McMillan v. U. S. Post Office

Filing 97

MEMORANDUM Opinion and Order. Signed on 4/29/2010.Mailed notice(drw, )

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UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF ILLINOIS E A S T E R N DIVISION ALICE OUTLAW MCMILLAN, P la in tiff, v. JO H N E. POTTER, Postmaster General, D e fe n d a n t . M E M O R A N D U M OPINION AND ORDER I. BACKGROUND In 1985, Plaintiff Alice Outlaw McMillan ("McMillan") began working as a clerk for the U n ited States Postal Service ("USPS"). In keeping with the spirit of her middle name, McMillan claim s to have a long history of standing up for her rights and those of other injured employees, referrin g to herself as a modern-day "Norma Rae."1 Between 1994 and 2004, McMillan filed ten (" E q u al Employment Opportunity") EEO complaints against the USPS. In May 1994, McMillan filed a claim for an on-the-job injury (apparently the onset of carp al tunnel syndrome), which was accepted by the Office of Workers' Compensation ("OWC"). As a result, McMillan was placed in a mail processing clerk position, a limited-duty post with certain restrictions. Those restrictions included not lifting more than one pound, no repetitive m o tio n with both hands, and no stamping, pushing or pulling. During this period, Plaintiff N o . 06 CV 2121 Ju d ge James B. Zagel Defendant claims that this fact is immaterial and unsupported by the evidence, however it is relevant to McMillan's claims of retaliation. 1 maintains that she periodically worked in the "Nixie" unit in order to rest her hands.2 B y October 2002, McMillan claimed that her injury was so severe that she could no longer w o rk . The OWC accepted her work stoppage, and McMillan was placed on temporary disability leav e and received disability payments. In September 2003, McMillan had surgery on her right knee and subsequently underwent p h ysical therapy. In February 2004, USPS, through Injury Compensation Specialist Sheila Spane (" S p an e"), offered McMillan placement into a limited-duty clerk position. McMillan's treating p h ysician , Dr. Samuel Chmell, responded to the offer, rejecting it. He explained that McMillan w o u ld not be able to return to work until September 1, 2004. In March 2004, Spane once again offered McMillan a limited-duty clerk position. Dr. C h m ell again rejected the offer explaining that McMillan was fully incapacitated for duty. On M arch 29, 2004, Spane requested that the OWC schedule McMillan for a second opinion e x a m in a tio n . On September 27, 2004, Dr. Chmell wrote McMillan a work statement explaining that she w o u ld be unable to work through October 10, 2004, and would be released to work on October 11, 2 0 0 4 , with the following restrictions: no repetitive motion, no cold air blow, no push/pull, no liftin g of more than one pound, no "SS" walking. On October 6, McMillan went to the USPS M ed ical Unit to obtain the necessary clearance to return to work. Personnel at the Medical Unit ex p ressed concern about McMillan's medical release authorization. McMillan then contacted Dr. Although not thoroughly explained by the parties, it appears that the Nixie unit is one " w h ere employees restricted to `light duty' for non-work related injuries and `limited duty' for w o rk -related injuries are typically assigned because the work is not strenuous." Mannie v. Potter, 3 9 4 F.3d 977, 979 (7th Cir. 2005). 2 2 Chmell who provided, via fax, an updated release. The release reported McMillan's diagnoses as " b ilateral knee injuries status post right knee partial menisectomy, consequential injuries to ankles an d feet with posterior tibial tendinitis." Dr. Chmell also specified the following restrictions: no ex cessiv e walking; no repetitive motion of the upper extremities; no lifting of more than one p o u n d ; no cold blowing air; and no pulling or pushing. According to Defendants, this differed fro m the earlier restrictions in that McMillan could not undertake any excessive walking. Carol M o o re, then head of the Injury Compensation Department, advised the Medical Unit that McMillan w as to be scheduled by the Department of Labor ("DOL") for a referee examination. Spane n o tified the Medical Unit that as a result of the "conflicting" medical information submitted by Dr. C h m ell,3 McMillan would not be able to return to work until a referee examination had taken place an d the results were returned. After the examination, the DOL, through the OWC, could then ad v ise the USPS as to whether McMillan could return to work. On October 12, Plaintiff spoke with Angela Eaddy ("Eaddy"), her claims examiner at O W C . Eaddy explained that Spane had called her to let her know that the agency did not have any w o rk within the restrictions prescribed by her physician, but she denied directing Spane not to retu rn Plaintiff to work. In January 2005, OWC then sent a letter to McMillan summarizing that sh e had already been advised by Eaddy that there was no work available at USPS within the I note here that in her deposition testimony, Spane explained that the "conflict" warranting a referee exam was between the restrictions in Dr. Chmell's September 27, 2004 letter and his F eb ru ary and March 2004 evaluation that Plaintiff was incapacitated. However, in his briefing, D efen d an t explains that the new work limitations specified by Dr. Chmell in September and O cto b er 2004 "conflicted" with the limitations previously agreed to by McMillan in November 2 0 0 1 . According to Plaintiff, the 2004 restrictions differed from the 2001 restrictions in that the 2 0 0 4 restrictions included a prohibition on excessive walking. Plaintiff maintains that this d ifferen ce is not a "conflict." 3 3 restrictions set forth by Dr. Chmell, and that the OWC would schedule a referee examination to d eterm in e whether McMillan had any residual injuries and whether she could return to work. In April 2005, Dr. David Hoffman conducted the referee examination. He concluded that M cM illan was not totally disabled, and, that at the time of the examination, she would be able to p erfo rm the limited-duty clerk position that had been offered to her in March 2004. In February 2 0 0 6 , McMillan returned to work at the USPS, accepting an assignment as a Manual Unit em p lo yee. From October 2004 through February 2006, during her period of unemployment, M cM illan received temporary total disability payments totaling approximately $100,000. O n or around July 7, 2003, McMillan contacted Senator Richard Durbin about the Postal S erv ice's improper treatment of her on-the-job injury. On October 20, 2004, Plaintiff sent a letter to Postmaster John Potter complaining of her treatment by Spane and Moore. Also in October 2 0 0 4 , Plaintiff sought EEO counseling, and a formal administrative complaint of discrimination again st the USPS followed one month later. In her complaint, McMillan alleged that she had been p rev en ted from returning to work in October 2004 because of a disability and in retaliation for p rio r EEO activity. The Equal Employment Opportunity Commission ("EEOC") granted the U S P S 's motion for summary judgment. In April 2006, McMillan filed suit, challenging the EEOC's rejection of her claims. In her T h ird Amended Complaint, Plaintiff alleges that in October 2004, the Medical Unit informed her th at there was no work available for her within her restrictions. According to McMillan, this was a d iscrim in ato ry and retaliatory act by Spane, Moore, or their supervisors, one or more of whom M cM illan claims made the decision to deny her accommodation. McMillan contends that she was d en ied "a position for which she was qualified and eligible solely by reason of her disability." She 4 claims that the USPS placed other similarly situated employees in these positions shortly after d en yin g them to McMillan. She also maintains that there were several available positions in the N ix ie unit at the time she was denied a position. McMillan brings the following counts against her em p lo yer, the United States Postal Service: (1) failure to accommodate; (2) disparate treatment, (3) retaliatio n . In her response to Defendant's motion for summary judgment, Plaintiff dismissed C o u n t 2. Plaintiff is seeking lost wages, insurance premiums she paid while out of work, accrual b en efits, and compensatory damages for negative health effects suffered as a result of the u n certain ty she faced while out of work. II. DISCUSSION A . Whether FECA Bars Plaintiff's claims In his reply brief, Defendant raises the issue that Plaintiff's claims are barred under the F ed eral Employees Compensation Act ("FECA"), 5 U.S.C. 8101, et seq.4 The court in Gantner v. Potter, No. 3:03CV-644-S, 2007 WL 3342305, at *3 (W.D. Ky. 2007), provides a helpful su m m ary of duties under FECA: Defendant argues that Plaintiff's claims are moot since McMillan has already su ccessfu lly litigated before the DOL her disability, pay and work assignments under the FECA, receiv in g $100,000. This argument is raised for the first time in Defendant's reply and is not th o ro u gh ly treated. After a hearing, this Court ordered supplementary briefing (n the form of a surrep ly and sur-sur-reply) on this issue as well as on the issue of damages. In his sur-sur-reply, Defendant moves to strike Plaintiff's supplemental exhibits submitted in support of her damages claim and against Defendant's FECA argument. This motion is denied. Defendant did not challenge Plaintiff's damages claim or raise the FECA issue in his motion, but d id so for the first time in his reply brief. I ordered supplemental briefing on these matters, and P lain tiff submitted the exhibits at issue in connection with my order. Her submission of these ex h ib its is appropriate in light of the circumstances. 4 5 [FECA] provides for the payment of workers' compensation benefits to civilian o fficers and employees of all branches of the Government of the United States. See 2 0 C.F.R. 10.0. The Department of Labor's Office of Workers' Compensation P ro gram s (OWC) administers the FECA and is required to provide for limited duty jo b s to accommodate employees with compensable job-related injuries. See 20 C .F .R . 10.507. The OWC is responsible for determining if the limited duty job o ffered to the employee is "suitable work," and makes such determination based on an evaluation of the employee's physical limitations and all medical evidence co n cern in g the employee's injury. See 20 C.F.R 10.500 et seq. If the modified p o sitio n is deemed to be suitable work by the OWC and the injured employee accep ts the position, she can continue to receive compensation benefits. However, if th e injured employee refuses to accept a modified position deemed suitable by the O W C , she will not be entitled to receive compensation benefits unless she can show ju st cause for such refusal. See 20 C.F.R 10.517. D efen d an t maintains that because the decision to create a limited-duty position for a postal w o rk er is made by the DOL, and because Plaintiff successfully litigated her disability claims under F E C A before the DOL, her claims pursuant to the ADA are barred. According to Defendant, b ecau se McMillan had applied to the DOL for a temporary limited-duty position, she cannot now m ain tain that she was entitled to return to a permanent limited-duty position. P lain tiff maintains that the USPS's duties are not limited to its FECA obligations, and that th e USPS is still required to act in accordance with the Rehabilitation Act. Moreover, she is not ch allen gin g the USPS's compliance with FECA, but rather its compliance with Rehabilitation Act. Plaintiff also responds that she was not seeking the creation of a limited-duty position, but rather th e return to a limited-duty position that she already held. According to Plaintiff, at the time she w en t on medical leave in October 2002, she was working in the Nixie unit, the very same unit to w h ere she returned in February 2006 and where she remains to this day. However, in her response to Defendant's first set of interrogatories, Plaintiff provides several apparently inconsistent details in response to a question regarding her previous employment at the USPS. She explains that from 6 1985 to 1986 she was employed as an LSM operator; from 1996 to 2001 she worked in the Nixie u n it; from 2001 to 2004 she was a flatsorter operator; and from 2006 to present she has been em p lo yed as a manual unit employee. The job descriptions of the flatsorter operator and the m an u al unit position, the positions she held in 2002 and 2006, respectively, are different, and she h as listed different supervisors for each position. Plaintiff contends that she was simply seeking to retu rn to the same position she previously held, but her interrogatory answers suggest that she came b ack to work in a different capacity. It is unclear from the record (1) whether these two positions are Nixie unit positions; (2) whether she was temporarily placed in the Nixie unit while working in th ese two positions; and (3) whether positions in the Nixie unit can be permanent.5 Without k n o w in g the answers to these questions it is difficult to ascertain whether or not Plaintiff was retu rn ed to the same position she held prior to her leave, and whether her current claims are fo reclo sed by her FECA claim. B . Failure to Accommodate In order to sustain a failure-to-accommodate claim under the Rehabilitation Act, McMillan m u st show that the Postal Service knew of her disability and still refused to take action that could h av e kept her working. Bellino v. Peters, 530 F.3d 543, 548 (7th Cir. 2008). Put another way, M cM illan has to show that (1) her injury makes her a "qualified individual with a disability"; and At the hearing, Defendant did explain that positions in the Nixie unit are temporary and are created and qualified through FECA. However, as discussed infra, in note 7, this is inconsistent w ith the theory that it cannot be liable for failure to accommodate where there was no work av ailab le within Dr. Chmell's restrictions. This theory seems to suggest that the USPS did not create a position, but rather waited until a pre-existing, permanent position became available. Plaintiff maintains that there are permanent positions within the Nixie unit. 5 7 (2) the Postal Service knew of the disability; but (3) nonetheless failed to make a "reasonable acco m m o d atio n ." Id.6 T h e questions of fact surrounding the nature of Plaintiff's current and former positions and h er time in the Nixie unit, discussed supra, are also significant within the context of Plaintiff's R eh ab ilitatio n Act claim. Courts outside of this circuit have held that where a limited- duty position is created by an employer in order to satisfy its duty under FECA, the rescission of that position is n o t a denial of a reasonable accommodation under the rehabilitation act. Gantner, 2007 WL 3 3 4 2 3 0 5 , at *4; Luckiewicz v. Potter, 670 F. Supp. 2d 400, 409-10 (E.D. Pa. 2009). In these two cases, the courts cited to precedent holding that an employer's obligation to reasonably acco m m o d ate an employee does not require the creation of a new job. In Luckievicz, when m easu rin g whether the plaintiff was qualified to perform the essential functions of her job, the co u rt looked to the plaintiff's initial position, not her subsequent limited-duty position. Defendant m ain tain s that McMillan has failed to present any evidence that she was qualified to hold any p o sitio n at the Post Office in October 2004. Plaintiff, however, points to Winston v. Potter, in which the court noted that: "Once an em p lo yer places an injured employee on limited duty, the employee's qualifications must be m easu red in relation to the limited duty position occupied, not the position formerly held." No. 01 C 2349, 2004 WL 3119834, at *5 (N.D. Ill. Dec. 1, 2004).7 In support, the court cited Hendricks6 The standards set out in the ADA are used in evaluating a claim under the Rehabilitation A ct. Dyrek v. Garvey, 334 F.3d 590, 597 n.3 (7th Cir. 2003); 29 U.S.C. 794(d). Defendant attempts to distinguish this case by arguing that McMillan was not on limitedd u ty at the time she sought to return to work and that she had in fact been incapacitated. Defendant seem s to be suggesting that once McMillan went on leave, her position basically disappeared, but p o in ts to nothing in the record to support that. When she left, she went on temporary total 7 8 Robinson v. Excel Corp., 154 F.3d 685, 697 (7th Cir. 1998), where the Seventh Circuit noted that its "case law and the EEOC's interpretation of the ADA have approved of an employer's offer of ligh t-d u ty assignments as a reasonable accommodation for injured workers." There the Court fo u n d a genuine issue of fact as to whether or not the limited-duty positions at issue in that case w ere "temporary." The issue was material because if the positions were in fact temporary, the em p lo yer was not required to convert them into permanent ones for employees that are p erm an en tly restricted. Id. However, if the positions were permanent jobs, then the employee's assign m en t would be treated as a permanent reassignment for the purposes of an ADA acco m m o d atio n . Id. This case involves similar issues. Without an understanding of how Plaintiff's last two p o sitio n s were created, whether they were intended to be temporary, how much time she spent in th e Nixie unit, and whether all positions in that unit are temporary, this Court cannot determine w h eth er or not her USPS "failed to accommodate" her, or whether there were any vacant funded p o sitio n s available at the time she sought her accommodation. In essence, Defendant is arguing th at because Plaintiff's latest position had to be created by DOL, USPS cannot be liable for failing to accommodate. Plaintiff argues that the position already existed and was available at the time she so u gh t to return to work. This is a question of fact, and summary judgment is inappropriate at this tim e . d isab ility. It appears that when McMillan did finally return to work, she stopped collecting her b en efit. Defendant points to nothing in the record that indicates that McMillan's position was created . In fact, Defendant's argument that there was no work available within Dr. Chmell's restrictio n s seems to suggest that the USPS did not create a position, but rather waited until a preex istin g, permanent position became available. This question of fact is relevant to whether P lain tiff's claims are barred by FECA, and whether Defendant failed to accommodate plaintiff. 9 Defendant maintains, in the alternative, that it did in fact make reasonable accommodations o n two occasions by offering to place Plaintiff in limited-duty positions with additional physical restrictio n s. After refusing both of these offers, Defendant contends Plaintiff cannot sustain this claim . Plaintiff counters that these offers were made seven months prior to her request for acco m m o d atio n and while she was still incapacitated. When she finally did request an acco m m o d atio n , she was refused one for 16 months. Pursuant to the ADA, employers must engage with the employee in an "interactive process to determine the appropriate accommodation under the circumstances." E.E.O.C. v. Sears, R o eb u ck & Co., 417 F.3d 789, 805 (7th Cir. 2005) (citation and quotations omitted). "If this p ro cess fails to lead to reasonable accommodation of the disabled employee's limitations, resp o n sib ility will lie with the party that caused the breakdown[.]" Id. However, an employer's failu re to engage in this process cannot be a basis for relief if the employer can demonstrate that no reaso n ab le accommodation was available. Id. (citation omitted). Generally, a plaintiff seeking a ju d icial remedy for the employer's failure to accommodate bears the burden of showing that a reaso n ab le accommodation existed. Mays v. Principi, 301 F.3d 866, 870 (7th Cir.2002); Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir.2001) (same). But where an employer fails to consult w ith the employee concerning a possible accommodation, the burden shifts to the employer to sh o w the unavailability of a reasonable accommodation. Mays, 301 F.3d at 870. In an analysis to determine which party, if any, was responsible for the breakdown of the in teractiv e process, courts may first examine "whether there is a genuine issue of material fact regard in g the availability of a reasonable accommodation, and if it is clear that no reasonable acco m m o d atio n was available," the analysis is over. Sears, 417 F.3d 789 at 805. In this case, 10 there is a genuine issue of material fact as to whether reasonable accommodations were available at th e time at issue. In January 2005, the OWC sent a letter to Plaintiff reflecting that she had already b een advised by the USPS that there was no work available within the restrictions prescribed by h er doctor. Plaintiff maintains that there were two or three cubicles and numerous table positions av ailab le in the Nixie unit in October 2004. Plaintiff testified that she noticed the spaces when she v isited the unit in early October 2004, and she provides the corroborating testimony of a coworker. Moreover, according to McMillan, four or five other postal employees who had similar injuries and p h ysical restrictions were given positions by USPS after October 2004, indicating that perhaps lim ited -d u ty positions were indeed available. Defendant maintains that there is no evidence that sh e ever applied for a position in the Nixie unit on October 2004. But this is not relevant to the issu e of whether there were available positions in that unit, and Defendant points to no case law th at requires a plaintiff to apply for each individual position for which she may be qualified. Plaintiff maintains that it was the USPS that caused the breakdown of the "interactive p ro cess," and that the burden has shifted to Defendant to show that no accommodation was av ailab le. Spane informed Plaintiff that she would not be allowed to return to work until after the referee examination. But it wasn't until February 2006, nearly a year after the referee examination, th at McMillan was offered an assignment as a Manual Unit employee. Plaintiff points to in co n sisten cies in the record on the issue of why she was not returned to work from October 2004 th ro u gh January 2006. In her EEO affidavit, Spane maintains that it was Moore who made the d ecisio n . In her affidavit, Moore contends that it is the DOL which "has the authority to advise the agen cy if and when an employee can return to work based on the results of the [referee] ex am in atio n ." Eaddy's notes, the January 2005 OWC letter, and a November 22, 2005 DOL d ecisio n suggest that it was the employing agency that was responsible for the decision. 11 In any event, there is a question of fact as to who was responsible for the breakdown. USPS made two offers of accommodation in February and March 2004, when Plaintiff was still in cap acitated . She obtained notes from her doctor in an effort to explain and clarify her medical situ atio n . Once she did request an accommodation, there was little evidence that USPS engaged " in a flexible give-and-take [with Plaintiff] so that together they [could] determine what acco m m o d atio n would [have enabled Plaintiff] to continue working." Sears, 417 F.3d at 805. Spane told Plaintiff that the OWC would not allow her to return to work, and Plaintiff submitted to th e referee examination. That seems to have marked the end of any "interactive process" that m igh t have been in effect at the time. There is virtually nothing in the record that indicates any co m m u n icatio n s between USPS and Plaintiff regarding the possibility of accommodation until P lain tiff returned to work in February 2006. Spane maintains that this was because of Moore's in stru ctio n that McMillan could not return to work until the referee exam was conducted. But th ere is no evidence of an interactive process even after the April 2005 referee exam.8 Because an em p lo yer cannot be liable for a breakdown where it can demonstrate that no reasonable acco m m o d atio n was available, the issue here hinges on the nature of Plaintiff's current and former p o sitio n s, her time at the Nixie unit, and whether the limited-duty positions held by Plaintiff were tem p o rary. As discussed supra, these are questions of fact that render summary judgment in ap p ro p riate here. C. Retaliation Section 504 of the Rehabilitation Act, at 29 U.S.C. 794(d), expressly incorporates the Defendant maintains that the process was delayed "due in part to McMillan raising ad d itio n al FECA claims[,]" but points to nothing in the record that supports this assertion or co rro b o rates the reason for delay. 8 12 anti-retaliation provision of Section 503 of the ADA, 42 U.S.C. 12203, prohibiting retaliation again st "any individual because such individual has opposed any act or practice made unlawful by th is chapter or because such individual made a charge, testified, assisted, or participated in any m an n er in an investigation, proceeding, or hearing under this chapter." Id. Therefore, in order to su cceed on a retaliation claim under Section 504, a plaintiff must establish that: (1) she engaged in a statutorily-protected activity; (2) she suffered an adverse action; and (3) there was a causal co n n ectio n between the two events. Burks v. Wisconsin Dept. of Transp., 464 F.3d 744, 758 (7th C ir. 2006). This is known as the direct method of proof. A plaintiff may prevail under this method b y "construing a convincing mosaic of circumstantial evidence that allows a jury to infer in ten tio n al discrimination by the decision maker." Sherrill v. Potter, 2008 WL 4086980 *5 (N. D. Ill. August 25, 2008) (quoting Nichols v. Southern Ill. Univ., 510 F.3d 772, 782 (7th Cir. 2007)). S u ch circumstantial evidence may include "suspicious timing, ambiguous statements and patterns d em o n stratin g differing treatment of similarly situated employees." Id. Alternatively, McMillan may establish retaliation using the indirect method under M cD o n n ell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the indirect approach, in o rd er to establish a prima facie case for retaliation, the employee must show the following: (1) after filing a charge, the employee was subject to adverse employment action; (2) at the time, the em p lo yee was performing her job satisfactorily; and (3) no similarly situated employees who did n o t file a charge were subjected to an adverse employment action. Hudson v. Chicago Transit A u th ., 375 F.3d 552, 560 (7th Cir. 2004); Stone v. City of Indianapolis Public Utilities Div., 281 F .3 d 640, 644 (7th Cir. 2002). F ro m her response, it appears that Plaintiff is proceeding under the direct method of p ro v in g retaliation. In her Third Amended Complaint, Plaintiff alleges retaliation based upon her 13 request for accommodation. Defendant maintains that her claim is somewhat paradoxical since M cM illan is alleging that her request for accommodation to be the protected activity and the refusal o f such accommodation to be the retaliation. Defendant also contends that a claim made pursuant to the FECA for the creation of a limited-duty position is not a protected activity. 42 U.S.C. 2 0 0 0 e-3 (a); 42 U.S.C. 12203(a); Mosley v. Potter, 2007 WL 1100470 * 9 (S.D. Tex. Apr. 11, 2 0 0 7 ); Johnston v. Henderson, 144 F. Supp.2d 1341, 1354, n. 5 (S.D. Fla. 2001). Plaintiff counters that requesting an accommodation is a protected activity that may support a claim for retaliation. Garza v. Abbott Laboratories, 940 F. Supp. 1227, 1244 (N.D. Ill. 1996). S h e claims that her reputation as a modern day "Norma Rae," her ten EEO complaints again st the USPS between 1994 and 2004, her October 2004 letters to the Postmaster, and her July 2 0 0 3 letter to Senator Richard Durbin regarding her injury are all grounds for a retaliation claim. She characterizes these actions as fights for accommodation and against discrimination, and th erefo re, protected activities. Based on the evidence before me, I find that there is a question of fact as to whether P lain tiff was retaliated against, but I must note the weakness of Plaintiff's case. Plaintiff argues th at taken together, she presents a "convincing mosaic of circumstantial evidence" allowing for the in feren ce of discrimination. It is true that there are some inconsistencies in the record on the issue o f why she was not returned to work from October 2004 through January 2006. Defendant did on tw o previous occasions offer Plaintiff accommodations does weigh against Plaintiff, but at the time P lain tiff had not been cleared to work by her physician, she had not requested the accommodation, n o r had she written the letters to the Postmaster, in which she complains specifically about Moore an d Spane. The record demonstrates that Spane and Moore did see the letters to the Postmaster an d Senator Durbin, which does help to establish a causal connection, but there is little evidence 14 that they actually knew of the EEO claims,9 nor is there any evidence of the outcome of those EEO claim s. There is no indication of animus on the part of the USPS, and McMillian provides no ev id en ce that other similarly-situated employees who did not file claims were treated more fav o rab ly. In fact, there is evidence in the record that two of McMillan's disabled colleagues E ssaq u en a Harris and Ruth Thomas - had both filed EEO complaints on more than one occasion, an d yet both were accommodated by being placed in Nixie positions. Although her claim seems p articu larly weak in light of the offers of accommodation, Plaintiff's eventual reinstatement, and th e fact that similarly situated colleagues who had filed EEO claims were accommodated, there rem ain s a question of fact as to this claim. For this reason, Defendant's motion for summary ju d gm en t on Plaintiff's retaliation claim is denied. III. CONCLUSION F o r the foregoing reasons, Defendant's motion for summary judgment is denied. ENTER: Jam es B. Zagel U n ited States District Judge D A T E : April 29, 2010 Defendant argues that a claim based on the letters and previous EEO actions is in ap p ro p riate as "a plaintiff may not amend his complaint through arguments in his brief in o p p o sitio n to a motion for summary judgment." Shanahan v. City of Chicago, 82 F.3d 776, 781 (7 th Cir. 1996). However, this seems less like an attempt to amend the complaint and more like a flesh in g out of the facts that emerged during discovery. Plaintiff is not attempting to add new D efen d an ts or claims. 9 15

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