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Graham v. United Parcel Service

October 1, 2007


The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge


Plaintiff Marla Graham ("Graham") has brought a complaint against her former employer, United Parcel Service ("UPS"), alleging that UPS discriminated against her, failed to reasonably accommodate her, and retaliated against her in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12201 et seq. ("ADA"), and violated the Employee Retirement Income Security Act, 29 U.S.C. § 1132 et seq. ("ERISA") by terminating her in order to keep her from participating in its employee welfare, pension and health benefit programs. UPS has brought a motion to dismiss Graham's claims under various theories, and has also brought a motion to transfer this action to the Western Division of the Northern District of Illinois. For the following reasons, I deny both motions.


Graham's complaint alleges that she was employed by UPS beginning in November of 1996. (Compl. ¶ 8.) In 2000 or 2001 she was diagnosed with epilepsy, and told UPS of this diagnosis. (Id. at ¶ 11.) Graham took a brief period of physician-ordered leave, but subsequently returned to her job. (Id. at ¶ 12.) In June of 2004, she again took physician-ordered leave, and both her physician and her employer considered her disabled at that time. (Id. at ¶¶ 13-15.) When her physician allowed her to return to work under certain restrictions in February of 2005, UPS refused to allow her to return to work. (Id. at ¶ 16.) Each time her physician subsequently amended her medical limitations to attempt to allow her to return to work, UPS refused to accommodate the physician's recommended restrictions. (Id. at ¶¶ 17-20.) Graham alleges that although she could have performed her job with reasonable accommodation, UPS terminated her without justifiable cause. Graham has attached to her complaint a copy of the notice of right to sue letter she received from the Equal Employment Opportunity Commission ("EEOC") on February 12, 2007.

Graham brings claims for (1) violation of the ADA for receiving different treatment and being subject to adverse action because of her disability (Count I); (2) violation of the ADA for failing to reasonably accommodate her disability (Count II); (3) violation of the ADA for retaliation (Count III); and (4) violation of ERISA for terminating her in order to deprive her of participation in UPS's benefit programs (Count IV).


To resolve UPS's motion to dismiss, I must accept all well-pled facts in Graham's complaint as true. Thompson v. Illinois Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). I must view the allegations in the light most favorable to Graham. Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). Dismissal of a claim is proper if Graham has not, at minimum, made enough factual allegations to raise a right to relief above a "speculative level." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (citations omitted). In addition to the allegations contained in Graham's complaint, I may consider the attachments to the complaint. See FED. R. CIV. P. 10(c); Help at Home, Inc. v. Med. Capital, LLC, 260 F.3d 748, 752 (7th Cir. 2001) (citation omitted). I may also consider Graham's EEOC charge, which UPS attaches to its motion to dismiss, because this is referred to in Graham's complaint and is central to her claim. See Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993).



UPS first argues that Graham's ADA claims (Counts I, II and III) are barred by the statute of limitations. Graham alleges that UPS first refused her request to return to work around February of 2005, and then refused to accommodate a series of amended restrictions on or about May 17, 2005, July 29, 2005 and December 2, 2005. (Comp. ¶¶ 16-20.) UPS contends that because the first alleged denial of Graham's request to return to work was more than 300 days before she filed her EEOC charge, all of her ADA claims are barred. Graham responds that the continuing violation doctrine applies so that as long as the last complained-of violation occurred within 300 days, her claims are not barred.

Although the statute of limitations is an affirmative defense that a plaintiff normally need not anticipate or negate in a complaint, dismissal of a complaint is appropriate where a complaint reveals on its face that it is barred by the relevant statute of limitations. Tregenza v. Great Am. Communications Co., 12 F.3d 717, 718-19 (7th Cir. 1993). As UPS notes, it is true that under the ADA a plaintiff must file an EEOC charge within 300 days of the discriminatory act about which she complains. 42 U.S.C. § 12117(a) (providing that the complaint procedures under Title VII, set forth in 42 U.S.C. § 2000e-5, apply to complaints under the ADA). Graham's EEOC charge was filed on May 10, 2006; the 300 day charging period began to run on July 13, 2005. This is well after the time that Graham alleges UPS first denied her reasonable accommodation, began retaliating against her, and discriminated against her in violation of the ADA, although it is before the last occasion on which Graham alleges such violations occurred.

The parties correctly recognize that the key question is whether, taking the facts as alleged in Graham's complaint as true, the continuing violation doctrine applies to her claims. In Nat'l R.R. Passenger Corp. v. Morgan, the Supreme Court addressed the continuing violation doctrine in the Title VII context.*fn1 536 U.S. 101 (2002). It reviewed previous precedent on the continuing violation doctrine and distinguished the application of the doctrine to hostile work environment claims from its application to "discrete discriminatory acts." Id. at 113. Hostile work environment claims involve "repeated conduct" that only become actionable over time, so that any portion of the hostile work environment that occurs within the charging period renders the entire time period of the hostile work environment actionable. Id. at 115-17.

Discrete discriminatory acts are treated differently, however. Discrete discriminatory acts include "termination, failure to promote, denial of transfer, or refusal to hire." Id. at 114. The Supreme Court concluded that discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred. The existence of past acts and the employee's prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim.

Id. at 113; see also Ledbetter v. The Goodyear Tire & Rubber Co., 127 S.Ct. 2162, 2169 (2007) (reaffirming Morgan). In Ledbetter the Supreme Court also reiterated that the "discrete act" to be evaluated for purposes of determining when the charging period begins is the act itself and not when the effects of that act are felt. 127 S.Ct. at 2169-71 (holding that allegations that employer violated Equal Pay ...

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