Dorothy Perkins v. Megan J. Brennan ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 9, 2020
Decided July 27, 2020
Before
DIANE S. SYKES, Chief Judge
MICHAEL S. KANNE, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 14-2896
DOROTHY PERKINS, for the Appeal from the
Estate of Alice Perkins, Deceased, United States District Court for the
Plaintiff-Appellant, Northern District of Illinois,
Eastern Division.
v.
No. 13 C 5226
MEGAN J. BRENNAN,
Postmaster General, and Thomas M. Durkin,
UNITED STATES OF AMERICA, Judge.
Defendants-Appellees.
ORDER
Invoking the Rehabilitation Act of 1973, 29 U.S.C. § 794, Dorothy Perkins sued
the United States and the United States Postal Service after her mother died from a
heart attack while at work. The district court dismissed her claim, ruling that it was
untimely because Perkins had not exhausted her administrative remedies. Perkins’s
central argument on appeal is that the limitations period should be equitably tolled
because the Postal Service failed to provide her with documents that she requested. But
No. 14-2896 Page 2
Perkins did not need those documents to exhaust and her mother did not initiate
administrative charges herself, so we affirm.
About a year after her mother, Alice, died from a heart attack on the job at the
post office on July 24, 2012, Perkins sued the U.S. Postal Service for “wrongful death.”
The two had worked together for several years at a mail distribution center in Illinois.
Perkins alleged that the Postal Service knew that Alice suffered from “work related
stress”; that as a result of the stress, she was receiving “medical treatment” to address
“long-term” and “ongoing” workplace harassment from a coworker; that she and her
mother talked about this harassment on the morning of her heart attack; that the heart
attack resulted from an “intense verbal altercation” with the coworker; and that the
Postal Service negligently failed to follow an emergency protocol that would have
prevented Alice’s death.
Perkins amended her complaint two months later to plead a claim under the
Rehabilitation Act for disability discrimination. (She also repleaded her wrongful-death
claims—purportedly against the United States—and added a Title VII claim. These
were later dismissed, and Perkins does not challenge their dismissal.) Before amending
her complaint, she left a voicemail at the Postal Service’s Equal Employment
Opportunity Office in September 2013 about the new claim. Without waiting for a
response from that office, she filed the amended complaint, which alleged that the
Postal Service had violated the Act by ignoring Alice’s “multiple pleas for relief” from
the harassment and failing to reasonably accommodate her resulting illnesses. After she
amended, she received letters from the EEO office denying her efforts to initiate
administrative charges on Alice’s behalf as untimely.
The Postal Service moved to dismiss the Rehabilitation Act claim and, in the
alternative, asked for summary judgment. It argued that Perkins lacked standing, failed
to exhaust properly, and alleged insufficient facts. To support its exhaustion defense,
the Postal Service attested that its EEO office had no record of any contact concerning
Alice until Perkins left her voicemail in September 2013. Perkins had three responses.
First, Alice had brought complaints of discrimination “to the attention of USPS union
officials” and “was not aware of any other effective means of redress.” Second, the EEO
process “would not have appealed to” Alice if she had known about it because she
would have feared retaliation. Third, the time to contact the EEO should be equitably
tolled because the Postal Service had never provided Perkins with internal reports
detailing the circumstances of Alice’s death. Perkins added that Alice had suffered from
mental-health issues, asthma, anxiety, and diabetes.
No. 14-2896 Page 3
The judge dismissed the complaint. He concluded that Perkins had standing to
bring the Rehabilitation Act claim but that the suit was untimely because Perkins
waited more than a year after her mother’s death to initiate contact with an EEO
counselor. The complaint also failed to state a claim because though Perkins alleged that
her mother was ill with stress, she did not allege how her illness qualified her as
disabled under the Act.
As a threshold issue, the Postal Service maintains that Perkins does not have
standing to bring a claim on her mother’s behalf. First, it observes that the EEOC does
not permit a deceased employee’s estate to initiate the process of exhausting a
discrimination claim that the employee could have initiated while alive. See, e.g., Estate
of Krinsky v. Potter, No. 0120070431, 2007 WL 715558 (E.E.O.C. Mar. 2, 2007); Estate of
Anderson v. Potter, No. 01A33998, 2003 WL 22288515 (E.E.O.C. Sept. 23, 2003). Second, it
cites two district-court orders dismissing employment-discrimination claims for failure
to exhaust where the deceased employee’s estate sought to litigate claims that the
employee did not initiate administratively while alive. See Hardy v. Powell, 314 F. Supp.
3d 359, 364 (D.D.C. 2018); Wright ex rel. Wright v. United States, 914 F. Supp. 2d 837, 842
(S.D. Miss. 2012). But the EEOC’s policy does not bind this court. See, e.g., O’Neal v. City
of New Albany, 293 F.3d 998, 1009 (7th Cir. 2002). And this authority suggests that the
real issue with a representative trying to initiate an administrative claim on behalf of a
decedent is a failure to timely exhaust, so we turn to exhaustion and how the parties
formulate it.
The principal issue in this appeal is whether Alice’s Rehabilitation Act claim was
timely exhausted. If postal workers do not timely exhaust administrative remedies
before bringing claims under the Rehabilitation Act, those claims are time-barred.
See Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996). Exhaustion requires two steps:
initiating precomplaint counseling with an EEO counselor at the Postal Service within
45 days of the challenged action and timely filing a formal EEO complaint at the Postal
Service. 29 C.F.R. § 1614.105(a); Miller, 77 F.3d at 191.
In rare cases the doctrine of equitable tolling may permit a claim that would
otherwise be untimely to proceed. See, e.g., Madison v. U.S. Dep’t of Labor, 924 F.3d 941,
946–47 (7th Cir. 2019). The plaintiff bears the burden of showing that though she
“diligently” pursued her claim, “extraordinary circumstances” beyond her control
prevented her from acting timely. See Menominee Indian Tribe of Wis. v. United States,
136 S. Ct. 750, 756 (2016); Sparre v. U.S. Dep’t of Labor, 924 F.3d 398, 402–03 (7th Cir.
2019). In discrimination cases courts have applied equitable tolling when a plaintiff
No. 14-2896 Page 4
made a good-faith error, such as timely filing in the wrong court, see, e.g., Threadgill v.
Moore U.S.A., Inc., 269 F.3d 848, 850 (7th Cir. 2001), or when a plaintiff, acting diligently,
could not obtain information necessary to learn that she had a claim within the
statutory period, see Jones v. Res-Care, 613 F.3d 665, 670 (7th Cir. 2010). We review
decisions denying equitable tolling for abuse of discretion. See Sparre, 924 F.3d at 401.
The district court reasonably concluded that equitable tolling is not warranted in
this case. First, while Alice was alive, she inexcusably failed to contact an EEO
counselor about the discrimination she experienced. According to Perkins, that
discrimination was “ongoing,” “long-term,” and produced “work related stress,” but
Alice never mentioned it to an EEO counselor. Perkins’s explanations for that inaction
are insufficient to warrant tolling. In the district court, she argued that Alice thought
that she could exhaust by talking to her union representatives. A litigant’s ignorance of
the correct EEO procedures, however, does not entitle her to equitable tolling if she
could be reasonably expected to know about them. See Johnson v. Runyon, 47 F.3d 911,
918 (7th Cir. 1995). Alice was a long-time employee at the post office, so the judge could
reasonably infer that she knew about workplace remedies and procedures.
Perkins also argued that proper exhaustion “would not have appealed to [Alice]”
because of a fear of retaliation. But that fear does not excuse failing to exhaust because
the law provided Alice with a remedy for retaliation. See 29 U.S.C. § 794a; Anderson v.
Donahoe, 699 F.3d 989, 994 (7th Cir. 2012). And Perkins noted that her mother suffered
from a variety of mental and physical illnesses. But she did not explain how they
disabled Alice from properly exhausting.
Finally, at oral argument Perkins suggested that while her mother was alive, she
could not have brought her claim that the Postal Service failed to accommodate her
medical needs to an EEO counselor. But this argument was not briefed and, in any
event, is unsupported.
Moreover, even if the district court should have excused Alice’s failure to contact
an EEO counselor, Perkins needed to provide a good explanation for why she waited
over a year after Alice’s death to initiate contact. She offers one reason: The Postal
Service withheld its internal reports about her mother’s death, preventing her from
learning that it had failed to accommodate her mother’s disabilities. She observes that
29 C.F.R. § 1614.105(a)(2) authorizes extending the limitations period for initiating
contact if the claimant “did not know … that the discriminatory matter or personnel
action occurred.” Without the details in those reports, she argues, she did not know that
the Postal Service had violated the Rehabilitation Act.
No. 14-2896 Page 5
But Perkins’s desire for the reports does not excuse her failure to contact an EEO
counselor within 45 days of Alice’s death. In her complaint Perkins alleged that the
Postal Service ignored Alice’s “stress,” which arose from unremediated harassment and
required medical treatment, and that the two talked about this problem on the date of
her mother’s death. Because Perkins was aware on September 24, 2012, of the facts on
which she now bases her current claims of discrimination and failure to accommodate,
the judge reasonably concluded that she did not need to wait over a year to contact an
EEO counselor. Moreover, when Perkins called the Postal Service’s EEO office in
September 2013 to complain about the Postal Service’s discrimination against Alice and
its failure to accommodate her disabilities, she still had not received the reports she
wanted. Thus, she was able to make that call (and even amend her federal complaint to
allege the Rehabilitation Act claim) without the documents that she now says she
needed to know that her mother had those claims. Based on these facts, the district
court did not abuse its discretion by refusing to toll the limitations period.
AFFIRMED