Sutton v. Donahoe
Filing
22
MEMORANDUM Opinion and Order Signed by the Honorable Rebecca R. Pallmeyer on 7/11/2012: Mailed notice(etv, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SANDRA SUTTON,
Plaintiff,
v.
PATRICK R. DONAHOE, Postmaster,
General, U.S. Postal Service
Defendant.
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No. 11 C 5912
No. 11 C 5961
Judge Rebecca R. Pallmeyer
MEMORANDUM ORDER
In several lawsuits against her former employer, the United States Postal Service, Plaintiff
Sandra Sutton has claimed that the Postal Service violated various statutory and constitutional
rights by failing to accommodate her disability, subjecting her to harassment and retaliation,
terminating her employment, and denying various medical benefits. Two new complaints are
before the court, and the Postal Service has moved to dismiss them. The Postal Service urges that
Sutton’s claims are barred by res judicata, that her employment discrimination claims are untimely,
and that her constitutional claims are barred by the Supreme Court's decision in FDIC v. Meyer,
510 U.S. 471 (1994).
As more fully explained below, the motion to dismiss must be granted. Although Sutton
believes the wrongdoing continues, all of her new claims arise from her employment relationship
with the Postal Service, and were the subject of earlier litigation. Claims relating to Sutton’s
employment, which ended in 2002, are untimely. Claims that post-date her employment are also
untimely, as well as barred under the doctrine of res judicata. Claims arising under the Age
Discrimination in Employment or Rehabilitation Act are subject to charge-filing requirements;
assuming the charges that Ms. Sutton filed were themselves timely, she failed to file her complaints
in this court within 90 days of receiving a final decision on those charges, as required by law.
Finally, any common law or constitutional claims for money damages are barred by sovereign
immunity. For all of these reasons, the complaints in this case are dismissed.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY1
From 1988 until 1992, Sandra Sutton was employed as a “mark-up clerk” at the North
Suburban office of the United States Postal Service in River Grove, Illinois. See Sutton v. Potter,
No. 02 C 2702, 2004 WL 603477, at *2 (N.D. Ill. Mar. 22, 2004) (Leinenweber, J.). Soon after she
began the job, Sutton claims, she became sick from exposure to particulate matter in the
workplace. Id. On the recommendation of her doctor, the Postal Service transferred her to a newly
opened facility in Palatine, Iliinois, but during her first day at the new location, she suffered a severe
allergic attack. Id. Following this incident, she left the workplace and never returned to work for
the Postal Service. Id. She drew benefits from the federal Office of Workers' Compensation
Programs (“OWCP”) until July 2000. Id. at *3. More than a year later, in November 2001, Sutton
was “administratively separated” from the Postal Service. Id. at *4.
In years since then, Sutton has filed numerous complaints with the Equal Employment
Opportunity ("EEO") office and with OWCP. She has also filed six prior lawsuits against the Postal
Service in this court. (Exs. 1-6 to Postal Service's Mot. to Dismiss.) First, in 2002, Sutton filed
Case No. 02 C 2702, alleging that the Postal Service violated the Rehabilitation Act and the Age
Discrimination Employment Act ("ADEA") by failing to accommodate “her medical condition of
allergic rhinoconjunctivitis.” Sutton, 2004 WL 603477, at *1. That case resulted in a settlement
in June of 2004. (June 23, 2004 Minute Order [72], No. 02 C 2702.) In September of 2004, the
court granted Sutton's motion to enforce the settlement, and ordered the Postal Service to pay
Sutton $35,000 as soon as practicable. (Sep. 14, 2004 Minute Order [82], No. 02 C 2702.)
1
The court’s account is based upon allegations in the complaints Ms. Sutton filed and
information contained in the records of her previous lawsuits, of which the court may take judicial
notice.
2
In October of 2004, Sutton brought a similar employment discrimination suit on behalf of
her deceased mother, who allegedly also once worked for the Postal Service. (No. 04 C 6922.)
Judge Andersen dismissed that case for want of prosecution. (Feb. 03, 2006 Minute Order [7], No.
04 C 6922.) In November of 2004, Sutton brought another employment discrimination suit on her
own behalf against the Postal Service. (No. 04 C 6967.) Judge Lindberg dismissed the case
without prejudice, observing, “it appears to the court that this case is either a refiling of Case No.
02 C 2702, or is a new claim for which plaintiff has not yet exhausted her administrative remedies."
(Nov. 24, 2004 Order [7], No. 04 C 6967.)
Sutton took no further action against the Postal Service until October 27, 2006. On that
date, she filed three new lawsuits, Case Nos. 06 C 5870, 06 C 5871, and 06 C 5872. The three
district judges to whom those cases were assigned dismissed them for reasons including sovereign
immunity and failure to state a claim (June 1, 2007 Minute Order [23], No. 06 C 5870 (St. Eve, J.));
res judicata (June 5, 2007 Minute Order [18], No. 06 C 5871 (Lefkow, J.)); and lack of jurisdiction
(Nov. 3, 2006 Mem. Order [6], No. 06 C 5872 (Shadur, J.)). Almost two years later, Sutton tried
again, asking Judge Leinenweber for leave to reopen her original case, No. 02 C 2702; the court
promptly denied the motion. (July 21, 2008 Minute Order [87], No. 02 C 2702.)
On April 18, 2011, Sutton initiated her most recent action by filing a grievance with an Equal
Employment Opportunity Counselor. She alleged in her grievance that the Postal Service harassed
her on the bases of race, gender, age, retaliation, and disability when (1) the OWCP refused to pay
for her medication, (2) the Postal Service subjected her to illegal surveillance, and (3) the OWCP
improperly compensated her. The EEO concluded that Sutton’s grievance was identical to claims
previously adjudicated in multiple forums, and therefore dismissed it. (Dismissal of Formal EEO
Compl., attached to Compl., No. 11 C 5912, at 3-4.) On May 26, 2011, Sutton received the EEO's
final decision dismissing her claims and notifying her that she was entitled to file a civil action in
federal court “within 90 calendar days of receipt of this decision.” (Id. at 5 (emphasis omitted).)
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On August 25, 2011—91 days after May 26—she initiated a new lawsuit, Case No. 11 C 5912. Yet
another case (No. 11 C 5961), filed the following day, has been consolidated with this one. This
decision addresses those two new complaints.
Sutton again proceeds pro se. In Case No. 11 C 5912, she claims that the Postal Service
discriminated against her on the bases of her age and disability by continued harassment, by failing
to accommodate her disabilities, by terminating her employment, by retaliating against her for
asserting her discrimination claims, by conducting illegal surveillance, and by denying her medical
benefits. (Compl., No. 11 C 5912.) In Case No. 11 C 5961, Sutton claims that the Postal Service
violated her constitutional rights by using excessive force against Sutton, failing to intervene to
protect her from violations of her civil rights, failing to provide her with medical care, denying pay
to which she was entitled, failing to disclose workplace hazards, denying her retirement disability
benefits, conspiring to violate her civil rights, and subjecting her to surveillance. (Compl., No. 11
C 5961.)
DISCUSSION
I.
Res judicata
The doctrine of res judicata bars claims that were asserted or could have been asserted in
a prior action. Palka v. City of Chicago, 662 F.3d 428, 437 (7th Cir. 2011). In federal court, the
doctrine bars litigation where three elements exist: “(1) identity of parties; (2) a final judgment on
the merits; and (3) an identity of the cause of action (as determined by comparing the suits’
operative facts).” Palka, 662 F.3d at 437. The court has little difficulty in concluding that those
elements are satisfied. The first and second elements require only brief mention: As discussed
above, Sutton has brought numerous claims against the Postal Service in the past. One case
resulted in a settlement, and the court dismissed the remaining cases. Therefore, there have been
final judgments in cases between the same parties.
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The remaining issue is whether there is an identity of the cause of action between the
instant claims and Sutton's previous claims. The Seventh Circuit has explained that “[t]he second
element—whether an ‘identity of the cause of action’ exists—depends on whether the claims arise
out of the same set of operative facts or the same transaction.” Matrix IV, Inc. v. Am. Nat’l Bank
& Trust Co. of Chicago, 649 F.3d 539, 547 (7th Cir. 2011). Put another way, “‘two claims are one
for the purposes of res judicata if they are based on the same, or nearly the same, factual
allegations.’” Id. (quoting Herrmann v. Cencom Cable Assocs., Inc., 999 F.2d 223, 226 (7th Cir.
1993)). Thus, in Brzostowski v. Laidlaw Waste Systems, Inc., plaintiff alleged that his former
employer had terminated him without the process called for by the company’s employee handbook.
49 F.3d 337, 338 (7th Cir. 1995). After the court dismissed that claim, the plaintiff filed another
complaint, this time asserting that the defendant had terminated him based on his age in violation
of the ADEA. Id. Affirming dismissal of the second lawsuit on res judicata grounds, the court
explained that although the legal elements of each claim may have been different, the factual
issues in both cases were the same: defendant's employment actions and the plaintiff's termination.
Id. at 339.
Not every case against a former employer is necessarily barred by an earlier discrimination
claim; in Herrmann, the employer had prevailed in an earlier action where plaintiff sought
continued health insurance benefits under the COBRA provisions of ERISA, but the court
concluded that plaintiff’s subsequent Title VII action could neverthless proceed. 999 F.2d at 22427. The COBRA claim was based on the post-termination processing of plaintiff’s claim for
benefits, the court reasoned, while her Title VII claim was aimed at the employer’s conduct prior
to her termination. Id. at 227.
In the case before this court, in contrast, all of Sutton’s claims arise from the same operative
facts: the allegedly unsafe working conditions at the Postal Service, Sutton's medical condition, and
the Postal Service's alleged discrimination and harassment of Sutton. Sutton has identified no new
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claims that were not asserted in her earlier lawsuits. The EEO effectively explained why Sutton
may not again present these concerns:
The record shows that your entire complaint is identical to multiple previous
complaints in multiple forums. There is no evidence in the record to suggest that
any controlling facts or legal principles have changed significantly since the
respective agencies have rendered the aforementioned decisions, and there are no
other special circumstances that would warrant an exception to the normal rules of
preclusion.
(Dismissal of Formal EEO Compl. at 4.) This court agrees. Because each of Sutton's claims have
been asserted or could have been asserted in her prior lawsuits against the Postal Services,
Sutton's claims are barred by res judicata.
II.
Timeliness
Sutton’s case fails for a second reason, as well: her complaint is untimely. When a federal
employee believes she has been discriminated against, the employee must first attempt to resolve
the matter informally through an EEO counselor. 29 C.F.R. § 1614.105(a). If the matter is not
resolved informally, the employee may then file a formal complaint with the EEO office. 29 C.F.R.
§ 1614.106. An employee who wishes to file a civil action in federal court must do so within 90
days of receiving notice of the EEO’s final decision or, if the employee chooses to appeal that
decision to the Equal Employment Opportunity Commission (“EEOC”), within 90 days of receiving
the Commission’s final decision on appeal. 42 U.S.C § 2000e-16(c); 29 C.F.R. § 1614.407(a), (c).
Absent a basis for equitable tolling, filing one day beyond the 90-day deadline is fatal to a claim,
even where a plaintiff is pro se. See, e.g., Estes v. Potter, No. 05 C 5301, 2006 WL 2724921, at
*1 (N.D. Ill. Sept. 20, 2006) (dismissing a postal employee’s pro se race and sex discrimination
claim for failure to file a complaint within 90 days of the EEOC’s final decision).
It is undisputed that Sutton missed the 90-day filing deadline. She acknowledges receiving
the EEO's final decision on May 26, 2011. (Compl., No. 11 C 05912, ¶ 7.2.) She did not file this
civil action until August 25, 2011, 91 days after May 26, 2011. Nor is equitable tolling available
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here; that relief is restricted to “‘situations in which the claimant has made a good faith error (e.g.,
brought suit in the wrong court) or has been prevented in some extraordinary way from filing his
complaint on time.’” Harris v. Brock, 835 F.2d 1190, 1194 (7th Cir. 1987) (quoting Jones v.
Madison Serv. Corp., 744 F.2d 1309, 1314 (7th Cir. 1984)). In Davis v. Browner, an EPA employee
claimed that she failed to file her complaint within 90 days of receiving the EEOC’s final decision
on August 12, 1999, because a person in the clerk’s office misinformed her that she needed to
obtain a right-to-sue letter. 113 F. Supp. 2d 1223, 1227 (N.D. Ill. 2000). The plaintiff wrote to the
EEOC requesting the letter, and the EEOC responded with a letter confirming its final decision
(received by the plaintiff on September 12, 1999), but the plaintiff waited until December 7, 1999
to file her complaint with the court. Id. at 1225. The court found no extraordinary circumstances
for the delay where the plaintiff “received adequate notice of the deadline, there is no evidence of
misconduct by the defendant, and plaintiff was not misled by the court.” Id. at 1228 (footnotes
omitted).
Sutton asserts that she believed she had one year in which to file her civil suit (see Pet’r’s
Resp. to Mot. to Dismiss (herinafter “Pl.’s Resp.”), at 4 (“Union said one (1) year and retirement
said one (1) year”)), but her confusion is not an adequate basis for equitable tolling. Sutton
received the EEO's notice, which clearly announces the 90-day limitation. Like the plaintiff in Davis,
Sutton could easily have contacted either the EEO or the court in order to dispel any uncertainty
she had. Sutton has suggested that her illness sometimes confines her to bed for as long as four
months at a time (Pl.’s Resp. at 4-5), but such periodic incapacities do not toll the time for filing.
“‘[P]rocedural requirements established by Congress for gaining access to the federal courts are
not to be disregarded by courts out of a vague sympathy for particular litigants.’” Threadgill v.
Moore U.S.A., Inc., 269 F.3d 848, 851 (7th Cir. 2001) (quoting Baldwin Cnty. Welcome Ctr. v.
Brown, 466 U.S. 147, 152 (1984)). Sutton’s failure to comply with the 90-day deadline is an
independent reason for dismissing this action.
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III.
Sovereign Immunity
Finally, Defendant argues for dismissal of this lawsuit on the ground of sovereign immunity.
Again, Defendant appears to be on solid ground. As the Court explained in FDIC v. Meyer, “absent
a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” 510
U.S. 471, 484-86 (1994). In Meyer, the plaintiff sued the Federal Savings and Loan Insurance
Corporation (FSLIC), alleging that the termination of his employment violated his Fifth Amendment
rights. Id. at 473-74. In making this claim, the plaintiff argued for an extension of the Supreme
Court's decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), which held that an individual may bring an action for damages against a federal agent
who allegedly violated the Fourth Amendment. Meyer, 510 U.S. at 484.
The Court declined to extend Bivens from federal agents to federal agencies, observing
that such an extension is “not supported by the logic of Bivens itself.” Id. at 486. The Court
reasoned that the purpose of Bivens is to deter the federal officer; if a federal agency could be
sued directly, there would be no reason for aggrieved parties to bring actions for damages against
individual agents and no avenue for deterrence. Id. at 485. Moreover, the court noted, because
such an extension of Bivens would potentially create a large financial burden for the government,
any such policy decision must be made by Congress, not by the courts. Id. at 486.
Like the plaintiff in Meyer, Sutton seeks money damages for a federal agency's alleged
violation of her constitutional rights. Under the rationale of Meyer, Sutton’s purported constitutional
claims for money damages against the Postal Service must be dismissed.
CONCLUSION
Defendant’s motion to dismiss [26] is granted. These consolidated cases are dismissed.
Plaintiff’s motion for reconsideration [32] and motion “to cease and desist surveillance” [41] are
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stricken. The court cautions Ms. Sutton that any renewed effort to bring suit against the Postal
Service on these same claims may result in sanctions.
ENTER:
Dated: July 11, 2012
_________________________________________
REBECCA R. PALLMEYER
United States District Judge
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