IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JAMES E. O’REILLY, )

)

Plaintiff, )

) No. 20 C 2703

v. )

) Judge John Z. Lee

ALEJANDRO MAYORKAS, )

Secretary, Department of )

Homeland Security,1 )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

James O’Reilly was employed by the United States Department of Homeland 

Security (“DHS” or “the government”) until his retirement took effect on May 31, 

2017. In this action, O’Reilly claims that the government violated his rights under 

Title VII and the Age Discrimination in Employment Act (“ADEA”) by constructively 

discharging him from his job and by discriminating against him during his 

employment on account of his age and national origin. Now before the Court is the 

government’s motion to dismiss or, alternatively, for summary judgment, based on 

the applicable limitations periods in which O’Reilly had to exhaust his administrative 

remedies before filing suit in federal court. For the reasons set forth below, the Court 

treats the government’s motion as one for summary judgment and grants it. 

1 Alejandro Mayorkas is automatically substituted for Chad Wolf as party defendant 

under Federal Rule of Civil Procedure 25(d) as of February 2, 2021. See Alejandro Mayorkas, 

U.S. Department of Homeland Security, https://www.dhs.gov/person/alejandro-mayorkas 

(last accessed July 27, 2021). 

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I. Background2

At all relevant times until his retirement on May 31, 2017, O’Reilly was a 

behavior detection officer (“BDO”) with the Transportation Security Administration 

(“TSA”), a division of DHS, at O’Hare International Airport, in Chicago, Illinois. 

Def.’s L.R. 56.1 Statement of Facts (“DSOF”) ¶ 1, ECF No. 26. O’Reilly’s claims of 

discrimination under Title VII and the ADEA in this case revolve around three 

complaints that he filed with the TSA and the Equal Employment Opportunity 

Commission (“EEOC”) in connection with this employment.

O’Reilly filed his first administrative complaint on June 28, 2010, alleging that

the TSA had subjected him to a hostile work environment and had failed to promote 

him to an expert BDO position due to his age and national origin. Id. ¶ 2; see id., Ex. 

A, 3/18/16 EEOC Decision at 2, ECF No. 26-1. The TSA rejected O’Reilly’s complaint 

in a decision dated March 8, 2013, but the EEOC reversed on appeal with respect to 

his failure-to-promote claims, ordering the TSA to promote him to an expert BDO 

position retroactive to January 8, 2009, with back pay. 3/18/16 EEOC Decision at 1–

2, 7–9; see Def.’s L.R. 56.1 Reply Statement of Facts, Ex. 1, Notification of Personnel 

Action, ECF No. 31-1 (effectuating the promotion). 

O’Reilly filed his second administrative complaint on November 26, 2016, 

alleging that the TSA had again subjected him to a hostile work environment and 

had denied two legitimate requests for leaves of absence, in retaliation for his prior

complaint. DSOF ¶ 5; see id., Ex. B, 11/26/16 DHS Individual Compl. of Employment 

2 The following facts are undisputed or deemed admitted, unless otherwise noted. 

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Discrimination, ECF No. 26-2. The TSA rejected O’Reilly’s second complaint in a 

decision dated February 20, 2018, finding that he had failed to prove his claims, which 

the EEOC affirmed on appeal in a decision dated June 11, 2019. DSOF ¶¶ 10, 12; see 

id., Ex. D, 6/11/19 EEOC Decision at 1, 6, ECF No. 26-4. The EEOC denied O’Reilly’s 

request for reconsideration in a decision dated December 10, 2019. DSOF ¶ 13; see 

id., Ex. E, 12/10/19 EEOC Decision, ECF No. 26-5. 

Before any decision had been issued on his second administrative complaint, 

O’Reilly applied for retirement from the TSA on February 15, 2017, selecting April 

30, 2017, as his date of final separation, although he did not actually retire until May 

31, 2017. DSOF ¶¶ 6–7; see id., Ex. C, Application for Immediate Retirement at 1, 

ECF No. 26-3. A short while after retiring, on July 13, 2017, O’Reilly contacted an 

EEOC counselor to complain that his retirement constituted a constructive discharge 

in retaliation for his prior administrative complaints. DSOF ¶ 8. O’Reilly made the 

same claim in his third administrative complaint, filed on September 5, 2017, which 

the TSA rejected in a decision dated March 6, 2018, again finding that O’Reilly had 

failed to prove discrimination. Id. ¶¶ 9, 11. The EEOC affirmed this finding on 

appeal in a decision dated August 15, 2019. Id. ¶ 14; see id., Ex. F, 8/15/19 EEOC 

Decision at 1, 5, ECF No. 26-6. The EEOC then denied O’Reilly’s request for 

reconsideration in a decision dated January 31, 2020. DSOF ¶ 15. O’Reilly is 

presumed to have received the EEOC’s decision denying reconsideration on February 

5, 2020. See Pl.’s L.R. 56.1 Statement of Additional Facts (“PSOAF”), Ex. 2, 1/31/20 

EEOC Decision at 4, ECF No. 28.

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O’Reilly filed this action pro se on May 4, 2020, reiterating all of the same 

allegations of discrimination raised in his three administrative complaints (including, 

perplexingly, the failures to promote). See Compl. ¶¶ 9, 12, ECF No. 1; Am. Compl. 

¶¶ 9, 12, ECF No. 13. The government now moves to dismiss or, alternatively, for 

summary judgment, on the ground that O’Reilly’s claims are untimely. See Def.’s 

Mot. Dismiss or Summ. J., ECF No. 24. Because O’Reilly does not object to treating 

the government’s motion as one for summary judgment and because the record is 

fully developed as to this issue, the Court treats the motion as one for summary 

judgment. 

II. Legal Standard

Summary judgment is appropriate where “the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). The evidence considered for summary judgment 

“must be admissible if offered at trial, except that affidavits, depositions, and other 

written forms of testimony can substitute for live testimony.” Malin v. Hospira, Inc., 

762 F.3d 552, 554–55 (7th Cir. 2014). In reviewing a motion for summary judgment, 

the Court gives the nonmoving party “the benefit of conflicts in the evidence and 

reasonable inferences that could be drawn from it.” Grochocinski v. Mayer Brown 

Rowe & Maw, LLP, 719 F.3d 785, 794 (7th Cir. 2013).

The moving party has the initial burden of demonstrating the absence of a

genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The 

nonmoving party must then “come forth with specific facts showing that there is a 

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genuine issue for trial.” LaRiviere v. Bd. of Trs. of S. Ill. Univ., 926 F.3d 356, 359 

(7th Cir. 2019). To satisfy that ultimate burden, the nonmoving party 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), and 

instead must “establish some genuine issue for trial such that a reasonable jury could 

return a verdict in her favor,” Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772–73 

(7th Cir. 2012); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

III. Analysis

The government moves for summary judgment on the ground that O’Reilly’s 

employment discrimination claims are untimely under the administrative exhaustion 

regime by which they are governed. In O’Reilly’s view, his claims are timely because 

he filed this action within ninety days of February 5, 2020, when he received the 

EEOC’s final decision with respect to his third administrative complaint. 

Federal employees asserting discrimination claims under Title VII and the 

ADEA (among other statues) must exhaust their administrative remedies before 

filing a civil suit in federal district court. See Green v. Brennan, 136 S. Ct. 1769, 1775

(2016) (discussing exhaustion under Title VII); Bohac v. West, 85 F.3d 306, 309 (7th 

Cir. 1996) (discussing exhaustion under the ADEA). The purpose of the exhaustion 

requirement “is both to give the [EEOC] a chance to investigate the charge and decide 

whether to sue, and to encourage the complainant and the employer . . . to resolve 

their dispute informally.” Doe v. Oberweis Dairy, 456 F.3d 704, 708 (7th Cir. 2006).

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The EEOC has promulgated a series of regulations to govern the exhaustion 

requirement. Green, 136 S. Ct. at 1175. In relevant part, the regulations first require 

a federal employee to “initiate contact with a Counselor within 45 days of the matter 

alleged to be discriminatory or, in the case of personnel action, within 45 days of the 

effective date of the action.” 29 C.F.R. § 1614.105(a)(1); see also id. § 1614.103(a)

(explaining that the regulations apply to claims under Title VII and the ADEA alike).3 

If the EEOC counselor cannot resolve the matter, the employee may file a 

complaint with the agency that allegedly discriminated against him or her within 

fifteen days, id. § 1614.106(a)–(b), and, if unsuccessful, may appeal the agency’s final 

decision to the EEOC, id. § 1614.401(a). Finally, if the employee is dissatisfied with 

the EEOC’s resolution, he or she may file an action in federal district court within 

ninety days of receiving the EEOC’s final action on the complaint. Id. § 1614.407(c). 

Each of the EEOC’s final actions on O’Reilly’s three administrative complaints 

advised him of this right to file suit within ninety days. See 1/31/20 EEOC Decision 

at 2; 12/10/19 EEOC Decision at 2; 3/18/16 EEOC Decision at 12. 

Here, any discrimination or retaliation claim based on O’Reilly’s first two 

administrative complaints is untimely because O’Reilly did not file suit within ninety 

days of receiving the EEOC’s final actions on those particular complaints. O’Reilly’s 

reliance on the date of the EEOC’s final action on his third complaint is misplaced. 

3 Alternatively, an employee may file an action under the ADEA in federal district court 

“in the first instance, provided that the EEOC is given at least 30 days’ notice, within 180 

days after the occurrence of the questioned matter, of the individual’s intent to file such an 

action.” Bohac, 85 F.3d at 309 (citing 29 U.S.C. § 633a(d)). O’Reilly, however, did not select 

this path for any of his ADEA claims. 

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That complaint raised only a constructive-discharge claim. 8/15/19 EEOC Decision 

at 1–2. And the EEOC specifically noted that O’Reilly’s other claims were the 

subjects of his previous complaints. O’Reilly’s opportunity to raise those claims in a 

federal court was not resuscitated when the EEOC rejected his third administrative 

complaint. See King v. Ford Motor Co., 872 F.3d 833, 839 (7th Cir. 2017); Taylor v.

Nw. Mem’l Hosp., --- F.Supp.3d ----, No. 19 C 5849, 2021 WL 698487, at *2 (N.D. Ill. 

Feb. 23, 2021), appeal docketed, No. 21-1503 (7th Cir. Mar. 23, 2021).

O’Reilly’s constructive-discharge claim is untimely as well, though for different 

reasons. The problem here is that O’Reilly did not “initiate contact” with the EEOC 

counselor “within 45 days of the matter alleged to be discriminatory.” See 29 C.F.R. 

§ 1614.105(a)(1). This forty-five-day limitations period “is construed as a statute of 

limitations.” Johnson v. Runyon, 47 F.3d 911, 917 (7th Cir. 1995). And in Green, the 

Supreme Court held that this limitations period begins to run for purposes of a 

constructive-discharge claim “when the employee gives notice of his resignation, not 

on the effective date of that resignation.” 136 S. Ct. at 1782. As applied here, that 

means O’Reilly’s forty-five-day clock in which to initiate contact with an EEOC 

counselor began to tick on February 21, 2017, when the TSA received his application

for retirement—not on May 31, 2017, the effective date of O’Reilly’s retirement. See 

Application for Immediate Retirement at 1. 

O’Reilly does not dispute that he failed to initiate contact with the EEOC 

counselor within forty-five days as required by Green. Instead, he posits that the 

government waived this defense when the TSA “accepted” his third administrative 

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complaint for investigation. Pl.’s Resp. Opp’n Def’s Mot. Dismiss or Summ. J. at 1, 

ECF No. 29. It is true that the forty-five-day limitations period, as an affirmative 

defense, may be waived under certain circumstances. See Ester v. Principi, 250 F.3d 

1068, 1072–73 (7th Cir. 2001). As the Seventh Circuit has recognized, however, it is 

a “well-settled rule that agencies do not waive a timeliness defense merely by 

accepting and investigating a discrimination complaint.” Id. at 1072 n.1; accord

Horton v. Potter, 369 F.3d 906, 911 (6th Cir. 2004); Belgrave v. Pena, 254 F.3d 384, 

387 (2d Cir. 2001); Bowden v. United States, 106 F.3d 433, 438 (D.C. Cir. 1997); Rowe

v. Sullivan, 967 F.2d 186, 191 (5th Cir. 1992); Boyd v. U.S. Postal Serv., 752 F.2d 410, 

414 (9th Cir. 1985). Rather, waiver occurs “when an agency decides the merits of a 

complaint, without addressing the question of timeliness.” Ester, 250 F.3d at 1072; 

accord Horton, 369 F.3d at 911; Bowden, 106 F.3d at 438. 

Even assuming O’Reilly had argued that the government waived a limitations 

defense by rejecting his third administrative complaint on the merits without 

addressing the question of timeliness (which he did not, thereby engaging in waiver 

himself), the Court would reject that argument on the peculiar circumstances at 

hand. In Horton, for instance, the Sixth Circuit held that the Postal Service did not 

waive such a defense by failing to address it where, “[o]n the face of his request for 

counseling, . . . it was not apparent that [the plaintiff] had failed to initiate contact 

with the EEOC counselor within the 45-day time period mandated by 29 C.F.R. 

§ 1614.105(a)(1).” 369 F.3d at 911. The court pointed out that, in his “EEO Request 

for Counseling” form, the plaintiff had “alleged discriminatory acts occurring less 

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than two weeks before,” when in fact no such act had occurred in over six months. Id. 

at 910–11. Thus, because “[i]t was not until discovery had taken place at the district 

court level that the Postal Service became aware . . . that [the plaintiff’s] complaint 

was . . . untimely,” the court sensibly held that the agency had not waived this defense 

by failing to raise it “at the administrative level.” Id. at 911.

The same reasoning would apply in this case. As in Horton, O’Reilly 

misrepresented the date of the alleged discriminatory event as May 31, 2017, to the 

EEOC counselor. See PSOAF, Ex. B-1, EEO Counselor’s Report No. HS-TSA-01994-

2017 at 1, ECF No. 28. In fact, O’Reilly specifically told the EEOC counselor that he 

had been “forced to retire on May 31, 2017.” Id. at 2. And he even suggested that his 

forced retirement was attributable in part to an incident that occurred on April 6, 

2017. See id. at 2–3. However, O’Reilly did not tell the EEOC counselor that he had 

already given notice of his retirement back in February. So, the government did not 

become aware that O’Reilly’s third administrative complaint was untimely until he 

filed suit in this Court. Under these circumstances, the Court finds that the 

government did not waive an untimeliness defense by failing to raise it at the 

administrative level.

Accordingly, because O’Reilly took more than forty-five days to initiate contact 

with an EEOC counselor regarding his third administrative complaint, and the record 

discloses “no occasion for equitable tolling,” his constructive-discharge claim is barred 

as being untimely. See Lapka v. Chertoff, 517 F.3d 974, 981 (7th Cir. 2008).

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IV. Conclusion

For the reasons set forth above, the government’s motion to dismiss or,

alternatively, for summary judgment is treated as a motion for summary judgment 

and granted. Judgment will be entered accordingly in favor of the government. Civil 

case terminated. 

IT IS SO ORDERED. ENTERED: 9/3/21

__________________________________

John Z. Lee

United States District Judge

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