The opinion of the court was delivered by: SUZANNE B. CONLON
Plaintiff Jessie Johnson ("Johnson") sues Marvin T. Runyon, Jr., the Postmaster General of the United States Postal Service ("the Postal Service") for discrimination. Johnson alleges that the Post Office has violated sections 501 and 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791 and 794 (1993). The Postal Service moves to dismiss Johnson's complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6) or, in the alternative, for summary judgment pursuant to Fed. R. Civ. p. 56.
The basic facts are not in dispute. In September 1992, Johnson applied for a "casual" (temporary) position as a mail handler in the South Suburban division of the Postal Service in Bedford Park, Illinois. Complaint P 7. On approximately November 2, 1992, Johnson received a letter dated October 29, 1992, informing her that she would not be hired because "you've been medically determined to have a risk restriction. Casual applicants are usually considered on the basis of no risk restrictions." Id. at P 11 (emphasis in original). On November 7, 1992, Johnson wrote to the Postal Service medical unit requesting additional information concerning her medical examination. Id. at P 13. Johnson did not receive a response to her letter, nor to her numerous phone calls to the South Suburban division of the Postal Service. Id. at PP 14-15.
Johnson attempted to file a charge of handicap discrimination against the Postmaster General of the United States Postal Service at the Illinois Department of Human Rights, but that agency referred her to the Equal Employment Opportunity Commission in Chicago, Illinois ("the EEOC"); when Johnson attempted to file a charge with the EEOC, the EEOC advised Johnson that she must first consult with an Equal Employment Opportunity ("EEO") counselor at the Postal Service. Id. at PP 16-17. On March 1, 1993, Johnson filed a request for EEO counseling at the South Suburban division of the Postal Service. Id. at P 18. On June 8, 1993, the EEO department, Central Illinois Customer Service District in Bedford Park, Illinois, conducted an EEO counseling initial interview with Johnson. Id. at P 19. In late June, Johnson received a letter from the Postal Service's EEO counselor dated June 21, 1993, informing her that she had been denied a casual position based on the risk restriction of hypertension. Id. at P 20.
Johnson was employed by the O'Hare division of the Postal Service from approximately December 4 through 29, 1992, in a temporary casual position as a mail handler. Id. at P 30. Johnson was employed by the Downtown Chicago (Main) division of the Postal Service from approximately November 1 through December 23, 1993, in a temporary casual position as a mail handler. Id. at P 31.
Since the court relies on affidavits submitted by both sides in addition to their briefs, the Postal Service's motion shall be treated as a motion for summary judgment. See Fed. R. Civ. P. 12(b). A movant is entitled to summary judgment under Rule 56 when the moving papers and affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). In considering a motion for summary judgment, this court must consider all evidence in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Unterreiner, 8 F.3d at 1209. The nonmoving party must go beyond the pleadings and set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 248; Stewart, 5 F.3d at 1033.
Johnson brings her suit under Sections 501 and 504 of the Rehabilitation Act, 29 U.S.C. §§ 791, 794 (1993). Section 501 imposes an affirmative duty upon federal agencies "to structure their procedures and programs so as to ensure that handicapped individuals are afforded equal-opportunity in both job assignment and promotion." McWright v. Alexander, 982 F.2d 222, 225 (7th Cir. 1992) (citations omitted). Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, prohibits discrimination based on an individual's handicap under "any program or activity conducted by any Executive agency or by the United States Postal Service." Id. The applicable regulations state: "an aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory." 29 C.F.R. § 1614.105(a)(1) (1993).
The administrative deadline requiring Johnson to bring her discrimination complaint to the attention of an EEO counselor within 45 days of the conduct giving rise to the complaint is construed as a statute of limitations rather than a jurisdictional prerequisite. Rennie v. Garrett, 896 F.2d 1057, 1062-63 (7th Cir. 1990). Thus, Johnson must be allowed to offer equitable arguments to excuse her failure to comply with the deadline. Id. at 1062; see also Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990) (holding that "the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States" in a Title VII case). In addition, the regulations themselves articulate circumstances warranting the extension of the 45-day time limit:
when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been [sic] known that the discriminatory matter or personnel action occurred, 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 for other reasons . . . .
29 C.F.R. § 1614.105(a)(2) (1993).