Professional Documents
Culture Documents
No. 95-2253
Plaintiffs, Appellants,
v.
Defendant, Appellee.
____________________
____________________
Before
____________________
United States
United
States Attorney,
and
R.
Andrew German,
Manag
_________________
Counsel, Legal Policy, were on brief for appellee.
____________________
CAMPBELL,
This
appeal is
Rico by
Roman-Martinez, a
District of Puerto
Shortly
Roman-Martinez
employed, he
had been
handicap in violation of
without
success, the
remedies
Employment
within
prescribed
the Postal
Opportunity
of his
course
Service
Commission
and
After pursuing,
of
administrative
before the
(EEOC),
Equal
Roman-Martinez
2000e-16(c)
judgment
(1994).
for the
The
district court
entered
General and
refused to
Postmaster
summary
allow
We affirm.
I.
I.
Roman-Martinez
United
States Army
in
was
honorably discharged
1981.
The Veterans
from the
Administration
lumbar
he went
sprain.
In 1987,
-2-
to
work for
the Postal
see 5 U.S.C.
___
Initially employed
which
distribution
his
as a
Roman-Martinez alleges
unfit to do
new
provisions,
labor custodian
clerk.
supervisor's
he soon
However, Roman-Martinez
refusal
a job
to
assign
he was
became a
contends that
him
light-duty
functions
A medical
that
examiner
Roman-Martinez was
for the
unable to
Postal Service
carry anything
found
over ten
his home.
The transfer
to Ponc
About the
of
Labor.
workers'
injury
The
Postal
compensation,
had been
Service
denying
work related.
opposed
the
a claim
Department
granting
that Roman-Martinez's
On
February 16,
of
back
1988, his
data.
back
injury,
saw
a doctor
who
found
him
to be
totally
disabled.
A few
supervisor,
workers'
days
later, Roman-Martinez
Bernie Sprolito,
compensation claim.
with
confronted
the letter
denying
his
his
-3-
him under
paid to
As
result
of his
conversation
severe pain.
with Sprolito,
office although
Following an appeal,
Department
and,
In mid-1989, he was
type
disorder
and
antipsychotic agents.
was
treated
with
psychotherapy
and
Roman-Martinez's
Postal
behalf.
Workers Union
bargaining
(APWU),
agent,
filed two
the
American
grievances on
his
In
the
other, the APWU claimed that the Postal Service had failed to
place
-4-
office.
The
APWU
and the
Postal
Service
settled both
grievances
shortly thereafter.
the Postal
he had become
totally incapacitated.
Not
grievances,
fully satisfied
Roman-Martinez
with
the
contacted a
settlement of
Postal
his
Service EEO
Service's refusal
hours
and to
to give him
place him
disability.
On November 7,
Service
formal
a full complement
on the
constituted discrimination
on
clerk's seniority
the
basis
of
1990, he filed
administrative
his
of working
list had
physical
complaint
of
such
discrimination.
Postal
rejected
Service
complaint
Roman-Martinez's
administrative
Equal Employment
days
of
its
occurrence,
regulation, 29 C.F.R.
as
required
by
within thirty
the
relevant
1613.214(a)(1)(i) (1995).
Service's ruling.
Postal
Service's
The EEOC, in
determination that
the
Roman-Martinez's claim
attention of
-5-
The EEOC
from Roman-Martinez to
United
States
District Court
Rico.1
U.S.C.
2000e-5(f)(1)
for
the
District of
(1994),
the
Puerto
counsel, 42
Roman-Martinez
filed
court
an
an
In
granting
the
1995,
the
Postmaster
district
General's
motion
II.
II.
entered
for
order
summary
amended complaint.
The
parties seem
statutory basis
agree, as
for Roman-Martinez's
2000e-16(c) (1994).
do
we, that
action is 42
by private
to
the
U.S.C.
sector and
under the
____________________
1.
The
wife, and
complaint
their conjugal
is, however,
was
such
includes Torres-Correa,
partnership as plaintiffs.
no indication in the
an employee of the
employment.
categories of persons
2000e-16(c) (1994),
Roman-Martinez's
Postal Service, or
They
were,
authorized to
an applicant for
therefore,
sue under
which appears to be
There
outside
the
42 U.S.C.
-6-
"substantial evidence"
review, or
administrative record.
Id. at 858,
___
as a
simply engage in
863.
upon the
remedies provided.
See Brown
___ _____
U.S. 820, 832 (1976); Jensen v. Frank, 912 F.2d 517, 520 (1st
______
_____
Cir.
1990); see,
___
e.g., McGuinness
____ __________
Here,
summary
the
judgment,
district court
granted
determination
we
the defendants
review
de novo,
________
the
nonmovant, and
indulging all
reasonable inferences
Maldonado-Dennis
________________
in
v. Castillo-Rodriguez,
__________________
III.
III.
The Rehabilitation
794 et
__
otherwise
qualified handicapped
of his or
her handicap.2
The
rights, remedies,
____________________
2.
29 U.S.C.
handicapped
solely
by
reason of
in
his
the United
handicap,
States
be excluded
discrimination under
any program
. . . shall,
from
the
of, or be subjected
or activity
receiving
any Executive
agency or
-7-
by the United
States
Act.
42 U.S.C.
Section
procedures, nor
717
of Title
VII
does it prescribe a
does not
set
out the
alleged
authority
unlawful
to
instructions as
practice.
"issue
such
But
it
rules, regulations,
grants
to
the
EEOC
orders
and
appropriate to carry
42 U.S.C.
2000e-16(b)
(1994).
Pursuant to
this authority,
29 C.F.R.
1613.214 (1995),
(a)
Time Limits.
(1)
. . . The agency
complaint for
processing
. . . only if:
(i)
The
complainant
attention
of
the
brought
Equal
to
the
Employment
to
believe
discriminated against
days
of
the
date
discriminatory event,
of
an
known
or the
knew
of
the
or
of
been
the
alleged
date that
personnel
the aggrieved
reasonably should
discriminatory
personnel action; . . .
____________________
had
within 30 calendar
alleged discriminatory
action,
person
he/she
the EEOC
event
have
or
3.
The
Martinez's
quoted
regulations
administrative
were
complaints
applicable
made
in
to
1990.
29 C.F.R.
-8-
The
limits
agency
In
1614.105(a)(1) (1995).
(4)
Roman-
shall extend
the
time
section
when
the
in
this
complainant
shows
notified of
that
he/she was
not
circumstances
beyond
the
complainant's
limits;
or for
other
reasons
The
Postal Service
to
believe
[he]
attention of
had
and the
EEOC both
found that
been discriminated
against"
to
then undisputed
assumption that
the
he had first
On the
presented his
Postal Service
that
plainly
date was
indeed,
previous
ceased to
June
too late.
work for
1990, the
that presentation on
As Roman-Martinez
the Postal
effective
date
Service
of the
had,
during the
personnel
actions
he
challenged
the refusal
to
give him
a full
list
would seem
necessarily to have
occurred more
than
Agreeing
that
Roman-Martinez
had
indisputably
held
that he
action.
The
was
barred from
court based
proceeding
its ruling
-9-
with this
on precedent
civil
in this
contact an
some
EEO counsellor
valid
extension
allowed
under
the
period, or
above-quoted
a later
27 F.3d
415, 416
(9th Cir.
1994).
On
appeal
Roman-Martinez
raises
several
points
1.
Roman-Martinez
employees
within
to
consult
thirty days
unreasonably
short
argues
that
with their
requiring
agency's
forces
compliance with
as
violate the
to
EEO
federal
counsellor
time limits
statutory
so
mandate.
Congress,
42 U.S.C.
however,
refrained
The latter,
which to file
2000e-5(e)(1) (1994).
from
legislatively
for
Rather, it
delegated to the
EEOC
the authority
federal
employees.
to
regulate the
bringing of
claims by
-10-
employees
before
to
try to
conciliate
agency and
their
grievances promptly
Unlike the
180-day provision,
complaint
which
that
is not
must be
filed, but
rather is
fails, a
complaint
procedures
is
further brief
afforded.
any
formal
the period
within
for conciliation.
period for
In
which the
filing
case,
were in
the
the formal
challenged
continuous effect
criticism
in
cases
520.
limitations
case.
See
___
The
litigated
If
before
the
lowewr
federal
F.2d at
of equal duration to
the ones at
issue in this
U.S. 89
(1990)
(same).
Had
the 180
it could
Congress wished to
so.
at 820
And,
into
categories of claimants,
of course, it
remains
____________________
4.
present their
Compare 5 C.F.R.
_______
was 30
days or
1613.214(a)(1)(i) (1992).
-11-
less.
C.F.R.
see
no
justification
established
for
procedures
us
set
to
by
override
the
EEOC
these
We
well-
pursuant
to
congressional authority.
Nor
can we
see
anything so
clause
of
requirements
the
of
federal
due
unreasonable in
the
Constitution
process.
or
Congress
to
violate
often
the
regulates
federal
employees
persons; there
the
from
other
challenged
district
differently
regulations.
court's rejection
We
of
categories
of
or arbitrary about
accordingly
appellant's
uphold
attack
on
the
the
2.
When
Roman-Martinez sued
in
district
court,
he
asserted there, for the first time, that he had contacted EEO
counsellor
L pez
prior to
September
24,
1990, hence
had
Before considering
The
EEOC, in
its initial
administrative decision
reviewing
claims,
upheld
waiting until
timely
to seek
the
Postal
Service's
conclusion
that
by
EEO counselling.
Roman-Martinez thereafter
-12-
to reconsider that
decision, tendering as
justification
on
24, 1990,
September
the
"high
levels of
mental
disorder "limited
neuroleptic,
prescribed for
almost completely"
his
his functional
level.
The EEOC
that
while
declined to
appellant
decision involved
an
reopen the
complained
that
case.
the
erroneous interpretation
It
noted
EEOC's
prior
of
law,
he
decision."
new because it
when
appellant
statement
did
initially
not,
appealed"
furthermore,
to
address
the
presented
EEOC.
The
Roman-Martinez's
ability
to
have
sought
timely
EEO
counselling
before
In
opposing summary
judgment before
the district
his
failure
to
seek
condition.
counselling
earlier
had
been
the administrative
sought EEO
EEO
counselling prior
to the untimely
1990, meeting.
-13-
during
had in fact
September 24,
L pez "twice
some
communicate the
the
Ponc
others."
Post Office
by
to September 24,
discrimination I
EEO counsellor
1990, at
June 1990, to
Postmaster
Oscar Rivera,
to at
among
speak to
Oscar Rivera to
be
done about
this
the situation."
Roman-Martinez now
claims that
factual issue on
which he was
The district
Citing
above contention.
(M.D.N.C. 1987),
failed
to establish
L pez's
attention
reasonably
resolve,
"such
concluded
through
discrimination."
reference
that sufficient
in the
that
that
EEO
The
the
the
court
alleged
plaintiff's affidavit
facts were
noted
brought to
counsellor should
employee
channels,
was
an
the
phone discussions
have
seeking
to
allegation
of
absence
of
with L pez
any
to
We are
inclined to
district court
that
create
a genuine
issue
of fact
insufficiently clear to
over
whether he
made
an
-14-
24,
1990.
discrimination I
Except
for
was being
saying
he
communicated
subjected to at
the Ponc
"the
Post
Office
by
describe
Postmaster
Oscar
indicates
that
during
Rivera,"
appellant
he told L pez.
this
period
does
not
Other evidence
Roman-Martinez
was
contract and
leaving it unclear if in
Postal
Service's
recognizable
EEO
claim
counsellor denied
September
24,
interpreted
substance
in
of
ascertained.
counsellor
of
handicap
having received
and
even
a light
the
Roman-Martinez
when
most
claims
made
discrimination.
appellant's
favorable
actually
the
The
prior to
affidavit
is
to appellant,
the
conveyed
cannot
be
But
be right
not suffice to
alone.
the
district
position
presented
counsellor
court,
that
Roman-Martinez
his claim
prior
of
never
or the EEOC
handicap discrimination
to September
24,
1990.
-15-
took
the
that he had
to an
EEO
Throughout
the
unchallenged date
24,
1990.
sought
to
presenting
heavily
Far from
justify
questioning this
his
failure to
psychiatrist's
medicated on
date, Roman-Martinez
have
letter
September
24,
stating
1990,
reopen in order
psychiatrist's
ability
to have
to consider this
statement
was
sought timely
acted
sooner
that,
his
being
functional
not
by
material
counselling in
to
the
claimant's
the relevant
earlier periods,
thereupon
district
the
and anyway
abandoned
court.
motion
the
new
this contention
He did not
for summary
controverted facts.
and
his claim
counsellor
prior to
calls allegedly
of
when
Roman-Martinez
he
sued in
the
judgment
Rather, for
different
presented
nor in
his
statement of
proposition that
he
had
handicap discrimination
September
24, 1990,
actually
to an
during
EEO
telephone
1990 to
We
agree
with
the
district
court
that
Roman-
proceedings,
may not
raise this
new factual
contention in
court
proceedings for
exhaustion
the
requirement
first time.
should
To be
be applied
with
sure,
the
reasonable
-16-
trial.
Nonetheless,
the
present
statutory
scheme
Supreme Court
as
"a
has described
careful
blend
the
of
U.S. at
833.
The
found a duty in
lower federal
courts have
Brown,
_____
consistently
exhaust administrative
pursue and
de novo trial.
_______
not
425
We do
not
counter to assumptions
that he
We
properly
assertion
hold,
refused
therefore,
to
of having
consider
sought
that
the
district
Roman-Martinez's
EEO counselling
at an
court
new-found
earlier
time.
That
argument
was
not
exhausted
before
the
grant relief
to appellant.
court
had
properly rejected
timely
relayed them
presented
district
Roman-Martinez's assertion
that he
his
claims because
he
had
earlier
Post Office.
Not only was this contention not brought up during the course
-17-
demonstrating,
thirty-day
counsellor,
even
requirement.
nor
did
counsellor.
if proven,
timely compliance
Bernie
appellant
Sprolito was
present
See Jensen,
___ ______
912 F.2d
any
to him as
at 521
with the
not the
EEO
evidence that
being the
EEO
(appellant "must
Nor
correct
to
the
conversations
with
Bernie
Sprolito
that
excuses
3.
that
the amended
dismiss for
complaint
would not
survive a
motion to
remedies.
We
opportunity
on the merits.
However, the
as where prejudice
to
the
proposed
exercise.
Belendez,
________
amending party's
amendment would
Id.;
___
903
adversary
constitute no
see also
_________
F.2d
is shown
49, 59
-18-
Cir.
where the
more than
Correa-Martinez
_______________
(1st
or
v.
1990);
a futile
Arrillaga__________
Kay v.
___
New
___
Roman-Martinez
filed
his
Postal Service
sent him a
formal
complaint
of
issues that
he disagreed with
ten allegations
year with
of discrimination
those presented
in
the
original
dating back to
Of these,
Appellant
his first
complaint,
although
to
the
If he wished to
Martinez was
required to
initiate a new
complaint covering
them.
He filed
doing
so,
filing and
pursuing a
new items.
Instead,
but never
without
administrative
the contents
got around
ever
having
to
taken
steps
to
achieve
complaint into
that
the
new
complaint were
items
items
inserted
into
the
discussed
above)
they
-19-
dealt
amended
court
judicial
with
incidents
that
occurred well
before the
with an
were
never
complaint
made
the
subject of
and proceedings.
To
formal
administrative
hold otherwise
would allow
all who
court.
bring claims
of handicap discrimination
in federal
In these circumstances,
allowing
futile
stated,
exercise
since,
as
the
district
court
correctly
Affirmed.
________
-20-