The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Rochelle Davenport filed this suit against John E. Potter, Postmaster General of the United States, under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112(a). Davenport alleges that the Postal Service discriminated against her on account of her race and alleged disability when it terminated her. Potter has moved for summary judgment on the ground that Davenport did not pursue the necessary administrative remedies in a timely fashion. For the following reasons, the Court denies Potter's motion.
Potter previously filed a motion to dismiss or for summary judgment raising essentially the same issue he asserts in the present motion. Specifically, Potter argued that Davenport failed to initiate administrative remedies in a timely fashion. Exhaustion of administrative remedies is a prerequisite to suit under the ADA. Under applicable regulations, a federal employee must seek internal EEO counseling within forty-five days of the date of the alleged discrimination. 29 C.F.R. § 1614.105(a)(1).
The Court denied both of Potter's motions on May 30, 2007. The Court denied the motion to dismiss because Davenport's complaint lacked any indication that her resort to EEO counseling was untimely. The Court denied the motion for summary judgment because Potter presented no evidence that Davenport was notified of her termination on a date early enough to establish that her pursuit of EEO counseling was untimely. Davenport v. Potter, No. 06 C 4614, 2007 WL 1576551, at *3 (N.D. Ill. May 30, 2007).
Potter has now filed a second motion for summary judgment, again arguing that Davenport failed to seek EEO counseling within forty-five days after the alleged discrimination. The parties agree that Davenport first sought EEO counseling regarding the termination on October 12, 2005. Pl. Resp. at 1; Def. LR 56.1 Statement of Material Facts ¶ 23. This was untimely if Davenport was notified of the termination before August 28, 2005.
Davenport began working as a mail carrier for the Postal Service in February 1994. Pl. Resp. at 2. During September 2003, she injured her ankle while working, leaving her unfit to work, but she remained employed with the Postal Service while receiving worker's compensation benefits. Id. ¶¶ 2-3. On May 24, 2005, Davenport underwent surgery for her injury; she contends she regularly informed the Postal Service of her medical condition. Id. ¶¶ 3-5. She says she returned to work on September 9, 2005 on her doctor's advice. Id. ¶ 3 & Ex. L. Potter contends that the Postal Service suspended and then "removed" (terminated) Davenport in June 2005 because she had failed to report to work as ordered on May 31, 2005. On June 14, 2005, the Postal Service sent Davenport a notice of removal by certified mail to her home address, of 6150 S. Marshfield, Chicago, Illinois 60636. Def. Ex. 6. On the outside of the envelope, the word "Removal" was written, though in a marginally legible scrawl. Id. The envelope also has the word "refused" written on it, and it is stamped "refused"; it was returned to the Postal Service. Potter has submitted an affidavit from Charles Bates, Jr., who worked (and still works) the route that includes the 6100 block of South Marshfield. Bates says that the word "refused" on the envelope is in his handwriting. He also says that he knows Davenport from their work together at the Postal Service. According to Bates, "within approximately a week of June 14, 2005, I attempted to deliver this envelope to Ms. Davenport and she refused to accept it or sign for it." Bates Affid. ¶ 4.
Potter has also submitted a letter that Davenport wrote "to whom it may concern" on September 12, 2005, apparently (or at least in anticipation of) contesting her termination. Def. Ex. 9. In that letter, Davenport stated that "During the middle of June, 2005, I received a notice of removal from my job." Id.
Based on these materials, Potter contends that Davenport was notified of her termination in June 2005, more than forty-five days before she sought EEO counseling, either because she received the letter, because she was put on notice of her removal by the notation on the outside of the letter, or because the letter should be presumed to have been delivered and/or received.
When her deposition was taken in this case, however, Davenport denied receiving or refusing the notice of removal allegedly sent to her home. Def. Ex. 2 at 10. Davenport has also submitted affidavits -- one of her own and one from a man named Ronald Coleman -- to the effect that in late May 2008, Davenport asked Bates about his affidavit, and he said that he signed it at the direction of a supervisor without looking at it and that he could not possibly have remembered something that had supposedly taken place three years earlier. Pl. Ex. M.
Summary judgment is appropriate under Federal Rule of Civil Procedure 56 when "the pleadings, depositions, answers, to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Because Potter has moved for summary judgment, the Court views the evidence and draws all reasonable inferences in favor of Davenport, the non-moving party. See, e.g., DeValk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987).
The Court finds that there is a genuine issue of fact regarding Davenport's receipt of the notice of removal, precluding entry of summary judgment. Potter relies primarily on Davenport's September 2005 letter, arguing that she admitted receiving the notice of removal in June 2005. In her deposition, however, Davenport denied receiving or refusing delivery of the notice.*fn1
When a subsequent sworn statement contradicts a prior unsworn admission, a genuine issue of fact exists. See Shockley v. City of Newport News, 977 F.2d 18, 23 (4th Cir. 1993) (finding a genuine factual issue when subsequent affidavit contradicted and attempted to explain prior unsworn admissions in a letter); Kibbee v. City of Portland,No. CV-98-675-ST, 1999 WL 1271868, at *4 (D. Or. Dec. 23, 1999) (finding that "unsworn testimony cannot be the basis for striking subsequent and contradictory sworn testimony"). In this Circuit, in Jean v. Dugan, 814 F. Supp. 1401, 1404 (N.D. Ind. 1993), the court ...