Forrest v. Wilkie

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

WILLIE FORREST,

Plaintiff, Case No. 20-cv-4134

v.

Judge Jorge L. Alonso

DENIS MCDONOUGH, United States

Secretary of Veterans Affairs,

Defendant.

MEMORANDUM OPINION AND ORDER

Defendant Denis McDonough, United States Secretary of Veterans Affairs

(“Defendant”),1 has moved for summary judgment on all of plaintiff Willie Forrest’s claims in

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his First Amended Complaint. Plaintiff asserts that Defendant discriminated against him on the

bases of race and age, retaliated against him on the basis of his prior protected activity,

constructively discharged him, and failed to accommodate his disability. Plaintiff brings his

claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title

VII”), the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq. (“ADEA”),

and the Rehabilitation Act of 1973, 42 U.S.C. § 1981a., and 5 U.S.C. §§ 7702, 7703(b). For the

1 Although this case was originally filed against Robert Wilkie, United States Secretary of

Veterans Affairs, the current United States Secretary of Veterans Affairs is Denis McDonough.

See Fed. R. Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an

official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The

officer’s successor is automatically substituted as a party. Later proceedings should be in the

substituted party’s name, but any misnomer not affecting the parties’ substantial rights must be

disregarded. The court may order substitution at any time, but the absence of such an order does

not affect the substitution.”).

reasons that follow, Defendant’s motion for summary judgment [58] is granted and Plaintiff’s

claims are dismissed.

I. BACKGROUND2

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Plaintiff Willie Forrest (“Forrest”), a former employee of the Department of Veterans

Affairs, filed complaints with the Equal Employment Opportunity Commission (“EEOC”) in

2015 and 2016 alleging that he had been subjected to a hostile work environment based on his

age, race, and disability and in reprisal for protected activity, and that he had been constructively

discharged from his position. (Am. Compl. ¶¶ 2, 9, 11, ECF No. 8; MSPB Initial Decision 1-2,

ECF No. 8-1.). When he did not receive an agency decision within 120 days, Forrest filed an

appeal to the Merit Systems Protection Board (“MSPB”) alleging the Department had created a

hostile work environment by refusing to accommodate his disability and retaliating against him

for prior EEOC activity. (Am. Compl. ¶ 13, ECF No. 8).

An Administrative Law Judge (“ALJ”) with the MSPB found that Forrest failed to

overcome the presumption that his retirement was voluntary because he failed to show that the

agency coerced him into retiring by, for example, threatening unjustified adverse action against

him or creating intolerable working conditions. (MSPB Initial Decision 8, 13, ECF No. 8-1.)

Consequently, the ALJ dismissed Forrest’s appeal for want of jurisdiction over the underlying

personnel action and therefore over his allegations of discrimination and retaliation. (Id. at 13-

14.)

2 The facts set forth in the “Background” section are undisputed by the parties unless otherwise

noted.

Accompanying the MSPB decision was a “NOTICE TO APPELLANT” stating in part,

“[t]his initial decision will become final on March 2, 2017[.]” (Id. at 14.) The notice further

stated, in pertinent part,

NOTICE TO THE APPELLANT REGARDING YOUR FURTHER

REVIEW RIGHTS

You have the right to request review of this final decision by the United

States Court of Appeals for the Federal Circuit. . . . The court must receive your

request for review no later than 60 calendar days after the date this initial decision

becomes final. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 2012). If you

choose to file, be very careful to file on time. The court has held that normally it

does not have the authority to waive this statutory deadline and that filings that do

not comply with the deadline must be dismissed. See Pinat v. Office of Personnel

Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to

court, you should refer to the federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec.

27, 2012).

(Id. at 18-19.)

On April 6, 2017, Forrest filed with the United States Court of Appeals for the Federal

Circuit an appeal of the decision of the MSPB. On September 8, 2017, the Federal Circuit

dismissed Forrest’s appeal for want of jurisdiction. (Order 2, ECF No. 8-2.) The Federal Circuit

also ordered that the case be transferred to this Court, saying:

Pursuant to 28 U.S.C. § 1631, this court may, if it is in the interest of justice, transfer

an action or appeal to another court in which the action or appeal could have been

brought. Because judicial review of a Board decision in a mixed case that includes

a discrimination claim is assigned to the district court, rather than this court, we

transfer this petition for review to the United States District Court for the Northern

District of Illinois, where Mr. Forrest resides.

(Id.) The Federal Circuit included in its decision a footnote, which states:

This court received Mr. Forrest’s petition on April 6, 2017, 35 days after the

Board’s decision became final. Pursuant to 5 U.S.C. § 7703(b)(2), Mr. Forrest had

30 days after receiving notice of the Board’s decision to file a civil action in federal

district court. This court will leave to the district court to determine whether his

petition was timely filed.

(Id. at 3.)

Although it was September 2017 when the Federal Circuit issued its order transferring

the case to the Northern District of Illinois, the transfer did not actually occur until July 14, 2020,

nearly three years later. It is unclear (to this Court as well as the parties) why the transfer took so

long. After the transfer finally occurred, Forrest filed an amended complaint. Defendant moved

to dismiss the case as untimely. This Court denied the motion because Forrest did not allege the

elements of Defendant’s statute-of-limitations affirmative defense in his amended complaint.

(Order, ECF No. 15). This Court reasoned that Forrest does not allege when he “received notice”

of the judicially reviewable action, and so timeliness issues were better considered on a motion

for summary judgment. (Id. at 3.)

The parties undertook discovery, during which it was revealed that Forrest received

notice of the MSPB by email the same day that it was entered—January 26, 2017. Defendant

moves for summary judgment, arguing, among other things, that all of Forrest’s claims must be

dismissed as untimely.

II. LEGAL STANDARD

Summary judgment shall be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). When considering a motion for summary judgment, the Court must construe the evidence

and make all reasonable inferences in favor of the non-moving party. Hutchison v. Fitzgerald

Equip. Co., Inc., 910 F.3d 1016, 1021 (7th Cir. 2018). Summary judgment is appropriate when

the non-moving party “fails to make a showing sufficient to establish the existence of an element

essential to the party’s case and on which that party will bear the burden of proof at trial.”

Celotex v. Catrett, 477 U.S. 317, 322 (1986). In other words, failure to support any essential

element of a claim renders all other facts immaterial. Id. at 323. “A genuine issue of material fact

arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a

verdict for that party.” Brummett v. Sinclair Broadcast Group, Inc., 414 F.3d 686, 692 (7th Cir.

2005).

III. DISCUSSION

The MSPB has jurisdiction to review certain adverse personnel decisions including a

termination, suspension, grade reduction, or furlough. 5 U.S.C. § 7512. If the employee believes

discriminatory animus is involved in the challenged personnel action, the MSPB has the power

to resolve such “mixed cases” as well. See 5 U.S.C. § 7702; Perry v. Merit Sys. Prot. Bd., 582

U.S. 420, 426 (2017) (“Under § 7702(a)(1), mixed cases qualify as cases of discrimination

subject to § 7702.” (cleaned up) (citations omitted)); Kloeckner v. Solis, 568 U.S. 41, 44 (2012).

If the MSPB dismisses a mixed case for want of jurisdiction, “the district court is the proper

forum for judicial review.” Perry, 582 U.S. at 437.

This is a mixed case appeal of an MSPB decision dismissing Forrest’s claims for want of

jurisdiction. Defendant argues, among other things, that this case was untimely filed and should

therefore be dismissed. The Court agrees.

The federal statute under which the Federal Circuit transferred the case states that this

case is considered as filed on the date Forrest filed it in the Federal Circuit, i.e., April 6, 2017.

Specifically, the transfer statute states,

Whenever a civil action is filed in a court . . . and that court finds that there is a

want of jurisdiction, the court shall, if it is in the interest of justice, transfer such

action or appeal to any other such court in which the action or appeal could have

been brought . . . and the action or appeal shall proceed as if it had been filed in or

noticed for the court to which it is transferred on the date upon which it was actually

filed in . . . the court from which it is transferred.

28 U.S.C. § 1631 (emphasis added). The Court thus proceeds as if Forrest had filed the case in

this Court on April 6, 2017, the date he filed it in the Federal Circuit.

It is undisputed that Forrest had to file his appeal with the reviewing court “within 30

days after the date the individual filing the case received notice of the judicially reviewable

action.” 5 U.S.C. § 7703(b)(2). In this case, the MSPB dismissed Forrest’s case for want of

jurisdiction on January 26, 2017, and it is undisputed that Forrest received notice of it that same

day. Under Section 7703, Forrest then had 30 days—or until February 25, 2017—to bring suit in

federal court. Forrest failed to do so, instead waiting until April 6, 2017. 3 Accordingly, Forrest’s

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claims are untimely and must be dismissed. Lax v. Mayorkas, 20 F.4th 1178, 1181 (7th Cir.

2021) (affirming dismissal of employment discrimination complaint appealing agency decision

that was filed one day late).

Forrest does not dispute that the deadline for filing his appeal was February 25, 2017, or

that he failed to meet that deadline. He argues instead that equitable estoppel and equitable

tolling apply to excuse his untimeliness. Equitable estoppel is inapplicable here because it only

applies where “the defendant takes active steps to prevent the plaintiff from suing in time,” and

Forrest makes no allegation or argument that Defendant did anything to interfere with Forrest’s

timely filing of suit. See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir. 1990)

(citations omitted).

“Equitable tolling . . . is reserved for situations in which the claimant ‘has made a good

faith error (e.g., brought suit in the wrong court) or has been prevented in some extraordinary

3 It is worth noting that even if the limitations clock started on the day the MSPB decision

became final (March 2, 2017) as noted by the Federal Circuit, the 30-day limitations period

would have expired on April 1 and so the filing of the appeal on April 6 would still be untimely.

way from filing his complaint in time.’” Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 850 (7th

Cir. 2001) (quoting Jones v. Madison Serv. Corp., 744 F.2d 1309, 1312 (7th Cir.1984)). It is an

“extraordinary remedy that is ‘rarely granted.’” Carpenter v. Douma, 840 F.3d 867, 870 (7th Cir.

2016) (quoting Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013)).

First, Forrest spends most of his brief arguing that it would be unfair to Forrest if the case

were dismissed simply because it was initially filed in the wrong court. But that fact has no

bearing on the untimeliness of his appeal—it is undisputed that Forrest did not file his appeal in

any federal court within the limitations period.

Second, Forrest argues that the Federal Circuit “found that in the interest of justice this

appeal would be transferred” pursuant to 28 U.S.C. § 1631, and that “justice is not served” in the

“letter and spirit of fairness” of Section 1631 if Forrest is not allowed to have his appeal heard.

(Pl.’s Mem. of Law in Opp’n to Def.’s Mot. for Summary Judgment 3-4, ECF No. 64.) Forrest

argues that “[t]he circumstances that supported this case to be transferred to a court in which it

could have been brought, necessarily should be sufficient to support why the case should be

heard.” (Id. at 4.) But Forrest does not explain to which “circumstances” he refers. The Federal

Circuit’s Order transferred the case “in the interest of justice” because “judicial review of a

Board decision in a mixed case that includes a discrimination claim is assigned to the district

court, rather than this court[.]” (Order 2-3, ECF No. 8-2.) Nothing about the Federal Circuit’s

Order, or Section 1631, suggests that it would be unfair to enforce the applicable statute of

limitations in this case.

Nor does Forrest elaborate in any meaningful way on what “circumstances” prevented

him from timely filing his appeal (in either the Federal Circuit or the United States District Court

for the Northern District of Illinois). The Federal Circuit’s Order expressly noted the potential

timeliness issue and left open for “the district court to determine whether his petition was timely

filed.” (Id. at 3.) Perhaps Forrest attempts to address this issue when he nebulously states that he

“timely met the guidelines to effectuate his appeal to the Federal Circuit.” (Id.) Because Forrest

does not dispute the applicable statute of limitations or the date on which he filed his appeal, it is

possible that by “guidelines,” Forrest refers to the “NOTICE TO APPELLANT” accompanying

the MSPB decision. Although Forrest does not expressly mention it, that notice states that

Forrest must file his appeal “no later than 60 calendar days after the date this initial decision

becomes final,” citing to 5 U.S.C. § 7703(b)(1)(A). (MSPB Initial Decision 18, ECF No. 8-1.)

However, that section is inapplicable to Forrest’s case, which is indisputably governed by the 30-

day limitations period for “cases of discrimination” in 5 U.S.C. § 7703(b)(2). Besides, the notice

further directs Forrest to review his right to appeal under “Title 5 of the United States Code,

section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 2012).” (Id.) Any confusion or

miscalculation as to the applicable limitations period is “not sufficient to warrant equitable

tolling.” Lawrence v. Florida, 549 U.S. 327, 336 (2007). “If credited, this argument would

essentially equitably toll limitations periods for every person whose attorney missed a deadline.”

Id; see also Lombardo v. United States, 860 F.3d 547, 553 (7th Cir. 2017) (a lawyer’s mistake in

identifying when the statute of limitations began to run did not warrant equitable tolling of the

limitations period); Lee v. Cook Cty., Ill., 635 F.3d 969, 973 (7th Cir. 2011) (“A lawyer’s

ineptitude does not support equitable tolling.”).

Forrest fails to identify any good faith error or extraordinary circumstances that warrant

equitable tolling of the limitations period. Forrest’s case is time-barred. The Court declines to

consider the merits of Forrest’s discrimination claims.

IV. CONCLUSION

Summary judgment is granted in Defendant’s favor, and this case is dismissed as

untimely. Civil case terminated.

SO ORDERED. ENTERED: July 20, 2023

HON. JORGE ALONSO

United States District Judge