Judges: Posner
Filed: Oct. 10, 2013
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13-1608 BRENAYDER C. WILLIAMS, Plaintiff-Appellant, v. MILWAUKEE HEALTH SERVICES, INC., Defendant-Appellee. _ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 12-CV-1293-JPS — J.P. Stadtmueller, Judge. _ SUBMITTED AUGUST 29, 2013 — DECIDED OCTOBER 10, 2013 _ Before POSNER, ROVNER, and TINDER, Circuit Judges. POSNER, Circuit Judge. The plaintiff, proceeding pro se, has sued her former employ
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13-1608 BRENAYDER C. WILLIAMS, Plaintiff-Appellant, v. MILWAUKEE HEALTH SERVICES, INC., Defendant-Appellee. _ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 12-CV-1293-JPS — J.P. Stadtmueller, Judge. _ SUBMITTED AUGUST 29, 2013 — DECIDED OCTOBER 10, 2013 _ Before POSNER, ROVNER, and TINDER, Circuit Judges. POSNER, Circuit Judge. The plaintiff, proceeding pro se, has sued her former employe..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1608
BRENAYDER C. WILLIAMS,
Plaintiff‐Appellant,
v.
MILWAUKEE HEALTH SERVICES, INC.,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 12‐CV‐1293‐JPS — J.P. Stadtmueller, Judge.
____________________
SUBMITTED AUGUST 29, 2013 — DECIDED OCTOBER 10, 2013
____________________
Before POSNER, ROVNER, and TINDER, Circuit Judges.
POSNER, Circuit Judge. The plaintiff, proceeding pro se,
has sued her former employer, a private recipient of federal
funding, charging that it violated the Rehabilitation Act of
1973, 29 U.S.C. § 794, by requiring her to complete certain
duties as a dental assistant that she was incapable of per‐
forming because of an unspecified disability that limits her
strength and mobility, and then firing her because of her
disability. The district judge dismissed the suit on the
2 No. 13‐1608
ground that the plaintiff had failed to exhaust her adminis‐
trative remedies.
That was error. A seeker of relief under the Rehabilita‐
tion Act against a recipient of federal money is not required
to exhaust the administrative remedies that the Act pro‐
vides. E.g., Cheeney v. Highland Community College, 15 F.3d
79, 82 (7th Cir. 1994); Prescott v. Higgins, 538 F.3d 32, 44 (1st
Cir. 2008); McGeshick v. Principi, 357 F.3d 1146, 1149 (10th
Cir. 2004); see 29 U.S.C. § 794a(a)(2). An employee or former
employee of a private company, such as the plaintiff in this
case, isn’t even required by the Act to file an administrative
charge or complaint—and anyway, having to file is not the
same thing as having to exhaust administrative remedies.
Exhaustion requires pressing the charge to an administrative
resolution.
It’s true that a person who unlike our plaintiff wants to
sue a private employer under Title VII must first file a
charge with the EEOC. But he or she doesn’t have to obtain a
decision on the merits from the agency before bringing suit,
merely a right to sue letter, Doe v. Oberweis Dairy, 456 F.3d
704, 708 (7th Cir. 2006), signifying that the agency has decid‐
ed not to exercise its prerogative to sue on behalf of the
complainant. In contrast, “the requirement of exhaustion of
administrative remedies is a requirement to submit one’s
grievance to an administrative tribunal for decision before
one can bring a suit. It would be odd and wasteful to allow a
plaintiff who was required to exhaust his administrative
remedies to bypass the administrative tribunal and sue in an
ordinary court. For a jury would then be deciding whether
he had been required to exhaust yet had failed to do so; and
if it decided that he had failed, the trial would be aborted
No. 13‐1608 3
and the plaintiff told to pursue his administrative remedies
(if still open; if not, he would be out of luck). Title VII, in
contrast, does not require exhaustion. It states that ‘a charge
… shall be filed … within three hundred days after the al‐
leged unlawful employment practice occurred,’ but not that
an administrative proceeding shall have been conducted be‐
fore the employee can file suit. The fixing of a filing deadline
is what a statute of limitations does; requiring exhaustion of
administrative remedies requires more.” Begolli v. Home De‐
pot U.S.A., Inc., 701 F.3d 1158, 1160 (7th Cir. 2012) (citations
omitted). The plaintiff in our case wasn’t required to file an‐
ything with the EEOC. She is thus at two removes from hav‐
ing to exhaust administrative remedies.
A complication is that the complaint the district judge
dismissed was the complaint in a second lawsuit, arising
from the identical facts as the first one, filed in the same dis‐
trict court by the same person. The main difference between
the lawsuits was that the complaint in the first suit, while
alleging disability discrimination, hadn’t mentioned the Re‐
habilitation Act (or for that matter any other statute). The
second suit, the one before us, named the Act as the basis for
the claim of disability discrimination.
When the judge dismissed the second suit he invited the
plaintiff to amend her complaint in the first suit, which was
still pending. She moved for leave to amend it to specify that
the Rehabilitation Act was the ground of the suit. The judge
denied the motion, having just ruled in the present case that
she could not maintain her suit under that Act because she
had failed to exhaust her administrative remedies. In addi‐
tion the judge remarked disapprovingly that her second suit
duplicated the first (differing only in specifying the Rehabili‐
4 No. 13‐1608
tation Act as its ground) and that she had filed three similar
suits in state court. These remarks give rise to a concern that
on remand (for the judge’s ground for dismissing the second
suit was erroneous, as we have explained, necessitating a
remand) the judge may reinstate his dismissal on the ground
that the plaintiff is engaging in vexatious litigation. Which
may be true, but not because her second federal suit dupli‐
cated the first. Really it was just a clumsy attempt (she nei‐
ther is nor has a lawyer) to amend the first complaint to
specify a statutory basis for her claim. The judge should
have interpreted it accordingly. Instead he has recently
granted summary judgment for the defendant in Williams’s
first suit, the suit that had not alleged a violation of the Re‐
habilitation Act. Williams v. Milwaukee Health Services, Inc.,
No. 12‐CV‐828‐JPS, 2013 WL 5506840 (E.D. Wis. Oct. 4, 2013).
As for her state court suits: they may duplicate her feder‐
al suit, but that duplication is, in the first instance anyway,
the business of the state court in which she filed them, rather
than of the federal courts. See 28 U.S.C. § 2283 (Anti‐
Injunction Act); Smith v. Bayer Corp., 131 S. Ct. 2368, 2375
(2011); Trustees of Carpentersʹ Health & Welfare Trust Fund v.
Darr, 694 F.3d 803, 805 (7th Cir. 2012). The defendant can ask
the state court to dismiss the suits on the ground that they
duplicate her federal suit without cause, or are intended to
harass, or lack merit. But their mere pendency is not a good
reason for dismissing a federal suit that, for all we know, has
merit, as long as the defendant hasn’t asked the federal court
to abstain from hearing the case and the judge has made no
move to do so. Their pendency may be a reason to suspend
activity in the federal suit, as a matter of comity to the state
judiciary, but not to dismiss it, since the plaintiff’s state suits
might fail without thereby precluding, on grounds of res ju‐
No. 13‐1608 5
dicata or collateral estoppel, her federal suit. In fact they
have failed; all three state court suits have been dismissed on
one ground or another. Whether their dismissal should have
a preclusive effect on the present suit is a matter for the dis‐
trict judge to consider on remand.
REVERSED AND REMANDED.