Perkins v. Brennan

DOROTHY PERKINS, for the Estate of Alice Perkins, Deceased, Plaintiff-Appellant, v. MEGAN J. BRENNAN, Postmaster General, and UNITED STATES OF AMERICA, Defendants-Appellees.

No. 14-2896

United States Court of Appeals For the Seventh Circuit

Argued June 9, 2020

July 27, 2020

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

Before DIANE S. SYKES, Chief Judge MICHAEL S. KANNE, Circuit Judge MICHAEL B. BRENNAN, Circuit Judge

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 13 C 5226

Thomas M. Durkin, Judge.

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 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.

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 made a good-faith error, such as timely filing in the wrong court, see, e.g., Threadgill v....