Jones v. Brennan

Filing 22

MEMORANDUM Opinion and Order: The Court denies Brennan's motion to dismiss, or in the alternative, for summary judgment 15 . The 9/10/2018 status hearing is vacated and reset for 8/16/2018 at 09:00 AM. Signed by the Honorable Thomas M. Durkin on 8/9/2018:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANGELA JONES,
Plaintiff,

No. 18 C 1213

v.

Judge Thomas M. Durkin

MEGAN J. BRENNAN,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Angela Jones has sued Megan J. Brennan, Postmaster General of
the United States Postal Service (“USPS”), in a pro se complaint for discrimination
and retaliation in violation of Title VII of the Civil Rights Act. Currently before the
Court is Brennan’s motion to dismiss or, in the alternative, for summary judgment
for failure to exhaust administrative remedies (R. 15). For the foregoing reasons,
the Court denies Brennan’s motion.
Background
At the time of the events in her complaint, Jones worked as a mail processing
clerk with the International Military Service Center Postal Service in Chicago. R.
19 at 8-10 (Jones’s Response to Brennan’s Rule 56.1 Statement) ¶ 1. In July 2016,
Jones agreed to take a polygraph test as part of a workplace investigation into time
card fraud. Id. ¶ 2. Immediately after the polygraph, a criminal investigator agent
informed Jones that she had passed. R. 21 (Brennan’s Response to Jones’s Rule 56.1
Statement of Additional Facts) ¶ 7.

On or around September 16, 2016, Jones was denied a promotion to a
supervisory position. R. 21 ¶ 8; R. 17-2 at 1. In response, Jones asked for the results
of the polygraph test, and she was told that she would be given a pre-disciplinary
interview by the acting plant manager. R. 19 ¶ 3.
Four days later, on September 20, 2016, Jones requested pre-complaint
counseling by calling the Equal Employment Opportunity (“EEO”) Contact Center;
that same day, the EEO mailed Jones a letter acknowledging receipt of her request.
R. 21 ¶ 3; R. 19 at 24 (Exhibit C to Jones’s Statement of Additional Facts) (“This is
to acknowledge receipt of your request for pre-complaint counseling under the
Equal Opportunity Employment Process”); R. 20 at 2. USPS tracking reveals that
Jones received this letter on September 24, 2016. R. 21 ¶ 3. The letter instructed
Jones to “please complete, sign and date the above-referenced forms and return
them within ten (10) calendar days from receipt of this package . . . . If the forms
are not returned in 10 days, your request for EEO counseling may be cancelled.
Timely completion and submission of the enclosed forms ensures prompt processing
of your request for EEO counseling.” R. 19 at 25.
Also on September 20, 2016, Jones mailed a copy of documents titled
“Affidavits of Truth” containing complaints related to the polygraph and her denied
promotion to upper managers at her job, a number of EEO representatives, and
Brennan. R. 21 ¶ 1. Jones never received a response to her Affidavits, which
Brennan says is because “[t]he ‘Affidavits of Truth’ sent by Jones did not comply

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with the procedure clearly set forth in the [EEO] letter sent to Jones on September
20, 2016.” Id. ¶ 2.
On October 7, 2016, Jones’s son passed away. Id. ¶ 4. Jones states in her
response brief that her son’s passing was “unexpected and tragic”—and specifically,
that he “was killed.” R. 19 at 5. Jones’s primary care physician opines that after her
son’s death, Jones “was expectantly mentally unstable and was not capable of
continuing her complaint in a timely manner.” R. 19 at 29 (Exhibit E to Jones’s
Statement of Additional Facts). He further opines that Jones “was totally mentally
incapacitated from 10/07/16 through 10/11/16.” Id.
On January 28, 2017, Jones reached out to EEOC and the Office of Federal
Operations to ask about her continuing rights to pursue pre-complaint counseling.
R. 21 ¶ 6. Jones explained that her delay had been due to her son’s death. Id. Both
agencies “responded and informed [Jones] that extension[s] were permitted under
extenuating circumstances.” Id. One response stated: “If you can show that you
were incapacitated and unable to pursue your EEO matter in the regulatory time
frames, the time limits may be waived.” R. 19 at 31. The other simply stated, “Yes
you can,” and directed Jones to the appropriate EEOC form. Id. at 32.
On February 13, 2017, Jones submitted a new EEO pre-complaint form and
proof of her son’s death. R. 19 ¶ 4; R. 21 ¶ 9. Jones filed a formal EEO complaint on
May 22, 2017, alleging discrimination and reprisal based on the following facts: (1)
Jones was asked to take a polygraph test in July 2016; (2) Jones was informed that
she would be given a disciplinary interview after she requested her polygraph test

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on September 16, 2016; (3) Jones was removed from acting supervisor detail on an
unspecified date; and (4) Jones was offered a supervisor position but then not given
that position on or around September 16, 2016. R. 19 ¶ 5.
On June 9, 2017, the USPS dismissed Jones’s complaint as untimely. Id. ¶ 6.
Jones appealed that decision to the EEOC’s Office of Federal Operations. The
EEOC upheld USPS’s decision on November 16, 2017, finding dismissal appropriate
because “the last alleged discriminatory event occurred on September 16, 2016, but
Complainant did not initiate contact with an EEO Counselor until February 13,
2017, which is beyond the forty-five (45) day limitation period” in 29 C.F.R.
§ 1614.105(a)(1). R. 19 ¶ 7; R. 17-3 at 3. The EEOC noted that Jones’s “son passed
away on October 7, 2016,” based on which she “was unable to respond to the
complaint packet she states she received on September 27, 2016.” R. 17-3 at 3. The
EEOC nevertheless found that “Complainant has presented no persuasive
arguments or evidences warranting an extension of the time for initiating EEO
counselor contact.” Id. Jones filed this complaint on February 16, 2018. R. 1.
Standard
Because both parties cite evidence outside the scope of the pleadings and filed
fact statements under L.R. 56.1, the Court applies a summary judgment standard.
Summary judgment is appropriate “if 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). The Court considers the entire evidentiary record and must view all

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evidence and draw all reasonable inferences from that evidence in the light most
favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013). To
defeat summary judgment, a nonmovant must produce more than “a mere scintilla
of evidence” and come forward with “specific facts showing that there is a genuine
issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013).
Ultimately, summary judgment is warranted only if a reasonable jury could not
return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
Analysis
Brennan argues that she is entitled to summary judgment on Jones’s Title
VII complaint because Jones failed to exhaust administrative remedies. “Before a
federal civil servant can sue his employer in court for discriminating against him in
violation of Title VII, he must first exhaust his administrative remedies.” Green v.
Brennan, 136 S. Ct. 1769, 1775 (2016) (citing 42 U.S.C. § 2000e–16(c)). “To exhaust
those remedies, the Equal Employment Opportunity Commission (EEOC) has
promulgated regulations that require, among other things, that a federal employee
consult with an EEO counselor prior to filing a discrimination lawsuit.” Id.
Specifically, she “must initiate contact with a Counselor within 45 days of the date
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). “This deadline
is construed as a statute of limitations and not as a jurisdictional prerequisite.”
Johnson v. Runyon, 47 F.3d 911, 917 (7th Cir. 1995).

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It is clear that Jones failed to comply with the 45-day deadline set forth in 29
C.F.R. § 1614.105(a)(1). Jones made initial contact with the EEO on September 20,
2016—just four days after the September 16, 2016 conduct alleged to be
discriminatory. But Brennan is correct that Jones’s failure to “follow [this charge] to
completion” by complying with the 10-day deadline for submitting forms set forth in
the EEO’s September 20, 2016 letter means that Jones’s February 2017 contact was
effectively a new EEO contact falling outside the 45-day limitations period. See, e.g.,
Atiogbe v. Brennan, 2017 WL 2215017, at *4-5 (N.D. Ill. May 19, 2017) (holding that
plaintiff’s initial “contact [with] an EEO counselor” was “abandoned” when she did
not comply with the 10-day response period, meaning her later contact was new and
subject to the 45-day limit).
But the regulations expressly provide for tolling of “the 45-day time limit . . .
when the individual shows [1] that he or she was not notified of the time limits and
was not otherwise aware of them, [2] that he or she did not know and reasonably
should not have been known that the discriminatory matter or personnel action
occurred, [3] that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time limits, or [4]
for other reasons considered sufficient by the agency or the Commission.” 29 C.F.R.
§ 1614.105(a)(2) (emphasis added). The Seventh Circuit has explained that “[t]he 45
day statute of limitations is not reasonable if agencies and courts do not liberally
construe [these] exceptions.” Johnson, 47 F.3d at 917.

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The Court finds that the undisputed evidence in this case meets the third
justification for tolling set forth in the regulations: Jones being “prevented by
circumstances beyond . . . her control from contacting the counselor” “despite due
diligence.” 29 C.F.R. § 1614.105(a)(2). The first component of this inquiry—
circumstances beyond Jones’s control preventing her from contacting the
counselor—is supported by the undisputed fact of Jones’s son’s passing, along with
the letter from Jones’s physician. Brennan focuses only on the statement in Jones’s
physician’s letter that Jones “was totally mentally incapacitated from 10/07/16
through 10/11/16.” R. 19 at 29. But Brennan ignores the physician’s further opinion
that after her son’s death, Jones “was expectantly mentally unstable and was not
capable of continuing her complaint in a timely manner.” Id. Even if Jones was
“totally mentally incapacitated” only for a few days, the Court finds that the passing
of her son—apparently in an unexpected and tragic way (see R. 19 at 4-5)—is a
circumstance beyond Jones’s control that reasonably prevented her from focusing on
her employment dispute for a number of months after his passing. Cf. Harris v.
Potter, 2004 WL 1613578, at *5-6 (E.D. Pa. July 16, 2004) (finding 45-day timeline
tolled due to mental illness).
The Court further finds that Jones acted with “due diligence.” 29 C.F.R.
§ 1614.105(a)(2). Both the September 20, 2016 letter Jones received from the “EEO
Contact Center” “acknowledg[ing] receipt of [her] request for pre-complaint
counseling” (R. 19 at 24) and Jones’s September 20, 2016 Affidavits of Truth mailed
to EEO representatives and Brennan show that she was in no way sleeping on her

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rights. Then in January 2017, a few months after her son passed away, Jones reinitiated contact with the EEOC and Office of Federal Operations to ask about her
continuing rights to pursue pre-complaint counseling, explaining that her delay had
been due to her son’s death. Both agencies “responded and informed [Jones] that
extension[s] were permitted under extenuating circumstances.” R. 21 ¶ 6. Shortly
thereafter, Jones submitted her new EEO complaint. The Court finds that Jones
acted diligently.
Implicitly recognizing that the September 20, 2016 letter attached to Jones’s
Statement of Additional Facts creates problems for Brennan’s argument that Jones
was not diligent, Brennan switches tacks on reply, focusing on the fact that Jones
did not comply with the September 20, 2016 letter’s 10-day deadline for completing
forms. Brennan emphasizes that the USPS tracking indicates Jones received this
letter on September 24, 2016, meaning that the 10-day deadline expired prior to the
death of her son on October 7, 2016. But the letter itself states only that “[i]f the
forms are not required in 10 days, your request for EEO counseling may be
cancelled.” R. 19 at 25 (emphasis added). Even after not meeting the 10-day
deadline, Jones still would have had plenty of opportunity to re-initiate contact with
the EEO within the 45-day regulatory period if it had not been for the death of her
son. Jones’s failure to comply with this interim requirement does not change this
Court’s overall conclusion that Jones was diligent and that tolling the 45-day period
until February 2017 is appropriate in light of the death of Jones’s son. Nor does
Brennan claim or set forth any basis for a finding of prejudice based on this delay.

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Indeed, the fact that Jones mailed Affidavits to Brennan and her supervisors on
September 20, 2016 put them on notice of her potential claims very shortly after the
underlying events took place.
In sum, the Court finds that “despite due diligence [Jones] was prevented by
circumstances beyond . . . her control from contacting the counselor within the time
limits.” 29 C.F.R. § 1614.105(a)(2). Alternatively, the Court finds that Jones’s son’s
tragic passing falls within the catchall provision for “other reasons considered
sufficient” for tolling. Id. The Court therefore finds the 45-day deadline equitably
tolled. This means that Jones exhausted administrative remedies as to her Title VII
claims. See Johnson, 47 F.3d at 917.
Conclusion
For the foregoing reasons, the Court denies Brennan’s motion to dismiss, or
in the alternative, for summary judgment (R. 15).
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: August 9, 2018

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