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Atiogbe v. Brennan

United States District Court, N.D. Illinois, Eastern Division

May 19, 2017

MEGAN BRENNAN, Postmaster General United States Postal Service, Defendant.


          REBECCA R. PALLMEYER United States District Judge.

         Plaintiff Dede Atiogbe has sued Defendant Megan Brennan in her capacity as Postmaster General of the United States Postal Service. Atiogbe was a USPS employee who went on leave in late 2013, and claims she was subjected to discrimination on the basis of her disability and retaliation in a variety of ways during the period leading up to and during her leave. In particular, Atiogbe claims her health insurance coverage was prematurely terminated. Defendant has moved to dismiss, arguing that Atiogbe did not exhaust her administrative remedies and has failed to state a claim. For the reasons stated below, the motion is granted in part and denied in part.


         The allegations in Atiogbe's complaint are presumed true for this motion. See Stanek v. St. Charles Cmty. Unit Sch. Dist. No. 303, 783 F.3d 634, 637 (7th Cir. 2015). In addition, Atiogbe has made additional allegations in an affidavit attached in her response to Defendant's motion to dismiss. Defendants accept these facts as true for this motion, so the court does so as well. See Hentosh v. Herman M. Finch Univ. of Health Scis./The Chicago Med. Sch., 167 F.3d 1170, 1173 n.3 (7th Cir. 1999) (“[A] plaintiff need not put all of the essential facts in the complaint. He may add them by affidavit or brief in order to defeat a motion to dismiss if these facts are consistent with the allegations in the complaint.”) (internal citation and quotation marks omitted). The court will also consider relevant documents from the EEO administrative proceedings, which Atiogbe refers to in her complaint and which Defendant has attached to its motion. See Yassan v. J.P. Morgan Chase & Co., 708 F.3d 963, 975 (7th Cir. 2013) (“[D]ocuments attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to his claim.”) (internal citation and quotation marks omitted); In re First Chicago Corp. Sec. Litig., 769 F.Supp. 1444, 1450 (N.D. Ill. 1991); see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1327 (3d ed. 2004) (The court may consider “pertinent documents that a plaintiff fails to append to his complaint but that a defendant attaches to his motion to dismiss[.]”).

         I. Atiogbe's Disabilities and Leave Without Pay

         Dede Atigobe is (or was) an employee of the United States Postal Service, where she has worked as a letter carrier.[1] (See Second Am. Compl. (“SAC”) [34] ¶ 11.) The job of a letter carrier entails “lifting, carrying, sorting, climbing, walking, and package delivery.” (Aff. of Dede Atiogbe, Ex. A to Pl.'s Mem. of Law in Opp. to Def.'s Mot. to Dismiss (“Atiogbe Aff.”) [40] ¶ 2.) Atiogbe avers that she is currently qualified to perform these functions. (Id. at ¶ 3.) She also claims she has documented her ability to work from November 2013 to the present.[2] (Id. at ¶ 4.)

         Atiogbe suffers from diabetes, high blood pressure, migraines, fibroids, knee injuries, depression, anxiety, and post-traumatic stress disorder. (SAC ¶ 10.) She complains that she experienced a hostile work environment beginning in 2007 (id. at ¶ 12), and offers specifics about conduct that occurred from 2013 to the present. In late 2013, Atiogbe alleges that she took leave without pay and “provided the necessary paperwork to do so” (she does not say what this paperwork was). (Id. at ¶¶ 13-14.) Atiogbe took this this leave because she was “in and out of the hospital” for conditions she does not identify. (Id. at ¶ 13.) She returned to work on October 29, when she gave her manager, Jacqueline Hudson, a statement from her doctor, and requested unspecified “accommodations.” (Id. at ¶¶ 15-16.) Atiogbe alleges that Hudson “rejected the doctor's statement and requested a more detail[ed] note.” (Id. at ¶ 16.) Atiogbe accordingly provided a more detailed doctor's note, and repeated her request for unnamed “certain accommodations.” (Id. at ¶¶ 17-18.) Atiogbe alleges that her request was “completely ignored” and that “she found herself in a hostile work environment.” (Id. at ¶ 19.)

         For the next several days, Atiogbe alleges, she was required to work without being given breaks to “take medication, nourishment, and rest”-presumably, these are the accommodations she requested. (Id. at ¶ 20.) She complains that Defendant did not follow procedure to determine whether there were positions available where Atiogbe could work with her “restrictions.” (Id. at ¶ 21.) She was required to share a vehicle and a scanner with another employee, [3] which she claims impaired her ability to work effectively. (Id. at ¶ 22.) As a result, Atiogbe alleges, her work environment became “hellish” and she decided to go on leave without pay again, beginning November 11, 2013.[4] (Id. at ¶¶ 23-24.) During her period of leave, Atiogbe alleges, she “was to continue to receive medical benefits from [USPS].” (Id. at ¶ 24.)

         Atiogbe was hospitalized for unidentified treatment from November 13 to November 23, 2013, and remained in an “Intensive Outpatient Partial Hospitalization Program” until March 24, 2014. (Id. at ¶ 25.) She claims that she “submitted the necessary paperwork to secure her employment” during this period. (Id. at ¶ 26.) Yet from January to March 2014, Atiogbe received several five-day-notice letters warning that she had been absent without authorization for more than five days. (Id. at ¶ 27.) One of these notices, dated March 7, stated that Atiogbe had five days “to submit acceptable documentation for [her] absence.” (Ex. A to Mot. to Dismiss [35-1].)

         On March 28, she received a notice that her position with USPS was terminated. (SAC ¶ 28.) Atiogbe alleges that she received these notices because Hudson and another USPS manager named Lisa Frazier “put in paperwork to prematurely terminate [her] employment.” (Atiogbe Aff. ¶ 10; see SAC ¶ 38.) She filed a union grievance on April 1, and she claims that she was “excluded” from the resulting investigation; she does not say whether or to what extent an employee is ordinarily entitled to participate in such an investigation. (SAC ¶¶ 29, 31-32, 65.) The dispute resolution team, which consisted of representatives from both USPS and the union, rescinded her termination on June 19. (Id. at ¶ 32; Ex. D to Mot. to Dismiss [35-4].) In the meantime, Atiogbe was “in constant contact” with USPS Human Resources and the USPS Employee Assistance Program. (Atiogbe Aff. ¶ 13.)

         Despite this favorable resolution, Atiogbe alleges that she received another termination notification (dated June 20) on June 23.[5] (SAC ¶ 33, Atiogbe Aff. ¶ 14; see SAC ¶ 68.) The same day, she spoke to a USPS Labor Relations employee, Barbara Singleton, who told her this second termination notice was an error. (SAC ¶ 35; Atiogbe Aff. ¶ 14.) The next day, Atiogbe spoke to an HR Manager, Debra White (she says no more about the content of this conversation). (SAC ¶ 34.) She also made “investigatory calls” to a variety of other resources, including her “station manager” (Atiogbe does not say who this is), her health insurance company, and her union. (Atiogbe Aff. ¶ 14.) She alleges that she received yet another “[f]ive [d]ay notice of termination”[6] on July 14, which required her to attend an investigatory interview. (SAC ¶ 36.) Atiogbe complained to various (unspecified) USPS employees, and on July 21 she “attended the mandatory investigatory interview with [Frazier] and [u]nion representative James Williams.” (Id. at ¶¶ 37-38.) The court is unaware whether Frazier or Williams conducted the interview, whether Williams was representing Atiogbe, what was discussed, or whether the interview resulted in any further action.

         II. Atiogbe's Health Insurance

         In her complaint, Atiogbe alleges that she received notice on April 30, 2014 that her health benefits would be terminated, though she does not say when this termination would take effect. (SAC ¶ 30.) Defendants, however, have provided a copy of the notice, which is dated February 20, 2014. (Ex. B to Mot. to Dismiss [35-2].) In her subsequent affidavit, Atiogbe effectively concedes the February 20 letter notified her that her health insurance would be terminated, though it is not clear whether she stands by her assertion that she did not receive it until April 30. (Atiogbe Aff. ¶¶ 8-9.)

         Although it was sent before the March 7 and March 28 letters warning that Atiogbe was absent without authorization), the February 20 letter acknowledges that Atiogbe was “in a leave without pay (LWOP) status” beginning November 11, 2013. (Ex. B. to Mot. to Dismiss.) It states that Atiogbe had 31 days to decide whether to continue her health benefits for 365 days, [7]or to terminate her health coverage while on leave without pay. (Id.) The letter also provides that if Atiogbe did not respond, the coverage would continue. (Id.) Atiogbe does not say whether she responded to this letter. She does claim, however, that she expected her benefits to continue for 365 days, so the court assumes that she either opted into the continued coverage or did not respond. (Atiogbe Aff. ¶¶ 8-9.)

         On June 23, 2014, Atiogbe received another letter about her benefits (dated June 20). This letter does refer to Atiogbe's “separation from the U.S. Postal Service” and may be the “separation notice” that Atiogbe claims to have received on June 23. (Ex. F to Mot. to Dismiss [35-6]; Atiogbe Aff. ¶ 14.) Although the February 20 letter stated that Atiogbe's benefits would continue for 365 days, this June letter announced that the benefits had ended on May 2, 2014; the court notes, however, that Atiogbe has not specifically complained about the late notice. (Ex. F to Mot. to Dismiss.)

         On August 8, Atiogbe saw the doctor, and learned during that visit that her health insurance had not covered her last two doctor's visits. (SAC ¶ 41.) Atiogbe does not provide the dates of those previous appointments, but the court presumes they occurred after her benefits terminated on May 2. On August 10, she went to fill a prescription, and someone at the pharmacy advised her that her health insurance had been terminated. (Id. at ¶ 39.) Over the next several weeks, Atiogbe complained to various USPS employees and union representatives about these circumstances. (Id. at ¶ 40.)

         III. Atiogbe's Administrative Complaints

         On July 16, 2014, Atiogbe “put in her request to initiate EEO Counseling.” (Id. at ¶ 69.) She received a letter dated August 5 which “outlined” a “required 10-day response[, ]” but “due [to Atiogbe's] hospitalization and mental state she was unable to reasonabl[y] reply.” (Id.) She does not explain what prevented her from responding to this letter and pursuing the EEO process; in her ...

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