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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MONICA WINKELMAN,

Plaintiff, Case No. 1:20-CV-2480

CONTINENTAL NURSING AND 

REHABILITATION CENTER, LLC, and 

INFINITY HEALTHCARE 

MANAGEMENT OF ILLINOIS, LLC, 

Defendants.

Trial by jury demanded.

Judge Manish S. Shah

Magistrate Judge Sheila M. Finnegan

PLAINTIFF’S MOTION 

FOR LEAVE TO AMEND COMPLAINT

Plaintiff, MONICA WINKELMAN, by and through her attorneys, Case + Sedey, LLC, 

and pursuant to Federal Rule of Civil Procedure 15, moves for leave of this Court to amend her 

Complaint for the reasons set forth herein: 

1. On April 23, 2020, Plaintiff Monica Winkelman (“Plaintiff”) filed a six-count 

Complaint against Continental Nursing and Rehabilitation Center, LLC (“Defendant Continental”) 

and Infinity Healthcare Management of Illinois, LLC (“Defendant Infinity”) (collectively, 

“Defendants”), alleging failure to accommodate, discrimination, and retaliation in violation of the 

Americans with Disabilities Act, 42 U.S.C. 12101 et seq., as amended (“ADA”), and the Illinois 

Human Rights Act, 775 ILCS § 5/1-101 et seq. (“IHRA”). See Dkt. # 1.

2. On June 17, 2020, Defendants moved to dismiss Plaintiff’s Complaint in its entirety 

on various bases. See Dkt. # 13.

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3. On September 28, 2020, this Court denied Defendants’ motion to dismiss Plaintiff’s 

ADA claims. With regard to Plaintiff’s IRHA claims, the Court explained that dismissal was 

warranted because Plaintiff had yet to receive her right to sue letters from the Illinois Department 

of Human Rights. See Dkt. # 25, p. 10. However, the Court noted that the dismissal for failure to 

exhaust administrative prerequisites was without prejudice and that Plaintiff was not barred from 

reinstating her IHRA claims. 

4. Plaintiff has now exhausted her administrative prerequisites and received her 

notices of right to sue from the IDHR. Specifically:

a. On July 23, 2019, Plaintiff filed a Charge of Discrimination with the Equal 

Employment Opportunity Commission (“EEOC”) alleging disability discrimination, 

failure to accommodate and retaliation against Defendant Infinity (Charge No. 440-

2019-06345).

b. On October 3, 2019, Plaintiff filed a Charge of Discrimination with the EEOC alleging 

disability discrimination, failure to accommodate and retaliation against Defendant 

Continental (Charge No. 440-2020-00021). 

c. Plaintiff received her Notices of Right to Sue from the EEOC for both charges on 

February 5, 2020.

d. Plaintiff contacted the Illinois Department of Human Rights (“IDHR”) and notified the 

agency that she had received those Notices of Right to Sue on March 6, 2020 and asked 

that the state agency similarly issue her notices of right to sue on Plaintiff’s cross-filed 

IDHR charges. See attached Exhibit 1. 

e. Plaintiff indicated in her March 6, 2020 email to the IDHR that she had attached copies 

of both Notices of Right to Sue to her email, but inadvertently attached an incorrect 

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file. See Exhibit 1. Specifically, Plaintiff attached a copy of the Notice of Right to Sue 

related to her charge against Defendant Continental charge, but accidentally did not 

attach the Notice of Right to Sue related to her charge against Defendant Infinity. 

Instead, Plaintiff inadvertently attached a copy of a letter to the EEOC requesting her 

EEOC file. This was a mere administrative error.

f. On September 28, 2020, Plaintiff contacted the IDHR to follow up on her request that 

the IDHR charges be processed and the IDHR responded by notifying Plaintiff of her 

failure to properly attach the Notice of Right to Sue related to her charge against 

Defendant Infinity. See attached Exhibit 2.

g. Plaintiff corrected that error by sending the Notice of Right to Sue related to Plaintiff’s 

charge against Defendant Infinity to the IDHR that same day. See attached Exhibit 3.

h. On December 1, 2020, Plaintiff received letters from the IDHR acknowledging receipt 

of the EEOC’s determination for both charges as well as Notices of Plaintiff’s right to 

opt out of the investigations by submitting Opt Out Request Forms within 60 days. See 

attached Exhibits 4 and 5.

i. Plaintiff submitted her Opt Out Request Forms to the IDHR in relation to both charges 

that same day, December 1, 2020. See attached Exhibits 6 and 7.

j. On December 4, 2020, Plaintiff received a Notice of Dismissal from the IDHR in 

relation to her charge against Defendant Infinity. See attached Exhibit 8. That Notice 

dismissed Plaintiff’s IDHR Charge against Defendant Infinity for lack of jurisdiction, 

explaining that the IDHR had received Plaintiff’s Notice of Right to Sue from the 

EEOC on September 28, 2020, which was more than 30 days after it had been served 

on Plaintiff. This decision was based on Plaintiff’s clerical error in attaching the wrong 

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file to her March 6, 2020 email despite that Plaintiff had explicitly informed the IDHR 

in that email that she had received the Notice of Right to Sue with regard to her charges 

against both Continental and Infinity. See Exhibit 1. Regardless, the Notice of 

Dismissal stated that Plaintiff could commence a civil action based on her charge

against Defendant Infinity within 90 days. See Exhibit 8.

k. On December 23, 2020, Plaintiff received her Notice of Opt Out and Right to 

Commence Action from the IDHR in relation to her charge against Defendant 

Continental. See attached Exhibit 9. That Notice stated that Plaintiff could commence 

a civil action based on her IDHR charge against Defendant Continental within 90 days. 

5. Having now exhausted her administrative prerequisites and received notices of her 

right to commence a civil action as set forth above, Plaintiff now wishes to amend her Complaint 

to reinstate her IHRA claims.

6. Plaintiff emailed counsel for Defendants on December 29, 2020, set out the steps 

she took to exhaust administrative prerequisites (including explaining her error in attaching the 

wrong file to her March 6, 2020 email), indicated her wish to amend the Complaint to reinstate her 

IHRA claims, and asked Defendants if they would agree not to move for dismissal of Plaintiff’s 

IHRA claims against Defendant Infinity based on the Notice of Dismissal for lack of jurisdiction. 

See Exhibit 10.

7. Defendants responded on December 31, 2020 that they would not stipulate to 

Plaintiff’s proposed amendment to the Complaint. See Exhibit 11.

8. Thus, Plaintiff now seeks this Court’s permission to file her First Amended 

Complaint to reinstate her claims under the IHRA. Plaintiff has attached her proposed First 

Amended Complaint as Exhibit 12.

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9. The IDHR’s dismissal for lack of jurisdiction does not control this court’s 

determination of its own jurisdiction over Plaintiff’s IHRA claims. See Goldberg v. Chicago Sch. 

for Piano Tech., NFP, No. 14 C 1440, 2015 WL 468792, at *4 (N.D. Ill. Feb. 3, 2015) (explaining 

that “if the Department's dismissal prohibited other courts from exercising jurisdiction over claims 

under the IHRA, the Department would not, in its notice of dismissal, inform complainants of their 

right to bring an action in circuit court.”).

10. Instead, this Court may review the question of jurisdiction and determine for itself 

whether Plaintiff has exhausted her administrative remedies. In this case, the facts set forth above 

clearly show that she has.

11. When dealing with a charge which was first filed with the EEOC, a Complainant 

must notify the IDHR of the EEOC’s determination within 30 days in order to receive a final order 

from the IDHR. 775 ILCS 5/7A-102(A-1)(1).

12. Plaintiff satisfied that requirement when she notified the IDHR of her receipt of the 

EEOC’s Notices of Right to Sue via email on March 6, 2020 and attempted to attach copies thereof. 

13. The IDHR’s Notice of Dismissal for Lack of Jurisdiction was based only on 

Plaintiff’s clerical error in attaching the wrong file, an error which Plaintiff corrected as soon as 

she was notified.

14. Given that the Federal Rules of Civil Procedure allow for relief from a final 

judgment, order, or proceeding based on mistake and/or inadvertence (see F.R.C.P. 60(b)(1)), it 

follows that the Rules would not bar Plaintiff from proceeding with her IHRA claims based on her 

mistaken and inadvertent attachment of the wrong file to her email to the IDHR notifying the 

agency of the EEOC’s determination. 

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15. Further, Plaintiff requested to opt out of the investigation of her IDHR charge 

against Defendant Infinity (see Ex. 5) – a request which was within her rights under the IDHR 

procedures. Thus, even if Plaintiff had attached the correct file to her March 6, 2020 email, no 

further administrative proceedings would have occurred.

16. Instead, had Plaintiff attached the correct file to her March 6, 2020 email, the IDHR 

would have processed her Opt Out Request Form relating to the charge against Defendant Infinity 

and issued her a Notice of Opt Out just as it did in relation to Plaintiff’s charge against Defendant 

Continental. 

17. Thus, Plaintiff has exhausted her administrative prerequisites and her proposed 

amendment will not cause delay or alter the substantive merits of the claims in any way. 

WHEREFORE, Plaintiff respectfully requests that this Court grant her leave to file her 

First Amended Complaint.

Respectfully Submitted,

MONICA WINKELMAN

By: /s/ Kate Sedey 

 One of Her Attorneys

Kate Sedey

Kristin M. Case

Case + Sedey, LLC

250 South Wacker Dr., Suite 230

Chicago, Illinois 60606

312-920-0400

312-920-0800 (fax)

ksedey@caseandsedey.com

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