final
judgment; instead, he filed, on February 21, 2003, nearly two months after the judgment
dismissing his initial complaint, a second complaint. (/d. 32.) The second complaint (i.e., the
Second Complaint) was given a different case number and assigned to Judge Leinenweber. (Jd.)
Mr. Burchett contends that he did not intend for the Second Complaint to commence a new suit,
but instead intended it as an amendment to his prior complaint. (/d. 3.)

Precedent teaches that “if. . . [a] suit is dismissed without prejudice, meaning that it can
be refiled, then the tolling effect of the filing of the suit is wiped out and the statute of limitations
is deemed to have continued running from whenever the cause of action accrued, without

interruption by that filing.”"* Elmore v. Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000)

'" In this case, the parties agree that Chief Judge Kocoras entered a final judgment (see,
e.g., Pl. Resp. 29-30), and they also agree that attorney LeVert, when shown Chief Judge
Kocoras’s judgment, advised Mr. Burchett to file a “Motion to Vacate the Final Judgement and
for Leave to File an Amended Complaint.” (/d. 31.) In the interests of thoroughness, the Court
notes that the final judgment, which was denominated as a “Judgment in a Civil Case,” also
reflected that Mr. Burchett’s complaint was dismissed without prejudice. To the extent there is
any arguable ambiguity in the judgment—in that it appears to dismiss both the case and/or the
complaint without prejudice—precedent teaches that a court should err on the side of caution and
treat the dismissal as a dismissal of the case without prejudice, so as to allow appellate review, if
sought and warranted. See Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003) (“When the
district court’s resolution looks both ways, the only safe route is to treat it as final: the alternative
lays a trap for the unwary (or even wary) litigants, who may forego appeal in reliance on the

37


See, e.g., Elmore, 227 F.3d at 1013 (“We have emphasized in previous cases the social
importance of limitations periods for suing.”) (collecting cases); id. (re-emphasizing the
importance of limitations periods and stating that “[s]uch deadlines minimize legal uncertainty
both about the outcome of eventual litigation and about the existence and scope of the potential
defendant’s liability.”). For all the foregoing reasons, the Court concludes that the unrefuted
evidence shows that the September 23, 2002 Letter gave Mr. Burchett clear and actual
knowledge of the EEOC’s decision and of the commencement of the statutory period.
Consequently, the Court finds that the 90-day period for filing a civil action began as of Mr.
Burchett’s receipt of the September 23, 2002 Letter.

2. Equitable Tolling Does Not Save The Second And Operative Complaint

Because the present matter was filed on February 21, 2003, five months after the
September 23, 2002 Letter was received, the case (i.e., Case No. 03 C 1325) would appear to be
time-barred unless the applicable 90-day statutory period was equitably tolled. As previously
discussed, precedent directs that the statutory period should not be tolled for the time period that
Case No. 02 C 9070 was pending before Judge Kocoras or after entry of his final judgment of
dismissal. See Elmore, 227 F.3d at 1011 (collecting cases) and discussion above.

Mr. Burchett makes an open-ended argument asserting that his case warrants equitable
tolling of the statutory period, and he sets forth a number of factors that he claims support
application of the doctrine. (D.E. 42 at 13-16.) Respectfully, the Court is unpersuaded that these
factors, or more generally the equities in this case, entitle Mr. Burchett to the benefit of equitable

tolling.

46


sole residence has been 6540 South Peoria Street, Chicago, IL 60621. (/d. § 23.) At all times
relevant to this action, Mr. Burchett received all of his mail at his residential address, did not
maintain any other address, and did not maintain a post office box. (/d.) Moreover, Mr. Burchett
testified that in February 2002, he did not take any vacations and was not under any type of
physical or mental incapacity. (/d.)

At some point between February and September 2002, Mr. Burchett wrote a letter to the
EEOC inquiring about the status of his case. (/d. 124.) On September 23, 2002, the EEOC-
OFO responded by letter to Mr. Burchett’s inquiry (the “September 23, 2002 Letter”). (/d. 4] 25.)
The September 23, 2002 Letter advised Mr. Burchett that: 1) the EEOC would not provide him
with any further relief; 2) he had the right to file a suit in district court; 3) the 90-day limitation
period for bringing suit commenced on the date he received the February 13, 2002 Decision; 4)
there were various procedural requirements he had to follow to bring suit; and 5) he could obtain
information from various sources to assist in his district court filing. (/d.; Def. SF, Ex. 13
(September 23, 2002 Letter).) Mr. Burchett has testified that he received the September 23, 2002
Letter. (Pl. Resp. § 27.)

In pleadings previously filed in this case, Mr. Burchett has represented to the Court that
the September 23, 2002 Letter “in its overall tenor and tense informed plaintiff of: (1) a right to
file suit within 90 days; (2) where to file suit; (3) how to get legal representation; and (4) some
procedural points to filing suit.” (/d. § 26 (quoting D.E. 14 at 2).) Mr. Burchett also represented
that he “regarded that letter as his ‘right to sue letter,’ and acted in accordance with that belief by
filing suit within 90 days from the date of the letter.” (/d. (quoting D.E. 14 at 3); see also Def.

SF, Burchett Dep. at 53 (Mr. Burchett testifying that he received a September 2002 letter from

14


CONCLUSION

For the foregoing reasons independent reasons, the Court grants the Government’s
summary judgment motion. (D.E. 36.) The Court accepts the reasoning of the EEOC-OFO
finding that Plaintiff conditionally waived his ability to proceed in this case in his settlement
agreements, and that he failed to follow necessary preconditions before proceeding because he
did not exhaust specified administrative remedies. The Court also finds that dismissal is
independently warranted because Mr. Burchett’s suit is untimely and that equitable tolling is
inappropriate, for all of the reasons explained above.

So ordered

Mark Filip
United States Distfict Judge
Northern District of Hlinois

pate: _ 26/06


Opinion) (holding that if Mr. Burchett’s “application is denied on appeal before the Board, the
appellant [i.e., Mr. Burchett] may refile the petition.”).) In connection with this
settlement/Memorandum of Understanding, Administrative Judge Miksa issued a decision
regarding compliance in which he found that the settlement documented in the Memorandum of
Understanding was lawful on its face, and further found that the parties freely entered into the
agreement and understood its terms. (Pl. Resp. § 8.) Administrative Judge Miksa dismissed
without prejudice the Petition to Enforce the Settlement Agreement pending adjudication of Mr.
Burchett’s disability retirement application by the OPM, and, if necessary, by the MSPB on
appeal. (/d.)

In May 1996, the OPM informed Mr. Burchett that it could not grant his request for
disability retirement because of insufficient documentation. (/d. § 9; see also Pl. SAF, Ex. 16 at
3 (‘OPM Disallowance Letter”).) Mr. Burchett contends, at least now, that the USPS
insufficiently supported his benefits application at that time, even though USPS knew that OPM
had denied his application. (D.E. 42 at 12.)!"'

Nonetheless, Mr. Burchett did not appeal to the MSPB as required by the settlement
agreements and, in particular, the Memorandum of Understanding. (See Pl. Resp. § 7; Def. SF,

Ex. 2.) Instead, in June 1996, Mr. Burchett, through his attorney at the time, refiled his Petition

'' In his argument on this point, Mr. Burchett simply asserts factual claims without any
citation to the underlying record. (See D.E. 42 at 12.) That practice is improper under local rule.
See Malec v. Sanford, 191 F.R.D. 581, 583 (N.D. Ill. 2000). This failing likely provides an
independent basis to reject any “violation of the Illinois implied covenant of good faith and fair
dealing” argument that Mr. Burchett offers, over and above all the other reasons stated in this
section. See, e.g., Koszola v. Bd. of Ed. of City of Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004)
(“{S]ummary judgment is the ‘put up or shut up’ moment in a lawsuit, when a party must show
what evidence it has that would convince a trier of fact to accept its version of events.””) (internal
quotation marks and citation omitted).

24


is made applicable to civil actions filed by federal employees by 42 U.S.C. § 2000e-16(d), further
states that where the Commission [i.e., the EEOC] has not filed a civil action upon request of an
individual, the EEOC “shall so notify the person aggrieved and within ninety days after the
giving of such notice a civil action may be brought... .” 42 U.S.C. § 2000e-5(f)(1).. Thus, the
pertinent statutes require “a dismissal by the EEOC followed by notice to the person aggrieved”
to start the limitations period, but the legislative statements offer “no specific command about
form or content” of the notice. Ebbert v. DaimlerChrysler Corp., 319 F.3d 103, 109 (3d Cir.
2003); see also id, at 116 (holding that oral notice can start the 90-day period, where such oral
notice is equivalent to written notice).

As for Seventh Circuit case law discussing the requirements of notice of a plaintiff's right
to sue, in Jones v. Madison Serv, Corp., 744 F.2d 1309 (7th Cir. 1984), the Seventh Circuit
stressed that “the most crucial concept in this matter . . . is the actual knowledge that the time
period in which a suit can be filed has commenced.” Jd. at 1313 (concluding that “[s]uch
knowledge is conveyed equally well through personal receipt of the right-to-sue letter by the
claimant and through receipt of that letter by the attorney representing him in the action.”). Jones
went on to observe that “the specific fact situations will vary considerably, and there will
undoubtably be times when the courts will have to inquire into those fact situations to determine
if there was actual, binding knowledge.” /d. The Court understands Jones to teach that, where
the propriety of notice is challenged, a district court must be sensitive to evaluate whether a
plaintiff received fair notice of his right to sue and that a 90-day clock had started concerning

when to file an effective suit. As explained above, when one looks at the specific facts and

42


Thereafter, Mr. Burchett appealed his discharge to the MSPB. (PI. Resp. { 3.) In his
MSPB appeal, Mr. Burchett claimed that his discharge was discriminatory. (Def. SF §3.)° On
April 24, 1995, Mr. Burchett, along with his union representative, entered a “Firm Choice Last
Chance Settlement Agreement” (“Settlement Agreement”) with USPS resolving his MSPB
appeal. (Pl. Resp. { 4.) The Settlement Agreement provided in pertinent part that:

a. the parties understood the terms of the agreement and entered into its terms of their
own free will, without coercion, harassment, threats or intimidation;

b. Mr. Burchett agreed to pass a fitness for duty examination and a psychological
examination to determine if he could meet the requirements of his position;

c. Mr. Burchett agreed that if he was unable to pass the fitness for duty and/or the
psychological examination, the discharge would be effective; and

d. Mr. Burchett agreed that his MSPB appeal was withdrawn by the Settlement
Agreement. (/d.; Def. SF, Ex. 1.) He also agreed that “this resolves any pending or future appeal
through the Merit Systems Protection Board, EEO, Grievance/Arbitration, administrative, union
contract or judicial forum with respect to this removal action. The appellant know[s} and
understand{s] that he waives any further appeal rights to the Merit Systems Protection Board,

EEOC, judicial forum or under the applicable union contract with respect to this removal.” (Def.

5 Plaintiff claims that “[i]n that Plaintiff suffers from dementia and diabetes, he has no
clear recollection of what was stated in his appeal to the MSPB, and the defendants have not
offered a copy of the appeal to support this alleged fact and plaintiff's deposition testimony is
clear in that regard.” (PI. Resp. 43.) Neither party has produced a copy of Plaintiff's appeal
before the MSPB. However, in his October 2005 deposition, Plaintiff answered affirmatively to
the question that “you [Mr. Burchett] believe that you raised discrimination as an issue before the
MSPB, but you’re unsure what exactly your claim of discrimination was?” (Def. SF, Citations to
Trans. of Oct. 20, 2005 Burchett Dep. at 13.) Therefore, the Court finds that Government has
introduced sufficient support for its statement of fact noted above.

5


In the present matter, there is no specific or uncontroverted evidence of delivery (again,
Mr. Burchett avers that he never received the letter) and consequently no evidence on Mr.
Burchett’s part of ignoring any certified mail notices. In addition, there is no contention that Mr.
Burchett’s address information with the EEOC-OFO was allowed by him to lapse out of date.
Accordingly, Plaintiff has at least raised an issue of material fact about whether he had actual
notice of the February 13, 2002 Decision that would have commenced the running of the 90-day
period at that time. Similarly, the factual record does not conclusively establish that any
constructive notice/fault regime is applicable. As a result, the Court respectfully denies the
Government’s request to grant summary judgment on the basis that both the First and Second
Complaints were untimely in relation to the February 13, 2002 EEOC-OFO Decision.

C. Plaintiff's Operative Complaint Is Nonetheless Untimely And No Equitable Tolling Is
Warranted

As the Government contends, Mr. Burchett’s Second (and operative) Complaint, which
underlies the instant action in Case No. 03 C 1325, is untimely and no equitable tolling is
warranted on the circumstances presented. This basis for dismissal independently warrants
dismissal of the suit, even if the Government were incorrect about the other appropriate basis for
dismissal previously discussed, which it is not.

1. The Statutory Period Commenced With The September 23, 2002 Letter

Although issues of material fact preclude a finding that the February 13, 2002 Decision
triggered the 90 day period, Mr. Burchett’s suit is nonetheless time-barred. As Mr. Burchett has
repeatedly admitted in this case—both in his initial pro se filings, in subsequent filings “pro se”

filings that were actually prepared by counsel, and in his deposition—he unquestionably received

35


that Mr. Burchett’s claim suffers from numerous threshold defects, and seeks summary judgment
in its favor dismissing Mr. Burchett’s claims.
STANDARD OF REVIEW
Summary judgment is proper where “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). The nonmovant cannot rest on the pleadings alone, but
must identify specific facts, see Cornfield v. Consol. High Sch. Dist. No. 230,991 F.2d 1316,
1320 (7th Cir. 1993), that raise more than a scintilla of evidence to show a genuine triable issue
of material fact. See Murphy v. ITT Educ. Servs., Inc., 176 F.3d 934, 936 (7th Cir, 1999)
(citation omitted). The Court views the record and all reasonable inferences drawn therefrom in
the light most favorable to the nonmovant. See Fed. R. Civ. P. 56©; Foley v. City of Lafayette,
359 F.3d 925, 928 (7th Cir. 2004)
DISCUSSION
This litigation has a long and winding history, and the Government asserts that multiple
procedural failings warrant dismissal of Mr. Burchett’s present claim. The Court finds that some
of the Government’s asserted procedural bases cannot be resolved upon summary judgment
because of the existence of issues of material fact. However, the Court concludes that summary
judgment is warranted on the independent grounds that (1) Plaintiff has conditioned his right to
pursue the instant claim and he has failed, as the EEOC found, to fulfill necessary preconditions

in his settlement agreements for him to pursue the instant claim; and (2) Plaintiff's Second

21


The Final Agency Decision of the USPS concerning Mr. Burchett’s EEO complaint
issued in December 1999. (Def. SF, Ex. 7.) That Final Agency Decision stated that, “[c]learly,
complainant cannot at this time initiate, or seek redress through, the EEO complaint process on
his removal.” (/d. at 2.) The Final Agency Decision further noted that, inter alia, in the “Firm
Choice Last Settlement Agreement” (i.e., the Settlement Agreement), Mr. Burchett and his
representative agreed “to the terms of the settlement agreement” and agreed to “withdraw their
appeal to the MSPB for the removal action and agree that this resolves any pending or future
appeal through the Merit Systems Protection Board, EEO, Grievance/Arbitration, administrative,
union contract or judicial forum with respect to this removal action.” (/d. at 1; see also Def. SF,
Ex. 1 at 3 (“The appellant know([s] and understand[s] that he waives any further appeal rights to
the Merit Systems Protection Board, EEOC, judicial forum or under the applicable union contract

with respect to this removal.”).)

or perceived disability).) The first time a failure-to-accommodate theory was advanced was in
the Second Complaint—well after the EEOC proceedings at issue. (See Def. SF, Ex. 16 (Second
Complaint) § 12 (now designating that Plaintiff is advancing suit in connection with the USPS’s
termination and alleged failure to accommodate).)

Precedent teaches that a litigant like Mr. Burchett cannot advance a claim in district court
litigation that he did not raise during his EEO proceedings. See, e.g., Cheek v. W. & S. Life Ins.
Co., 31 F.3d 497, 500 (7th Cir. 1994) (“As a general rule, a. . . plaintiff [in an employment
discrimination case] cannot bring claims in a lawsuit that were not included in her EEOC
charge.”) (citation omitted). Although this doctrine allows for presentation of a claim that the
EEOC should have investigated given the nature of the claim(s) actually presented, Mr. Burchett
provides no evidence or suggestion that he objected to the EEOC-OFO’s designation of the
issues presented for investigation, nor that the EEOC-OFO’s reading of the scope of his EEO
complaint was unreasonable. Accordingly, in addition to all the other problems discussed herein,
any putative failure-to-accommodate claim is barred under principles articulated in cases like
Cheek. Accord, e.g., Green v. Nat'l Steel Corp., Midwest Div., 197 F.3d 894, 898-99 (7th Cir.
1999) (“As we have stated previously, a failure to accommodate claim is separate and distinct
from a claim of discriminatory treatment under the ADA.”) (citing Weigel v. Target Stores, 122
F.3d 461, 464 (7th Cir. 1997)).

27


b. Mr. Burchett agreed to pass a fitness for duty examination and a psychological

examination to determine if he could meet the requirements of his position;

c. Mr. Burchett agreed that if he was unable to pass the fitness for duty and/or the

psychological examination, the discharge would be effective; and

d. Mr. Burchett agreed that his MSPB appeal was withdrawn by the Settlement

Agreement.

(PI. Resp. | 4; Def. SF, Ex. 1.) He also agreed that “this resolves any pending or future appeal
through the Merit Systems Protection Board, EEO, Grievance/Arbitration, administrative union
contract or judicial forum with respect to this removal action. The appellant know[s] and
understand[s] that he waives any further appeal rights to the Merit Systems Protection Board,
EEOC, judicial forum or under the applicable union contract with respect to this removal.” (Def.
SF, Ex. | at 3 (Settlement Agreement).) The Settlement Agreement delayed the effectiveness of
Plaintiff's removal pending performance of the terms of the agreement. (/d. at 3-4.)

As noted above, the USPS in June 1995 found that Mr. Burchett failed the requisite
fitness for duty examination. (Def. Resp. 5.) In July 1995, Mr. Burchett attempted to return to
work, but the USPS refused to allow him, citing the failure to pass the fitness-for-duty test. Mr.
Burchett petitioned the MSPB to enforce the Settlement Agreement, which led, in November
1995, to the dismissal of that petition without prejudice based on the Memorandum of
Understanding that Mr. Burchett and his union representative reached with the USPS.

That Memorandum of Understanding provided, inter alia, that Mr. Burchett could re-file his
petition if the application for disability retirement was denied and the denial was upheld after

appeal to the MSPB. (PI. Resp. { 7: Def. SF, Ex. 2; accord id., Ex. 3 (November 9, 1995 ALJ

23


the EEOC’s September 23, 2002 Letter, understood it to be a right-to-sue letter, and in fact used
the document as a right-to-sue letter when filing his complaints. As a result, and for the reasons
explained below, the Court finds that the 90-day period to sue commenced upon Mr. Burchett’s
undisputed receipt of the September 23, 2002 Letter from the EEOC.

For example, in prior filings in the district courts, Mr. Burchett stated that he “regarded
that letter as his ‘right to sue letter,’ and acted in accordance with that belief by filing a suit
[before Chief Judge Kocoras] within 90 days from the date of that letter.” (PI. Resp. {| 26
(quoting D.E. 14 (Plaintiff's Resp. to Govt.’s Motion to Dismiss) at 3).) Furthermore, Mr.
Burchett has represented that the September 23, 2002 Letter “in its overall tenor and tense
informed plaintiff of: (1) a right to file suit within 90 days; (2) where to file suit; (3) how to get
legal representation; and (4) some procedural points to filing suit.” (/d. (quoting D.E. 14 at 2).)
Mr. Burchett has also represented that in November 2002 he told attorney LeVert that he
received a right to sue letter from the EEOC, and that attorney LeVert advised him of the
elements of a disability discrimination claim and the filing deadline for bringing such a claim.
(id. (citing D.E. 25 at 7 n.1); see also Def. SF, Burchett Dep. at 53 (Mr. Burchett’s deposition
testimony acknowledging that he received the EEOC Letter “saying that J had the right to sue
which would be in September of 2002.”).) The First Complaint also attached the September 23,
2002 Letter from the EEOC as a right to sue letter concerning the suit. (See Def. SF, Ex. 14
(First Complaint) { 8(b) and attached September 23, 2002 Letter from EEOC).)

As previously explained, Chief Judge Kocoras dismissed the First Complaint by a final
judgment, which dismissed the complaint without prejudice because the allegations in it revealed

that Mr. Burchett was complaining about being fired due to a personality conflict rather than any

36


subject to any finger-on-the-scale against it in terms of more generous treatment for Mr. Burchett
as a putative pro se litigant.”

In any event, both “Plaintiff's Motion to Reinstate Complaint and to File an Amended
Complaint Immediately,” which was brought before Chief Judge Kocoras, and “Plaintiff's
Motion to Reconsider and Vacate Judgment,” which was brought before Judge Leinenweber,
were filed on April 25, 2003. Both motions represented that a) Mr. Burchett was proceeding pro
se, b) the September 23, 2002 EEOC-OFO letter was Mr. Burchett’s right to sue letter, and c) the
Second Complaint was an attempt to amend Mr. Burchett’s First Complaint. (PI. Resp. § 38.)

The motion before Judge Leinenweber represented that, “[b]eing a layperson, the plaintiff
was not familiar with the procedure for filing his amended complaint.” (/d. § 39 (quoting Def.
SF, Ex. 18 §7; but see Pl. Resp. 4 31 (Plaintiff's acknowledgment that, after Chief Judge
Kocoras issued his final judgment, “[a]ttorney LeVert reviewed the judgement and advised [Mr.]
Burchett to file a ‘Motion to Vacate the Final Judgement and for Leave to File an Amended
Complaint’ removing any reference to a personality conflict.”); Def. SF, Burchett Dep. at 56
(same).) The motion was silent as to Mr. LeVert’s prior advice and assistance to Mr. Burchett,
and also silent as to the fact that an attorney prepared the motion. (PI. Resp. § 39.) The motion
before Chief Judge Kocoras represented that, “due to his [/.e., Mr. Burchett’s] lack of knowledge
regarding the rules of civil procedure, the plaintiff had not sought leave of court before

attempting to file the amended complaint” and “[bJeing a layperson, the plaintiff was not familiar

° Again, the Court assumes the best about the underlying situation, and that Mr. Burchett
was seeking attorney LeVert’s advice and attorney LeVert was simply trying to be a nice person.
The Court is not critical in the sense that “no good deed should go unpunished”, however, the
Court does have concerns about the propriety of filing “pro se” documents seeking more
generous treatment for a litigant when those documents, in fact, have been prepared by counsel.

18


in the event that his disability retirement application is denied by OPM and on appeal, by the

Merit Systems Protection Board.”) (underlining in October 30, 1996 ALJ decision).)

Accordingly, the ALJ found “that the appellant has not demonstrated that he has fulfilled a
necessary pre-condition to refiling his enforcement petition, and the petition must be
DISMISSED without prejudice as premature.” (/d., Ex. 5 at 4.) The Certificate of Service
attached to the decision certified that the decision was mailed to both Mr. Burchett and Mr.
Whitfield, his attorney. (/d. at 7.)

On May 1, 1997, a three-member panel of the MSPB summarily denied a petition for
review of the October 30, 1996 Decision to dismiss without prejudice as premature Mr.
Burchett’s renewed Petition to Enforce the Settlement Agreement. (Pl. Resp. § 12.) The denial
noted that this was the MSPB’s final order in the appeal, and that any further appeal had to be
taken to the United States Court of Appeals for the Federal Circuit within thirty days of receipt of
the denial by Mr. Burchett or his attorney. (/d.)

In May 1997, Mr. Burchett received a letter dated May 13, 1997 from Maxine Moore, a
Human Resources Specialist with the USPS, notifying him that his employment was terminated
effective May 1, 1997. (Pl. SF § 18; Def. Resp. § 18.) Ms. Moore also indicated that Mr.
Burchett had “30 days to appeal to the U.S. Court of Appeals.” (PI. SAF, Ex. 16.)

On or about June 4, 1997, Mr. Whitfield filed a Request for Review of the MSPB’s May
1, 1997 order with the Federal Circuit. (PI. Resp. § 14.) The Federal Circuit dismissed Mr.
Burchett’s petition for review for failure to prosecute on September 5, 1997, because his
supporting brief was not timely filed. (/d. 4 15; see Def. SF, Ex. 9 (Burchett v. USPS, 124 F.3d

228, 1997 WL 575847, *1 (Fed. Cir. Sept. 5, 1997) (unpublished order) (“The petitioner having

10


In the present matter, Mr. Burchett has stated in an affidavit that he never received the
February 13, 2002 Decision. (See Pl. Resp. J 22; see also Pl. SAF, Ex. 1 § 11 (Burchett Aff.).)
The Government has produced no evidence specifically refuting Mr. Burchett’s claim that he did
not receive the February 13, 2002 Decision—instead the Government merely produced
circumstantial evidence that could be understood, at least potentially, to cast doubt on the validity
of Mr. Burchett’s contention. [n this regard, the Court notes that the actions taken by Mr.
Burchett subsequent to the mailing of the February 13, 2002 Decision issuing do not undermine
his statement that he did not receive it. For example, at some point between February 2002 and
September 2002, Mr. Burchett apparently wrote the EEOC-OFO to inquire about the status of his
case, (PI. Resp. § 24.) Based on his affidavit and universe of available evidence, Mr. Burchett
has created an issue of material fact on the question of whether he actually received the February
13, 2002 Decision.

Although the Government introduces no evidence directly reflecting that Mr. Burchett
actually received the February 13, 2002 Decision, the Government’s position is that the 90-day
period started running shortly after the decision issued because “the certificate of service
indicates [that] a copy was mailed to him, and he has offered no excuse for his failure to retrieve
the decision.” (D.E. 44 at 4-5.) However, the Court respectfully concludes that the
Government’s statement about the mailing of the Decision is somewhat off-base, because there is
no “certificate of service” for the February 13, 2002 Decision; instead there is a “certificate of
mailing,” which is a statement from an EEOC-OFO assistant personally certifying that the
decision was mailed to Mr. Burchett on February 13, 2002. (Def. SF, Ex. 11 at 4.) Significantly,

the Certificate of Mailing does not indicate to what address the decision was mailed. Nor does it

33


then defaulted a subsequent appeal of the dismissal for failure to exhaust by failing to prosecute
the appeal in conformity with the rules and requirements of the Federal Circuit.

The Court concurs with the EEOC and the ALJ that Mr. Burchett may not fail to fulfill
his obligation to prosecute his underlying claim to the MSPB, as required by the Memorandum of
Understanding, and nonetheless seek to obviate the terms of the Settlement Agreement, which
otherwise provided for a waiver of his right to air the removal dispute before the EEOC and/or in
a judicial forum. Mr. Burchett has never appealed the denial of his benefits claim, as required,
and he cannot evade that requirement by simply appealing an ALJ refusal to allow him to
proceed that was based on his failure to exhaust his appeal rights before the MSPB. Otherwise,
the obligation for him to appeal to the MSPB—i.e., the foundation of the ALJ’s dismissal
without prejudice, and a central term of the settlement agreements—would be rendered
meaningless. See generally, e.g., United States v. Cook, 668 F.2d 317, 321 (7th Cir. 1982)
(teaching that agreements should not be understood in a manner that renders terms meaningless
or “practically meaningless”); AM Gen. Corp. v. Daimlerchrysler Corp., 311 F.3d 796, 820 (7th
Cir. 2002) (similar; applying New York law); Hostmark Investors Ltd v. GEAC Enter. Solutions,
Inc., No. 01 C 8950, 2002 WL 1732360, at *3 (N.D. Ill. July 26, 2002) (collecting cases and
applying “the age-old principle that contracts must not be interpreted so as to render clauses
superfluous or meaningless.”).

Mr. Burchett does not contend that he ever exhausted the merits of his disability denial,
as required by the Memorandum of Understanding. Nor does Mr. Burchett challenge the
EEOC’s finding that the waiver of EEOC and other rights was a knowing waiver made without

duress. (See Def. SF, Ex. 10 at 3 (July 25, 2001 EEOC-OFO Decision holding that “the EEOC

30


favor—because of the other defects in Mr. Burchett’s case warranting summary judgment in
favor of the Government.®

In July 1995, Mr. Burchett attempted to return to work, but the USPS would not allow
him to do so. (PI. SAF { 8; Def. Resp. ¥ 8.) The USPS informed Mr. Burchett that the statement
from the V.A. would not be accepted and that only the diagnosis of the Isaac Ray Center would
be followed. (/d.) Specifically, Captain Conrad Alexinski orally informed Plaintiff that USPS
would only accept the opinion of the Isaac Ray Center’s psychiatrist. (Plaintiff SAF 4 9; Def.
Resp. ¥ 9.) In addition, Captain Alexinski informed Plaintiff by letter dated July 28, 1995 that he
had been found unfit for duty, and that “[fJurther medical/neurologic examination(s) are required.
As soon as the information is provided I will present you with detailed instructions concerning
this evaluation.” (PI. SAF, Ex. 9.)

On July 21, 1995, Mr. Burchett petitioned the MSPB to enforce the Settlement

Agreement (“Petition to Enforce”). (Plaintiff Resp. ] 6; Pl. SAF § 12; Def. Resp. § 12.) On

® Plaintiff contends—without appropriate support—that in July 1995, Dr. A.R. Doyle at a
V.A. Hospital examined Mr. Burchett and found that Plaintiff was fit to return to work. (Pl.
SAF, § 7.) As the Government correctly argues, Mr. Burchett lacks appropriate factual
foundation for such assertions. (See Def. Resp. 6 (“Both of the referenced exhibits [offered by
Mr. Burchett] present inadmissible unsworn hearsay consisting of conclusory statements devoid
of detailed factual support.”).) The evaluations Plaintiff offers are unsworn, and he offers no
other sworn testimony supporting them that is not derived from such hearsay; thus the assertions
cannot be credited because they are based on unsworn and inadmissible evidence. See, e.g., Fed.
R. Civ. P. $6(e); Logan v. Caterpillar, Inc., 246 F.3d 912, 925 (7th Cir. 2001) (collecting
authorities teaching that “[H]earsay is inadmissible in summary judgment proceedings to the
same extent that it is inadmissible in a trial.”); Witmer v. Peters, 87 F.3d 916, 917 (7th Cir.
1996) (citing Fed. R. Civ. P. 56(e) and stating that unsworn reports are not admissible for
purposes of summary judgment); Friedel v. City of Madison, 832 F.2d 965, 969-71 (7th Cir.
1987) (discussing admissibility requirements in the summary judgment context). This deficiency
in Plaintiff's filings ultimately is not material to the bottom-line result, because the parties agree
that someone at the V.A. disagreed with the Isaac Ray diagnosis concerning Mr. Burchett’s
alleged dementia, and also because the two alternative bases for summary judgment in favor of
the Government do not turn on the validity of the dementia diagnosis.

7


SF, Ex. | at 3 (Settlement Agreement).) The Settlement Agreement delayed the effectiveness of
Plaintiff's removal pending performance of the terms of the agreement. (/d. at 3-4.)

On June 20, 1995, Mr. Burchett was evaluated pursuant to the USPS’s request and
pursuant to the Settlement Agreement by a psychiatrist at the Isaac Ray Center, Dr. David E.
Hartman, who determined that Mr. Burchett suffered from dementia and was unfit for duty.

(Def. Resp. { 5; see also Pl. SAF, Ex. 6.) Dr. Hartman recommended “complete
neuropsychological testing as well as a dementia work-up conducted by a neurologist.” (Pl. SAF,
Ex. 6 at 5.)

There is evidence in the record, none of which is specifically controverted by Plaintiff,
that throughout the period from 1992 to 1999, at a minimum, “ail armed personnel of the [USPS]
Inspection Service” in Chicago, to include Mr. Burchett, went “exclusively to the Isaac Ray
Center for psychological-psychiatric evaluations.” (Def. SF, Ex. 7 at 2.) As discussed below,
Mr. Burchett contends, at least at some level within the framework permitted by Local Rule 56.1,
that someone whom Mr. Burchett elected to see at the Veteran’s Administration (the “V.A.”)
disagreed with the determination of the psychiatrist at the Isaac Ray Center that Mr. Burchett was
unfit for duty as an armed officer because he was suffering from dementia. (PI. Resp. § 5.)
Given the evidence in the record about the fact that the USPS exclusively used the Isaac Ray
Center for all of its psychological-psychiatric work evaluations during the relevant time period, it
is a fair question whether any reasonable jury could conclude that Plaintiff's implicit
contention—that someone other than an Isaac Ray psychiatrist could diagnose Mr. Burchett’s
psychiatric-psychological competence to be an armed USPS police officer—is a plausible one.

The Court need not resolve this issue—and can assume its resolution in Mr. Burchett’s


with the procedure for filing his amended complaint, and the court should view the facts
surrounding plaintiffs procedural errors liberally so as to do substantial justice and equity with
regard to plaintiff's rights.” (/d. § 40 (quoting Def. Ex. 19 994, 9; but see Pl. Resp. § 31
(Plaintiff's acknowledgment that after Chief Judge Kocoras issued his final judgment, “[a]ttorney
LeVert reviewed the judgement and advised Burchett to file a ‘Motion to Vacate the Final
Judgement and for Leave to File an Amended Complaint’ removing any reference to a
personality conflict.”); Def. SF, Burchett Dep. at 56 (same).) As with the motion filed before
Judge Leinenweber, this motion was silent as to attorney LeVert’s prior advice and assistance,
and to the fact that an attorney had prepared the motion. (PI. Resp. § 40.)

On May 9, 2003, Chief Judge Kocoras denied Mr. Burchett’s motion to reinstate the First
Complaint and to file an amended complaint. (/d. § 41.) Mr. Burchett did not appeal this order.
(/d.) On September 11, 2003, Judge Leinenweber granted the motion to reconsider and vacated
his earlier judgment based on the contention that Mr. Burchett was trying to amend the First
Complaint before Chief Judge Kocoras. (/d. 42.) Judge Leinenweber also referred Case No. 03
C 1325 to the Executive Committee, where it was reassigned to Chief Judge Kocoras. (/d. 4 43.)

The USPS then moved to dismiss Case No. 03 C 1325 because Mr. Burchett did not file
his complaint until ten months after the February 13, 2002 Decision, which was well beyond the
applicable 90-day statute of limitations. (/d.) In response to USPS’s motion, Mr. Burchett
argued that: 1) he never received the February 13, 2002 Decision; 2) he filed suit because he
thought the EEOC-OFO’s September 23, 2002 Letter was his right to sue letter; and 3) the 90-
day statute of limitations never started running because the September 23, 2002 Letter was not a

right to sue letter. (/d. § 44.) Although Mr. Burchett filed his response “pro se,” attorney LeVert

19


was qualified. (PI. Resp. J 9; see also Pl. SAF, Ex. 16 at 2 (“OPM Disallowance Letter”).) Mr.
Burchett contends that the USPS did nothing to support or assist him with his application for
disability retirement benefits, even though the USPS had knowledge that OPM had denied his
application. (Pl. SAF § 16.)’

Mr. Burchett did not appeal to the MSPB following the OPM’s disallowance of disability
benefits. Instead, on June 13, 1996, Mr. Burchett, through his attorney Robert D. Whitfield,
refiled his Petition to Enforce the Settlement Agreement. (PI. Resp. § 10.) Administrative Judge
Miksa issued a second decision regarding compliance on October 30, 1996, in which he
determined, among other things, that: 1) the USPS moved to dismiss the appeal as premature
because there was no evidence that Mr. Burchett had appealed OPM’s denial of his disability
retirement to the MSPB as expressly required by the parties’ Memorandum of Understanding; 2)
Mr. Burchett did not file a response to the USPS’s motion, despite being specifically provided
with an opportunity to respond; and 3) Administrative Judge Miksa was taking official notice
that the MSPB had no record of an appeal of an OPM denial of Mr. Burchett’s disability
retirement application. (/d. § 11.) Administrative Judge Miksa found that Mr. Burchett failed to

demonstrate that he fulfilled a necessary precondition to refiling his enforcement petition

Le,
an appeal to the MSPB of any denial of Mr. Burchett’s disability retirement application—and
accordingly dismissed the petition as premature. (/d.; see also Def. SF, Ex. 5 at 3 (October 30,
1996 ALJ decision stating that, “{i]n the Initial Decision that approved the parties’ November 8,
1996 {sic] Memorandum of Understanding, the appellant [i.e., Mr. Burchett] was advised: The
petition for enforcement is DISMISSED without prejudice to his right to refile the petition only

7 The Government denies the statement by Mr. Burchett that USPS did nothing to support
or assist him in applying for disability retirement benefits. (Def. Resp. § 16.)

9


to Enforce the Settlement Agreement. (PI. Resp. § 10.) The USPS argued in response that the
action was premature because Mr. Burchett had not appealed the OPM’s denial of the disability
claim to the MSPB—as required by the parties’ Memorandum of Understanding. (/d. { 11.) At
that time, Mr. Burchett did not file any response to the USPS’s motion, despite being given a
chance to do so. (/d.) In ruling on the issue, ALJ Miksa found that Mr. Burchett failed to show
that had satisfied a prerequisite to refiling the enforcement petition, namely that Mr. Burchett had
exhausted his appeal rights to the MSPB. (/d.) In this regard, Administrative Judge Miksa
expressly found that in his decision “that approved the parties’ November 8, 1996 [sic]
Memorandum of Understanding, . . . [Mr. Burchett] was advised: The petition for enforcement is
DISMISSED without prejudice to his right to refile the petition only in the event that his
disability retirement application is denied by OPM and on appeal, by the Merit Systems
Protection Board.”). (Def. SF, Ex. 5 at 3 (underlining in original omitted).) The ALJ therefore
found that Mr. Burchett had “not demonstrated that he has fulfilled a necessary pre-condition to
refiling his enforcement petition, and the petition must be DISMISSED without prejudice as
premature.” (/d., Ex. 5 at 4.)

In May 1997, the MSPB summarily denied a petition for review of the October 1996
decision to dismiss Mr. Burchett’s Petition to Enforce the Settlement Agreement. (PI. Resp.
12.) That denial stated that any further appeal needed to be taken to the United States Court of
Appeals for the Federal Circuit. Ud.) Mr. Burchett filed an appeal with the Federal Circuit
concerning the MSPB ruling, but that appeal was defaulted because of Mr. Burchett’s failure to
prosecute. (/d. § 15; accord Burchett v. USPS, 124 F.3d 228, 1997 WL 575847, *1 (Fed. Cir.

Sept. 5, 1997 (unpublished order) (“The petitioner having failed to file the brief required by

25


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

EASTERN DIVISION
ARTHUR BURCHETT, )
)
Plaintiff, )
) No. 03 C 1325
v. )
) Judge Mark Filip
UNITED STATES POSTAL SERVICE )
and CONRAD ALEXINSKI, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff, Arthur Burchett “Plaintiff” or “Mr. Burchett”), brings this action against his

former employer, John Potter, Postmaster General of the United States! (also “Defendant,”

) Plaintiff has named both the United States Postal Service (the “USPS”) and Captain
Conrad Alexinski as defendants. (D.E. 1.) However, as the Government correctly asserts, “the
only proper defendant to a Title VII suit is the head of the agency accused of having
discriminated against the plaintiff.” (D.E. 36 at n.1 (citing 42 U.S.C. § 2000e-16(c) and
MeGuinness v. USPS, 744 F.2d 1318, 1322 (7th Cir. 1984).) See also 42 U.S.C. § 12117 (ADA
incorporates by reference Title VII’s “powers, remedies, and procedures.”). Accordingly, and
pursuant to the Government’s request, the Court substitutes in the place of the USPS, John
Potter, Postmaster General of the United States as the proper defendant. See, e.g., Bavido v.
Apfel, 215 F.3d 743, 747 & n.3 (7th Cir. 2000) (substituting the government agency as the proper
party defendant and finding that the government agency had waived any objection to this
substitution where it had received proper notice of the action, did not dispute its designation as a
defendant, and had fully defended the action from the beginning).

With regards to the other defendant in the case, Captain Conrad Alexinski, Plaintiff's
ADA claims against him are improper because Captain Alexinski is not the head of the USPS.
See, e.g., McGuinness, 744 F.2d at 1322. Moreover, precedent teaches that “individuals who do
not otherwise meet the statutory definition of ‘employer’ cannot be liable under the ADA.”
EEOC y. AIC Investigations, Ltd., 55 F.3d 1276, 1282 (7th Cir. 1995). The facts as presented
indicate that Captain Alexinski had a supervisory role overseeing Plaintiff, rather than being his
“employer.” (See D.E. 43 99; id., Ex. 4 at 3 (listing Captain Alexinski’s title as “Postal Police

1


entered judgment, rather than immediately appealing that judgment or moving to vacate and to
file an amended complaint (the course expressly suggested by attorney LeVert), Mr. Burchett
waited nearly two months before he filed the present suit.

In this regard, Mr. Burchett’s procedural posture resembles that of the plaintiff in E/more,
where the plaintiff filed suit within the limitations period, his case (allegedly) was erroneously
dismissed without prejudice, and then the statute of limitations ran before he refiled his suit. /d.,
227 F.3d at 1013. Elmore concluded that equitable tolling should not be a remedy in such
situations, where the plaintiffs contention is not that he lacked adequate information to sue
within the limitations period, but instead that his first, timely suit was erroneously dismissed. /d.
Mr. Burchett did not pursue an appeal or a motion to vacate the earlier final judgment, and
precedent instructs that equitable tolling should not be employed to permit him to collaterally
attack the judgment in Case No. 02 C 9070. See id.; accord, e.g., Chico-Velez, 139 F.3d at 59
(where the plaintiff's initial discrimination suit was dismissed, and his refiled complaint was
time-barred, the First Circuit concluded that equitable tolling did not apply to the refiled action
and any error in the district court’s dismissal of the initial action “has ripened into a final
judgment and may not be collaterally attacked in this proceeding.”); see also id. {AJ
prescriptive period is not tolled by filing a complaint that is subsequently dismissed without
prejudice.”) (collecting numerous appellate cases); see generally Fed. Election Comm'n y, Al
Salvi for Senate Committee, 205 F.3d 1015, 1020 (7th Cir. 2000) (affirming dismissal of second
action on the basis of res judicata, and characterizing the party’s conduct in filing the second
action and subsequently appealing the dismissal as “an impermissible collateral attack on the first

judgment.”).

48


permits allegations of discrimination or in an appeal to the Merit Systems Protection Board and §
1614.301 or § 1614.302 indicates that the complainant has elected to pursue the non-EEO
process.”” (Def. SF, Ex. 7 (Final Agency Decision at 1 (quoting 29 C.F.R. § 1614.107(d))).) The
Final Agency Decision noted that in the Settlement Agreement, Mr. Burchett and his
representative agreed “to the terms of the settlement agreement” and agreed to, inter alia, waive
“any further appeal rights to . . . the EEOC, judicial forum, or under the applicable union contract
with respect to this removal.” (/d. at 1-2 (quoting the Settlement Agreement).) The Final
Agency Decision stated that: “[c}learly, complainant cannot at this time initiate, or seek redress
through, the EEO complaint process on his removal.” (/d. at 2.) The Final Agency Decision was
sent to Mr. Burchett and Mr. Whitfield by certified mail-return receipt. (PI. Resp. 4.17.) Mr.
Burchett signed for the Final Agency Decision on December 7, 1999. (/d.)

Mr. Burchett timely appealed the Final Agency Decision to the EEOC Office of Federal
Operations (“EEOC-OFO”). (/d. § 18.) The EEOC-OFO noted that Mr. Burchett was
contending that he was discriminated against in his removal from the position of Postal Police
Officer “on the bases of Race (Black) and Disability (Regarded as)... .” (Def. SF, Ex. 10
(EEOC decision) at 1.) On July 25, 2001, the EEOC-OFO issued a decision in which it reviewed
the course of proceedings, found that the MSPB Settlement Agreement barred Mr. Burchett from
raising his discharge with the EEO, and accordingly affirmed the USPS’s decision to dismiss the
EEO complaint. (Pl. Resp. §j 18.) The EEOC-OFO noted that the Settlement Agreement waived
any further appeal rights to, inter alia, the EEOC or other judicial forum. (Def. SF, Ex. 10 at 2.)
The EEOC-OFO also found that Mr. Burchett’s waiver was valid and therefore would be upheld.

(Id. at 3.)


failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the
tules, it is ORDERED that the petition for review be, and same hereby is, DISMISSED, for
failure to prosecute in accordance with the rules.”)).)

Il. Proceedings Before the EEO and EEOC-OFO.

In parallel with the proceedings before the MSPB and the Federal Circuit, on May 11,
1997, Mr. Burchett contacted the USPS’s EEO department, alleging that his January 1995
discharge was discriminatory. (P]. Resp. § 13.) Mr. Burchett then filed a formal EEO complaint
on October 8, 1997, in which he contended that he was discriminated against on the bases of his
race (African-American) and mental disability (dementia) when he was removed from the
position of Postal Police Officer. (/d. § 16; see also Def. SF, Ex. 7 at 1 (USPS EEO decision
stating that Mr. Burchett “alleged he was discriminated against on the bases of race (Black) and
mental disability (Dementia) when he was removed from the position of Postal Police Officer . . .
.”); Pl. SAF, Ex. 17 at 1 (letter from EEOC appeals officer noting that issue under review was
alleged discrimination on the basis of race and disability in connection with Mr. Burchett’s
removal from the position of Postal Police Officer).)

On December 3, 1999, the USPS issued a final agency decision (“Final Agency
Decision”) dismissing Mr. Burchett’s October 8, 1997 EEO complaint “in accordance with 29
C.F.R. § 1614.107(d) in that the issue of [Burchett’s] removal was raised in an appeal to the
[MSPB] for which the MSPB retained jurisdiction.” (PI. Resp. § 17 (quoting Def. SF, Ex. 7 at
2).) The Final Agency Decision quoted 29 C.F.R. § 1614.107(d)—“EEOC complaint processing
regulations, specifically 29 C.F.R. § 1614.107(d), state that the Agency shall dismiss a

complaint: ‘Where the complainant has raised the matter in a negotiated grievance procedure that

iH


As previously mentioned, the September 23, 2002 Letter provided extensive information
about Mr. Burchett’s case and rights, and he proceeded accordingly upon that information. Mr.
Burchett also has represented to the district court, on many occasions, that the September 23,
2002 Letter was an EEOC right-to-sue letter and that he understood it as such. (PI. Resp. | 26,
35.) In fact, according to Mr. Burchett, in the Fall of 2002, he told attorney LeVert that he (Mr.
Burchett) had received a right to sue letter from the EEOC, and Mr. LeVert advised Mr. Burchett
about the elements of a disability discrimination claim and the filing deadline for bringing such a
claim. (Pl. Resp. § 26 (citing D.E. 25 at 7 n.1).) Thus, following Mr. Burchett’s receipt of the
September 23, 2002 Letter, there is ample, unrefuted evidence of what the Seventh Circuit has
termed the “crucial concept,” namely Mr. Burchett’s actual knowledge that the time period in
which his suit could be filed had commenced. See Jones, 744 F.2d at 1313."

The Court acknowledges that the September 23, 2002 Letter does not contain all of the
content listed in 29 C.F.R. § 1601.28(e): while the Letter states that Mr. Burchett has exhausted
his administrative remedies and that the 90-day statutory period has commenced, and provides
plain-spoken advice concerning the filing of an action, the EEOC did not attach a copy of the
charge or of the February 13, 2002 Decision to the September 23, 2002 Letter. However, while
the Seventh Circuit has not ruled explicitly on this issue, the Court believes that looking to the
reality of the situation, rather than merely evaluating bare compliance with the regulation, is
consistent with the spirit of Seventh Circuit teaching on this issue. See generally Jones, 744 F.2d
at 1313 (directing district courts to inquire, where necessary, “into those fact situations to

determine if there was actual, binding knowledge.”).

‘© Indeed, even documents prepared by attorney LeVert represented that the September
23, 2002 Letter was a right-to-sue letter. (See, e.g., Def. SF, Ex. 18 { 1.)

44


issues of material fact regarding Mr. Burchett’s receipt of the February 13, 2002 Decision that
preclude the entry of summary judgment on this basis.

A discrimination suit against the federal government must be filed within 90 days of the
plaintiff's receipt of the final agency decision. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. §
1614.407(c); Houston v. Sidley & Austin, 185 F.3d 837, 838-39 (7th Cir. 1999) (“Under the
ADA, ADEA, and Title VII, a plaintiff must file .. . [his} suit within 90 days from the date the
EEOC gives notice of the right to sue.”) (citations omitted). “‘The time limit is not flexible, even
for pro se litigants, and a one-day delay is fatal.’” Johnson v. Spiegel, Inc., No. 02 C 0680, 2002
WL 1880137, at *2 (N.D. III. Aug. 15, 2002) (Pallmeyer, J.) (quoting Davis v. Browner, 113 F.
Supp. 2d 1223, 1225 (N.D. Ill. 2000) and collecting numerous cases, including Brown v. City of
Chicago, No. 96 C 3078, 1998 WL 704278, at *3 (N.D. Ill. Sept. 30, 1998) (Williams, J.)).

Seventh Circuit precedent teaches that the 90-day period begins to run when the claimant
receives actual notice of his right to sue. See, e.g., Houston, 185 F.3d at 839 (collecting cases);
accord, e.g., Jones v. Madison Serv. Corp., 744 F.2d 1309, 1312 (7th Cir. 1984). However, the
Seventh Circuit has held that when notice is delayed by or through fault of the plaintiff, “the
constructive receipt doctrine applies and the 90-day clock starts running once delivery is
attempted at the last address provided.” Reschny v. Elk Grove Plating Co., 414 F.3d 821, 823
(7th Cir. 2005); accord, e.g., Moore v. Henderson, 174 F. Supp. 2d 767, 773 (N.D. Ill. 2001)
(Conlon, J.) (“[W]here the plaintiff's receipt of the notice is delayed, a fault approach is used.”);
id, at 773-74 (reviewing different situations that constituted fault and concluding that fault rested

with the plaintiff for her failure to report her address changes to the EEOC).

32


Mr. Burchett’s equitable tolling argument also falls short on the second key
requirement—i.e., a showing of continuous diligence. It is difficult to see how equitable tolling
can fairly be invoked, given that the evidence shows that Mr. Burchett did not follow the advice
of counsel and so “omit[ted] ordinary precautions.” Arroyo, 1999 WL 446700, at *5 (internal
quotation marks and citation omitted). More specifically, attorney LeVert reviewed Judge
Kocoras’s final judgment and advised Mr. Burchett to file a “Motion to Vacate the Final
Judgement and for Leave to File an Amended Complaint.” (P1. Resp. $31.) Mr. Burchett did
not file such a motion, and instead filed the Second Complaint on February 21, 2003. (/d. § 32.)
Second, and independent of Mr. Burchett’s failure to follow the procedural path laid out by
attorney LeVert, Mr. Burchett delayed nearly two months after the entry of judgment in Case No.
02 C 9070 before filing the Second Complaint—that is, nearly two months further into the
presumptive time limit that already had been triggered by the end of calendar year 2002. Mr.
Burchett has offered no explanation for this delay, and accordingly he has failed to show that he
“exercised continuous diligence and brought the suit as soon as it was practicable.” Chapple,
178 F.3d at 506. Such a delay independently is disabling with respect to equitable tolling
analysis. Accord, e.g., Elmore, 227 F.3d at 1013 (concluding that the plaintiff “could not
possibly invoke the doctrine of equitable tolling unless he sued just as soon as possible after the
judge’s action made him realize that the statute of limitations had run. He waited four months to
sue and has offered no excuse for the delay. Since all he had to do was refile the original
complaint, merely deleting reference to his co-plaintiff’s claims, it is not surprising that he is

unable to come up with an excuse.”); Taliani, 189 F.3d at 598 (mistake by attorney not basis for

49


will uphold the waiver”); see also Donelson yv. City of Chicago, 272 F. Supp. 2d 717, 728 (N.D.
Ill. 2003) (Castillo, J.) (collecting cases and stating that “[t]here is no question that a plaintiff
may waive her right to bring a Title VII claim as part of a settlement agreement so long as her
consent was both voluntary and knowing.”).)

Instead, Mr. Burchett seeks to invoke Illinois contract law to contend that the USPS failed
to sufficiently support his efforts in the underlying disability benefits claim that was an
outgrowth of the Memorandum of Understanding. (See D.E. 42 at 10 (Mr. Burchett contending
that the USPS violated the Illinois doctrine of good faith and fair dealing); id. at 11 (Mr. Burchett
contending that the USPS engaged in fraudulent inducement).) There are two independent
problems with such a position, however: (1) Mr. Burchett never exhausted his appeal
requirement, irrespective of what the USPS may or may not have done; and, equally important,
(2) Mr. Burchett does not suggest that he aired any of these objections in the underlying
litigation, which culminated in his defaulting his appeal in the Federal Circuit for failure even to
file a brief as required. The Court concurs with the EEOC that these failings are fatal. See, e.g.,
In Re: Bagdade, 334 F.3d 568, 573 (7th Cir. 2003) (dismissal for failure to prosecute “*operates
as an adjudication upon the merits.’”) (quoting Fed. R. Civ. P. 41(b)).

B. Questions of Material Fact Exist Regarding Whether The EEOC-OFO’s February
13, 2002 Decision Triggered The Limitations Period

The Government argues that Mr. Burchett’s First and Second Complaints were untimely
because they were filed more than 90 days after the EEOC-OFO denied his motion for

reconsideration on February 13, 2002. (D.E. 37 at 12-13.) The Court concludes that there are

31


November 9, 1995, Mr. Burchett’s Petition to Enforce was dismissed without prejudice by the
ALJ based on a Memorandum of Understanding (“Memorandum of Understanding”) that Mr.
Burchett and his representative reached with the USPS. (Pl. Resp. 7.) The Memorandum of
Understanding provided in pertinent part that:

a. the parties understood the terms of the agreement and that they entered into the terms
of their own free will without coercion, harassment, threats or intimidation;

b. Mr. Burchett agreed to apply for disability retirement with the Office of Personnel
Management (“OPM”), and the USPS agreed to provide support and administrative assistance for
his application; and

c. Mr. Burchett could re-file his petition if the application for disability retirement was
denied and the denial was upheld after appeal to the MSPB. (/d.; Def. SF, Ex. 2.)

When the parties reached this settlement, in November 1995, Administrative Judge Miksa
issued his initial decision regarding compliance—in which he determined that the settlement
reflected in the Memorandum of Understanding was lawful on its face, and that the parties freely
entered into the agreement and understood its terms. (PI. Resp. { 8.) In light of these findings,
Administrative Judge Miksa dismissed without prejudice the Petition to Enforce the Settlement
Agreement pending adjudication of Mr. Burchett’s disability retirement application by the OPM,
and, if necessary, by the MSPB on appeal. (/d.) In his opinion, Administrative Judge Miksa,
stated. inter alia, that if Mr. Burchett’s “application is denied on appeal before the Board, the
appellant [i.¢., Mr. Burchett] may refile the petition.” (Def. SF, Ex. 3 at 1.)

On May 14, 1996, the OPM advised Mr. Burchett by letter that it could not grant his

request for disability retirement because he did not provide sufficient materials to show that he


Complaint, his operative filing and the filing underlying the instant case, is untimely, and that
principles of equitable tolling do not excuse the untimeliness.

A. Summary Judgment Is Warranted Because, As The EEOC Found, Mr. Burchett’s

Discrimination Claims Were Conditionally Waived In Connection With Prior
Settlements, The Conditions of Which Required Him To Exhaust Certain
Remedies Within the Jurisdiction of the MSPB and Federal Circuit, Which He
Has Not Done

As the Government argues, Mr. Burchett may not pursue his claims in the instant case
because “[h]e waived his right to pursue his claim through the EEO process when he entered into
a settlement agreement before the Merit Systems Protection Board,” which preconditions of
settlement he did not fulfill. (D.E. 37 at 1.) Moreover, to the extent Mr. Burchett contends that
the USPS did not abide by its end of the settlement by inadequately supporting his ensuing
disability benefits claim, Mr. Burchett nonetheless did not appeal the denial of benefits as
required by the settlement agreements, nor does he contend that he raised the issue of any alleged
inadequacy of assistance from the USPS in the underlying litigation before either the MSPB or
the Federal Circuit.

When Mr. Burchett was issued a discharge in early 1995, he exercised his right to appeal
that discharge to the MSPB. (PI. Resp. § 3.) In his appeal, Mr. Burchett alleged that his
discharge was discriminatory. (Def. SF { 3.) In April 1995, Mr. Burchett, along with his union
representative, entered into a “Firm Choice Last Chance Settlement Agreement” with the USPS,
thereby resolving his litigation. The Settlement Agreement specified that, inter alia:

a. the parties understood the terms of the agreement and entered into its terms of their

own free will, without coercion, harassment, threats or intimidation;

22


as it did not occur within the 90-day window triggered by the September 23, 2002 Letter from the
EEOC. See, e.g., Elmore, 227 F.3d at 1011 (collecting cases concerning the non-effect of a
dismissal without prejudice of a case); id. at 1013 (“By fixing 90 days as the deadline for suing
after final agency action, the Postal Service has emphasized the urgency of prompt resolution of
employment claims against it.”); Brown, 318 F. Supp. 2d at 698-99 (citing, inter alia, Elmore,
227 F.3d at 1011).

a. Mr. Burchett’s Jurisdictional Challenge To The Operative Effect Of
Chief Judge Kocoras’s Final Judgment Is Respectfully Rejected

Mr. Burchett argues that the effect of Chief Judge Kocoras’s final judgment is not
operative, in that “it was rendered at a time when the court arguably was without subject matter
jurisdiction” because Mr. Burchett did not have a sufficient EEOC right-to-sue letter. (D.E. 42 at
10.) This argument is related to another argument, discussed further below, in which Mr.
Burchett contends that notwithstanding that he previously has represented on many occasions
that the September 23, 2002 Letter from the EEOC was a right to sue letter (see, e.g., Pl. Resp. §
27, 35), and that he understood it as such (see, ¢.g., id. 26), the letter was technically deficient
under certain regulations. The Court will address the “technical deficiency” argument below, but
first takes up the “arguably no jurisdiction” argument of Mr. Burchett concerning proceedings
before Chief Judge Kocoras.

The Court respectfully rejects the suggestion that Chief Judge Kocoras was without
jurisdiction to proceed in the case before him (Case No. 02 C 9070). Precedent is clear that “the
receipt of a right-to-sue letter is not a jurisdictional prerequisite to bringing a Title VII suit.”

Worth y. Tyler, 276 F.3d 249, 259 (7th Cir. 2001) (citing Zipes v. Trans World Airlines, Inc., 455

39


U.S. 385, 398 (1982)). Instead, “the lack of a right to sue letter may constitute a defense to a
Title VII claim.” Worth, 276 F.3d at 259 (citation omitted). This precedent refutes Mr.
Burchett’s assertion that any alleged lack of a technically-compliant right-to-sue letter stripped
Chief Judge Kocoras (or Judge Leinenweber) of jurisdiction to proceed.

The Court further notes that nothing in Chief Judge Kocoras’s judgment of dismissal
turned on any issue concerning a right-to-sue letter; in that dismissal, the court did not question
Mr. Burchett’s own representation that the September 23, 2002 Letter from the EEOC was a right
to sue letter, but instead rejected the case as substantively inadequate, at least as framed. Simply
put, the Court respectfully rejects any assertion that Chief Judge Kocoras (and Judge
Leinenweber, and by extension, presumably this Court) lack subject matter jurisdiction because
of any eleventh-hour allegation that the September 23, 2002 Letter from the EEOC—which Mr.
Burchett has long contended was a right-to-sue letter—has some technical defect in it. Accord,
e.g., Worth, 276 F.3d at 259.

b. The Court Also Respectfully Rejects Any Contention That Any
Technical Defect In the September 23, 2002 Letter From The EEOC
Rendered It Inoperative

Similarly, the Court also respectfully rejects the argument that there was some material
defect in the September 23, 2002 Letter from the EEOC, such that the 90-day window to sue was
not triggered. It is undisputed that the September 23, 2002 Letter advised Mr. Burchett that: (1)
the EEOC would not provide him with any further relief; (2) he had the right to file suit in
district court; (3) the 90-day limitation period for bringing suit had commenced; (4) there were
various procedural requirements that he had to follow in bringing suit; and (5) he could obtain

information from various sources to assist in his district court filing. (Pl. Resp. {| 25.)

40


Mr. Burchett appealed the Final Agency Decision to the Office of Federal Operations of
the EEOC. (PI. Resp. § 18.) The EEOC-OFO in July 2001 issued a decision which, after
reviewing the course of the proceedings involving Mr. Burchett, found that the MSPB Settlement
Agreement and subsequent events precluded Mr. Burchett from raising his discharge at that time
with the EEO. (/d.) In doing so, the EEOC-OFO found that the May 1, 1997 MSPB decision
“was an action to effectuate the MSPB Settlement agreement and that complainant [i.e., Mr.
Burchett] was precluded from filing an EEO complaint on the same matter.” (Def. SF, Ex. 10 at
2.) The EEOC-OFO further noted that the Settlement Agreement had waived any further appeal
rights to the EEOC or other judicial forum. (/d., Ex. 10 at 2-3; see also id., Ex. | at 3.) The
EEOC-OFO further found that Mr. Burchett’s waiver in the Settlement Agreement was a valid
one that should be upheld. (Def. SF, Ex 10 at 3.) In a subsequent denial of Mr. Burchett’s
request for reconsideration, the EEOC-OFO found that “the previous decision properly affirmed
the agency’s decision finding that the complainant had raised the matter in an appeal to the
MSPB and his claim was resolved by a settlement pursuant to that proceeding.” (PI. Resp. {21
(quoting Def. SF, Ex. 11).)

The Court agrees with the EEOC that Mr. Burchett cannot properly proceed in this forum;
this conclusion is predicated on Mr. Burchett’s prior settlement agreements and subsequent
actions and non-actions, as explained throughout this section. In the Settlement Agreement, Mr.
Burchett withdrew his MSPB appeal and agreed that “this [Settlement Agreement] resolves any
pending or future appeal through the Merit Systems Protection Board, EEO. . administrative,
union contract or judicial forum with respect to this removal action. The appellant know[s] and

understand{s] that he waives any further appeal rights to the Merit Systems Protection Board,

28


BACKGROUND?

1. Factual Background, Proceedings Before the MSPB and Appeal to the Federal Circuit

Beginning in May 1974, Mr. Burchett was employed as a USPS police officer. (PI. Resp.
41.) On January 24, 1995, the USPS sent a notice to Mr. Burchett that he was being placed on
administrative leave, and that it intended to terminate his employment due to alleged attendance
problems. (Pl. SAF, Ex. 3.) Mr. Burchett did not respond to this notice, and he was issued a
discharge on February 16, 1995 (“Letter of Removal”) for the reasons described in the USPS’s
earlier letter. (PI. Resp. { 3; Pl. SAF, Ex. 4.) The Letter of Removal notified Mr. Burchett that

he had the right to appeal the removal decision to the MSPB. (PI. SAF, Ex. 4 at 2.)

> The Court takes the relevant facts from Defendant’s Rule 56.1(a) statement of facts and
exhibits (“Def. SF”) (D.E. 38); Plaintiff's Rule 56.1(b)(3) response (“P!. Resp.”) (D.E. 40);
Plaintiff's statement of additional facts and exhibits thereto (“Pl. SAF”) (D.E. 43); and
Defendant’s Rule 56.1(b)(3)(B) responses to Plaintiff's statement of additional facts (“Def.
Resp.”). (D.E. 45.) Where the parties disagree over relevant facts, the Court sets forth the
competing versions. The Court resolves genuine factual disputes in the non-movant’s favor. See
Foley y. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004).

Local Rule 56.1 (“L.R. 56.1”) requires that statements of facts contain allegations of
material fact, and the factual allegations must be supported by admissible record evidence. See
L.R. 56.1; Malee v. Sanford, 191 F.R.D. 581, 583-85 (N.D. Ill. 2000). The Seventh Circuit
teaches that a district court has broad discretion to require strict compliance with L.R. 56.1. See,
e.g., Koszola v. Bd. of Ed. of City of Chicago, 385 F.3d 1104, 1109 (7th Cir. 2004); Curran v.
Kwon, 153 F.3d 481, 486 (7th Cir. 1998) (citing Midwest Imports, Ltd. v. Coval, 71 F.3d 1311,
1316 (7th Cir. 1995) (collecting cases)). Where a party has offered a legal conclusion, or a
statement of fact without offering proper evidentiary support, the Court does not consider that
assertion. See, ¢.g., Malec, 191 F.R.D. at $83 (“[A] movant’s 56.1(a) statement should contain
only factual allegations. It is inappropriate to allege legal conclusions.”); id. (“Factual
allegations not properly supported by citation to the record are nullities.”), Additionally, where a
party improperly denied a statement of fact by failing to provide adequate or proper record
support, the Court deems admitted the relevant statement of fact. See L.R. 56.1(a), L.R.
56.1(b)(3)(B); Malec, 191 F.R.D. at 584 (failure to adhere to L.R. 56.1 requirements, including
citation to specific evidentiary materials justifying a denial, is equivalent to admission). The
Court disregards any additional statements of fact contained in a party’s response rather than in
its statement of additional facts. See Malec, 191 F.R.D. at 584 (L.R. 56.1(b)(3)(B) statement is
the only acceptable means of presenting additional facts to Court).

4


Equitable tolling is the “judge-made doctrine, well-established in federal common law,
that excuses a timely filing when the plaintiff could not, despite the exercise of reasonable
diligence, have discovered all the information he needed in order to be able to file his claim on
time.” Taliani v. Chrans, 189 F.3d 597 (7th Cir. 1999) (collecting authorities); accord, e.g.,
Elmore, 227 F.3d at 1013 (“The running of a statute of limitations can be equitably tolled when
through no fault of his own the plaintiff was unable to sue within the limitations period but he
sued as soon as he could.”) (collecting authorities). The case law stresses that the plaintiff must
have exercised “continuous diligence and brought the suit as soon as it was practicable.”
Chapple v. Nat’l Starch & Chem. Co. & Oil, 178 F.3d 501, 506 (7th Cir. 1999) (collecting
Seventh Circuit precedent); accord, e.g., Arroyo v. Henderson, No. 98 C 0443, 1999 WL
446700, at *5 (N.D. Ill. June 23, 1999) (Schenkier, M.J.) (concluding that plaintiff's lack of
diligence prevented the court from even considering the application of equitable tolling).
Precedent also “teaches that equitable tolling ‘is granted sparingly.’” Trejo v. Village of Itasca,
No. 02 € 1193, 2004 WL 2608285, at *9 (N.D. Il. Nov. 16, 2004) (quoting United States v.
Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)); accord, e.g., Chico-Velez v. Roche Prods., Inc.,
139 F.3d 56, 58-59 (Ist Cir. 1998) (stating that “[flederal courts should not apply equitable
tolling liberally [simply] to extend time limitations in discrimination cases” and that the doctrine
is only appropriate in “exceptional cases”) (collecting cases).

Mr. Burchett’s first problem in asserting equitable tolling, with all respect, is that he had
enough information to file his claim on time, as shown by the fact that he brought suit within the
90-day window, consistent with his understanding of his obligations and the attorney advice he

received, via Case No. 02 C 9070 before Chief Judge Kocoras. After Chief Judge Kocoras

47


Moreover, other Courts of Appeals have warned against elevating form over substance
and requiring each item listed in the regulation to be provided before actual notice is found. As
the Third Circuit stated in Ebbert, “[i]t simply would not make sense to force courts and
defendants to wait for a specific form of notice in situations where a plaintiff is fully aware of the
deadline he or she must meet to prosecute a lawsuit. The opposite rule would mean, in the
extreme case that the limitations period would not begin to run for years, or even ever” if the
EEOC did not successfully send a fully-technically-compliant right to sue letter to the plaintiff.
Id., 319 F.3d at 116; see also Missirlian v. Huntington Mem’l Hosp., 662 F.2d 546, 550 & n.6
(9th Cir, 1981) (stating that “[bJecause we focus on the elements of notice, we do not hold that
the right-to-sue letter is the only possible form of adequate notice.”). In the present matter, the
problematic scenario discussed by the Third Circuit has come to life. Mr. Burchett was fully
aware of the deadline he had to meet to prosecute his claim, but he now argues that because he
has not received a right-to-sue letter that is compliant with every regulatory technicality, the
limitations period should not have commenced and in fact should be extended indefinitely
because he appears not, to this point, to have requested a right to sue letter. Such a result is not
consistent with the logic or the tenor of the caselaw cited above: Mr. Burchett received fair
notice, and both he and the attorney he was consulting understood him to have received a right-
to-sue letter in the form of the September 23, 2002 Letter from the EEOC. Mr. Burchett cannot
fairly reverse course now from his prior, repeated and consistent representations about the nature
and effect of the September 23, 2002 Letter.

Finally, permitting a plaintiff to extend the ninety-day period indefinitely also runs

contrary to the Seventh Circuit’s teachings on the social purpose that limitations periods serve.

45


the EEOC “saying that I had the right to sue... .”).) In addition, Mr. Burchett represented that
in November 2002 he told Mr. Dwight LeVert—who is presently his attorney and who
previously advised and assisted him, as discussed elsewhere—that he received a right to sue
letter from the EEOC; at that time, Mr. LeVert advised Mr. Burchett of the elements of a
disability discrimination claim and the filing deadline for bringing suit on such a claim. (PI.
Resp. § 26 (citing D.E. 25 at 7 n.1).)

Ill. Procedural History Before the District Court In The Northern District Of Illinois

On December 13, 2002, Mr. Burchett filed a pro se ADA discrimination complaint (the
“First Complaint”) in the United States District Court for the Northern District of Illinois, Case
Number 02 C 9070, which was assigned to Chief Judge Kocoras. (/d. § 28.) In the First
Complaint, Mr. Burchett represented that he received a Notice of Right to Sue from the EEOC on
September 23, 2002, and he attached a copy of the September 23, 2002 Letter to his complaint.
(Def. SF, Ex. 14 at 10.) The First Complaint challenged Mr. Burchett’s termination and sought
reinstatement and back pay. (/d. at 3, 4-5.) By final judgment entered December 27, 2002, Chief
Judge Kocoras sua sponte dismissed Mr. Burchett’s complaint without prejudice because its
allegations revealed that he was only complaining about being fired due to a personality conflict
rather than any disability discrimination. (Pl. Resp. 29; see also Def. SF, Ex. 15 (including
D.E. 5 in Case No. 02 C 9070).) Mr. Burchett did not appeal Chief Judge Kocoras’s final
judgment. (PI. Resp. § 30.)

In January or February of 2003, Mr. Burchett asked Mr. LeVert about the judgment in
Case No. 02 C 9070. Ud. § 31.) Mr. LeVert reviewed the judgment and advised Mr. Burchett to

file a “Motion to Vacate the Final Judgement and for Leave to File an Amended Complaint,” in

15


involvement of attorney LeVert. Instead, as discussed further below, the motions were
denominated as pro se filings and, at least at times, expressly sought more lenient treatment for
Mr. Burchett on such basis, notwithstanding that at least some of the filings were prepared by
counsel. The Court will read the underlying record about this subject most charitably to Mr.
LeVert and Mr. Burchett, and will assume that Mr. Burchett sought Mr. LeVert’s assistance; that
Mr. LeVert tried to assist Mr. Burchett as best he could but likely was too busy or perhaps
uninterested in taking on Mr. Burchett’s case full-time, and therefore Mr. LeVert never entered
his appearance in the case because he viewed himself as doing an informal favor for Mr. Burchett
as opposed to functioning as his full-fledged counsel.

Nonetheless, the Court is, with all respect, concerned about any practice of an attorney
writing filings for a supposed pro se litigant that: (1) represent that the litigant is proceeding pro
se; and (2) expressly seek more generous treatment on such basis. While the law affords more
generous treatment to pro se litigants, that latitude is designed to compensate for the absence of
attorney involvement. If attorney involvement is present, then the more generous treatment
would be unwarranted, as a court seemingly has no license in precedent to treat equally-
represented parties in an uneven manner. In addition, affording more generous treatment to one
side necessarily tends to expose the other side, at least at some level, to a corresponding
disadvantage, as that other side gets no special leniency. If Mr. Burchett was functionally
represented at a given time, or in connection with certain filings, then the Government (and, by

extension, the citizens and public fisc the Government represents) would not appear to be fairly


The case is before the Court on the Government’s motion for summary judgment. (D.E.
36.) The Government sets forth a number of independent procedural bases for granting summary
judgment in its favor. (D.E. 37.) First, the Government states that Mr. Burchett cannot pursue
his claim through both the Merit Systems Protection Board (“MSPB”) process and the Equal
Employment Opportunity (“EEO”) process—from which this case stems. Second, the
Government argues that Mr. Burchett’s claim is barred by res judicata because it was subject to a
final decision of the United States Court of Appeals for the Federal Circuit. Third, the
Government asserts that Mr. Burchett waived his right to pursue the claim(s) at issue through the
EEO process because of a settlement agreement into which he entered. In the alternative, the
Government argues that, even if Mr. Burchett could pursue his claim through the EEO process,
he inexcusably failed to timely file his first and second district court complaints. Moreover and
independently, the Government argues that even if Mr. Burchett timely filed his first complaint,
he inexcusably failed to timely file his second district court complaint. Finally, the Government
argues that Mr. Burchett’s arguments in the present matter are barred by res judicata because
they should have been made when litigating his first district court case.

The Government has presented a number of colorable arguments as to why Mr.
Burchett’s claim is properly subject to dismissal. The Court will address at length only two
independent bases below: (1) that Mr. Burchett waived the right to pursue the claim(s) at issue
because of a settlement he entered into and his subsequent failure to fulfill the preconditions of
that settlement; and (2) that Mr. Burchett’s second and operative filing, in Case No. 03 C 1325, is
untimely under the law. These two grounds adequately and independently justify dismissal of the

suit, as explained below. As a result, the Government’s summary judgment motion is granted.


(collecting cases). (In such an instance, a court must consider the potential applicability of
equitable tolling, as will be addressed below.)

Case No. 02 C 9070 was filed on December 13, 2002, and Chief Judge Kocoras entered a
final judgment dismissing the complaint without prejudice on December 27, 2002. (PI. Resp. {
29; Def. SF, Ex. 15 (D.E. 6 in Case No. 02 C 9070).) This final judgment did not toll the
running of the statute of limitations triggered by the September 23, 2002 Letter from the EEOC,
which would therefore expire by approximately the end of calendar year 2002. See, e.g., Elmore,
227 F.3d at 1011 & discussion in footnote 14 of this opinion, supra; Brown y. Ill. Dept. of Public
Aid, 318 F. Supp. 2d 696, 698-99 (N.D. Ill. 2004) (Bucklo, J.) (citing, inter alia, Elmore, 227
F.3d at 1011). Under any view of things, Mr. Burchett did not refile anything until February 21,
2003. (Pl. Resp. {| 32.) (In the interim period following the final judgment of dismissal, Mr.
Burchett did speak to attorney LeVert, who advised him to file a “Motion to Vacate the Final
Judgement and for Leave to File an Amended Complaint,” which advice Mr. Burchett

undeniably ignored. (/d. §§ 31-32.).) As explained below, this subsequent filing was untimely,

‘without prejudice’ language only to learn later, and to their sorrow, that the original order was
appealable and the time for appellate review has lapsed.”); accord Ciralsky v. Central
Intelligence Agency, 355 F.3d 661, 668 (D.C. Cir. 2004) (Garland, J.). The Court further notes
that when Mr. Burchett eventually filed a “pro se” motion (that actually had been prepared by
counsel) in late April 2003—which motion sought to invoke Fed. R. Civ. P. 60 and 15 and
sought leave to file an amended complaint—Chief Judge Kocoras summarily denied that motion.
(Def. SF, Ex. 20 (D.E. 8 in Case No. 02 C 9070).) That summary denial occurred,
notwithstanding that Mr. Burchett advanced the same contentions he does here—i.¢., that he
actually was trying to file an amended complaint when he filed the Second Complaint that was
docketed before Judge Leinenweber as Case No. 03 C 1325. (Def. SF, Ex. 19 (D.E. 7 in Case
No. 02 € 9070 at 2).) See, ¢.g., Ciralsky, 355 F.3d at 668 (stating that the district court’s denial
of plaintiff's motion to amend the complaint as moot was evidence that the court regarded its
prior order as dismissing the action, and not merely the complaint). Mr. Burchett never appealed
Chief Judge Kocoras’s denial of his motion to file an amended complaint, nor did he ever appeal
Chief Judge Kocoras’s prior final judgment of December 27, 2002.

38


Federal Circuit Rule 31(a) within the time permitted by the rules, it is ORDERED that the
petition for review be, and same hereby is, DISMISSED, for failure to prosecute in accordance
with the rules.”).)"?

These defaults prompted the EEOC to find that Mr. Burchett had not fulfilled a necessary
precondition to seeking relief as he does in the instant case. More specifically, and as explained
below, at the same time as Mr. Burchett was engaged in proceedings before the MSPB and
Federal Circuit—all concerning the dismissal of his petition to enforce without prejudice because
he had failed to appeal on the merits to the MSPB concerning his denial of benefits, as required
by his settlement agreements—Mr. Burchett contacted the USPS EEO department, alleging that
his January 1995 discharge was discriminatory. (PI. Resp. J 13.) Mr. Burchett filed a formal
EEO complaint on October 7, 1997, in which he alleged that he was discriminated against on the
bases of his race (African-American) and mental disability (dementia) when he was removed

from the position of Postal Police Officer. (Id. 4 16; Pl. SAF, Ex. 7 at 1.)"?

2 The Court respectfully rejects any suggestion by Mr. Burchett that a dismissal—for
failure to prosecute in conformity with the rules of a federal appellate court—does not operate as
an adjudication on the merits. See, e.g., In re: Bagdade, 334 F.3d 568, 573 (7th Cir. 2003)
(citing Fed. R. Civ. P. 41(b)).

3. The underlying record reveals that Mr. Burchett never advanced a failure-to-
accommodate claim before the USPS EEO. (See Pl. Resp. J 16; Def. SF, Ex. 7 at 1 (USPS EEO
decision stating that Mr. Burchett “alleged he was discriminated against on the basis of race
(Black) and mental disability (Dementia) when he was removed from the position of Postal
Police Officer.”); Pl. SAF, Ex. 17 at | (letter from EEOC appeals officer noting that issue under
review was alleged discrimination on the basis of race and disability in connection with Mr.
Burchett’s removal from the position of Postal Police Officer); id. (noting that the EEOC-OFO’s
investigation would concern only allegations of race and disability discrimination in connection
with Mr. Burchett’s “remov[al] from the position as Postal Police Officer,” and stating that, “lilt
you do not agree with the defined issue(s), you must provide us with sufficient reasons, in
writing, within seven (7) calendar days . . . .”).) Even the First Complaint, which underlay Case
No. 02 C 9070 before Chief Judge Kocoras, advanced no failure-to-accommodate claim. (See
Def. SF, Ex. 14 (First Complaint) § 12 (designating that Plaintiff was advancing suit concerning
his termination but omitting any designation concerning alleged failure to accommodate an actual

26


“USPS,” or “Government”) under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
1210, et seg. (D.E. 1 “Complaint” or “Second Complaint’”).)”, However, because federal
employees cannot bring disability claims against their government employers under the ADA, the
parties subsequently requested that this Court find jurisdiction over Mr. Burchett’s claim by
treating it as arising under the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. (See D.E. 47
at 2 (Plaintiff articulating that “[t]he Rehabilitation Act is the counterpart to the Americans with
Disabilities Act (‘ADA’) of 1990 for government agency defendants, and the standards set out in
the ADA are used to determined whether the Rehabilitation Act has been violated.”) (internal
citation omitted); D.E. 48 at 2 (Government stating that complaints merely must “plead claims,
not legal theories,” and further asserting that jurisdiction is appropriate because “the Postal
Service has always understood that [Mr.] Burchett’s disability claim . . . [arises] under the
Rehabilitation Act.”) (internal quotation marks and citations omitted).) In this regard, authority
supports the idea of charitably reformulating Mr. Burchett’s claim so that it is deemed as being
advanced under the Rehabilitation Act; for the purposes of the disposition of this summary
judgment motion, the Court will treat Mr. Burchett’s claim as one under the Rehabilitation Act.
See 28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be amended, upon terms, in the
trial or appellate courts.”); accord, e.g., Arroyo v. Henderson, No. 98 C 0443, 1999 WL 446700,
at *1 (N.D. Ill. June 23, 1999) (describing how plaintiff/postal employee was previously granted
leave to file an amended complaint that substituted the Rehabilitation Act for the ADA as basis

for the claim).

Officer in Charge”).) Therefore, Captain Alexinski is dismissed from this action.

? The various docket entries in this case are designated “D.E. _.

2


equitable tolling), Brown, 318 F. Supp. 2d at 699 (explaining that pro se status alone does not
establish any entitlement to equitable tolling).

As previously noted, Mr. Burchett asserts that because that the September 23, 2002 Letter
did not fully comply with 29 C.F.R. §1601.28(e), equitable tolling should apply. Mr. Burchett’s
argument could potentially be well taken, for example, if the Court concluded that the September
23, 2002 Letter omitted crucial information and so left Mr. Burchett without “all the information
he needed in order to be able to file his claim on time.” Taliani, 189 F.3d at 597. However, as
was discussed at length above, the Court has concluded that the September 23, 2002 Letter
contained the information vital to Mr. Burchett’s claim, so equitable tolling is not warranted on
this basis. See, e.g., Davis, 113 F. Supp. 2d at 1228 n.4 (rejecting plaintiff's argument that
equitable tolling should apply because she did not receive a “right-to-sue” letter, on the grounds
that “no right-to-sue letter was required. The decision by the EEOC clearly stated the time in
which plaintiff had to file her suit....”). Here, Mr. Burchett understood that the September 23,
2002 Letter from the EEOC was a right to sue letter, and Mr. Burchett has represented repeatedly
to the district court that it was his right-to-sue letter, including in his First and Second
Complaints.

The Court also notes that, to the extent generalized equitable considerations are relevant
to the equitable tolling analysis, Mr. Burchett, unlike many pro se litigants, at a minimum had
access to legal advice before and during the time he was proceeding in Case No. 02 C 9070 and
Case No. 03 C 1325. During that time, Mr. Burchett told attorney LeVert that he received a
right-to-sue letter (i.e., the September 23, 2002 Letter) and attorney LeVert informed Mr.

Burchett, seemingly fully correctly, about the applicable deadlines. (PI. Resp. {[ 26.) Similarly,

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indicate that the Decision was sent by certified mail, and the Government has not set forth any
other evidence showing that the Decision was sent by a mail service that tracked delivery and
documented receipt. Because, to this point, the Government has not produced evidence showing
that the February 13, 2002 Decision was properly addressed and mailed to Mr. Burchett, the
Government is not entitled to a presumption of receipt. See, e.g., Boomer v. AT & T Corp., 309
F.3d 404, 415 n.5 (7th Cir. 2002) (“Where a letter is properly addressed and mailed, there is a
presumption that it reached its destination in usual time and was actually received by the person
to whom it was addressed.”) (emphasis added; internal quotation marks and citation omitted);
accord, e.g., Lawrence v. Jackson Mack Sales, Inc., 837 F. Supp. 771, 783-84 (S.D. Miss. 1992)
(denying summary judgment to defendant where it failed to introduce sufficient evidence that
COBRA notices were addressed and mailed properly).

By contending that Mr. Burchett has failed to explain why he did not “retrieve the
decision,” the Government appears to assert that Mr. Burchett was at fault and so is not entitled
to the benefits of the “actual notice rule.” See, e.g., Jones v. Motorola, Inc., No. 00 C 6439, 2001
WL 864273, at *5 (N.D. Ill. July 30, 2001) (Castillo, J.). With respect, the Court finds that the
“fault” cases cited by the Government are factually distinguishable from the present matter. For
example, in the cases where the courts charged the plaintiff with constructive notice, the
evidence showed that the plaintiff had been at fault either by failing to notify the EEOC of a
change of address, see, e.g., Saunders v. American Warehousing Servs., Inc., No. 92 C 7650,
2003 WL 21266652, at *2 (N.D. Ill. May 30, 2003) (Coar, J.), or by failing to retrieve the
certified letter within the timeframe that the Post Office’s notice gave before the letter would be

returned to the sender. See, e.g., Jones, 2001 WL 864273, at *5-6.

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circumstances of this case, including Mr. Burchett’s own repeated and express representations, it
is clear he was under no ambiguity about his right to sue and the time available to do it.

It does not appear, from the Plaintiff's briefing, that he contends that any further technical
defects under federal regulations rendered the September 23, 2002 Letter inoperative as a matter
of law—as opposed to, as the argument seems actually to be made, a factor that should be
considered in the equitable tolling analysis conducted immediately below. (See D.E. 42 at 14-
16.) In any event, to the extent the argument is made by Mr. Burchett, the Court respectfully
rejects any implicit suggestion that any defect under federal regulations renders the September
23, 2002 Letter inoperative.

The federal regulation that Mr. Burchett cites (see D.E. 42 at 15) is 29 C.F.R. § 1601.28,
which describes the “content of notice of right to sue.” 29 C.F.R. § 1601.28(e).'° The regulation
states that:

(e) ... The notice of right to sue shall include

(1) Authorization to the aggrieved person to bring a civil action under Title VII or
the ADA . .. within 90 days from receipt of such authorization;

(2) Advice concerning the institution of such civil action by the person claiming to
be aggrieved, where appropriate;

(3) A copy of the charge;
(4) The Commission’s decision, determination, or dismissal, as appropriate.

Id.

'S The section of the regulation regarding the content of the notice of right to sue also
applies to notices of right to sue for charges against governmental agencies. See 29 C.F.R. §
1601.28(d).

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EEOC, judicial forum or under the applicable union contract with respect to this removal.” (Def.
SF, Ex. 1 at 3 (emphases added).) The Settlement Agreement also specifically provided that the
parties “understood the terms of the agreement and entered into its terms of their own free will
without coercion, harassment, threats or intimidation,” and that Mr. Burchett “agreed to pass a
fitness for duty examination and a psychological examination” before he could be reinstated as a
Postal Police Officer. (Pl. Resp. J 4.)

When Mr. Burchett, in possession of his alleged V.A. clean bill of health, thereafter
petitioned the MSPB to enforce the Settlement Agreement (“Petition to Enforce”), Mr. Burchett
and his representative entered into the Memorandum of Understanding with the USPS which
provided that Mr. Burchett would apply for disability retirement with OPM and that Mr. Burchett
could “re-file his petition if the application for disability retirement was denied and the denial
was upheld after appeal to the Board [MSPB].” (PI. Resp. § 7; Def. SF, Ex. 2.) This
Memorandum of Understanding, and specifically its unmet requirement that Mr. Burchett
exhaust appeal rights to the MSPB, was what prompted Administrative Judge Miksa in the
decision underlying the appeal to the Federal Circuit to dismiss Mr. Burchett’s petition to enforce
without prejudice as premature. (PI. Resp. J 11; see also Def. SF, Ex. 5 at 4 (ALJ finding that
“the appellant has not demonstrated that he has fulfilled a necessary pre-condition to refiling his
enforcement petition, and the petition must be DISMISSED without prejudice as premature.”).)
Instead of taking heed of that directive—i.e., that Mr. Burchett needed, under his settlement
agreements, to exhaust his appeal rights with the MSPB—Mr. Burchett simply appealed the

ALJ's dismissal for failure to exhaust. That appeal was summarily rejected, and Mr. Burchett

29


On August 15, 2001, Mr. Burchett sent a letter to the EEOC-OFO that it deemed a
request for reconsideration of its July 2001 decision. (Pl. Resp. § 19.) On January 23, 2002, the
EEOC-OFO Acting Manager of EEO Compliance and Appeals sent a letter to the EEOC-OFO
Compliance and Control Division recommending that it deny Burchett’s request for
reconsideration, (/d. § 20.) The letter was sent to Mr. Burchett by certified mail-return receipt.
(/d.) Mr. Burchett signed for the letter on January 30, 2002. (/d.)

On February 13, 2002, the EEOC-OFO denied Mr. Burchett’s request for reconsideration
of its July 2001 decision (the “February 13, 2002 Decision”), finding that “the previous decision
properly affirmed the agency’s decision finding that the complainant had raised the matter in an
appeal to the MSPB and his claim was resolved by a settlement pursuant to that proceeding.”
(dd. 4 21 (quoting Def. SF, Ex. 11 at 3).) In addition, the February 13, 2002 Decision advised
that there was no further right of administrative appeal and that a civil action in district court
could be brought within ninety days of receipt of the decision. (/d.) There was a Certificate of
Mailing attached to the February 13, 2002 Decision, in which an EEO assistant stated that the
Decision was mailed to Mr. Burchett.* (/d.)

Mr. Burchett contends that he never received the February 13, 2002 Decision. (/d. § 22.)
The Government has argued, through uncontroverted circumstantial evidence, that this
contention is not to be credited. For example, it is undisputed that since 1979, Mr, Burchett’s

* Mr. Burchett states that “Plaintiff disagrees that a copy of the [February 13, 2002]
decision was mailed to, or received by, him.” (Pl. Resp. § 21.) The Government has produced
evidence, namely the Certificate of Mailing, as support for its contention that the February 13,
2002 Decision was mailed to Mr. Burchett. (See Def. SF, Ex. 11 at 4.) As will be discussed in
detail below, the Certificate of Mailing does not indicate which address the Decision was mailed
to, nor does it suggest that the Decision was sent by any mail service that tracks receipt.
Therefore, the Court finds that the Government has produced only enough evidence to support
the statement of fact in Def. SF § 21 as articulated above.

13


after Chief Judge Kocoras entered his final judgment in Case No. 02 C 9070, attorney LeVert
reviewed that final judgment and advised Mr. Burchett to file a “Motion to Vacate the Final
Judgement and for Leave to File an Amended Complaint.” (/d. 431.) Mr. Burchett did not do
so, for whatever reason. This is not, with all respect, the sort of evidentiary context in which an
absolution from otherwise applicable rules seems equitable or warranted. This conclusion is
reinforced, although this factor is certainly not outcome determinative, by the fact that Mr.
Burchett later, after filing the Second Complaint and having it also dismissed by Judge
Leinenweber, incorrectly represented in subsequent motions that he was filing pro se, when in
fact those motions were prepared by counsel. (See Pl. Resp. 437-40.) This consideration is not
outcome-determinative by any means, but it simply serves to reinforce that an equitable
exemption is inappropriate, over and above the other reasons discussed above, including Mr.
Burchett’s lack of diligence as required to qualify for an equitable tolling exemption. See, e.g.,
Elmore, 227 F.3d at 1013 (finding a four-month delay inconsistent with application of equitable
tolling).

In summary, the Court concurs with the Government that Mr. Burchett had actual notice
of his right to sue as of his receipt of the September 23, 2002 Letter from EEOC. The Court also
agrees with the Government that the Second Complaint, which is at issue here given Chief Judge
Kocoras’s final (and unappealed) judgment of dismissal, was not filed until February 21, 2003,
two months after the 90-day limitations period had expired. Furthermore, equitable tolling of the
limitations period is not warranted in the present matter, for all of the reasons explained above.
Accordingly, the Court concludes that the Defendant is entitled to summary judgment because

Mr. Burchett’s suit in this action is time-barred.

51


which any reference to a personality conflict was removed. (/d.) Mr. Burchett did not heed this
advice: instead of filing a motion before Chief Judge Kocoras, he filed a second complaint on
February 21, 2003 (the “Second Complaint”), nearly two months after Chief Judge Kocoras
issued his judgment. (Jd. § 32; see also Def. SF, Burchett Dep. at 56 (reflecting Mr. Burchett’s
concession that attorney LeVert advised him to file “a motion to vacate Judge Kocoras’s
judgment rather than to file a new complaint . .. .”).) The Second Complaint was given Case
Number 03 C 1325 and was assigned to Judge Leinenweber. (PI. Resp. 932.) Mr. Burchett
contends that he did not intend for the Second Complaint to commence a new suit; rather, he
intended it as an amendment to the First Complaint. (/d. 33.)

On March 18, 2003, Judge Leinenweber dismissed the Second Complaint sua sponte for
Mr. Burchett’s failure to file it within the applicable 90-day statute of limitations and for his
failure to timely seek EEO counseling. (/d. § 36.) At some point after the dismissal of the
Second Complaint, Mr. Burchett spoke with attorney LeVert, who again advised him to file a
motion to vacate the judgment and for leave to amend in Case No. 02 C 9070. (/d. 37.) Mr.
LeVert also advised Mr. Burchett to file a motion to reconsider and vacate in Case No. 03 C
1325. (/d.) A month or so after this conversation, Mr. Burchett asked Mr. LeVert to assist him
in preparing these motions. (/d. 438.) Mr. LeVert agreed and after reviewing documents and
obtaining facts from Mr. Burchett, he prepared both “Plaintiff's Motion to Reinstate Complaint
and to File an Amended Complaint Immediately” brought before Judge Kocoras, and “Plaintiff's
Motion to Reconsider and Vacate Judgment” brought before Judge Leinenweber. (/d.)

As discussed further below, during this period of time, none of Mr. Burchett’s filings,

including the motions prepared by Mr. LeVert discussed immediately above, acknowledged the

16