MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Shelia Smith brought this suit against her employer, the United States Department of Veterans Affairs ("VA"), alleging discrimination and retaliation in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. Doc. 1. The VA sought summary judgment on the ground that Smith failed to exhaust her administrative remedies, and the court denied the motion because there was a genuine dispute of material fact on the key question of whether Smith's attorney, Timothy Bridge, received a copy of the VA's final agency decision on or about June 12, 2009. 2012 WL 1597432 (N.D. Ill. May 7, 2012). To resolve that factual dispute, the court conducted an evidentiary hearing to determine whether Bridge had in fact received the VA's final agency decision at that time. Doc. 54.
At the outset of the evidentiary hearing, Smith argued for the first time that she had a Seventh Amendment right to have exhaustion-related factual issues decided by a jury rather than by the court. For the reasons given below, the court holds that Smith's prior express consent to the court's conducting an evidentiary hearing waived any Seventh Amendment right she might have had. The court then goes on to find as a matter of fact, in light of the evidence presented at the hearing and the undisputed evidence presented at summary judgment, that Bridge received a copy of the VA's final agency decision denying her administrative charge on June 12, 2009, and therefore that Smith did not timely seek review of that decision before the Equal Employment Opportunity Commission ("EEOC"). Finally, the court concludes that Smith's failure to exhaust her administrative remedies entitles the VA to judgment on her discrimination claim and on her retaliation claim to the extent it pertains to alleged retaliatory conduct occurring before she filed her formal administrative complaint with the VA.
"Exhaustion is... a condition precedent to bringing a claim under the [Rehabilitation] Act." Teal v. Potter, 559 F.3d 687, 691 (7th Cir. 2009). Thus, a federal employee generally cannot bring in federal court a Rehabilitation Act claim until she exhausts all administrative remedies available under the Act, with the exhaustion requirement being governed by the same rules that apply to suits under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See 29 U.S.C. § 794a (adopting for Rehabilitation Act purposes the procedures set forth in Title VII, including the administrative exhaustion requirement of 42 U.S.C. § 2000e-5); Teal, 559 F.3d at 691 ("Individuals who have suffered discrimination can seek relief [under the Rehabilitation Act] pursuant to the procedures and requirements outlined in Title VII of the Civil Rights Act, which include exhausting administrative remedies prior to bringing suit."). Subject to the doctrines of waiver, estoppel, and equitable tolling, an employee's failure to properly exhaust her administrative remedies warrants the dismissal of her suit. See Teal, 559 F.3d at 693; Smith v. Potter, 445 F.3d 1000, 1006 n.14 (7th Cir. 2006); Ester v. Principi, 250 F.3d 1068, 1071 (7th Cir. 2001); Gibson v. West, 201 F.3d 990, 994 (7th Cir. 2000).
The pertinent exhaustion procedures for federal employees alleging violations of the Rehabilitation Act are as follows. The employee first must seek counseling with her agency's Equal Employment Opportunity ("EEO") office within forty-five days of the allegedly unlawful act. See 29 C.F.R. § 1614.105(a)(1); Smith, 445 F.3d at 1002 n.1, 1006-07. If the employee remains dissatisfied, she must timely file a formal complaint of discrimination with the agency. 29 C.F.R. §§ 1614.105(d)-(e), 1614.106(a)-(b). If the employee requests a hearing, the EEOC appoints an administrative judge to hear the matter. Id. § 1614.109(a). After the administrative judge holds the hearing and renders a decision, the agency must issue a final agency decision. Id. § 1614.110(a). If the employee is dissatisfied with the final agency decision, she has two options: (1) appeal the decision to the EEOC within thirty days of receiving the decision, id. §§ 1614.401(a), 1614.402(a); or (2) bring suit in federal district court within ninety days of receiving the decision, id. § 1614.407(a). Where, as here, the employee is represented by counsel, the thirty-day window for filing an appeal with the EEOC commences when the attorney receives the agency's final decision. Id. § 1614.402(b).
The following facts were not genuinely disputed at the summary judgment stage and are drawn from the court's opinion denying summary judgment. 2012 WL 1597432, at *2. Smith, who has been employed by the VA since 1993, sought EEO counseling at the VA in February 2007 and then filed a formal discrimination complaint with the VA in June 2007. Doc. 31 at 2; Doc. 32 at ¶¶ 2, 3. On May 27, 2009, an administrative judge granted the VA's motion for summary judgment. Id. at ¶ 4. Copies of the decision were sent to Smith and to Bridge. Doc. 33-1 at 11. The decision told the VA: "[w]ithin forty (40) days of receiving this decision and the hearing record, you are required to issue a final order notifying the complainant whether or not you will fully implement this decision." Id. at 8. And the decision told Smith: "If the agency fails to issue a final order, you have the right to file your own appeal any time after the conclusion of the agency's (40) day period for issuing a final order." Id. at 9.
On June 8, 2009, the VA timely issued its final agency decision, which adopted the administrative judge's decision. Doc. 32 at ¶ 5. The decision states that "[w]ithin 30 days of receipt of this final action, the complainant has the right to appeal it to: Equal Employment Opportunity Commission, Office of Federal Operations, " and that "[t]he complainant also has the right to file a civil action in an appropriate United States District Court... within 90 days of receipt of this final action if no appeal to EEOC has been filed; within 90 days after receipt of the EEOC's final decision on appeal; or after 180 days from the date of filing an appeal with the EEOC if there has been no final decision by the Commission." Doc. 28-1 at 14, 15; Doc. 32 at ¶ 6. Copies of the VA's final decision were sent via certified mail to both Smith and Bridge. Doc. 28-1 at 18; Doc. 32 at ¶ 8. The decision never reached Smith, whose envelope was returned to the VA with the notation "Unclaimed." Doc. 40 at ¶ 4; Doc. 33-2 at 15. At the summary judgment stage, the parties genuinely disputed whether Bridge received the envelope that had been sent to him. 2012 WL 1597432, at *3-4. The court resolves that factual dispute below.
Smith filed a Notice of Appeal with the EEOC on August 4, 2009. Doc. 40 at ¶ 6. On May 6, 2011, the EEOC issued an order dismissing Smith's appeal as untimely. Doc. 32 at ¶ 11; Doc. 28-1 at 28-30. The order explains:
A copy of the certified mail return receipt card reveals that the FAD [the VA's final agency decision] was received at the address of [Smith's] attorney of record [Bridge] on June 12, 2009. A review of the FAD reveals that the [VA] properly advised [Smith] that she had thirty (30) calendar days after receipt of its final decision to file her appeal with the [EEOC]. Therefore, in order to be considered timely, [Smith] had to file her appeal no later than July 13, 2009. See 29 C.F.R. § 1614.402(b). [Smith] has not offered a justification for an extension of the applicable time limit for filing her appeal. See 29 C.F.R. § 1614.604(c).
Doc. 28-1 at 28. The decision informed Smith that she had ninety calendar days to file suit in federal court. She did so on August 4, 2011.
If Bridge indeed received the VA's final agency decision on June 12, 2009, then the EEOC correctly determined that she had filed her appeal too late: the appeal was filed on August 4, 2009, more than three weeks after the applicable thirty-day period had passed. But the court cannot defer to the EEOC's holding regarding the timeliness of Smith's appeal, see Smith, 445 F.3d at 1101, and the court denied the VA's summary judgment motion on exhaustion grounds because there was a genuine issue of material fact as to whether Bridge had in fact received the VA's final agency decision on June 12, 2009.
In support of summary judgment, the VA pointed to a signed certified mail return receipt card dated "6-12" and affixed with a signature that a reasonable person could conclude was Bridge's. Doc. 28-1 at 26. Smith responded that Bridge did not sign the return receipt card- which, according to Smith, reflects the signature of a "Tim Brde"-and argued that Bridge did not receive a copy of the VA's final agency decision until May 11, 2011. Doc. 32 at ¶ 9; Doc. 33-2 at 26 (¶¶ 10-11). Smith submitted an affidavit from Bridge averring that he did not receive the final agency decision until May 2011. Doc. 33-2 at 26 (¶¶ 10-11). A reasonable person could conclude from the affidavit that Bridge had not signed the card and had not received the final agency decision until May 2011, in which case Smith's EEOC appeal was not untimely. Because reasonable persons could disagree, summary judgment was inappropriate. See Laouini v. CLM Freight Lines, Inc., 586 F.3d 473, 476 (7th Cir. 2009) ("it is well-established that evidence of proper mailing raises a rebuttable presumption of delivery"); Vincent v. City Colls. of Chi., 485 F.3d 919, 923 (7th Cir. 2007) ("the trier of fact determines whether the presumption of delivery has been overcome").
The court's summary judgment order informed the parties that they should be prepared at the next status hearing "to address the means by which the exhaustion issue will be resolved on the merits-in a pretrial evidentiary hearing before the court, or at trial." Doc. 41. At that status hearing, the court raised but did not resolve the question of whether Smith had a Seventh Amendment right to have a jury make exhaustion-related factual findings. The court then asked whether the parties would consent to have the court decide the exhaustion issue after an evidentiary hearing. The exchange with Bridge went as follows:
Mr. Bridge: I well, summary having been denied, it's a question of fact like any other.
The Court: It's a question of fact on the exhaustion issue?
Mr. Bridge: On the exhaustion issue.
The Court: Right. So, [Defendant is] not going to file summary judgment again on the exhaustion issue. It's going to be resolved at an evidentiary hearing before me, and you're both in agreement on that, is that correct?
Mr. Bridge: I guess, Judge, I have no objection.
The VA's attorney agreed as well. In the minute order issued that day, the court stayed merits discovery, allowed discovery regarding exhaustion to proceed, and stated: "Evidentiary hearing regarding exhaustion is set for 7/11/2012 at 2:00 p.m." Doc. 43. After re-setting the evidentiary hearing, Doc. 53, the court conducted the hearing on August 8, 2012, Doc. 54.
The court first will address Smith's argument, raised for the first time at the evidentiary hearing, that she has a Seventh Amendment right to have a jury decide exhaustion-related factual questions. The court holds that Smith waived any Seventh Amendment right she might have had by explicitly consenting to the evidentiary hearing. Second, the court will set forth its findings of fact and conclusions of law on the exhaustion question. In short, the court finds that the signature on the aforementioned certified mail return receipt card is indeed Bridge's and that Bridge received the VA's final administrative decision on or about June 12, 2009, and therefore that Smith failed to exhaust her administrative remedies. And the court concludes that Smith's failure to exhaust bars her discrimination claim and also her retaliation claim to the extent it is based on alleged retaliatory acts committed ...