Opinion
Case No. 01 C 1776
July 27, 2001
Kimberly Blair has waited too long to file this lawsuit and I dismiss it. She alleges employment discrimination, breach of contract, and violation of the Family and Medical Leave Act against the Postmaster General.
The postal service terminated Blair on November 26, 1998. The reason appears to be excessive absenteeism. On October 29, 1999 Blair sought an appointment with an EEO counselor to allege sex discrimination. Postal employees must make this appointment within 45 days of the discriminatory action, and here, Blair waited almost one year. See 29 C.F.R. § 1614.105(a)(1). The Postal Service dismissed her administrative claim because Blair waited too long to bring it. Unless there is some good reason for waiting so long, I too must dismiss the Title VII claims. Perhaps Blair waited because she was pursuing arbitration under the collective bargaining agreement (the arbitrator upheld her removal on September 10, 1999). After the arbitrator's decision, Blair pursued her discrimination claim. The law does not allow an extension of time (a tolling of the 45-day period) because the plaintiff was pursuing her CBA remedies.
Blair's contract rights are different than her rights under Title VII and she must follow each cause of action's procedures independent of the other's. See International Union of Electrical, Radio Machine Workers v. Robbins Myers, Inc., 429 U.S. 229 (1976); Jeffries v. Frank, 778 F. Supp. 981, 984 (N.D.Ill. 1991). I have examined Blair's pro se complaint and answer to the motion to dismiss and the relevant administrative record supplied by the defendant. I see no other excuse for waiting more than 45 days to contact an EEO counselor, and therefore I will not allow an extension. The Title VII claim is dismissed.
To sue for a breach of her contract, presumably the CBA, Blair must have brought her lawsuit within six months of the final decision (September, 1999). See Salmanis v. American Postal Workers Union, AFL-CIO, 2001 WL 219650 * 3 (N.D.Ill. 2001). She waited until March, 2001. As with her Title VII claim, I gather she was not pursuing her CBA claim because she was pursuing the administrative EEO procedures. This is not a reason for tolling the statute of limitations, and I dismiss the breach of contract claim.
Finally, Blair's complaint suggests a violation of the FMLA. This cause of action has a two-year statute of limitations (for non-willful violations). See Carter v. General Electric Co., 2000 WL 321663 *1 (N.D.Ill. 2000). This lawsuit was filed over two years after Blair's termination. It is too late. Although Blair's answer to the motion to dismiss suggests that Mrs. Coloski, the "leave control" officer, lied when she justified the termination to the arbitrator, Blair also states that Mrs. Coloski was under personal pressures concerning her son and her retirement. This suggests negligence or confusion on Coloski's part. Blair has not alleged a willful violation of the FMLA, so the three-year statute of limitations does not apply. In any event, Blair has not alleged that she was an eligible employee under the FMLA or that she was entitled to FMLA leave. On its face, the complaint does not state an FMLA claim.
Pro se litigants are often faced with numerous confusing rules concerning their claims and the manner in which they must proceed with them. In this case, Blair had two parallel administrative proceedings and three different statutes of limitations to deal with. She has unsuccessfully negotiated through these murky waters. Her complaint fails to allege facts that would bring her claims within the time limits (or the substance of the FMLA), so I dismiss the case with prejudice pursuant to Fed.R.Civ.P. 12(b)(6).
Defendant's motion to dismiss [11-1] is granted, terminating the case.