Joanne Teal v. John Potter ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2359
JOANNE T EAL,
Plaintiff-Appellant,
v.
JOHN E. P OTTER, Postmaster General,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 04-C-1067—John A. Gorman, Magistrate Judge.
A RGUED F EBRUARY 29, 2008—D ECIDED M ARCH 20, 2009
Before P OSNER, R OVNER, and E VANS, Circuit Judges.
R OVNER, Circuit Judge. In this case brought by Joanne
Teal under 29 U.S.C § 794 (the “Rehabilitation Act”), Teal
contends that her employer, the United States Postal
Service, improperly terminated her based on her depres-
sion and failed to provide her with a reasonable accom-
modation. The district court awarded summary judg-
ment in favor of the Postal Service after finding that Teal
failed to exhaust her administrative remedies, that she
2 No. 07-2359
additionally failed to show that she was a “qualified
person” under the Rehabilitation Act, and that she was
not discharged as a result of her disability. We deter-
mine that because Teal did not exhaust the administra-
tive remedies available to her, the proper disposition of
this case requires a remand to the district court with
instructions to dismiss the case without prejudice for
failure to exhaust administrative remedies.
Background
Teal’s employment with the U.S. Postal Service began
in 1983. In February 2002, Teal was involved in an alter-
cation with her supervisor, Patricia Dittmer, during which
Teal struck Dittmer’s hand. As a result, on March 24, 2002,
the Postal Service issued Teal a Notice of Removal.
With the help of her union representative, Teal filed a
grievance and on October 22, 2002, an arbitrator deter-
mined that although discipline was warranted, Teal
should be suspended without pay rather than terminated.
Teal’s reinstatement was to be conditioned on the deter-
mination by a physician chosen by the Postal Service
and a board-certified psychiatrist that she was physically
and mentally fit to resume her duties.
Teal’s fitness for duty examination originally was
scheduled for November 21, 2002. On October 30, 2002,
Steve Grieser, the Postal Service’s Labor Relations Special-
ist, sent Teal a medical release form for her completion
along with a letter explaining that the form would allow
the Postal Service physician to obtain the necessary
medical records for Teal’s impending examination. On
No. 07-2359 3
November 7, 2002, notice of the scheduled appointment
was sent to Teal. There was no response to either com-
munication and the November 21 examination was
cancelled.
On November 25, 2002, Grieser sent another letter and
another medical release form to Teal giving Teal 10 days
to provide the necessary information. There was much
back-and-forth with Teal’s then-attorney concerning
the forms and their scope, and during which Grieser
specifically noted that failure to comply with the arbitra-
tor’s decision would preclude Teal from reinstatement.
On December 12, 2002, Grieser sent a letter stating that
if Teal failed to provide the necessary information within
5 days of the receipt of the letter, her employment would
be terminated. On December 17, 2002, Teal faxed a com-
pleted release to Grieser.
On January 14, 2003, Cynthia Kellogg, a Postal Service
Human Resources Department employee, sent Teal a
letter scheduling her fitness for duty examination in
Chicago on February 13, 2003. On January 17, Teal called
Grieser to tell him that her car was not working and
requesting transportation arrangements. On January 23,
Grieser sent Teal a letter confirming that she would
have a Postal Service car at her disposal to drive to
Chicago for her February 13 examination.
On January 29, 2003, Teal sent a letter to the Postal
Service in Chicago in which she wrote that she had
started taking medication and did not feel it would be
safe to drive a company car to Chicago on February 13.
She included a January 16, 2003 letter from Dr. Powers,
4 No. 07-2359
her family physician, requesting that the fitness exam-
ination be postponed because of Teal’s pain and suffering.
Teal did not send a copy of her letter, or its enclosures,
to Grieser. Nor had she mentioned Dr. Powers’ letter,
or the substance of its contents, during the phone con-
versation she had with Grieser on January 17. The Feb-
ruary 13 fitness for duty examination was cancelled.
On May 6, 2003, Teal sent a letter to Grieser re-
questing a fitness for duty examination, asking that she
be provided with train transportation and that it be
scheduled for a Thursday or Friday. Grieser responded
with a May 9 letter explaining that because of Powers’
earlier letter expressing Teal’s inability to undergo the
examination, Teal now would have to provide medical
documentation that she was being released for the exami-
nation. On May 28, 2003, Grieser received a letter from
Dr. Powers which opined that Teal was suffering from
depression and that it would be in her best interests to
be returned to work at another station. Deeming this
insufficient, Grieser sent Teal a letter on July 17, 2003
outlining the history since the arbitrator’s award, caution-
ing her that failure to submit to the examination would
preclude reinstatement and requesting a medical release
for the examination within 5 days.
On July 23, Teal’s deadline to provide the information,
Grieser received a call from a Congressman’s office re-
questing a few more days for Teal to provide the re-
lease. Grieser replied that Teal had until the close of
business on Friday, July 25. Grieser did not receive the
release by this time. On Monday, July 28, Grieser met with
No. 07-2359 5
a union representative who said Teal had the release
and would get it to him right away. Grieser agreed to
wait until the next morning, but received neither letter
nor fax from Teal on July 29. On that date, he wrote a
letter to Teal informing her that her employment with
the Postal Service was terminated for failing to comply
with the arbitrator’s requirements. On July 30, Teal pro-
vided Grieser with a script from Dr. Powers, dated
July 28, which stated that Teal was released to take the
fitness to duty exam and requesting that she be rein-
stated to a different station. At that point, Grieser had
already sent the termination to Teal and lacked the au-
thority to rehire someone who had been discharged.
Teal’s Administrative Filings
In late January 2003, Teal filed a claim with the EEOC on
the grounds that, inter alia, she had been wrongfully
terminated in March 2002 for hitting Dittmer’s hand. As
for the types of discrimination that formed the basis for
her suit, Teal checked the boxes for “age,” “retaliation,”
and “disability—mental.” The Postal Service issued a Final
Agency Decision on May 23, 2003 dismissing all the
charges. See Smith v. Potter, 445 F.3d 1000, 1002 n.1 (7th
Cir. 2006) (noting that the Postal Service, like other
federal agencies, is charged with the initial disposition of
discrimination complaints lodged against the agency by
its employees, see 39 C.F.R. § 255.6; 29 C.F.R. §§ 1614.101et seq., and that employees then have the right to
appeal that determination to the EEOC or file a complaint
in federal court). Teal appealed this decision to the EEOC
6 No. 07-2359
which, in a December 2, 2003 decision, affirmed the
dismissal. The EEOC clarified the issues raised by Teal
as follows: (1) from March 2002 through Decem-
ber 2002, supervisors published information regarding
Teal’s mental health condition; (2) on March 24, 2002,
Teal was issued a wrongful termination; (3) manage-
ment and union created a hostile work environment; and
(4) on December 17, 2001, Teal’s workers compensation
was denied. The EEOC based its decision on the fact
that the claim (1) failed to state a claim under the EEOC
regulations because Teal failed to show that she
suffered harm or loss for which there is a remedy; and that
claims (2)-(4) involved the same claims as those raised in
a prior (September 20, 2002) complaint filed by Teal.
Although it is not entirely clear from the record, it
appears that apart from attempting to re-raise the claim
in her January 2003 EEOC complaint, Teal failed to take
any further action with respect to her September 2002
complaint. The EEOC decision made no mention of
Teal’s July 2003 dismissal. Teal did not subsequently
file any other EEOC complaint.
Analysis
Teal alleges that the district court improperly granted
summary judgment to the Postal Service. We review the
district court’s decision de novo and we construe all
reasonable inferences in Teal’s favor. See Lucas v. PyraMax
Bank, FSB, 539 F.3d 661, 666 (7th Cir. 2008); Gates v. Cater-
pillar, 513 F.3d 680, 685-86 (7th Cir. 2008).
Under the Rehabilitation Act, federal agencies are
prohibited from discriminating on the basis on an individ-
No. 07-2359 7
ual’s disability. 29 U.S.C. § 794; 39 C.F.R. § 255.5. Individu-
als who have suffered discrimination can seek relief
pursuant to the procedures and requirements outlined
in Title VII of the Civil Rights Act, which include ex-
hausting administrative remedies prior to bringing suit.
29 U.S.C. § 794a(a)(1). Exhaustion is not a jurisdictional
issue, but a condition precedent to bringing a claim
under the Act (e.g., Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 393 (1982); Babrocky v. Jewel Food Co., 773 F.2d
857, 864 (7th Cir. 1985)) and plaintiffs who have not
exhausted their administrative remedies have pre-
maturely brought their claims into the courts. Moreover,
“[a]s a general rule, a Title VII plaintiff cannot bring
claims in a lawsuit that were not included in her EEOC
charge.” Cheek v. Western & Southern Life Ins. Co., 31 F.3d
497, 500 (7th Cir. 1994) (citing Alexander v. Gardner-Denver
Co., 415 U.S. 36, 47 (1974)); see also Rush v. McDonald’s
Corp., 966 F.2d 1104, 1110 (7th Cir. 1992) (“An aggrieved
employee may not complain to the EEOC of only certain
instances of discrimination, and then seek judicial relief
for different instances of discrimination”). The purpose of
this requirement is twofold: to promote resolution of the
dispute by settlement or conciliation and to ensure that
the sued employers receive adequate notice of the
charges against them. See Cheek, 31 F.3d at 500 (“allowing
a complaint to encompass allegations outside the ambit
of the predicate EEOC charge would frustrate the
EEOC’s investigatory and conciliatory role, as well as
deprive the charged party of notice of the charge”);
Rush, 966 F.2d at 1110.
In order to further the goals of Title VII and given the
fact that laypersons rather than lawyers usually are the
8 No. 07-2359
ones initiating these charges, “a Title VII plaintiff need not
allege in an EEOC charge each and every fact that com-
bines to form the basis of each claim in her complaint.”
Cheek, 31 F.3d at 500 (citing Taylor v. Western & Southern
Life Ins. Co., 966 F.2d 1188, 1195 (7th Cir. 1992)). In this
case, Teal was represented by counsel who filed the
EEOC complaint on Teal’s behalf. Although this
weakens the argument for liberal construction in this
case, for the reasons discussed infra, even a liberal con-
struction does not save Teal’s claim. See Rush, 966 F.2d
at 1112 (it is not unreasonable to require additional speci-
ficity or detail when plaintiff was advised by attorney at
time of filing charge with EEOC). In addition to those
claims which were previously charged, Title VII plaintiffs
may also litigate claims which are “like or reasonably
related to the allegations of the [administrative] charge
and growing out of such allegations.” Jenkins v. Blue Cross
Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976)
(en banc) (citation omitted). See also McKenzie v. Illinois
Dep’t. of Trans., 92 F.3d 473, 481 (7th Cir. 1996); Taylor, 966
F.2d at 1195-96. This standard is a liberal one (see Babrocky,
773 F.2d at 864), and is satisfied if there is a reasonable
relationship between the allegations in the charge and
those in the complaint, and the claim in the complaint
could reasonably be expected to be discovered in the
course of the EEOC’s investigation. Cheek, 31 F.3d at 500.
There is obviously no mention of the July 2003 dis-
missal in Teal’s January 2003 EEOC complaint. The ques-
tion, then, is to what extent, if at all, the allegations in
this case are related to those Teal raised before the
EEOC. Factually, there is almost nothing to tie Teal’s
No. 07-2359 9
January 2003 EEOC complaint to the claims in this
suit. That complaint centered on alleged discrimination
occurring between March and December 2002 and
Teal’s March 2002 termination. This appeal hinges on the
allegation that Grieser illegally terminated Teal’s em-
ployment in July 2003. Teal does not appeal the district
court’s summary judgment ruling as to her retaliation
claim. Although both the EEOC complaint and this law-
suit allege unlawful terminations, on their face they
are not reasonably related. See Cheek, 31 F.3d at 501(“Because an employer may discriminate on the basis
of sex in numerous ways, a claim of sex discrimination
in an EEOC charge and a claim of sex discrimination in
a complaint are not alike or reasonably related just be-
cause they both assert forms of sex discrimination.”). This
Circuit has held that in order for claims to be deemed
related, “the EEOC charge and the complaint must, at a
minimum, describe the same conduct and implicate the
same individuals.” Id. (emphasis in original). Teal cannot
satisfy this requirement. First, as the facts outlined above
make clear, Teal’s July 2003 dismissal was based on
Teal’s noncompliance. As such, it was an act entirely
different, separate and distinct from the March 2002
dismissal which was based on the hand-hitting incident
with Patricia Dittmer. See Sauzek v. Exxon Coal USA, Inc.,
202 F.3d 913, 920 (7th Cir. 2000) (employer’s decision to
terminate was separate and distinct act from subsequent
decision not to rehire and thus not “reasonably related”);
Vela v. Village of Sauk Village, 218 F.3d 661, 664 (7th Cir.
2000) (sexual harassment claim in lawsuit wholly diverse
from disparate treatment charge before EEOC). Moreover,
10 No. 07-2359
the first page of Teal’s EEOC complaint (which in total
is over ten typed pages, most of them single-spaced)
alleges that the discriminatory conduct took place from
“3/1/02 - 12/10/02 and continuing” and identifies Grieser as
one of the individuals (along with Patricia Dittmer) respon-
sible for the discriminatory conduct, alleging that Teal
was “threatened and forced by Mr. Grieser to supply
psychiatric information that was irrelevant to the charge.”
R.29, exh. A. Yet in the body of the complaint, there is
never an explanation of which “charge” Teal was
referring to, no discussion of how Grieser’s conduct
constituted discrimination, and no allegations of any
conduct beyond 2002. In fact, Grieser is not mentioned
anywhere else in the complaint. The scope of the EEOC’s
investigation was defined by Teal in her complaint; it
would be unreasonable to conclude that the agency
would have discovered the July 2003 discharge based on
this single, vague and unsupported sentence.
That Teal’s complaint alleged the discrimination dates
as “3/1/02 - 12/10/02 and continuing” (R.29, exh. A) does
not change the analysis. To conclude otherwise would
allow the entire purpose of the exhaustion requirement
to be thwarted whenever a complainant included sim-
ilar language without factual evidence. At bottom, the
January 2003 EEOC complaint did not provide the
Postal Service with notice that Teal felt aggrieved by
the July termination.
It is clear that the dual purposes of the exhaustion
requirement would be frustrated by allowing Teal now to
proceed with her claim. Teal should have initiated an
additional EEOC complaint after her July termination in
No. 07-2359 11
order to properly allow the agency to try to resolve the
matter and fulfill its obligation to investigate the facts
and circumstances related to the July dismissal.
Because this case is not properly before us on the
merits, we do not address the additional issues Teal
raises in appeal: namely, whether Teal is a qualified
disabled person under the Rehabilitation Act or whether
the Postal Service failed to accommodate Teal. That said,
however, it is worth noting that the facts of this case
leave little room for a conclusion other than that Teal
was terminated because of her noncompliance with the
arbitration order. For nine months the Postal Service
gave Teal opportunity after opportunity to present
herself, with the necessary releases, for her fitness to
duty examination. They rescheduled, extended deadlines
and provided transportation. Nothing in the record
indicates that Teal’s disability either affected her non-
compliance or played any role in the Postal Service’s
termination of her employment.
Because Teal failed to exhaust administrative remedies,
her complaint must be dismissed without prejudice. See
McGuinness v. United States Postal Service, 744 F.2d 1318,
1321 (7th Cir. 1984) (in postal worker suit for discrim-
ination, holding that “as it is not certain that it is too
late for McGuinness to obtain administrative consider-
ation of his claim, the suit must be dismissed not as
untimely but as premature, without prejudice to his
bringing a new suit if and when he exhausts his adminis-
trative remedies.”); Greene v. Meese, 875 F.2d 639, 643 (7th
Cir. 1989) (proper resolution for failing to exhaust adminis-
12 No. 07-2359
trative remedies is dismissal without prejudice); see also
Boos v. Runyon, 201 F.3d 178, 184 (2d Cir. 2000) (failure of
postal worker suing under the Rehabilitation Act to
exhaust administrative remedies would require dis-
missal without prejudice). For the foregoing reasons, the
district court’s judgment is V ACATED and this case is
R EMANDED to the district court with instructions to
dismiss the case without prejudice. Each party shall bear
their own costs.
3-20-09