Opinion
Case No. 02 C 1916
January 27, 2003
ORDER
Pro se plaintiff Dawn Boutte brought this action alleging that her employer, the Department of Veterans Affairs ("VA"), violated the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., when it denied her request to be accommodated on the basis of her disability. Although it is not entirely clear, Boutte also appears to allege some type of state-law negligence action against the remaining defendants. For the reasons stated below, defendant Anthony Principi's motion to dismiss is granted and Boutte's complaint is dismissed without prejudice. Further, to the extent it argues that this court lacks jurisdiction over the alleged state-law claims, defendant Northwestern Internists, Ltd.'s motion to dismiss is granted. As a result, defendant Northwestern Medical Faculty Foundation's motion to dismiss is denied as moot. Because her complaint is dismissed, Boutte's motion for preliminary injunction and her motion for summary judgment are also denied as moot.
Because Boutte should have alleged a claim under the Rehabilitation Act of 1964, 42 U.S.C. § 701, which governs federal employees, the court has analyzed the exhaustion requirements that apply to federal employees alleging disability discrimination. 29 C.F.R. § 1614.101.
Background
For purposes of these motions, the facts in Boutte's complaint are accepted as true.
Boutte is employed by the VA as a file clerk in the radiology department of the Westside VA Medical Center. Boutte suffers from spinal stenosis, muscular skeletal injury and gait dysfunction. On November 1, 2001, Boutte asked the VA to accommodate her disabilities by transferring her to a receptionist or comparable position pending approval of her disability retirement. The VA declined her request for accommodation and on November 19, 2001, Boutte met with a counselor at the VA to complain of discrimination based on her disability. As counseling did not resolve the dispute, Boutte applied for and received a Notice of Right to File a Discrimination Complaint with the VA on December 29, 2001. On January 3, 2002, she did so. Boutte also alleges that she filed a complaint with the Equal Employment Opportunity Commission, although it is not clear when this filing occurred.
While not clearly stated in her complaint, Boutte explains in various responsive papers that she is alleging "contributory negligence" or some theory of medical malpractice against Northwestern Medical Faculty Foundation, Inc., Northwestern Memorial Physicians Group and Northwestern Internists, Ltd. for events that occurred from 1999 to 2002 apparently related to her requests for worker's compensation and disability retirement.
Analysis
Defendant Anthony Principi, as Secretary of the Department of Veterans Affairs, moves this court to dismiss Boutte's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for failure to exhaust her administrative remedies under 42 U.S.C. § 2000e-16. Because failure to exhaust administrative remedies is not a jurisdictional issue but more in the nature of an affirmative defense, Gibson v. West, 201 F.3d 990, 993 (7th Cir. 2000), the court will analyze the motion under a Rule 12(b)(6) standard rather than a Rule 12(b)(1) standard. In considering a motion to dismiss, the court must take all of plaintiff's allegations as true and must view them, along with all reasonable inferences therefrom, in the light most favorable to plaintiff. Lachmond v. ADM Inv. Serv., Inc., 191 F.3d 777, 782 (7th Cir. 1999). Principi argues that Boutte's complaint should be dismissed because she has not exhausted her administrative remedies. Employees of federal agencies are required to follow specific administrative procedures before they can file a federal court action alleging employment discrimination. Mays v. Principi, No. 01 C 1418, 2002 WL 15704, at *1, n. 1 (N.D.Ill. Jan. 4, 2002). First, the employee must contact an employment discrimination counselor in the employing agency's personnel department within 45 days of the alleged occurrence of discrimination to report and seek to resolve the matter through counseling or other alternative dispute resolution process. 29 C.F.R. § 1614.105(a)(1). If the matter cannot be resolved through counseling, the counselor must issue a written notice of the employee's right to file a formal administrative complaint. 29 C.F.R. § 1614.105(d). The employee must file the administrative complaint within 15 days of receiving the counselor's written notice. 29 C.F.R. § 1614.106(b). An employee who has filed an administrative complaint may file a lawsuit "[a]fter 180 days from the date of filing an individual or class complaint if an appeal has not been filed and a final decision has not been issued." 29 C.F.R. § 1614.407(b). In other words, if the agency has not taken final action on the administrative complaint, and 180 days have passed since the filing of the complaint, the employee can file a lawsuit as to the matter. Id.
It is clear from Boutte's complaint that she has not exhausted her administrative remedies. Boutte filed her administrative complaint with the VA on January 3, 2002. She then filed this lawsuit on March 15, 2002 — approximately 75 days later. Because Boutte did not wait 180 days from the filing of her administrative complaint and she acted before the VA resolved the matter, Boutte's action is premature. Id. Boutte, a pro se plaintiff, did not respond to Principi's exhaustion arguments. In light of the allegations of the complaint and the absence of any explanations from Boutte, the court concludes that Boutte filed her federal claim without complying with the exhaustion requirement.
Given the court's resolution of Principi's motion to dismiss, Boutte's remaining claims against the remaining defendants no longer fall within this court's jurisdiction. The court has scoured Boutte's complaint and can find no basis for jurisdiction against the remaining defendants. These allegations do not relate to the question of whether or not the VA had a duty to accommodate Boutte's disability. Rather, these claims seem to relate to medical care she received. Because these claims are not so related to the federal claim that they form part of the same case or controversy, this court cannot exercise supplemental jurisdiction in this instance. 28 U.S.C. § 1367(a). Even if Boutte had a viable federal claim, the court sees no basis to exercise supplemental jurisdication over her state-law claims. All claims, therefore, against Northwestern Medical Faculty Foundation, Inc., Northwestern Memorial Physicians Group, and Northwestern Internists, Ltd. are hereby dismissed. Accordingly, the court grants Principi's motion to dismiss and dismisses Boutte's complaint without prejudice. To the extent its motion argues the court lacks jurisdiction over the alleged state-law claims, Northwestern Internists, Ltd.'s motion to dismiss is granted.
Accordingly, defendant Northwestern Medical Faculty Foundation's motion to dismiss is denied as moot. Because Boutte's complaint is dismissed in its entirety, Boutte's motion for preliminary injunction and her motion for summary judgment are denied as moot.