United States District Court, N.D. Illinois, Eastern Division
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 early in the case on the ground that Smith had failed to exhaust her administrative remedies. Doc. 26. The court denied the motion due to a genuine and material factual dispute as to whether Smith's attorney, Timothy Bridge, had received on or about June 12, 2009 a copy of the VA's final agency decision denying her formal administrative complaint. Docs. 41-42 (reported at 2012 WL 1597432 (N.D. Ill. May 7, 2012)).
After conducting an evidentiary hearing, Doc. 54, the court issued an opinion finding that Bridge did receive a copy of the VA's final agency decision on or about June 12, 2009, and therefore that Smith had not timely sought review of that decision before the Equal Employment Opportunity Commission ("EEOC"). Docs. 55-56 (reported at 2013 WL 3466841 (N.D. Ill. July 10, 2013)). The court accordingly granted summary judgment to the VA on exhaustion grounds as to Smith's discrimination claim, and also as to her retaliation claim "to the extent that it rests on alleged retaliatory acts occurring before she filed her formal administrative complaint with the VA." 2013 WL 3466841, at *10. (Smith filed her formal complaint on June 25, 2007. Doc. 66 at 19; see also Doc. 33-1 at 13; Doc. 33-2 at 47; Doc. 33-3 at 41.) The court added that "Smith may proceed with her retaliation claim to the extent, if any, it rests on alleged retaliatory acts occurring after she filed her formal administrative complaint with the VA." 2013 WL 3466841, at *10. That said, the court noted that Smith's "[federal court] complaint is not detailed, and the court cannot determine at this stage whether any of the alleged retaliatory acts occurred after Smith filed her formal complaint with the VA." Ibid.
Smith then filed an amended complaint, which alleges that her VA supervisor, Patricia Moss, retaliated against her between January 2007 and May 2007. Doc. 58. The VA has moved under Rule 12(b)(6) to dismiss on exhaustion grounds. Doc. 60. The motion is granted.
In considering the VA's motion, the court assumes the truth of the amended complaint's factual allegations, though not its legal conclusions. See Munson v. Gaetz, 673 F.3d 630, 632 (7th Cir. 2012). The court must also consider "documents attached to the [amended] complaint, documents that are critical to the [amended] complaint and referred to in it, and information that is subject to proper judicial notice, " along with additional facts set forth in Smith's briefs opposing dismissal, so long as those facts "are consistent with the pleadings." Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). The following facts are set forth as favorably to Smith as these materials allow. See Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012).
Smith, who was employed at the Edward Hines Jr., VA Hospital, was diagnosed with breast cancer on or about January 17, 2007, and placed on medical leave from January 29, 2007 to February 16, 2007. Doc. 58 at ¶ 4. Smith was scheduled for daily chemotherapy treatment sessions at a health facility adjacent to the VA Hospital between February 2007 and July 2007. Id. at ¶ 5. On February 23, 2007, Smith's treating physician informed the VA Hospital that Smith should avoid working in wards with ill patients or in areas that might increase her risk of infection. Ibid.
At the time Smith was to begin chemotherapy, she had been assigned to light duty work as a nursing assistant in the Sleep Lab Clinic under the supervision of Sandy Ryerson. Id. at ¶ 6. Ryerson advised Patricia Moss, the Associate Chief Nurse in the Long Term Spinal Cord Care and Rehabilitation Service unit, that Smith had become a "vital member" of the Sleep Lab Clinic and that her removal would negatively impact the Clinic. Ibid. Despite Ryerson's advice, Moss ordered that Smith be reassigned from the VA Hospital to Moss's unit in the Oak Lawn Primary Care Clinic. Id. at ¶ 7. Smith was also charged with absence without leave for missing work on January 26 and 27, 2007. Id. at ¶ 8. Although Smith requested to return to the Sleep Lab Clinic, Moss told Jesse Rosebur, a department chief, that Moss "intended to use her connections in Human Resources and the Director's office to assure that [Smith] will not get the job" in the Sleep Lab Clinic. Id. at ¶ 9. Moss added that "if [Smith] can work for somebody else, she can work for me." Ibid.
On February 28, 2007, the same day that she began her position at Oak Lawn, Smith contacted the VA's Office of Resolution Management ("ORM") alleging that she had been discriminated against when she was charged with absence without leave and reassigned to a different facility. Id. at ¶ 8. On March 1, 2007, Smith met with an EEO counselor to discuss her grievances. Doc. 66 at 10-15. Smith presented two issues to the EEO Counselor: (1) that "she felt she was being discriminated against based on her Disability (Physical) and Reprisal when on 2/28/07 she was charged [absence without leave] for two hours"; and (2) that "she felt she was being discriminated against based on her Disability (Physical) and Reprisal when on 2/28/07 her request for reasonable accommodation [to continue working at the Sleep Lab Clinic] was denied" and she was "assigned to the Oak Lawn Clinic." Id. at 11-13.
Between January and May 2007, Smith used 255.25 hours of sick leave and 163.50 hours of annual leave. Doc. 58 at ¶ 10. In May 2007, Smith applied for a health technician position in the VA Hospital's respiratory division. Id. at ¶ 11. While her application was pending, Moss contacted the human resources department and asked that Smith not be hired for the position. Ibid. Even though Smith was eventually hired, Moss sought to interfere with Smith's employment by contacting Ron Dorushka, Smith's supervisor, during her probationary period and informing him that Smith had acted in a disrespectful manner and had failed to complete her orientation as a nurse's aide. Id. at ¶ 12. Moss also told Dorushka that he should have consulted with Moss before hiring Smith. Ibid.
On June 25, 2007, Smith timely filed a formal administrative complaint with the VA, claiming that she "was discriminated against based on reprisal" when Moss refused to grant her request to remain in the Sleep Lab Clinic and instead "sent her 22 miles to work" at Oak Lawn. Doc. 66 at 19. On August 15, 2007, the EEOC sent Smith a Notice of Acceptance of her complaint. Id. at 20-23. The EEOC's notice characterized Smith's claims as improper treatment "on the bases of disability (physical) and reprisal (prior EEO activity)." Id. at 20-21. On November 20, 2007, Smith sent a "Correction of Basis for Complaint" to a VA employee named Renard, stating: "Per our conversation on November 14, 2007, the basis for my complaint [200J-0578-2007101636] is Disability [Physical]. The basis of reprisal stated in the acceptance letter is incorrect and not related to this complaint." Id. at 25 (brackets in original).
In a brief submitted to the administrative judge on May 31, 2008, the VA proceeded on the assumption that Smith had withdrawn her retaliation claim in its entirety; the VA wrote that because Smith "submitted a correction' to her [EEOC] complaint stating that the reprisal' basis contained in the acceptance letter was incorrect' and not related to her complaint, " the case was "limited to claims of discrimination in regards to [Smith's] AWOL [absence without leave] charge and the temporary detail to Oak Lawn." Doc. 66-1 at 2, 14. Less than two weeks later, on June 11, 2008, Smith submitted a clarification stating that she while she had intended to withdraw her retaliation claim against a person named James York, she had not intended to withdraw her retaliation claim as to Moss. Doc. 73-1 at 2 (stating that Smith "did not advise Ms. Renard that [she] was withdrawing [her] claim of retaliation against the [VA] or Ms. Moss in the instant case"); see Doc. 73 at 4. Indeed, in her counseled briefs to the administrative judge, Smith pressed her claims that Moss had retaliated against her. Doc. 73-1 at 8-11; Doc. 73-2 at 10-14. Responding to the VA's statement that she had withdrawn her retaliation claim in its entirety, Smith expressly asserted that she had withdrawn her retaliation claim only as to York's conduct and not as to Moss's conduct. Doc. 73-2 at 13-14.
That message apparently did not get through to the administrative judge. On May 27, 2009, the administrative judge granted summary judgment to the VA. Doc. 66-1 at 19-25; Doc. 66-2 at 1-3. The judge considered Smith's discrimination claim on the merits and rejected it. Doc. 66-1 at 22-25. The judge did not consider Smith's retaliation claim on the merits, reasoning that Smith had "amended her complaint and withdrew the basis of reprisal." Id. at 19.
On June 8, 2009, the VA timely issued its final agency decision, which adopted the administrative judge's decision. Doc. 28-1 at 13-16. The final agency 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." Doc. 28-1 at 14-15. Copies of the VA's final decision were sent via certified mail to both Smith and her lawyer, Timothy Bridge. Id. at 18. Although Smith did not ...