The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Rochelle Davenport has filed a complaint of employment discrimination against her former employer John E. Potter, Postmaster General of the United States Postal Service. Davenport alleges that she was improperly terminated from her employment with the Postal Service in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16; the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112(a); the Rehabilitation Act, 29 U.S.C. § 791(g); and 42 U.S.C. § 1981.
Potter has moved to dismiss the complaint for failure to state a claim, or in the alternative for summary judgment. He argues that Davenport failed properly to exhaust internal equal employment opportunity (EEO) remedies within the Postal Service before filing suit. Title VII, the ADA, and the Rehabilitation Act each require exhaustion of administrative remedies as a prerequisite to filing suit (though 42 U.S.C. § 1981 does not). See 42 U.S.C. § 2000e-16(c) (Title VII); 42 U.S.C. § 12117(a) (ADA); McGuiness v. U.S. Postal Service, 744 F.2d 1318, 1319 (7th Cir. 1984) (Rehabilitation Act). Equal Employment Opportunity Commission regulations require that federal employees exhaust administrative remedies by, among other things, seeking equal employment opportunity (EEO) counseling within forty-five days of the date of the alleged discrimination. 29 C.F.R. § 1614.105(a)(1). According to Potter, Davenport failed to satisfy this requirement.
For the following reasons, the Court denies Potter's motion.
Davenport is an African-American woman who worked as a mail carrier for approximately twelve years. She appears to claim that she was injured on the job in September 2003. As a result, Davenport says, she was restricted in the work she could perform. She remained employed by the Postal Service following the injury, though it is unclear whether she worked as a full time or part time employee.
Sometime in 2005, the Postal Service terminated Davenport's employment. Exactly when this occurred appears to be disputed, a point that the Court will address momentarily. The parties appear to agree that Davenport sought EEO counseling on October 12, 2005. For various reasons, Potter argues that this does not satisfy the requirement that Davenport exhaust administrative remedies in timely fashion before filing suit in court.
The basis for Davenport's claims in this case is less than crystal clear from the papers she has filed. The Court believes, however, that it has been able to sort out what Davenport is claiming, at least to the extent necessary to rule on Potter's motion to dismiss or for summary judgment.
Davenport's initial pro se complaint was filed on a form provided by the Clerk. Because Davenport had not filled in a number of the sections on the form, the Court directed her to submit an amended complaint, using the same form. In her amended complaint, Davenport stated that she was pursuing claims of disability discrimination and race discrimination.
See Am. Compl. ¶¶ 9 & 10. She stated that her claim involved denial of employment and failure to accommodate her disabilities. See id. ¶ 12. Somewhat confusingly, however, Davenport alleged that the discrimination took place on or about November 18, 2005 -- even though she said she had filed a complaint about discrimination two months earlier than that, on September 18, 2005. Id. ¶¶ 6 & 7.
In his motion seeking dismissal or summary judgment, Potter relied, understandably, on Davenport's allegation that she had been discriminated against on November 18, 2005. He submitted evidence that Davenport had not pursued any internal Postal Service EEO remedies after that date and that Davenport's only internal EEO claim was one that she had submitted on October 12, 2005. Potter therefore argued that Davenport could not pursue a claim based on discrimination in November 2005 because she had failed to exhaust internal EEO remedies with regard to that claim. Potter also argued that if Davenport intended to assert, in this case, the same claim she had made in her October 12, 2005 internal EEO complaint, that internal EEO complaint had been made too late, because it challenged Davenport's termination, which Potter said had taken place on June 14, 2005.
In her response to Potter's motion, Davenport stated that she made an initial complaint in June 2005.*fn1 As best as the Court can determine, Davenport must be referring to a verbal complaint; she has provided no copy of a written June 2005 complaint. In her response, Davenport contended that after making this complaint, she was harassed for a period of time and then was terminated. In her response, Davenport stated that after she was terminated, she prepared a written complaint, dated September 24, 2005, a copy of which she attached to her response to Potter's motion.
In her September 24, 2005 written complaint, Davenport provided information regarding when Davenport claims she was terminated. Specifically, she alleged that on September 9, 2005, she was called to her manager's office and was told to leave without punching out on the time clock. When she asked why, she was told that she had to be "clear[ed]" by the medical department. She went to the medical department but was eventually sent to see a Postal Service employee named Helen Loften. Loften allegedly advised Davenport that she was terminated, "effective June 2005," but did not tell her why. In her written complaint, Davenport stated that she believed she had been terminated due to her gender, her complaints about heavy work, and an injury she had suffered on the job in September 2003.
In her response to Potter's motion, Davenport also states that she also filled out a Postal Service EEO complaint form, attached to her response as exhibit C. (This, the Court assumes, is the same document that Potter identifies as Davenport's internal complaint submitted on Octoebr 12, 2005.) ...