Johnson v. Runyon

Decision Date17 February 1995
Docket NumberNo. 94-2072,94-2072
Citation47 F.3d 911
Parties4 A.D. Cases 102, 8 A.D.D. 656, 6 NDLR P 154 Jessie JOHNSON, Plaintiff-Appellant, v. Marvin T. RUNYON, Postmaster General and U.S. Postal Service, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Jeffrey B. Gilbert, Naomi A. Avendano (argued), Cynthia Janine Sadkin, Legal Assistance Foundation of Chicago, Chicago, IL, for plaintiff-appellant Jessie Johnson.

Charles E. Ex, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Div., Chicago, IL (argued), for defendants-appellees Marvin T. Runyon, Postmaster General, U.S. Postal Service.

Before GOODWIN, * COFFEY and ROVNER, Circuit Judges.

COFFEY, Circuit Judge.

Jessie Johnson appeals from summary judgment granted in favor of the Postal Service. In this employment discrimination action, brought pursuant to sections 501 and 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 791, 794, the district court ruled that Johnson's failure to contact a Postal Service Equal Employment Opportunity ("EEO") counselor within forty-five days after the Postal Service rejected her application for employment barred her subsequent discrimination action. See 29 C.F.R. Sec. 1614.105(a)(1). The district court concluded that Johnson failed to establish any justification, either equitable or embodied in the regulations, for the tolling of the forty-five day limitations period. See id. at Sec. 1614.105(a)(2). We reverse.

I. FACTUAL BACKGROUND

In September 1992, Jessie Johnson applied for a "casual" (temporary) position as a mail handler at the South Suburban Division of the Postal Service in Bedford Park, Illinois. Johnson picked up an employment application at the service window in the public area of the South Suburban Post Office. Johnson subsequently returned to the South Suburban facility to provide a urine sample for a drug test.

After she submitted her employment application, Johnson attended an orientation session at the Fox Valley Post Office on October 7, 1992. At all relevant times during these months, both the South Suburban and Fox Valley facilities displayed EEO notices informing applicants of their rights regarding employment discrimination which specifically set forth the time requirements for contacting an EEO counselor regarding claims of discrimination in the workplace. South Suburban posted notices in its administrative and personnel offices, on the workroom floor and in the front lobby. At Fox Valley, notices were posted on bulletin boards near the employee entrance and in the personnel office. Johnson claims that she never saw any of these notices.

On or about November 2, 1992, Johnson received a letter from the Postal Service dated October 29, 1992, informing her that she would not be hired for the position at South Suburban. The letter advised Johnson that she did not meet the requirements for a temporary position because of a "medical risk restriction." The letter stated in pertinent part, "[c]asual applicants are usually considered on the basis of no risk restrictions." * (Emphasis in original.) 1 When Johnson received the letter, she did not know what the medical problem was which led the Postal Service to reject her application. Therefore, on November 7, 1992, she wrote a letter to the Postal Service to obtain more information about her medical results. Johnson received no response to her letter, much less to her six telephone calls to the South Suburban facility. Meanwhile, Johnson began work at the O'Hare postal facility, in Rosemont, Illinois, from approximately December 4, 1992 through December 29, 1992, in a casual position as a mail handler. EEO notices similar to the ones posted at South Suburban and Fox Valley were displayed in several locations at the O'Hare facility, including in the administrative and personnel offices and on several employee bulletin boards on the workroom floor. The notices at O'Hare, however, incorrectly stated that the time limit in which to contact a Postal Service EEO counselor was 30 days, when in fact it was 45 days. 2

Several weeks later, one of Johnson's friends advised her that she might have a handicap discrimination claim against the Postal Service for its failure to hire her at the South Suburban office. Acting pro se, Johnson attempted to file a charge at the Illinois Department of Human Rights, but the agency referred her to the Equal Employment Opportunity Commission ("EEOC"). When Johnson tried to file a charge with the EEOC, she was advised that she must first consult with the Postal Service's EEO counselor. On March 1, 1993, Johnson filed a request for EEO counseling at the South Suburban office. Three months later, on June 8, 1993, the Postal Service's EEO counselor conducted an initial interview with Johnson. She received a letter from the EEO counselor dated June 21, 1993, informing her that she had been denied the casual position at South Suburban because she suffered from the medical risk restriction of hypertension.

After receiving the June 21, 1993 letter, Johnson filed a formal complaint of handicap discrimination with the Postal Service, alleging that she was denied the casual position because she suffered from hypertension. On August 6, 1993, Johnson received a final agency decision from the Great Lakes Office of Equal Opportunity Compliance rejecting her complaint as untimely because she failed to contact an EEO counselor within 45 days from the date of the receipt of the October 29, 1992 letter, see 29 C.F.R. Sec. 1614.105(a)(1), 3 and also because she failed to demonstrate that she was entitled to an extension of the time limit under 29 C.F.R. Sec. 1614.105(a)(2). 4 On August 30, 1993, Johnson filed a timely appeal with the EEOC Office of Federal Operations which affirmed the agency's decision on November 24, 1993. The Director of the Office of Federal Operations observed that Johnson "should have reasonably suspected discrimination ... when she received the letter on October 29, 1992, informing her that the agency considered her to have a risk restriction."

Johnson then filed this action in the district court pursuant to sections 501 and 504 of the Rehabilitation Act of 1973 ("the Act"), as amended, 29 U.S.C. Secs. 791 and 794, claiming that she was the victim of unlawful handicap discrimination because she was denied a job at the South Suburban postal facility due to her hypertension. The Postal Service filed a motion to dismiss, or alternatively, for summary judgment, contending that Johnson's claim was not timely because she had not contacted the Postal Service's EEO counselor within 45 days of the alleged discriminatory conduct as required by 29 C.F.R. Sec. 1614.105(a)(1).

While Johnson conceded that the 45 day limitations period applied to her claim under section 501 of the Act, she argued that she met each of the four independent criteria for an extension of the time limit under 29 C.F.R. Sec. 1614.105(a)(2), as well as the common law criteria for equitable tolling or estoppel. Specifically, Johnson argued that: (1) she was not notified or otherwise aware of the time limit for contacting the EEO counselor because she did not see any EEO notices at the South Suburban, Fox Valley, or O'Hare postal facilities; (2) she had no reason to believe she had been discriminated against based on physical handicap until she received the June 21, 1993 letter from her EEO counselor informing her that she had been denied the casual position at South Suburban based on the medical risk restriction of hypertension; (3) that despite due diligence in contacting the Postal Service for additional information concerning her medical risk restriction, the agency failed to respond in a timely manner, preventing her from contacting the counselor within the time limit; and (4) that these and other factors, namely that she acted pro se in pursuing her administrative remedies and that the Postal Service did not show that it was prejudiced by her delay in filing, supported an extension of the 45 day time limit. Additionally, Johnson argued that section 504 of the Act creates a private right of action against the Postal Service to which the 45 day limitations period does not apply.

The district court held that Johnson's action was untimely because she failed to contact an EEO counselor within 45 days of learning that she had been denied employment at the South Suburban office. Moreover, the court rejected Johnson's argument that the limitations period should have been tolled. The district court held that the posting of the EEO notices at the Postal Service locations where Johnson had pursued her application for postal work and was actually employed in the fall and winter of 1992 met the notice requirement of 29 C.F.R. Sec. 1614.105(a)(2). Further, the court found that the EEO notices were "prominently displayed" in accessible areas of those postal facilities, and Johnson's apparent failure to see those posters did not create a genuine issue of any material fact. The district court also rejected Johnson's claim that she had no reason to believe that she had been discriminated against because the letter she received on November 2, 1992 did not tell her the specific medical basis for her rejection. The court found that on November 2, Johnson "had sufficient information to bring a claim after reviewing the rejection letter...." Furthermore, the Postal Service was not estopped from relying on the time-bar defense because it "did nothing to stand in the way of Johnson's filing a discrimination claim, nor has any evidence been proffered to show that the Postal Service actively misled her."

Lastly, the court questioned the legal premise of Johnson's section 504 claim, stating that the "overwhelming authority suggests that the federal government cannot be sued under Sec. 504...." The court went on to hold that even if a section 504 claim was cognizable, it would still be subject to the same requirement...

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