did not meet the deadline when she filed ber EEO complaint more than two years later.

However, under 29 C.F.R. §1614.105(b)(1), the Postal Service must extend the 45-day
time limit where, as relevant here, the complainant shows that he or she was not notified of the
time limits and was not otherwise aware of them. Plaintiff claims she was not aware of the 45-
day requirement because “T was not notified of the withdrawal of my workers compensation from
arbitration until October, 2002 and this is why [EEOC] was contacted later than the prescribed
time” and “{1 was] unaware of EEOC notices that were assumed posted during my absent [sic]
from work, on the applicable place for information in view of all workers.” Although plaintiff's
complaint of discrrmination was made on September 30, 2002 (before she claims to have found.
out about her rights), the court will assume that plaintiff, because of her leave status, was on or
about March 18, 2000 aware of the discriminatory event (she received a letter) but unaware of
her EEO rights.

Under the doctrine of equitable tolling (i.e., in order for the time limited to be extended),
plaintiff must show that “because of disability, irremediable lack of information, or other
circumstances beyond [her] control” she could not reasonably have been expected to have filed in
lime.” Miller, 77 F.3d at 191. What is reasonable depends in part on whether plaintiff exercised
duc diligence, See, e.g., Bilow v. Much Shelist Freed Denenberg Ament & Rubenstein, P.C., 277
F.3d 882, 892-93 (7th Cir,2001) (Equitable tolling did not apply where a reasonable person in the
plaintiff's position exercising due diligence would have discovered long before five years had

clapsed that she was not receiving the correct amount in her paycheck); fackson v. Rockford

from the effective date of the discriminatory event.


because she did not exhaust her administrative remedies; (b) because her civil action is untimely
filed more than 90 days after she received her nolice of right to sue; and (c) because plaintiff has
failed to state « claim of discrimination based on race, color, sex, national origin (Title VI of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 et seq.) or physical disability (Rehabilitation
Act, 29 U.S.C. § 791). Plaintiff responds that she should be excused ftom the exhaustion of
remedies requirement,

Under 29 C.F.R. § 1614.105 (a)(1), “{a]n aggrieved person must initiate contact with a[n
EEQ] Counsclor within 45 days of the date of the matter alleged to be discriminatory or, in the
case of personnel action, within 45 days of the effective date of the action.” See Sharp v. United
Airlines, Ine., 236 F.3d 368, 372 (7th Cir.2001), quoting 42 U.S.C. § 2000e-5(e)(1) (Concerning
the parallel provisions applicable to charges against private employers, the time limit begins to
run when the defendant has taken the action that injures the plaintiff and when the plaintiff
knows she has been injured, not when she determines that the injury was unlawful. Under this
rule, the latest event plaintiff could possibly allege to be discriminatory is the effective date of
the decision placing her on disability retirement status. In other words, the latest possible date
from which the 45-days began to run was the date after March 18, 2000 that the disability

retirement became effective,’ Although the precise date is not of record, plaintiff undoubtedly

*Because withdrawal of the arbitration was not a discriminatory event, it is not the date from which a 45-day
filing period could have run unless plaintiff's duty to lodge her complaint was stayed, or held in abeyance, while her
grievance proceeded. ‘There is, however, no authority for such an argument, 29 CFR § 1614.301(b) provides that
where an employee works under a collective bargaining agreement that allows her to grieve a discrimination charge,
she must elect whether to proceed via a grievance or an EEO Complaint, but she cannot do both, Furthermore, if the
employee lodges her discrimination complaint with her grievance, she “may not thereafter file a complaint on the
same matter irrespective of whether the agency has informed the individual of the need to elect or of whether
the grievance has raised an issue of discrimination." Id, (Emphasis added.) Where an employee works under a
collective bargaining agreement that does not allow her to grieve a discrimination charge, then she can only proceed
via an ERO complaint. In either type, there is no provision that would permit an employee to wait to await the
outcome of a non-discrimination grievance to file a charge of discrimination. In other words, the 45-day period runs

3


Hous. Auth., 213 F.3d 389, 397 (7th Cir.2000) (When the plaintiff learned that his employer had
hired the white candidate, he knew that one possible explanation for why he was not promoted
was racial discrimination and, therefore, he was required to undertake some inquiry to verity or
discard this theory); Schele v. Porter Mem'l Hosp., 198 F Supp.2d 979, 986-87 (N.D.Ind,2001)
("[Tyhe filing period is equitably tolled until the facts which would support a cause of action arc
apparent or should be apparent to a person with a reasonably prudent regard for his nghts. If
employees are generally aware of their rights, however, ignorance of specific legal rights or
failure to seek legal advice should not toll the filing period.") Where, as here, plaintiff
vigorously pursued her grievance rights, and does not deny that EEO notices were posted at the
Postal Service, it is highly unlikely that she could establish that she exercised diligence to

discover her rights before more than two years passed,

Even if it is assumed, however, that the motion to dismiss should be denied to allow
plaintiff the opportunity to prove equitable tolling, this case would still have to be dismissed
because it cannot procecd as a complaint of discrimination based on disability under the
Rehabilitation Act, 29 U.S.C. § 791. (Nor is there any hint of an allegation of discrimination on
the basis of race, color, sex, or national origin under Title VU). From ait that can be gleaned
from plaintiff's “Complaint of Discrimination of Federal Worker's Compensation” and the sheaf
of submitted papers, the relief plaintiff secks is not a job which she can perform despite her
disability as would be comprehended by the Rehabilitation Act but, rather, to be placed on a
continued leave status with reinstatement of worker’s compensation benefits. If this is what she
wants, this court has no jurisdiction, See § U.S.C.A. § 8128 (b) (“The action of the Secretary [of

Labor]. . . in allowing or denying a payment (of an award of worker’s compensation] is- (1) final


Se

Minute Ondce Fora (06/07)

. 4s ‘ 7 United States District Court, Northern District of Illinois
if

ramestanient we | Joan H. Letkow | Stn ue oe
CASE NUMBER 03 C 5799 DATE 2/9/2004
CASE Dorothy Johnson vs, John E. Potter
TITLE

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

MOTION:

DOCKET ENTRY:

qd a Filed motion of ( use listing in “Motion” box above.]

(2) Q Brief in support of motion duc __

(3) a Answer brief to motion due__. Reply to answer brief duc___

(C3) +] Ruling/Hearingon____—setfor_ ss at_

(5) a Status hearing{held/continued to] (set for/re-set for]on__—=—sset for at,

(6) im} Pretrial conference[he}d/continued to] [sct for/re-set for)on__— set for at

(7) D Trial[set for/re-set for}on at

(8) im [Bench/Jury trial] (Hearig] held/continuedto_ at.

(9) aq This case is dismissed [with/without] prejudice and without costs[by/agrcement/pursuant to]
OFRce4(m) Local Rule 41.1 COFRCPS1(a)(1) Cl FRCP41(a)(2).

ao) {Other docket entry} | Enter Memorandum Opinion and Order. For the reasons stated in the

Memorandum Opinion and Order, this case is dismissed with prejudice. Should plaintiff appeal this
decision, the court hereby determines that the appeal is frivolous and denies leave to appeal in forma
pauperis. Case is terminated.

a) @ {For further detail see order attached to the original minute order.]

No notices required, advised in open court, “Document,

oc Nainiber"’

2

No notices required, number of notices,

oY | Notices mailed by judge's staff.

Notified counsel by telephone,

Docketing to mail notices.
vw | Mail AO 450 for, Mailed by MD. af SE EE

Copy to judge/magistrate judge.

pornos

= A datg mailed notion
courtroom
Mp deputy’s . Mb
initials

Date/time received in 7
central Clerk's Office ‘Trailing deputy initials



and conclusive for all purposes and with respect to all questions of law and fact; and (2) not

subject to review by another official of the United States or by a court by mandamus or

otherwise.”),"

‘The complaint is therefore dismissed with prejudice. Should plaintiff appeal this decision,

the court hereby determines that the appeal is frivolous and denies leave to appeal in forma pauperis. The

ENTER Sean Neg here __

JOAN HUMPHREY LEFKOW
UNITED STATES DISTRICT JUDGE

case is terminated.

February 9, 2004

“tis unnecessary to reach the Postal Service's second basis for dismissal, that the complaint was not filed
within 90 days of the notice of right to suc, although it appears that this argument is not well founded in light of

plaintifi’s request for reconsideration of the Final Agency Decision. (The denial of reconsideration dated June 5,
2003, gave plaintiff 90 days to file suit).



1N THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DOROTHY JOHNSON, )
)
Plaintiff, }

) No. 03 C 05799

v. ) Judge Joan H. Lefkow

)
JOHN E. POTTER, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Dorothy Johnson, plaintiff, alleges that in 1986 she received an award of worker’s
compensation from the United States Postal Service, payments under which continued until 1997

and then ceased. She seeks reinstatement of those benefits through a civil action in this court.

we

The record reflects that on October 2, 1997, the United States Department of Rab 1
19 poh

(DOL) Office of Worker’s Compensation Programs determined to terminate worker’s663
compensation previously awarded to plaintiff on the basis that “the claimant’s symptoms are due
1o degenerative disc disease and spinal stenosis and not the work injury of 1986.” Plaintiff's
union, the National Association of Letter Carriers, pursued a grievance, which was denied on
October 28, 1998. Thereafter, the union demanded arbitration. Plaintiff exhausted all
administrative appeals from the October 2, 1997 decision through DOL but was ultimately
denied relief on November 1, 2000. (A request to reopen her claim was subsequently denied
May 16, 2003). Meanwhile, plaintiff was notified March 18, 2000 by the United States Office
of Personnel Management that she had been approved for disability retirement from the Postal

Service. The actual effective date of her scparation from employment and implementation of


retirement is not in the record, The arbitration was ultimately “resolved in pre-arbitration” on or
about April 11, 2002. Plainti(f did not learn that the arbitration had been withdrawn until
October, 2002, because she never returned to work after 1986 and thus had no contact with her
union or employer at relevant times.

According to a Final Agency Decision attached as an exhibit to the motion to dismiss,
plaintiff contacted an EEO counselor regarding a complaint of discrimination based on physical
disability on September 30, 2002. On October 10, 2002, she filed an EEO Complaint of
Discrimination in the Postal Service (“EEO Complaint”), The EEO Complaint alleged
discrimination on September 22, 1986 (“job related injury”) and October 2, 1997 (‘“term[ination]
of benefits”). The remedy she requested was reinstatement of worker’s compensation and
medical benetits effective October 14, 1997 to present. The Final Agency Decision reflects that
the complaint was dismissed because plaintiff had not contacted an EEO Counselor with the
Postal Service within 45 days of the last alleged act of discrimination (March 18, 2000)! as she
was required to do under 29 C.F.R. § 1614,105(a)(2). See Miller v. Runyon, 77 F.3d 189, 191 (7"
Cir. 1996) (“If [plaintiff's] administrative complaint was untimely, his suit under the
Rehabilitation Act is time-barred.”). The United States Equal Emp)oyment Opportunity
Commission (EEOC) affirmed the Final Agency Decision on April 2, 2003. Plaintiff sought
reconsideration, which was denied Junc 5, 2003. This complaint followed on August 20, 2003.

The Postal Service has moved to dismiss on the bases that plaintiff's action is barred (a)

‘Although the Final Agency Decision recites that the last date of discrimination alleged was March 18, 2000
(which was the date plaintiff was approved for disability retirement which would have coincided with separation
from employment), the EEO Complaint does not allege discrimination on that date. Rather, the latest date was
October 2, 1997. Despite this apparent error in the Final Agency Decision, for purposes of this decision, the court
accepts the March 18, 2000 date as the last date of discrimination.

2