Table of Authorities
Page(s)
Cases
Cheek v. Western &
Southern Life Insurance Co.,
31 F.3d 497 (7th Cir. 1994)......................................................................... 7
Davis v. American Drug
Stores, Inc., No. 01-3704,
2003 WL 21149063 (N.D. Ill. May 19, 2003).................................. 14–15
Girten v. Town of
Schererville, No. 09-151,
2009 WL 2970388 (N.D. Ind. Sept. 10, 2009) ....................................... 14
Green v. National Steel
Corp., 197 F.3d 894 (7th Cir.
1999)........ passim
James v. U.P.S., Inc., 502 F.3d 1176 (10th Cir. 2007)............................ 9
Kersting v. Wal-Mart Stores,
Inc., 250 F.3d 1109
(7th Cir. 2001).................................................................................... 6–7,
12
Mudgett v. Centegra Health
Sys., Inc., No. 04-6212,
2006 WL 1806390 (N.D. Ill. June 27, 2006).......................................... 14
Ortiz v. Board of Education
of City of Chicago, No. 11-9228,
2013 WL 3353918 (N.D. Ill. July 2, 2013)............................................. 13
Wamack v. Windsor Park Manor, 836 F. Supp. 2d 793
(N.D. Ill. 2011)............................................................................................ 13
Statutes
Americans with Disabilities
Act, 42 U.S.C. §§ 12101 et seq.................. 1
Family and Medical Leave
Act, 29 U.S.C. §§ 2611 et seq....................... 3
42 U.S.C. § 2000e-5(e)(1)............................................................................. 6
42 U.S.C. § 2000e-5(f)(1)............................................................................. 6
42 U.S.C. § 12117(a)................................................................................ 1,
6
Rules and
Regulations
Fed. R. App. P. 29(a).................................................................................... 1
Congress directed the Equal
Employment Opportunity Commission to enforce Title I of the Americans with Disabilities Act, 42
U.S.C. §§ 12101 et seq., by investigating and trying to
resolve charges of discrimination and by litigating cases alleging violations
of the statute. 42 U.S.C. § 12117(a) (giving the EEOC the “powers” and
“remedies” in the relevant sections of Title VII). The Commission has particular expertise on
one of the issues this case presents: namely, whether one can reasonably expect
an EEOC investigation of Whitaker’s charge to address the issue of whether
Milwaukee County failed to reasonably accommodate Whitaker by denying her
request for extended leave. Accordingly, pursuant to Fed. R. App. P. 29(a), the
Commission offers its views.
Whitaker’s charge, which was
filed November 3, 2010, stated that she was then on medical leave, that her
manager had warned her she would be terminated if she did not return to work on
November 8, and that she was “unable to return [then] due to medical reasons.”
The Wisconsin Department of Health Services (“DHS”) in its position statement
to the EEOC acknowledged that Whitaker had asked DHS to extend her leave until
December 28, that DHS had declined to extend her leave beyond November 5, and
that it had terminated Whitaker because she failed to return to work on
November 8. The EEOC investigator addressed whether the respondents had failed
to accommodate Whitaker reasonably when they refused to extend her leave. On
these facts, did the district court err in ruling that Whitaker’s
failure-to-accommodate claim was beyond the scope of her charge?[2]
Joyce Whitaker started
working for Milwaukee County in 2001. App. E, p. 3. In 2008 Whitaker
became an economic support specialist in the county’s welfare department. Id.
In 2009, pursuant to a new state law, DHS took over the county’s welfare
department, but Whitaker remained a county employee for many purposes.
App. E, p. 4; App. B, p. 8, ¶ 50; App. C,
p. 5, ¶ 50.
Whitaker experiences chronic
and at times debilitating low-back pain as a result of an on-the-job injury.
App. O, p. 1, ¶ 2. In June 2010, DHS approved intermittent FMLA
leave for Whitaker, and in August 2010 DHS approved continuous FMLA leave for
her. App. K2, pp. 56, 62. On September 10, DHS informed Whitaker that she
would exhaust her FMLA leave on October 18. App. K2, p. 63. On October 25,
DHS by letter acknowledged that Whitaker had asked the agency to extend her
leave until December 28, but agreed to extend her leave only until Friday,
November 5. App. K1, p. 15; App. K2, p. 64. The letter warned
Whitaker that if she failed to return to work by Monday, November 8, DHS would
“begin the process for medical separation.” App. K1, p. 15.
On November 3 Whitaker filed
a charge with the EEOC stating that she was on a medical leave of absence, that
the county and DHS would terminate her if she did not return to work on
November 8, and that she was “unable to return at that time due to medical
reasons.” App. K2, p. 54. Whitaker did not return to work on November
8, and DHS sent her a letter on November 15 stating that the department planned
to “medically separate [her] from state service” because she had “exhausted all
leave entitlement and remain[ed] unable to work.” App. I, p. 2. On
November 30, DHS sent Whitaker a letter informing her that it had terminated
her as of that date “for medical reasons.” App. I, p. 1.
DHS provided the EEOC a
position statement in December 2010 acknowledging that Whitaker had asked DHS in
October to extend her leave through December 28, but at the same time asserting
repeatedly that Whitaker had requested no reasonable accommodation in
September, October, or November. R-37, p. 16. DHS stated that it
“medically separated” Whitaker because she had exhausted her leave and failed
to return to work on November 8. Id.
The EEOC investigated
Whitaker’s charge. In September 2011, the EEOC investigator assigned to
Whitaker’s charge informed DHS that the EEOC considered Whitaker’s request for
“an extension of leave due to her medical condition . . . to be a
request for a reasonable accommodation.” App. K2, p. 55. The
investigator noted that Whitaker had not used “the specific accommodation
request form,” but the investigator explained that “the ADA does not require
that an employee do so.” Id. The investigator warned DHS that a
recommendation had been made that the EEOC find reasonable cause to believe
that DHS had violated the ADA “by terminating Ms. Whitaker’s employment rather
than granting her request for an extension of medical leave.” Id.
After receiving a
right-to-sue letter, Whitaker sued the county and the state alleging
discriminatory discharge and failure to accommodate her by granting her
additional leave. App. B, p. 20. The district court dismissed
Wisconsin on immunity grounds, R-15, and then granted the county summary
judgment. App. A. The court ruled that Whitaker’s failure-to-accommodate
claims were governed by this Court’s decision in Green v. National Steel
Corp., 197 F.3d 894 (7th Cir. 1999), and accordingly dismissed those claims
as beyond the scope of her EEOC charge. App. A, pp. 10–11. The court
then ruled that Whitaker’s discriminatory-discharge claim should be dismissed
because her joint-employer argument was procedurally barred and because during
2010 the county was no longer acting as her employer and had no role in her
termination. App. A, pp. 11–16.
An
ADA plaintiff must file a charge with the Commission before suing. 42 U.S.C.
§ 12117(a); 42 U.S.C. §§ 2000e-5(e)(1), (f)(1). Claims in a complaint are
subject to dismissal if they are deemed beyond the scope of the charge. The
rule in this Court, as in many courts of appeals, is that
a plaintiff is barred from
raising a claim in the district court that had not been raised in his or her
EEOC charge unless the claim is reasonably related to one of the EEOC charges
and can be expected to develop from an investigation into the charges actually
raised.
Green v. Nat’l Steel Corp., 197 F.3d 894, 898 (7th Cir. 1999). Claims are
“reasonably related” to an EEOC charge “if there is a factual relationship
between them.” Kersting v. Wal-Mart Stores, Inc., 250 F.3d 1109, 1118
(7th Cir. 2001). That means that “‘the EEOC charge and the complaint must, at
minimum, describe the same conduct and implicate the same individuals.’”
Id. (quoting Cheek v. Western & S. Life Ins. Co., 31 F.3d
497, 501 (7th Cir. 1994) (emphasis in Cheek). Under these rules,
Whitaker’s failure-to-accommodate claim was reasonably related to the
allegations in her charge and therefore should not have been dismissed as
beyond the scope of her charge.
In
holding that Whitaker’s failure-to-accommodate claim went beyond the scope of
her charge, the district court ruled that this case is governed by Green,
197 F.3d at 898. The district court erred in dismissing this claim on that ground
because this case should be distinguished from Green on its facts.
Cynthia
Green, the plaintiff in Green, suffered from various physical and mental
disabilities. She became an employee in National Steel’s human relations
department. Employees in that department were barred from working overtime
without prior authorization and from removing documents from the department.
Green’s supervisor observed her leaving the department with five computer
disks, and the company investigated Green’s conduct. As a result of the
investigation, the company concluded that Green had altered her own personnel
records in several ways in her favor and had broken the rules about removing
department documents and working unauthorized overtime. The company fired her
for that misconduct. Green filed a charge alleging only that she had been
terminated because of her disabilities. Green, 197 F.3d at 895–97.
Green
sued and alleged in her complaint not only that the company had fired her
because of her disabilities, but also that, during her work tenure, the company
had failed to accommodate her disabilities by providing appropriate parking and
lighting and a suitable desk chair. The district court ruled that her
failure-to-accommodate claim was beyond the scope of her charge, and this Court
affirmed. Id. at 897–98.
This
Court noted that “[a] claim for failure to accommodate is separate and distinct
under the ADA from one of disparate treatment because of a disability” and “the
two types of claims are analyzed differently under the law.” Id. Looking
at the particular facts of the case, the Green Court stated that it
could not “understand how [Green] could expect that her claim that she suffered
from inadequate working conditions would develop from the investigation of the
reasons for her discharge.” Id. at 898. “Even assuming that
National did fail to accommodate Green’s alleged disability” by failing to
provide her with suitable lighting, seating, and parking, the court emphasized
that “that has nothing to do with her complaint that she was wrongfully
terminated.” Id.[4]
Underlying
Green, then, is the Court’s understanding that an EEOC investigation of
the disputed reasons for Green’s termination would focus on whether the
company’s stated reasons for firing her (changing her own personnel records and
breaking the document-removal and unauthorized-overtime rules) were pretextual
and whether the company instead fired her because of her disabilities. Id.
Since the company’s reasons for firing her had nothing to do with any need for
accommodations and her charge failed to mention such a need, the Court did not
expect an EEOC investigation to encompass the accommodation issue. Id.
at 898.
Unlike
Green’s, Whitaker’s failure-to-accommodate claim is reasonably related
to the discriminatory-discharge allegation in her charge because any EEOC
investigation of Whitaker’s charge would need to address whether it would have
been reasonable to accommodate her by extending her leave. Whitaker’s charge
states that she was about to be terminated because she was “unable
. . . due to medical reasons” to return to work on November 8, the
date DHS had imposed. App. K2, p. 54. One can expect that an
investigation into that charge would seek to determine why DHS had directed
Whitaker to return to work on November 8, and that inquiry presumably would
reveal that Whitaker had asked DHS to extend her leave beyond November 5 and
that DHS had denied that request.
Likewise,
while the employer’s reason for terminating Green had nothing to do with her
requests for accommodations, here the reason DHS gave for terminating Whitaker
was that she had “exhausted all leave entitlement and remain[ed] unable to
work.” App. I, p. 2. Indeed, DHS’s November 15 letter notifying
Whitaker that the department planned to “medically separate [her] from state
service” acknowledged that she had asked DHS to extend her leave until late
December. App. I, p. 2. Moreover, the position statement that DHS
sent to the EEOC responding to Whitaker’s charge stressed that during her
approved leave in the Fall of 2010 Whitaker “did not at any point request any
kind of reasonable accommodation,” even though the statement acknowledged that
Whitaker had requested that her leave be extended until late December. R-37,
pp. 15–16.
Finally,
this case is distinguishable from Green because here, unlike in Green,
we know that the Commission’s investigation in fact addressed Whitaker’s claim
that the county failed to accommodate her when it refused to extend her leave.
The investigation led to a recommendation that the Commission find reasonable
cause to believe that DHS had violated the ADA “by terminating Ms. Whitaker’s
employment rather than granting her request for an extension of medical leave.”
App. K2, p. 55.
Thus
in this case, unlike in Green, the failure-to-accommodate claim in
Whitaker’s complaint and the discriminatory-discharge allegation in her charge
“describe the same conduct and implicate the same individuals”:[5] that is, Whitaker’s request that her medical leave be
extended until late December and DHS’s response (in its October 25 and November
15 letters) that it would not extend her leave beyond November 5. App. K2,
p. 14; App. K1, p. 15; App. I, p. 2.
Accordingly,
in cases like this, where the employer denies an employee’s request for an
extension of medical leave and fires her for not returning to work, the
employee’s failure-to-accommodate claim is based on the same facts as the
discriminatory-discharge allegation in her charge and should not be dismissed
as beyond the scope of the charge. In such cases it is highly likely that an
EEOC investigation of the charge would address whether extending the leave was
a reasonable accommodation. See, e.g., Wamack v. Windsor Park Manor,
836 F. Supp. 2d 793, 798–99 (N.D. Ill. 2011). In Wamack the charge
alleged that the employer had “refuse[d] to rehire [Wamack] upon completion of
leave,” and his complaint alleged that his employer failed to accommodate him
during his leave for depression by denying his request for extended leave or
for a temporary part-time schedule. The employer moved to dismiss the
accommodation claim under Green, but the district court ruled that Green
was “distinguishable on its facts” because Wamack’s accommodation and
refusal-to-rehire claims “ar[o]se from the same core of facts,” and the facts
underlying the two claims were “inextricably intertwined.” Id. at
798–99.
Other
district courts in this circuit have ruled similarly. See Ortiz v. Bd. of
Educ. of City of Chicago, No. 11-9228, 2013 WL 3353918, *4–5 (N.D. Ill.
July 2, 2013) (denying defendant’s motion to dismiss plaintiff’s failure-to-accommodate claim because an
investigation into defendant’s reason for terminating plaintiff—that he came to
work under the influence of alcohol—may well have uncovered the facts
underlying his accommodation claim); Girten v. Town of Schererville, No.
09-151, 2009 WL 2970388, *2–3 (N.D. Ind. Sept. 10, 2009) (distinguishing Green
and denying defendant’s motion to dismiss plaintiff’s failure-to-accommodate claim where plaintiff’s EEOC charge alleged only discriminatory
discharge but “both of Girten’s ADA claims arise from the same series of events
involving the same people during the first week of April 2008. Anyone
investigating these events would have necessarily uncovered both claims.”); Mudgett
v. Centegra Health Sys., Inc., No. 04-6212, 2006 WL 1806390, *4–5 (N.D.
Ill. June 27, 2006) (denying defendant’s motion to dismiss plaintiff’s failure-to-accommodate claim because
her EEOC charge, which alleged discrimination based on disability, discussed
the disability-related employment actions that led to her termination, and her
accommodation claim was based on those same employment actions, so an EEOC
investigation of her charge would likely have addressed her accommodation
claim); Davis v. Am. Drug Stores, Inc., No. 01-3704, 2003 WL 21149063,
*3–4 (N.D. Ill. May 19, 2003) (distinguishing Green and denying
defendant’s motion to dismiss plaintiff’s
failure-to-accommodate claim because the discriminatory-discharge allegation in
plaintiff’s EEOC charge and the
accommodation claim in her complaint were “inextricably intertwined” and “the
mirror image” of each other).
The
Davis court explained its “mirror image” comment thusly: “Defendant says
that it discharged plaintiff because she did not return to work after her
asthma attack. Yet, time off to recuperate is precisely the accommodation that
plaintiff sought. Thus, the decision to discharge plaintiff was, in effect, a
refusal to provide her the accommodation of further time off.” Davis, 2003 WL 21149063, at *4. The same is true here. DHS
terminated Whitaker because she failed to return to work on November 8. Yet on
November 8 she was medically unable to return to work and she had asked DHS to
extend her leave until late December. “Thus, the decision to discharge
plaintiff was, in effect, a refusal to provide her the accommodation of further
time off.” Id.
Accordingly, the Commission respectfully asks this
Court to reverse
the district court’s ruling that Whitaker’s failure-to-accommodate claim was
beyond the scope of her charge.
