Here, USPS contends that it met its burden of engaging in the
interactive process and providing Sutton with reasonable
accommodation by its 1997 offer of a position as a central mark up
clerk in the CFS unit at Palatine, accommodated by the installation
of an air cleaning unit. In USPS’ view, it did not need to
reassign Sutton, as the reasonable accommodation process requires
only an acceptable offer, not “[{providing] literally everything the
disabled employee requests.” Schmidt v. Methodist Hosp. of
Indiana, Inc., 89 F.3d 342, 345 (7th Cir. 1996). “post-installation
of the clean air unit, USPS insisted that the Palatine CFS position
qualified as a reasonable accommodation, because its air quality
complied with the minimum standards set by the Occupational Safety
and Health Association (“OSHA”). Furthermore, USPS argues that
Sutton acted in bad faith by failing to provide justification for
refusing the CFS assignment and not repeating her transfer requests
originally made 1992-1993 during. the 1997-2001 period.

Sutton responds by noting that the CFS position was wholly
inadequate for accommodating her acknowledged disability, and
therefore cannot meet USPS’ burden of providing “reasonable
accommodation.” She points out that the clean air unit purchased
had enough power to clean only 15,000 square feet, while Palatine’s
CFS unit contained 169,920 square feet of open space. For this
reason, Sutton states that her doctors advised her not to accept

the position. Additionally, Sutton argues that USPS itself



opinion (arguably, it did not conclude until even later, as the
Court has no knowledge of the outcome of her appeal).

Sutton’s argument has some merit. While USPS is correct that
a job transfer constitutes a single act inappropriate for the
continuing violations doctrine, what is at issue here is a failure
to transfer or otherwise reasonably accommodate. Unlike a job
transfer, which happens on a precise date, the discrimination
allegedly suffered by Sutton took the form ofa required event not
happening over an extended, continuous length of time. There was
no definitive temporal marker distinguishing for Sutton at what
moment USPS’ failure to accommodate ceased to constitute the normal
and expected administrative delay or red-tape associated with the
process of reasonably accommodating, and started characterizing
disability discrimination instead. Therefore, the Court finds that
the discrimination Sutton suffered did constitute a “continuing
violation.”

However, although Sutton properly establishes a continuing
violation, the Court finds that Sutton cannot take advantage of the
continuing violations doctrine with respect to most of the
ordinarily time-barred conduct. As the Court noted above, the
reasonableness of delaying a suit forms the crux of the continuing
violations doctrine. In the Seventh Circuit, “there is no
straightforward answer” to the question of how long a reasonable
person would wait before “[she] concluded that the silence was in

fact an implicit refusal to accommodate the request.” Cox v.

-13-



deposition about knowing of it. Sutton asks the Court to draw this
inference by claiming that Kalisz probably learned of Sutton’s
complaint by interacting with USPS Labor Relations official Colleen
Kelly. However, Sutton provides zero actual proof that Kelly told
Kalisz of Sutton’s complaint. Sutton then references a memorandum
sent to Kalisz, dated after her termination, informing Kalisz of
her EEO complaint - claiming that this shows Kalisz “lied” in
deposition when he claimed to have no knowledge of Sutton’s
complaint until shortly before his deposition.

The Court does not find Sutton’s argument persuasive.
Sutton’s requested inference does not even meet her burden of
showing that Kalisz knew of her EEO complaint, as it is very
possible that Kelly never informed him of it. Aside from this
requested inference, Sutton has nothing to substantiate Kalisz’s
knowledge of the complaint. While the Seventh Circuit has loosened
the circumstantial evidence requirements in recent decisions, a
decision maker must still affirmatively know of the complaint
before a plaintiff can even hope to establish discriminatory
intent. Durkin v. City of Chicago, 341 F.3d 606, 614 (7th Cir.
2003). Since Sutton has not shown Kalisz’s knowledge, she cannot
show discriminatory intent and therefore her retaliation claim
cannot withstand summary judgment.

Sutton tries to get around the knowledge requirement by
stating that, although Kalisz was the “final decision maker, he was

not the only one.” However, by conceding that Kalisz was the

- 23 -


minor disputes, the Court concluded that the supporting evidence
unquestionably supported one party’s version of the events beyond
the ability of any reasonably jury to find to the contrary.

In October 1988, USPS hired Sutton to work as a Central Mark
Up clerk in the Central Forwarding System (“CFS”) Unit-at the North
Suburban facility in River Grove, Illinois. As early as 1989,
Sutton’s work in the dusty CFS environment caused her to develop a
medical condition known as allergic rhinoconjunctivitis. In 1991,
upon a recommendation from Sutton’s doctor, the USPS Medical
Department ordered that USPS place Sutton in a “temporary light
duty assignment” in a “dust free area.” On April 2, 1992, the U.S.
Department of Labor Office of Workers’ Compensation Programs (the
“OWCP”) accepted Sutton’s claim of disability.

On April 21, 1992, USPS transferred Sutton to the recently-
completed facility in Palatine. Because the room housing
Palatine’s CFS unit was not complete, USPS directed Sutton to work
on a different floor handling magazines. Within five hours of
arriving at Palatine, Sutton suffered a serious allergic attack as
a result of her disability and the conditions on the magazine
floor. Sutton went home and never returned to work at Palatine or
anywhere else for USPS.

Throughout 1991, 1992 and 1993, numerous doctors filed medical
reports on Sutton’s behalf to USPS, frequently requesting her
transfer to a dust-free environment. These requests continued

after Sutton’s unsuccessful transfer to Palatine, and the resulting



acknowledged that position’s inappropriateness, when it failed to
find the position "suitable" under their internal regulations.

The Court agrees with Sutton. Although USPS is correct that
the Rehabilitation Act does not obligate it to transfer Sutton, it
must nevertheless provide an accommodation suitable to Sutton’s
condition. By any objective standards, the CFS position at
Palatine did not meet this threshold. While it is true that the
Palatine position may have complied with OSHA's “minimum safety
requirements, this is not mean that it qualified as sufficiently
clean for Sutton, due to her undisputed hypersensitivity to dust
and fumes. Indeed, the fact that USPS never found the job offer
“suitable,” thereby permitting Sutton to remain on disability,
amounts to a near confession by USPS itself that the job offer did
not adequately accommodation Sutton’s medical problems. This is
only compounded by USPS’ original classification of the position as
a temporary, “limited duty” assignment, though it acknowledged that
Sutton required a permanent solution. Due to all this, the Court
finds that no reasonable jury could conclude that USPS’ Palatine
job offer qualified as a “reasonable accommodation.”

Therefore, post~Sutton’s rejection of the Palatine job, USPS
still needed to engage in the interactive process, to properly
inform Sutton of her options for reasonable accommodation. USPS
failed to do this. Instead, USPS did nothing for three years,
until OWCP declared Sutton no longer disabled (although now USPS

concedes that Sutton was disabled, for purposes of summary

- 20 -



performing the job in a satisfactory manner.” Stone, 281 F.3d at
644,

Here, Sutton proceeds exclusively under the direct method.
This requires her to “provide direct or circumstantial evidence
that the decisionmaker has acted for a prohibited reason. A
decision maker is the person “responsible for the contested
decision.” Rogers, 320 F.3d at 754 (italics in original, internal
citations ommitted). Under “circumstantial evidence,” the Court
accepts three categories of evidence. Only one of these pertains
to this case: evidence such as “suspicious timing, ambiguous
statements, oral or written, behavior toward or comments directed
at other employees in the protected group, and other bits and
pieces from which an inference of discriminatory intent might be
drawn.” Venturelli v. ARC Cmty. Servs., 350 F.3d 592, 601 (7th Cir.
2003).

USPS then has an opportunity to contradict Sutton’s evidence,
and present its own evidence that it would have “taken the adverse
employment action against [Sutton] even if he had no retaliatory
motive.” Stone, 281 F.3d at 644. If either Sutton’s or USPS’
evidence stands uncontradicted by the other party, then summary
judgment is appropriate. Otherwise, the Court must find a triable
issue of fact for the jury. Id.

To meet her “circumstantial evidence” burden, Sutton attempts
to establish by inference that decision maker Joe Kalisz (“Kalisz”)

knew of her EEO complaint when he terminated her, and then lied in

~ 22 -



Although Sutton was not a “qualified individual” as of
November 2001, her status on July 15, 2000 is more questionable.
As noted above, Dr. May informed USPS several times that Sutton was
permanently disabled since July 12, 2000. However, as far as the
Court can figure, Dr. May did not first convey this opinion until
March 5, 2001. Therefore, at the time USPS declared Sutton absent
with undocumented leave, and forced her on unpaid medical leave, it
seems possible if not likely that they had no knowledge that Sutton
possessed a “condition permanent since 7/12/2000” that rendered her
“unable to work.” As noted above, the determination as to whether
an individual is qualified “must be made as of the time of the
employment decision.” Nowak v. St. Rita High School, 142 F.3d
999, 1003 (7th Cir. 1998). Therefore, USPS cannot use Dr. May’s
post-March 5, 2001 opinions to justify its treatment of Sutton
between July 2000 and March 2001.

Indeed, this is especially true because USPS claims it based
its July 2000 decision on an opinion holding precisely the opposite
- the OWCP ruling that Sutton was not disabled at all, and
therefore able to return to work at Palatine (as mentioned above,
USPS now admits Sutton is disabled). At that time, all medical
opinions on file indicated that Sutton could perform work within a
dust-free area. Therefore, at the time USPS placed Sutton on
unpaid medical leave, she did constitute a “qualified individual”
under the Rehabilitation Act. This does not mean Sutton remained

a “qualified individual” until her termination. On March 5, 2001,

-17 -



jobs to which it could have transferred Sutton during both her time
on disability and unpaid medical leave.

On October 5, 2001, an OWCP hearing representative issued a
written opinion affirming OWCP’s decision to cut Sutton’s
disability benefits. The written opinion gave Sutton ninety days
to appeal to the Employees’ Compensation Appeals Board, which
Sutton, according to her amended complaint, pursued. However, the
Court has no knowledge of the outcome of this appeal - or if the
appeal remains ongoing. Also, in October 2001, USPS sent Sutton a
letter offering her a choice of three ways to end her career at
USPS: resignation, optional retirement, or disability retirement.
Sutton instead elected the unmentioned option four: she filed an
informal complaint with the USPS’ Equal Employment Opportunity
office (the “EEO”), asserting a claim of “unreasonable
accommodation for medical restriction.” In November 2001, Sutton
received a notice of “administrative separation” (i.e.,
termination) from USPS. In December 2001, Sutton formally
complained to the EEO.

III. STANDARD OF REVIEW

Summary judgment is appropriate if “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.” Fep. R. Civ. P. 56(c). A fact

is “material” if it could affect the outcome of the suit under the


Specifically, USPS asked if Sutton could work as a letter carrier,
as a clerk in a small non-mechanical office, or as an employee at
either a mechanized or non-mechanized manual distribution center or
office environment, and whether she still had restrictions from
working near computers. Despite his previous and subsequent
opinions that Sutton could work in a dust-free environment, Dr.
May responded to this inquiry only by stating that Sutton was
“totally disabled for usual work.” Dr. May neither responded to
USPS’ specific job questions, nor did he suggest any type of work
that Sutton could do.

Between 1993 and 1997, neither Sutton nor USPS demonstrated
any practical interest in getting Sutton back to work either at her
old job or in a new assignment. During this period, Sutton filed
no additional job applications or transfer requests, choosing
instead to collect disability benefits. USPS, for its part, made
sporadic and lackluster efforts toward returning Sutton to
employment. The Court documents these efforts, in full, below.

In March 1994, USPS scheduled Sutton for a work capacity
evaluation with an allergist to determine what USPS work she could
do. However, when Sutton could not attend this appointment due to
an unrelated surgery, USPS never rescheduled it. In June 1995,
USPS wrote to OWCP seeking a second medical opinion regarding
Sutton’s disability. In September 1996, USPS directed Sutton to
undergo an evaluation by Dr. Baltazar Espiritu concerning her

condition. Dr. Espiritu recommended that USPS assign Sutton to a


allergic attack. On April 27, 1992, shortly following Sutton’s
allergic reaction at Palatine, USPS Fitness for Duty Doctor
Sarmiento recommended that Sutton “needs to be transferred to an
office environment free of dust mites and irritants that may
exacerbate her symptoms, ideally out of Central Markup Unit. In
December 1992, Sutton’s personal physician Dr. Percy May concurred,
declaring Sutton “totally disabled” but advising that “she be moved
to an area free from dust, dust mites, paper mites, and away from
all odors associated with computer and other machine operated
apparatus. In December 1993, Dr. May again certified that Sutton
should not work “until she is able to work in a dust and mite free
environment.”

Beginning in 1989, and accelerating in 1991 and early 1992,
Sutton also applied for other positions within USPS, but did not
receive any of them. Most of these applications occurred prior to
her transfer to Palatine, and the subsequent allergic reaction.
The last recorded incident of Sutton applying for a non-CFS job
occurred on May 21, 1992, when Sutton applied for six open non-CFS
jobs. Following this mass-application, Sutton never again sought
work outside of CFS as she believed USPS had her applications on
file.

On April 22, 1993, the day after the incident at Palatine,
USPS wrote Dr. May requesting his assistance in finding alternative
work for Sutton, and posing a number of specific questions to him

concerning what kind of work he would deem appropriate.


when Dr. May first enunciated his opinion that Sutton had a
permanent condition preventing her from working at all,. she ceased
being a qualified individual because she, through her doctor, had
admitted a. total inability to perform the functions of her job -
regardless of accommodation.

This means that Sutton can prove disability discrimination
for, at most, the period between July 15, 2000 and March 5, 2001,
provided she can establish USPS’ fault for failure to provide her
with reasonable accommodation. In general, the burden of showing
that a reasonable accommodation exists rests with the employee.
Mays v. Principi, 301 F.3d 866, 870-871 (7th Cir. 2002). However,
once the employee informs the employer of his or her disability,
the employer must engage in an “interactive process” with that
employee, designed to “identify the employee's precise limitations
and discuss accommodation which might enable the employee to
continue working.” Gile v. United Airlines, Inc., 213 F.3d 365,373
(7th Cir. 2000) (internal citations omitted). If the employer fails
to engage in this “interactive process,” the burden.of production
concerning the availability of a reasonable accommodation shifts
from the employee to the employer. Mays, 301 F.3d at 870. During
this process, the employer must make an offer of accommodation
‘with sufficient clarity to make the accommodation available to her
in a practical sense, so that her rejecting it was her own fault.”

Id.

-18-


job would sufficiently accommodate the disabled employee. A USPS
finding that the job is “suitable” would result in the employee
losing disability benefits. Here, USPS failed to ever conduct the
required suitability determination - permitting Sutton to reject
the job offer without losing her disability benefits.

USPS reacted to Sutton’s rejection of this job offer by
effectively doing nothing for nearly three years. In May 2000,
OWCP sent Sutton a letter declaring that it no longer considered
her too disabled to resume work as a central mark up clerk.
Although Sutton protested OWCP’s decision with medical evidence
from Dr. Marsha Vetter, OWCP refused to rescind its decision. On
July 6, 2000, OWCP notified Sutton that her benefits would end
effective July 15, 2000, more than eight years after Sutton first
went on disability leave. When Sutton did not show up for work at
Palatine on July 15, 2000, USPS informed her that it considered her
absence undocumented leave and informed her that if she was ill,
she would need to submit medical verification of her inability to
work. Sutton responded by contacting USPS‘s Leave Control and
requesting an additional 30 days of unpaid leave due to sickness.
For the next sixteen months, Sutton followed the same procedure of
calling in sick once a month and requesting more unpaid leave,
supported by letters from Dr. May declaring her permanently
disabled. At no time during this period did Sutton express a
desire to return to work or request a transfer or other employment

accommodation. For its part, USPS concedes that it had dust-free


“final decision maker” (i.e., the only one with the actual power to
decide), Sutton concedes that for practical purposes Kalisz is the
only decision maker. The other individuals named may have advised
Kalisz, but it is undisputed that only Kalisz had the power to
terminate Sutton, and only Kalisz signed the decree terminating
Sutton. Therefore, this argument also fails.

Accordingly, Sutton’s summary judgment motion is GRANTED
solely with respect to her claim that USPS discriminated against
her by failing to accommodate her disability between the period of
July 15, 2000 and March 5, 2001. With respect to damages, even
this successful claim is limited to the disability benefits Sutton
lost - not her full salary. As to the remainder of Sutton’s
claims, including the entirety of her retaliation claim, Sutton’s
summary judgment motion is DENIED and USPS’ is GRANTED.

Before concluding, the Court feels compelled to make note ~
unfortunately - of the bureaucratic and ineffective conduct of the
Postal Service in this matter. First, it appears that the Postal
Service slept. through nearly eight years of Sutton collecting
disability at government expense. Second, once awakened from its
slumber, the Postal Service’s sole action was so woefully
inadequate as to suggest a total lack of effort on their part to
comply with the statutory requirements of the Rehabilitation Act.
In so doing, the Postal Service has done a disservice not only to
Sutton, but also to the public at large. After all, it isjwe, the

Postal Service’s customers, who ultimately financed both Sutton’s

- 24 -



cad ged
So. white Ord Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud; i Sitting Judge if Oth
irae Magistrate Sudge | __Hatty D. Leinenweber than Assigned Judge
CASE NUMBER 02 C 2702 DATE 3/19/2004
CASE Sandra Sutton vs. John E. Potter, Postmaster General of the United States Postal Service
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(G) a Answer brief to motion due . Reply to answer brief due.
@ oO Ruling/Hearing on set for at .
(5) ga Status hearing set for 8 Apr. 04 at 9:00 A.M..
(6) Oo Pretrial conference{held/continued to] [set for/re-set for] on set for at .
) o Trial[set for/re-set for] on at
(8) oO [Bench/Jury trial] [Hearing] held/continued to at
Q) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CLocal Rule 41.1 OC FRCP41(a)(1) OFRCP41(a)(2).
ao) =f [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: USPS’ Motion for
Summary Judgment is GRANTED IN PART AND DENIED IN PART. Sutton’s Motion for Summary
Judgment is, GRANTED IN PART AND DENIED IN PART.
al) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. umber of vce
Notices mailed by judge's staff.
Notified counsel by telephone. MAR_2 2 2004
wo | Docketing to mail notices,
Mail AO 450 form.
Copy to judge/magistrate judge.
courtroom
WAP deputy’s
initials
Date/time received in
central Clérk’s Office,

NOT vanin

BH ow



within 45 days of “the matter alleged to be discriminatory or, in
the case of a personnel action, within 45 days of the effective
date of the action.” 29 C.F.R. § 1614.105(a) (1). Since Sutton
first contacted the EEO on October 25, 2001, USPS contends that she
faces a statutory time-bar prohibiting all of her claims stemming
from conduct allegedly occurring prior to September 10, 2001. This
excludes all of Sutton’s claims except those arising from her
October 2001 termination.

USPS further argues that Sutton cannot escape the statute of
limitations by taking advantage of the continuing violations
doctrine, for two reasons. First, USPS contends that a continuing
violation is one which not could be reasonably expected to generate
a lawsuit when it first occurs, because its character as a
violation did not become clear until it was repeated, citing
Dasgupta v. Univ. of Wisconsin Bd. of Regents, 121 F. 3d 1138,
1139 (7th Cir. 1997). Here, USPS contends that Sutton must have
suspected discrimination as early at 1994, when she filed a prior
EEO complaint, and therefore cannot invoke the continuing
violations doctrine. Secondly, USPS argues that a job transfer,
which is what Sutton claims she sought, constitutes a single event
and therefore not a continuing act.

In general, the continuous violations doctrine permits a
plaintiff to get relief for a time-barred conduct “by linking it
with an act that is within the limitations period.” Miller v. Am.

Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir.2000) (internal

-1ll1-



governing law; a dispute is “genuine” where the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The burden is initially upon the movant to demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In assessing the moving party’s
claim, the court must view all the evidence and any reasonable
inferences that may be drawn from that evidence in the light most
favorable to the nonmoving party. Miller v. Am. Family Mut. Ins.
Co., 203 F.3d 997, 1003 (7th Cir. 2000). Once the moving party has
met its burden, the nonmoving party “may not rest upon the mere
allegations” contained in its pleading, but rather “must set forth
specific facts showing that there is a genuine issue for trial.”
Fep. R. Civ. P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914
F.2d 107, 110 (7th Cir. 1990); Schroeder v.. Lufthansa German
Airlines, 875 F.2d 613, 620 (7th Cir. 1989). It “must do more than
simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).

IV. DISCUSSION
A. Statute of Limitations

USPS argues that nearly all of Sutton’s claims prior to

September 2001 are time-barred. USPS noted that a federal employee

asserting a discrimination claim must contact an EEO counselor

- 10-



“relatively new building as workplace, complete with adequate
ventilation” to “determine whether her symptoms would recur while
working as a central mark up clerk.” In April 1997, OWCP referred
Sutton to Dr. Margaret Matheis, a rehabilitation counselor, to help
facilitate Sutton’s reemployment.

In August 1997, USPS finally issued Sutton a limited-duty job
offer to return her to work. USPS offered to send Sutton back to
Palatine as an automated mark up clerk, the same position she held
previously, but with a clean air machine installed near Sutton's
work station. Sutton rejected this job offer, after Dr. May opined
that it would inadequately accommodate her condition. In
particular, Sutton objected that USPS’s proposed clean air machine
accommodation was too weak to sufficiently clean the large CFS
room. Sutton notes that the actual machine that USPS purchased for
her, in May 1998, can handle up to 15,000 cubic feet, whereas the
CFS room totals 169,920 square feet. Sutton further objected that
USPS offered her only a “limited duty” assignment, a USPS
classification designed to accommodate only temporary disabilities.
However, Sutton notes that even USPS conceded in a September 27,
1997 that she “needs a permanent job offer at some point,” proving
that USPS did not believe that the Palatine CFS position amounted
to a fully-adequate accommodation.

Additionally, under USPS regulations, a disabled employee’s
rejection of a job offer should trigger a “suitability”

determination. This entails USPS investigating whether the offered

-7~



judgment) . Then, USPS responded only by reoffering her the
rejected, unacceptable Palatine position - then placing her on
unpaid leave for sixteen months under terminating her. Clearly,
unpaid medical leave does not meet USPS’ burden of engaging in an
interactive process, or providing reasonable accommodation.

C. Retaliation Claim

Sutton has also filed a retaliatory discrimination charge
against USPS. 42 U.S.C. § 2000 prevents an employer or labor
organization from discriminating against someone because “he has
opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.” 42 U.S.C. § 2000(e) (3) (a).

To overcome USPS’ retaliation summary judgment motion, Sutton
must establish retaliatory treatment through either the “direct” or
“indirect” method. Stone v. City of Indianapolis, 281 F.3d 640,
644 (7th Cir. 2002). The direct method requires Sutton to “provide
direct or circumstantial evidence that the decisionmaker has acted
for a prohibited reason.” Rogers v. City of Chicago, 320 F.3d
748, 754 (7th Cir. 2003) (italics in original). The indirect method
demands Sutton establish a prima facie case of retaliation by
showing that “after filing the charge only he, and not any
similarly situated employee who did not file a charge, was

subjected to an adverse employment action even though he was

- 21 -



supporting evidentiary material. Therefore, the Court deems
paragraphs 408-413 admitted - and considers them true in the
factual record detailed below.

Likewise, in paragraph 414, Sutton stated that “USPS already
had her applications on record and her supervisors knew of them as
well.” USPS responded by denying that Sutton’s CFS supervisors
knew of the specific positions that she applied for. However, USPS
supported its response only with testimony from the affidavit of
Margaret Hoffman. This testimony, in context, only partially
refutes Sutton’s paragraph 414. In it, Hoffman states only that
she doesn’t remember if she ever knew whether Sutton applied for
any other jobs, and conceded that she “may have” told Sutton she
was too sick to get those positions. Therefore, this statement is
also partially admitted, to the extent that it does not contest
that Sutton’s supervisors (plural) knew of the positions she
applied for, nor does it dispute that Hoffman knew of her
applications ~ disputing only that Hoffman does not remember if she
knew.

II. FACTUAL BACKGROUND

The Court compiled the following factual record through
thorough study of the parties’ briefs, Local Rule 56.1 Statements
of Material Facts, and evidentiary materials. Based on all
available information, the Court concludes that although the
parties might disagree as to small details in the factual record,

they do not dispute any material facts. Even in some of these rare

-3-


Rumsfeld, 2003 U.S. Dist. LEXIS 14630 at *21 (W.D. Wisc. 2003).
That being said, the Court finds that waiting nine years is
obviously unreasonable. At some considerably earlier point during
this time, a reasonable person should have understood USPS’
inaction as a clear signal that it had no intention of reasonably
accommodating Sutton. Accordingly, with one hereafter stated
exception, the Court GRANTS SUMMARY JUDGMENT as to, Sutton’s claims
regarding any conduct preceding September 10, 2001.

The exception concerns Sutton’s claim for back-pay for the
period following July 15, 2000, when OWCP cut off her disability
benefits, and USPS ordered her to report to Palatine, declaring her
absence undocumented leave and eventually placing her on unpaid
medical leave. These actions constitute discrete acts with their
own 45-day statute of limitations window. Sutton internally
appealed this particular discrete act, and continued to pursue
administrative remedies until at least October 5, 2001. Since
federal employees may not file suit while pursuing administrative
remedies, Sutton’s appeal tolled the statute of limitations until
well into the timely period. Rennie v. Garrett, 896 F.2d 1057,
1062 (7th Cir. 1990). However, as the Court noted above, Sutton
has no timely claim for full back pay during this window, as she
had not properly complained about USPS’ failure to reasonably
accommodate her and return her to work. Therefore, although the
Court believes that Sutton’s pursuit of administrative remedies

tolled the statute of limitations, it limits her permissible

-14-



the time of the employment decision.” Nowak v. St. Rita High
School, 142 F.3d 999, 1003 (7th Cir, 1998).

Sutton certainly met this minimum standard during most of the
time she spent off~work. Throughout 1992-1993, her doctors
repeatedly requested her transfer to a dust-free environment,
requests which USPS basically ignored. In doing so, Sutton’s
doctors represented that she could do some work, albeit not
necessarily the job currently assigned her. USPS! failure to
reasonably accommodate Sutton during this period probably
constituted disability discrimination, although time-barred for
purposes of this action.

However, at the time of her administrative separation - Sutton
no longer represented herself as partially disabled, but rather as
someone who could not do any work. In doing so, Sutton ceased
being a “qualified individual.” For example, Dr. May’s October 11,
2000 letter to USPS stated that Sutton was “unable to work until
further notice” while his March 5, 2001 letter described Sutton as
“unable to work permanently” and his September 24, 2001 letter
detailed that she “remains unable to work with headache &
rhinoconjunctivitis that occur when exposed to dust and fumes.”
Multiple times, Dr. May described Sutton’s illness as a “condition
permanent since 7/12/00.” Therefore, the evidence at first-glance
suggests that from July 12, 2000 onward, Sutton presented herself
as a person totally unable to work, and therefore totally unable to

fulfill the requirements of her job.

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I. LOCAL RULE 56.1

Local Rule 56.1 of the United States District Court for the
Northern District of Illinois (“Local Rule 56.1") establishes
procedures that both moving and opposing parties must follow in
filing and responding to a motion for summary judgment. Under
Local Rule 56.1, the moving party must submit a statement of
material facts with “references to the affidavits, parts of the
record, and other supporting materials relied upon.” Local
Rule 56.1(a) (3). In turn, the opposing party must file “a response
to each numbered paragraph in the moving party’s statement,” and,
in the case of disagreement, provide specific references to
supporting evidentiary material. Local Rule 56.1(b) (3) (A). If the
opposing party does not respond and controvert the moving party’s
statement of material facts, those facts are deemed to be admitted
for the purposes of the motion. Local Rule 56.1(b) (3) (B); Smith v.
Lamz, 321 F.3d 680, 683 (7th Cir. 2003).

For the most part, USPS adequately responded to Sutton’s Local

Rule 56.1 statements. However, as to Sutton’s paragraphs 408-414

(statements mostly concerning Sutton’s requests for transfer into

administrative positions in the early 1990s), USPS failed to comply
sufficiently with Local Rule 56.1’s requirement that it file
disagreements with specific references to supporting evidentiary
material. Local Rule 56.1(b) (3) (A). Concerning paragraphs 408-
413, USPS responds merely by admitting that Sutton “avers” or
“testified” as such ~- never disputing Sutton’s testimony with any

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extended disability “vacation,” and the judgment that this opinion
requires the Postal Service to pay. The Court hopes that, in the
future, the Postal Service endeavors to become a better steward of
the American people’s stamp dollars.

Since it does not appear that the damage calculations should
be disputed, the Court orders the parties to confer and agree ona
damage figure consistent with this opinion. If they cannot agree,
the Court directs the parties to submit their alternative

proposals.

Vv. CONCLUSION

For the reasons stated herein, USP

Judgment is GRANTED IN PART AND DENIED AN PART. Suyton’s Motion

IN PART.

IT IS SO ORDERED.

(/ tte k/Weinenweber, Judge

United States District Court

Date:



IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS[= | L E D
EASTERN DIVISION

MAR 1 9 2004

SANDRA SUTTON,

JUDGE HARRY D. LEINENWEBER

Plaintiff, U.S. DISTRICT COURT JUDGE
v. Case No. 02 C 2702
JOHN E. POTTER, Postmaster Hon. Harry D. Leinenweber

General of the United States

Postal Service,
Defendant. DOCKETED

MAR 2 2 2004

MEMORANDUM OPINION AND ORDER

Plaintiff Sandra Sutton (hereafter, “Sutton”) filed suit
against John Potter, as Postmaster General of the United States
Postal Service (hereinafter, the “USPS”), asserting three counts of
discrimination and/or retaliation in violation of the
Rehabilitation Act, 29 U.S.C. §§ 791, and the Age Discrimination in
Employment Act, 29 U.S.C. § 621. Count I alleges that USPS
committed disability discrimination against Sutton by terminating
her rather than reasonably accommodating her medical condition of
allergic rhinoconjunctivitis. Count II alleges that USPS
retaliated against Sutton for complaining about her disability
discrimination. Count III, since dropped by Sutton, alleged that
USPS also committed age discrimination against her. Sutton and
USPS have filed cross-motions for summary judgment, pursuant to
Rule 56 of the Federal Rules of Civil Procedure. Sutton’s motion
seeks summary judgment only as to Count I, whereas USPS prays for

summary judgment on both Counts I and II.

(Ce



citations omitted). A plaintiff may establish. a continuing
violation under three theories: (1) the employer made the relevant
employment decisions over time, making the precise date of
discrimination difficult to determine; (2) the employer has an
express policy of discrimination; and (3) discrete acts of
discrimination constitute an ongoing pattern, and one of those acts
occurred within the limitations period. Tinner v..United Ins. Co.
of America, 308 F.3d 697, 707 (7th Cir. 2002). However, “the
continuing violation doctrine is applicable only if it would have
been unreasonable to expect the plaintiff to sue before the statute
ran on the conduct.” Filipovic v. K & R Express Sys., Inc., 176
F.3d 390, 396 (7th Cir. 1999).

Sutton responds to USPS’s argument by attempting to establish
a continuing violations theory under what appears to be the first
method. Specifically, Sutton insists that her rejection of the
August 1997 job offer should have triggered the statutorily
required “interactive process” to accommodate her reasonably. In
Sutton’s view, the USPS’ inaction during this time amounts to a
continuous neglect of its statutory duty, tolling the statute of
limitations. At a minimum, Sutton argues that her receipt of OWCP
disability benefits until July 2000 should excuse her from the
requirement to file an EEO complaint till that point. Beyond that,
Sutton contends that the Court should further excuse her because
the OWCP decision cutting off her benefits did not conclude until

October 5, 2001, when an OWCP hearing officer issued a written

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damages to the disability benefits she lost between the July 15,
2000 benefits cut off and the September 10, 2001 commencing of the
timely period.

B. Discrimination Claim

To establish a claim for disability discrimination under the
Rehabilitation Act, Sutton must demonstrate that: (1) she was
disabled; (2) her employer was aware of her disability; and (3) she
was a qualified individual who, with or without reasonable
accommodation, could perform the essential functions of her job.
Basith v. Cook County, 241 F.3d 919, 927 (7th Cir. 2001). For
purposes of summary judgment, USPS does not contest the first two
prongs of this test. Therefore, the Court need examine only
whether Sutton was a qualified individual who could perform the
essential functions of her job if provided with reasonable
accommodation.

To qualify for a reasonable accommodation, Sutton must first
meet the standard of being a “qualified individual.” A “qualified
individual”. is “an individual with a disability who, with or
without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds or
desires.” 42 U.S.C. § 12111(8). Since “not working is not a means
to perform the job's essential functions,” a total inability to
work “means that one is not ‘qualified.’” Byrne v. Avon Products,
Inc., 328 F.3d 379, 381 (7th Cir. 2003). The determination

concerning whether an individual is qualified “must be made as of

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