benefits since December of 2000. (Compl. at J] 17.)

Starting in 1997, Plaintiff filed a number of complaints about her employment with the Postal
Service. On July 14, 1997, Plaintiff contacted an Equal Employment Opportunity (“EEO”)
counselor, claiming she suffered discrimination on the basis of her race, sex, and physical disability
when she was moved from a limited duty position in Operations Programs Support and returned
to her former mail processing position, (Compl. at 17; Defendant’s Memorandum in Support of
Motion to Dismiss (“Defendant’s Memo’) at 2.)® Not having resolved this issue through counseling,
Plaintiff filed a formal administrative complaint on June 29, 1998 (Administrative Claim No. 4-J-
6040156-97), but the Postal Service denied this claim on December 2, 1999. (Compl. at | 17;
Defendant's Memo at 2.) Twice in November of 1998, Plaintiff contacted EEO counselors
complaining that she suffered discrimination on the basis of her race, gender and physical disability
when her job offer was threatened, and her supervisors refused her requests to work on Columbus
Day and on Veterans Day, gave her work assignments that exceeded her medical restrictions, and
reassigned her from her limited duty job offer to another position. (Defendant's Memo at 3.) Again,
these complaints were not resolved through counseling. Plaintiff filed two formal complaints on
April 28, 1999 (Administrative Claim Nos. 1J-603-0023-99 and 1J-603-0047-99), and again the
Postal Service denied both claims on April 16, 2001. (Compl. at 17; Defendant's Memo at 3.)
Plaintiff appealed that decision on May 16, 2001, but the Office of Federal Operations affirmed the
decision on August 15, 2001. (Compl. at 17; Defendant's Memo at 3.) Plaintiff also sought EEO

counseling on September 28, 1999 when she was told she could no longer park in the parking

4(...continued)
identify the doctor who made the recommendation that she stop working.

8 Defendant's memorandum attaches copies of the various Notices of Final Action
from the Postal Service, and thus, provides additional information concerning the disposition of
Plaintiff's administrative charges. The court will consider this additional information as it is relevant
to Defendant’s 12(b)(1) jurisdictional argument.

4


receive that decision until August 20, (Defendant's Memo at 8). Accordingly, her complaint, filed
in this court on November 19, is filed within ninety days of final action on Claims 23 and 47.

A further limitation on this court's review is the scope of the underlying claims. Plaintiff may
only bring claims that were included in her original administrative claim, or that are like or
reasonably related to, the allegations of the charge or growing out of the charge. Ferguson v.
Runyon, No. 96-3306, 116 F.3d 1482 (TABLE, text in WESTLAW), 1997 WL 295326 (7th Cir.
1997). Therefore, the court will consider the claims in Plaintiffs complaint, but only if those claims
were first presented in Claims 23 and/ or 47.’ In both the complaint and in Ciaims 23 and 47, she
asserted that she suffered discrimination on the basis of her race, sex, and physical disability.* The
allegations in her complaint are like or reasonably related to those in the underlying claims,
however, only where there is a “factual relationship between [the claims],” meaning that the
administrative charge and “the complaint must, at minimum, describe the same conduct and
implicate the same individuals.” Harper v. Godfrey Co., 45 F.3d 143, 148 (7th Cir. 1995), quoted
in Ferguson, 1997 WL 295326 at *2.

Reading Plaintiff's allegations in the light most favorable to her as the court must on this
motion to dismiss, she clearly raised one claim in both the complaint and the administrative claims.
Furthermore, the court finds sufficient overlap between another claim in the administrative claims
and one in the complaint for her to proceed on that as weil. First, both the administrative claims
and the complaint, Plaintiff alleged that she suffered discrimination when she was assigned work
that exceeded her medical restrictions. Thus, the court may consider that claim. Plaintiff further

alleged in both her administrative claims and the complaint, that she suffered discrimination (on the

7 Unfortunately, it is not clear from the record which complaint was assigned which
administrative claim number.

8 Confusing matters slightly, Plaintiff did not identify which actions constituted
discrimination on which basis, or whether instead, she meant that each instance of alleged
discrimination was on the basis of her race, her sex, and her disability.

7


Plaintiff asserts that the Postal Service “provided [her] with numerous opportunities to
receive training for various positions as a rehabilitative employee,” but then removed her from these
positions with little explanation. (Compl. at | 10.) She alleges, further, that some unidentified
supervisors hinted that the changes in her job position may have been prompted by her lawsuit.?
Id. According to Plaintiff, “[t]hese situations continually and consistently affected [her] health,
emotional stress and family.” (Compl. at {| 10.) Although Plaintiff's doctors urged her to have
another surgery on her wrist, Plaintiff declined because she could not afford to take time off work,
and instead, continued to perform her assigned duties, even those beyond her medical restrictions.
(Compl. at J 10.)

Plaintiff suffered a heart attack and was hospitalized in June of 1991. (Compl. at | 10-11.)
About one year later, Plaintiff learned that her blood pressure was so high that she needed to take
a medical leave from work. (Compl. at 7.11.) She did not work from June 29, 1992 through
August 1, 1993, during which time, in addition to treating her high blood pressure, Plaintiff
underwent another wrist surgery. (Compl. at {] 11-12.) Plaintiff alleges that while she was away
from work, the Postal Service “willfully and intentionally delayed her compensation payments.”
(Compl. at J] 13-14.) Plaintiff further alleges that if the Postal Service would have honored her
medical restrictions so that her initial wrist injury could have healed properly, she “would not have
had a heart attack, two mild strokes, high blood pressure and now deterioration to the left side of
[her] body that has ruined [her] life and health for the last 20 years.” (Compl. at 14.) In May of
2000, Plaintiffs doctor advised her to stop working due to her condition, which Plaintiff describes

only as her “now permanent disability." (Compl. at J 17.) Plaintiff has been receiving disability

8 Plaintiff did not explain what a “position as a rehabilitative employee” entailed, nor
did she identify the nature of the positions to which she was moved.

‘ Plaintiff did not explain what her permanent disability was, for example, whether it
was brought on by her wrist injury or by her heart and high blood pressure issues. Plaintiff did not
(continued...)


spots reserved for the disabled, and later filed a formal complaint on December 27, 1999
(Administrative Claim No. 1J-6060051-00), which was denied on February 27, 2001 by an
administrative law judge.* (Compl. at { 17; Defendant's Memo at 3-4.) She appealed this decision,
but it too was affirmed on March 2, 2001. (Defendant's Memo at 4.)
DISCUSSION

Plaintiff's complaint does not identify under what legal theory or theories she intends to
proceed. With respect to a number of incidents that occurred during her employment with the
Postal Service, Plaintiff asserted that “[alll of the aforementioned in my complaint are the result of
the negligence and discriminatory acts against me by the United States Postal Service.” (Compl.
at § 18.) As explained below, to the extent Plaintiff raises tort claims against the United States
Postal Service, this court does not have jurisdiction. The court has jurisdiction over her
employment discrimination claims, but concludes that Plaintiff complied with the administrative
exhaustion requirements and time lines with respect to only two of her administrative charges.
Tort Claims

The Federal Employees’ Compensation Act (“FECA”) is the exclusive avenue of redress
for a federal worker's claim against the government for work-related injuries. In Lockheed Aircraft
Corp. v. United States, 460 U.S. 190 (1983), the Supreme Court explained:

FECA's exclusive-liability provision . . . was designed to protect the Government

from suits under statutes, such as the Federal Tort Claims Act, that had been

enacted to waive the Government's sovereign immunity. In enacting this provision,

Congress adopted the principal compromise--the “quid pro quo"-- commonly found

in workers’ compensation legislation: employees are guaranteed the right to receive

immediate, fixed benefits, regardless of fault and without need for litigation, but in

return they lose the right to sue the Government.

460 U.S. at 193-94. Furthermore, it is the Secretary of Labor, rather than a court of law, who

6 It is not clear what prompted the Postal Service to change its position regarding
Plaintiff's right to park in the spots reserved for the disabled.

5


basis of her race, sex, and disability, or all three) when she was reassigned from one position within
the Post Office to another. The administrative claim specifies that this occurred on November 2,
1998. Because Plaintiff referred only generally to a job reassignment in the complaint, the court will
assume this general reference also relates to the November 2, 1998 incident and permit her to
proceed on that claim as well. As for the two other allegations raised in Claims 23 and 47, that she
was not allowed to work on two federal holidays, and that her job offer was threatened, Plaintiff
makes no reference to those incidents in her complaint and the court concludes that these
allegations are not reasonably related to the claims raised in the complaint. Accordingly, two of
Plaintiff's claims survive Defendant's motion to dismiss: (1) Defendant assigned her work that
exceeded her medical restrictions, and (2) Plaintiff suffered discrimination when she was
reassigned to a different task on November 2, 1998.
CONCLUSION

For the foregoing reasons, Defendant's motion to dismiss (10-1) is granted in part and
denied in part. Ms. Cooks’ tort claims are dismissed. She may proceed with her discrimination
claims, but only those claims raised in Claims 23 and 47 as described above. Plaintiffs motion for
appointment of counsel (8-1) is denied without prejudice.

ENTER:

Dated: July 3, 2002

REBECCA R. PALCMEYER
United States District Judge


Minute Order Form (06/97) t

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

edgy R. Pallmeyer

Sitting Judge if Other
than Assigned Judge

Notified counsel by telephone.
Docketing to mail notices,
Mail AO 450 form,

Copy to judge/magistrate judge.

V
CASE NUMBER 01 C 8897 DATE 7/3/2002
CASE Marva P. Cooks vs. John E. Potter
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented. ]
DOCKET ENTRY:
qa a Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) a Answer brief to motion due . Reply to answer brief due
4 oO Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) a Trial[set for/re-set for] on at
(8) o (Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) (ClGeneral Rule 21 COFRCP41(a)\(1) CO FRCP41(a)(2).
qo) =o [Other docket entry] Enter Memorandum Opinion and Order. Defendant’s motion to dismiss (10-
1) is granted in part and denied in part. Plaintiff's motion for appointment of counsel (8-1) is denied
without prejudice. Defendant is directed to file an answer to those allegations that survive its motion
within 21 days, on or before July 24, 2002. Case is referred to Magistrate Judge Denlow for settlement
conference. Rule 16 conference before this court is set for September 4, 2002 at 9:30 a.m.
(1) @f [For further detail see order attached to the original minute order.]
No notices required, advised in open court, _ Document
.. Number:
No notices required. umber of no 2
Y | Notices mailed by judge’s staff.

date docketed / b

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decides claims brought under FECA. The Secretary’s decisions are final and are not subject to
judicial review. See 5 U.S.C. §§ 8128(b), 8145. As a result, to the extent Plaintiff raises personal
injury or tort claims against her employer, the United States Postal Service, this court has no
jurisdiction to entertain Plaintiff's action, and those claims are accordingly dismissed. See
Ezekiel v. Michel, 66 F.3d 894, 898-99 (7th Cir. 1995).

Discrimination Claims

Plaintiff also alleges that she was discriminated against by the Postal Service on the basis
of her physical disability, gender and race. Because Plaintiff refers broadly to the events
surrounding her employment and wrist injury over the past twenty years, it is appropriate to first
establish what claims may be considered by this court. First, the court may only consider those
discrimination claims that Plaintiff either: (a) pursued first through administrative channels within
the Postal Service and raised in an appeal with this court within 90 days of that agency's final
decision; or (b) pursued first through administrative channels within the Postal Service, appealed
to the Equal Employment Opportunity Commission (“EEOC”) following final action by the Postal
Service, and then raised in an appeal before this court within ninety days from the date of the
EEOC's final decision. See 42 U.S.C. § 2000e-5(f) & 16(c); 42 U.S.C. § 12117(a).

Although Plaintiff filed four separate formal administrative complaints, only two of those
complaints are properly before the court for review. Final agency action in Claim 4-J-6040156-97
occurred on December 2, 1999, and in Claim 1J-6060051-00, on March 2, 2001. Plaintiff filed the
lawsuit on November 19, 2001, more than ninety days after the final decision on her administrative
complaints. Thus, Plaintiff may not appeal the substance of those decisions in this court.

With respect to claims 1J-603-0023-99 (“Claim 23") and 1J-603-0047-99 (“Claim 47"), the
Office of Federal Operations affirmed the fina! decision of the Postal Service denying Plaintiff's

claims on August 15, 2001. For purposes of this motion, Defendant presumes Plaintiff did not


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MARVA P. COOKS,
Plaintiff, YUL 9 8 2002

v. No. 01 C 8897

JOHN E. POTTER, in his official
capacity as Postmaster General of
the United States,

Judge Rebecca R. Pallmeyer

Defendant.

MEMORANDUM OPINION AND ORDER

On May 27, 1981, Plaintiff Marva Cooks tripped and fell outside of the National Archives
and Records Center located at 7358 S. Pulaski in Chicago. Plaintiff suffered a number of minor
injuries, as well as a sprained wrist that continued to plague her, despite numerous surgeries, for
years after the fall. Employed by the United States Postal Service since 1967, Plaintiff, proceeding
pro se, now claims she suffered employment discrimination upon her return to work after the May
1981 incident. Plaintiff further raises several tort claims, Defendant United States Postal Service
moves to dismiss the complaint pursuant to Rule 12(b)(1), arguing that her tort claims are
preempted by the Postal Reorganization Act and by the Federal Employee Compensation Act, and
that her discrimination claims are barred because she failed to timely exhaust her administrative
remedies. For the following reasons, Defendant's motion is granted in part and denied in part.

FACTUAL BACKGROUND

Plaintiff furnished a great deal of detail in her complaint, (more than necessary to survive
a 12(b)(6) motion), and all of her well-pleaded allegations will be deemed true. in considering this
12(b)(1) motion, the court may go beyond the face of the pleadings for certain purposes. In her
complaint, Cooks alleged that she suffered numerous personal injuries as a result of her fall in front

of the National Archives Records center on May 27, 1981. (Complaint (“Compl.”), at If 1-2.)

DOCK TE

Hf


Plaintiff, recuperating from surgery on her wrist, was unable to work for approximately ten months
and claims that, during her absence, she was “verbally harassed by the Agency to return to work
with subtle hints of job loss.” (Compl. at J] 3-6.)

After she obtained a “return to work slip” from her doctor specifying that she shouid only be
assigned to “light duty,” Plaintiff returned to work on April 1, 1982. (Compl. at If] 6-7.) Plaintiff was
assigned to work the “Nixie Table,” where damaged mail and packages weighing from one ounce
to eighty pounds are repaired, weighed, and returned to the distribution system. (Compl. at ] 7.)
Plaintiff claims that on April 20, 1982, her doctor requested that Plaintiff be placed under a lifting
restriction for her rignt hand of no more than five pounds.’ (Compl. at Y7.) According to Plaintiff,
the Postal Service failed to abide by her medical restrictions despite her complaints to the injury
compensation office which, in turn, exacerbated her injuries. (Compl. at 7.) In March of 1985,
Plaintiff again underwent wrist surgery, a procedure she describes as “unsuccessful.” (Compl. at
17.)

Plaintiff filed suit against the United States under the Federal Tort Claims Act, 28 U.S.C.
§ 2671, for recovery for the injuries she received when she fell in front of the Federal Archives and
Records Center.? (Compl. at 8.) Following a bench trial in front of Judge Brian Barnett Duff, the
district court entered judgment in favor of Plaintiff for $190,000. (Compl. at {| 8; Cooks v. United
States, 815 F.2d 34 (7th Cir. 1987).) In her complaint, Plaintiff charges that she never received any
money from that judgment. The court takes judicial notice of the Seventh Circuit's decision
reversing the judgment of the district court, on the ground that the one-half inch defect in the

sidewalk was too minor to warrant liability. (Compl. at [ 8; Cooks, 815 F.2d at 37.)

‘ As noted, Plaintiff's detailed complaint provides considerably more information than
required by Rule 8. She does not, however, state whether this request was in writing, nor does she
identify to whom the request was directed.

2 The record does not identify when Plaintiff filed this lawsuit.

2