Petition for Writ of Certiorari — White v. Frank

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_QOREPH F. BPANION, WR

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IN THE SUPREME COURT OF

THE UNITED STATES

October Term, 1989

BRUCE L. WHITE, JR., Petitioner

ANTHONY M. FRANK,

U.S. POSTMASTER GENERAL,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DAN A. NARANJO

Counsel of Record

Edward L. Pina

Kathleen A. McGowan

KARAM, NARANJO & KRUGER

432 Dwyer

San Antonio; Texas 78204

(512) 224-2100

QUESTION PRESENTED FOR REVIEW

The United States Court of Appeals

erred in affirming the dismissal of appel-

lant's claim under the Age

Discrimination in Employment Act (ADEA) 29

U.S.C. 633a. Appellant's claim of agedis-

crimination does not require

that all administrative remedies be ex-

hausted prior to filing a civil suit.

LIST OF ALL PARTIES

TO THE PROCEEDINGS

BRUCE L. WHITE, JR.

Petitioner \

ANTHONY M. FRANK,

U.S. POSTMASTER GENERAL

Respondent

TABLE OF CONTENTS

Table of Authorities ....... ceeenéeeese 5

Citation of the Opinions of the Lower

COMTE cecesscccsensecencessessesssesess 6

Grevade of Juriseictiohs ««'06 irae keene e 7

Constitutionai provisions, statutes and

FEQULACIONS. ccccccccceseseccesesesesace 8

Statement of the Case... .cccccccccccees 9

ATBUBERE ceccccccccccceseseesesessesss 13

COMCLUSION cecccccscccccesccessesssese 21

Appeadin cccccccess eceseeccecessccoses 23

(i) White v. Frank, 895 F.2d. 243

(5th Cir. SOOO) s 6uwe6.06450586865665 24

(ii) White v. Frank, 718 F.Supp. 592

(W.D. Tex. 1989) .cccccccccccecs oes 30

(iii) Constitutional provisions,

Statutes and regulations.........e00. - 56

TABLE OF AUTHORITIES

Bornholdt vy. Brady, 869 F.2d. 57

C2nd Cir. 1989). .ccccccccessces 19

Coleman v. Nolan, 693 F.Supp. 1544

(S.D. Rakes THES) eccccccveceseechD, 2]

Lorillard v. Pons, 434 U.S. 575,

98 S.Ct. 866,872,

aS betes 266 OO CIDE) es 04 400en8 18

Paterson v. Weinberger, 644 F.2d. 521

CSth Cir. 19Sl).ccccasees eeceees 16

Purtill v. Harris, 658 F.2d. 134

CSrd Cir. 19861) .ccccccccaces - 13,14

CITATION OF THE OPINIONS

OF THE LOWER COURT

Frank, 718 F.Supp. 592

(W.D.Tex. 1989)

White Frank, 895 F.2d. 243

(Sth Cir. 1990)

GROUNDS OF JURISDICTION

The judgment of the United States Court

of Appeals for the Fifth Circuit in the

case of White v. Frank,

895 F.2d. 243(5th Cir. 1990) was entered

on March 1, 1990. The jurisdiction of the

Supreme Court is invoked under Rule

1G. ite}.

CONSTITUTIONAL PROVISIONS,

STATUTES AND REGULATIONS

29 U.S.C. Sec. 633a (1989)

42 U.S.C. Sec. 2000e-16(c) (1989)

29 C.F.R. Sec. 1613.281 (1988)

29 C.F.R. Sec. 1613.282 (1988)

29 C.F.R. Sec. 1613.501 (1988)

29 C.F .R. See. 1613.5135 (1968)

STATEMENT OF THE CASE

Petitioner alleged that he was discrinm-

inated against due to age and handicap

under the Age Discrimination in Employment

Act (ADEA), the Rehabilitation Act, the

Veteran's Employment Act and 42 U.S.C.

1985(2) and (3). Petitioner is a former

City Carrier of the Defendant's Austin

Northeast station.

During his fourth month of employment

he suffered an industrial accicent that

resulted in a back injury.

On the day petitioner was released to

normal duties, he resigned, stating that

his reason for his resignation was an

opportunity for another job. Approximate-

ly seven (7) weeks later, Petitioner

applied for reinstatement as a postal

service employee.

Petitioner was denied reinstatement on

June 5,

1986. Petitioner was fifty-one (51) years

of age at that time.

Postmaster Edwards sent a clarification

of the reasons of dismissal on July q.

1986. He maintained that due to petition-

ers poor performance it was not in the

best interest of the Postal Service to

reinstate Petitioner. Petitioner main-

tained that his performance was always

satisfactory and that the postmaster's

reasons were a mere pretext for age and

physical handicap discrimination.

Petitioner filed a formal complaint of

discrimination with the EEOC on August 4,

1986.

At a hearing on the complaint, an

administrative judge found support for

petitioner's age discrimination complaint.

On October 16, 1987 the Postal Service

rejected the administrative judge's con-

clusions on age discrimination.

On November 9, 1987 the petitioner

filed an appeal to the office of Review

and Appeals of the EEOC. On December 22,

1987 the petitioner filed the present

action in the United States district Court

noting that the EEOC appeal was’ withdrawn

from the EEOC's office of Review and

Appeals.

Nonetheless, On March 30, 1988 the EEOC

issue its finding confirming the decision

of the Postal Service.

In August 1989 the United States Dis-

trict Court granted the sevarnesats

‘Sotion for dismissal or in the alternative

for summary judgment. The court held that

the petitioner's ADEA claims were barred

for failure to exhaust his administrative

EES

remedies.

The United States Court of Appeals,

Fifth Circuit, held that the petitioner

must await the final agency decision

before filing in federal district court.

ARGUMENT

The decision of the United States

Court of Appeals in White v. Frank, 895

F.2d. 243 (5th Cir. 1990) is in direct

conflict with the United States Court of

Appeals decision in Langford v. Army Corps

of Engineers, 839 F.2d. 1192 (6th Cir.

1988).

The United States Court of Appeals,

Fifth Circuit, has failed to demonstrate

how the court in Langford) erred in ruling

that the exhaustion of administrative

remedies was required under the Age Dis-

crimination in Employment Act (ADEA) The

regulations governing the ADEA clearly do

not require such an interpretation.

The U.S. District Court's decision

rested heavily upon the reasoning found in

Purtill v. Harris, 658 F2d. 134 (3rd Cir.

1981).

In Purtill the petitioner alleged that

he did not have to exhaust his administra-

tive remedies because 180 days had passed

since he filed his initial complaint. The

court stated that..."were this a Title VII

claim we would agree with his position

because 42 U.S.C. 2000e-16(c) provides

that a plaintiff may proceed to district

court 180 days after filing a complaint

with the EEOC. Conspicuously absent from

the corresponding section of the ADEA, 29

U.S.C. 633a(c), is a similar provision

allowing suit in the absence of a final

decision by the EEOC. Although we have

found no legislative history that reveals

the reason why this difference exists, we

are persuaded that it was intentional.”

Purtill, 658 F2d. at 138. Petitioner is

also persuaded that it was an intentional

difference; but a difference which would

allow petitioner to file suit prior to the

exhaustion of remedies. Petitioner agrees

with the court's reasoning in Langford

that the absence in the ADEA of an excep-

tion to the rule of filing a civil suit as

found under Civil Rights Act (i.e., al-

lowed to file civil suit prior to final

decision if 180 days have elapsed) does

not mandate that an ADEA claimant must

exhaust administrative remedies. The

Civil Rights Act requires that there be

final agency action before the filing of a

Suit. The ADEA does not require such a

procedure. If the ADEA does not require

such action why shoulc it include an

exception?

The District Court would have us be-

lieve that in every case where the ADEA

does not address seseiaren which are

outlined under the Civil Rights Act that

this absence should be interpreted as

congressional intent that ADEA follow Civil

Rights Act guidelines. Such an interpre-

tation is without sound reasoning. One

can only assume that congress knew of the

contents of the Civil Rights Act and if

they had intended similar provisions be

incorporated into the ADEA they would have

explicitly done so. They have chosen not

to and this court should not now attempt

to alter the congressional intent of

enacting the ADEA by substituting it with

the Civil Rights Act.

The District court found that the

Sixth Circuit's citing of Paterson to be

based upon a misreading of that case.

However, Langford's reliance on Paterson

is based upon it's holding

with regard to the regulations which

govern the ADEA.

ADEA regulations are clear and explic-

it. Sec. 633a(c) allows that any individ-

ual discriminated against due to age may

bring an action in any Federal district

court. Sec. 633a(d) states the require-

ments that an individual must comply with

in order to file a civil suit if that same

individual has not filed a complaint with

the Commission. If Congress had intended

there to be additional requirements prior

to filing suit after an individual had

filed a complaint they clearly had the

opportunity to state so. They did not

because they did not intend to follow the

Same guidelines required under Title VII.

29 C.F.R. 1613.501 contains the Equal

Employment Opportunity Commission regula-

tions on age discrimination. Sec.

1613.514 clearly states that Sec. 1613.281

and 1613.282 shall not apply to the proc-

essing of discrimination complaints on

account of age. [Sec. 1613.281 contains

the statutory right to file a civil action

after final agency action has taken place.

Sec. 1613.282 requires the agency notify

an employee of the right to sue.] Both

Sec. 1613.281 and 1613.282 pertain to

Title VII claims.

Interpretation of Title VII standards

"Sheds no light on congressional intent

under the ADEA. Lorillard v. Pons, 434

U.S. 575, 98 S.Ct. 866,872, 55 L.Ed.2d 40

(1978).

The court's reliance on the reasoning

in Purtill completely ignores current and

applicable regulations governing the ADEA.

The critical element in the analysis of

the requirements of administrative exhaus-

tion of all remedies is found in the

amendment to 29 C.F.R. 1613.513 (1988).

"Consistent with this view, the current

EEOC regulations dealing with age-discrim-

ination claims provide that the "filing of

a civil action...terminates agency proc-

essing" of the matter. 29 C.F.R.

1613.513(1988). This regulation, however,

applies only to court actions filed after

November 30, 1987. Thus, the Langford

view that exhaustion is not required even

if the ADEA claimant has initiated admin-

istrative proceedings is undoubtedly

correct for suits commenced after November

30, 1987, since otherwise the claimant who

pursues both avenues would find both

automatically closed." Bornholdt v.

Brady, 869 F.2d. 57 (2nd Cir. 1989).

The present case was filed after Novem-

ber 30, 1987.

The court in Coleman v. Nolan, 693

F.Supp. 1544 (S.D. N.Y. 1988) supports the

opinion of Langford. The defendant in

that case attempted to apply procedural

standards of Title VII to plaintiff's ADEA

claims. The court held that there were

too many critical differences in structure

and congressional intent between the two

statutes.

The court stated that"...unlike Title

VII, which requires an aggrieved federal

employee to initiate administrative reme-

dies...the ADEA allows a federal employee

either to initiate administrative remedies

or to file suit in federal court after

filing a notice of intent to sue, see 29

U.S.C. 633a(b) & (d). Moreover, unlike

section 2000e-16(c), which specifically

provides that a plaintiff must exhaust

administrative remedies unless certain

exceptions are applicable, section 633a(c)

does not require a plaintiff who initiates

administrative remedies to exhaust those

remedies before bringing suit in federal

court. Most importantly, section

2000e16(c) clearly sets forth a thirty-day

limitations pericd beginning with receipt

of notice of final agency action, while

section 633a is silent as to the period in

which a plaintiff who first pursued admin-

istrative remedies must commence a civil

action." Coleman, 693 F.Supp. at 1547.

Therefore based upon the ADEA regula-

tions the recent ruling by the Sixth

Circuit was correct and appellant did not

have to exhaust all of his administrative

remedies and the dismissal of his claim

under the ADEA by the Fifth Circuit was in

Giro .

CONCLUSION.

For the foregoing reasons this petition

for a writ of certiorari should be grant-

ed.

Respectfully submitted,

AN NARANJO

Counsel for Petitioner

WARD L

kth Goce A. /V Cou

KATHLEEN A. MCGOWAN

KARAM, NARANJO & KRUGER

APPENDIX

Bruce L. WHITE, Jr.,

Plaintiff-Appellant,

Vv.

Anthony M. FRANK, U.S. Postmaster

General, Defendant-Appellee

No. 89-1739

Summary Calendar

United States Court of Appeals

Fifth Circuit

March 1, 1990

Appeal from the United States District

Court for the Western District of Texas.

PER CURIAM:

The plaintiff, Bruce White, challenges

the refusal of the United States Postal

Service to reinstate him following his

resignation from that employer a few

months previously. The instant suit

alleges that the refusal to reinstate was

on account of his race (Caucasian), color

(white), handicap (20% disability and back

injury), and age (50), in violation of

Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. § 2000e, et seqg.;

§501 of the Rehabilitation Act; 29 U.S.C.

§ 791 et seg.; the Age Discrimination in

Employment Act of 1967 (ADEA), as amended,

29 U.S.C. § 621 et seq.; and the Veterans

Reemployment Act, 38 U.S.C. § 2021 et seg.

In a thorough and able opinion, the

district court granted the defendant's

motion to dismiss or in the alternative

for summary judgment. White v. Frank, 718

F.Supp. 592 (W.D. Tex 1989). we are

persuaded that the district court reached

the correct result and for the right

reasons. Accordingly, we affirm, and we

addopt the district court's persuasive

opinion.

In doing so, we of course adopt its

holdings, and specifically (but without

limitation) its holding 718 F.Supp. at

596-97 that an ADEA Plaintiff who chooses

to appeal the employer's determination to

the Equal Employment Opportunity

Commission (EEOC) must await final action

by that agency before filing an action in

federal district court. The district court

noted, Id at 595, that at least three

circuit courts of appealsl have so held,

leaving only one circuit2 to have held

1 I.e., Castro v. United States, 755

F. Supp 399, 404 (lst Cir. 1985);

Limongelli v. Postmaster General of the

United States, 707 F.2d 368, 373 (9th Cir.

1983); Pruwitt v. Harris, 658 F.2d 134,

138 (3rd Cir. 1981), cert. denied, 462

U.S. 1131, 103 S.Ct. 3110, 77 L.Ed.2d 1365

(1983).

2 I.e., Langford v. United States

Corps of Eng's, 839 F. 2d 1192, 1194-95

(6th Cir 1988). Another circuit now has

commneded, in dictum, that under amended

regulations plaintiffs who, like White,

filed suit after November 30, 1987, were

not required to wait until an

administrative determination has been

made. See Bornholdt v. Brady, 869 F.2d 57,

63 (2nd Cir. 1989). However, the instant

plaintff in his reply brief on appeal

specifically disavows reliance upon

Bornholdt and the regulation in question,

52 Fed. Reg. 41, 922 (Oct. 30, 1987),

providing that the "filing of a civil

action...terminates [agency] processing"

says nothing concerning the exhaustion

squarely to the contrary.

We acknowledge, as did the district

court, that there has been some

uncertainty on the matter in this circuit

because of language in Patterson vv.

Weinberger, 644 F.2d 521, 523 (5th Cir.

May 1981), to the effect that "[a]fter the

administrative complaint has_ been filed

with the [EEOC], a civil action then may

be instituted". However, the district

court a quo has explained persuasivley,

718 F.Supp. at 596-97, why the quoted

passage in Patterson is dictum, addressing

a factual scenario not before the court.

Moreover, it is not clear that the

Paterson panel intended to imply that an

EEOC complaint once filed would not also

have to be ruled upon before a suit could

be instituted. The district court also

convincingly shows, Id at 596, that the

majority view is the better reading of the.

statutory scheme.

We also note that the passage in

question from Paterson was quoted recently

in Irwin v. Veterans Administration, 874

F.2d 1092, 1096 (5th Cir. 1989). Irwin

involved a plaintff who had filed suit

after receiving an adverse decision from

the EEOC. Thus, the court did not comment

upon the critical language from Paterson

or address whether the plaintiff could

have filed suit before the EEOC had made

its determination. As in Paterson, the

sentence is, at most, dictum.

Recently we have reiterated that when

a panel of this court has opined on an

issue not before it, "[we] do not view

[such discussion] as precluding our

consideration of the issue on the merits

the first time it has been squarely

inti tee

presented to us." Powell v. Commisioner,

891 F.2d 1167, 1172 (5th Cir, 1990).

Directly presented now with issue, we

conclude, as did the Ninth Circuit when

faced with this issue, that "[t]o withdraw

is to abandon one's claim, to fail is to

exhaust one's remedies. Impatience with

the agency does not justify immediate

resort to the court." Rivera v. United

States Postal Service, 830 F.2d 1037, 1039

(9thCir. 1987), cert. denied, 486 U.S.

1009, 108 S.Ct. 1737, 100 L.Ed.2d 200

(1988).

Concluding that the district court

correctly decided the issues presented to

is, we AFFIRM.

Bruce L. WHITE

Vv.

Anthony M. FRANK

Civ. No. A-87-CA-877.

United States District Court,

W.D. Texas,

Austin Division

July 18, 1989

As Amended Aug. 3, 1989.

MEMORANDUM OPINION

NOWLIN, District Judge.

Before the Court is the Defendant's

Motion to Dismiss, or in the Alternative,

for Summary Judgment. The Court having

considered the Motion, as well as all of

the responses and replies filed

thereafter, in addition to all of the

pleadings on file in this matter, is of

the opinion that the Motion is meritorious

and should be granted.1

1 On July 7, 1989 the Court entered

an Order granting the Defendant's motion,

and stating that a more detailed opinion

would be forthcoming. This is that

opinion.

I. STANDARD OF REVIEW

The Defendant requests that the Court

dismiss this action pursuant to Rule 12

(b) (6), or in the alternative, the Court

grant summary judgment. A court should

only dismiss a suit for failure to state a

claim upon which relief may be granted

when it appears beyond a doubt than thaws

is no set of facts under which plaintiff

could recover for the wrongs he alleges.

Conley v. Gibson, 335 U.S. 41, 45-46, 78

S.Ct. 99, 101-102, 2, L.Ed.2d 80 (1957).

As the Defendant notes, if a Court in

reviewing a motion to dismiss pursuant to

Rule 12(b)(6) finds the need to rely on

evidence outside of the pleadings, the

Court must treat the motion as a motion

for summary judgment filed pursuant to

Rule 56, and must apply the standards that

go along with that rule. FED.R.CIV.P.

12(b); Stanely v. CIA, 639 F.2d 1146,

1157-58 (5th Cir. 1981).

Rule 56(b) permits the Court to grant a

motion for summary judgment when it

appears from the affidavits and other

exhibits on file with the court that there

is no genuine issue of material fact for

trial, and when the movant is entitled to

summary judgment as a matter of law.

FED.R.CIV.P. 56(c). See also Celotex Corp.

v. Catrett, 477 U.S. 317, 322, 106 S.Ct.

2548, 2552, 91 L.Ed.2d 265 (1986). In

reviewing a motion for summary judgment,

the Court must view the evidence in the

light most favorable to the party opposing

the motion, and indulge all reasonable

inferences in that party's favor. Pharo v.

Smith, 621 F.2d 656, 664 (5th Cir.1980).

The Supreme Court's 1986 summary

judgment triology is by now well-known.

In the three cases, the Court set out new

rules governing the application of Rule

56. In the first case, Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 106

S.Ct. 2505, 91 L.Ed.2d (1986), the Court

discussed the difference between

"material" and "immaterial" issues of

fact. The Court stated that a "material"

isssue is one that could affect the

outcome of the suit under the applicable

law. Id. at 248, 106 S.Ct. at 2510. The

second case was Celotex Corp. v. Catrett,

477 U.S.317, 106 S. Ct. 2548, 91 L.Ed.2d

265 (1986). In that case, the Court held

that a movant for summary judgment can

prevail by showing that its opponent is

unable to produce evidence in support of

its claim and that no affidavits or other

summary judgment evidence is necessary in

such a situation. Id. at 322-24, 106

S.Ct. at 2552-53. Finally, in Matsushita

Electric Industrial Co. Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 106 S. Ct.

™

1348, 89 L.Ed.2d 538 (1986), the Court

held that when a movant produces a prima

facie case, the opposing party must come

forward with specific facts to show that

there is a genuine issue for trial, or

else summary judgment is proper. Id. at

587, 106 S.Ct. at 1356.

The Court's review of the Defendant's

motion leads it to conclude that there are

no material issues of fact remaining for

trial, and that for the reasons set forth

below, Defendant is entitled to judgment

as a matter of law.

II. UNDISPUTED FACTS

In this suit, Plaintiff alleges that he

was denied reinstatement as a postal

employee because of his age and because of

a handicap. Plaintiff attempts to raise

these claims under the Age Discrimination

in Employment Act, the Rehabilitation Act,

the Veteran's Reemployment Act, and the

conspiracy provisions of 42 U.S.C. §

1985 (2) and (3).

Based upon the Plaintiff's Complaint,

and the uncontradicted summary judgment

evidence submitted by the Defendant, the

Court finds that the following facts are

not in dispute: Plaintiff is a 30 year

veteran of the United States Air Force in

1984, Plaintiff applied for and obtained a

position with the United States Postal

Service. He held that position from

October 13, 1984 until March 31, 1985,

when Plaintiff resigned his position to

seek other employment. Plaintiff's

resignation followed a two week absence

from work resulting from a back injury

received on the job. His resignation

stated that he left the Postal Service to

pursue an "oppurtunity on another job."

Plaintiff reapplied for a Postal

Service position on September 20, 1985,

but was denied a position. No

administrative complaint was ever filed

for this denial. Thereafter, on May 23,

1986. Plaintiff again applied for

reinstatement as a Postal Service

employee. This request was again denied,

on June 5, 1986. The Postmaster issued a

clarification of the reasons supporting

the denial on July 7, 1986. Plaintiff

filed a formal complaint of discrimination

on August 4, 1986, following an taceevaee

with a Postal Service Equal Employment

Opportunity counselor. The complaint

alleged that Plaintiff was denied

reinstatement on the basis of his race,

color, age and physical handicap.

A hearing was held on the complaint on

April 30, 1987. The administrative judge

found no basis for concluding that the

plaintiff had been discriminated against

on the basis of rece, color or handicap,

——

a5*

but found support for the Plaintiff's age

discrimination complaint, and recommended

a finding of discrimination. The final

Postal Service decision was handed down on

October 16, 1987, and rejected the

administrative judge's conclusions on age

discrimination, finding that the

Plaintiff's request for basis of the

Plaintiff's age, color, race or handicap.

On November 9, 1987, the Plaintiff

filed a timely appeal to the Equal

Employment Opportunity Commission ("EEOC")

Office of Review and Appeals. On December

22, 1987, prior to any decision by the

EEOC, the Plaintiff filed this suit. On

March 30, 1988, the EEOC issued its final

decision, affirming the findings of the

Postal Service, finding that the Plaintiff

had failed to demonstrate a prima facie

case of discrimination, and stating that

there was not any credible evidence

supporting the Plaintiff's claims of

discrimination. |

III. LEGAL ANALYSIS

A. Exclusive jurisdiction

As noted earlier, the Plaintiff has

filed this | suit under the Age

Discrimination in Employment Act ("ADEA"),

29 U.8.C. Section 633(a), the

Rehabilitation Act of 1973, 29 U.S.C.

Section 791, et seq., the Veterans

Reemployment Act, 38 U.S.C. Section 2021,

et seg. andthe conspiracy provisions of

the Civil Rights Act, 42 U.S.C. Sections

1985(2) and (3). The Defendant argues that

the exclusive remedy for Plaintiff's

alieged discrimination is the ADEA and the

Rehabilitation Act. Several courts have

held that a federal employee who claims

age discrimination must proceed with the

claim solely under the provisions of the

ADEA, and that the ADEA provides’ the

exclusive remedy for such discrimination.

See Patterson v. Weinberger, 644 F.2d 521,

524-25 (5th Cir. 1981). See also Castro v.

United States, 775 F.2d 399, 404-405 (lst

Cir. 1985); Purtill v. Harris, 658 F.2d

134, 137 (3rd Cir. 1981, cert. denied),

466 U.S. 1131, 103 &.Ct. 3110, 77 L.Ea@. 2d

1365 (1983). The Fourth Circuit has

recently reached the same conclusion in a

non-federal employee situation. Zombro v.

Baltimore City Police Department, 868 F.2d

1364, 1369 (4th Cir. 1989).

Thus, to the extent that the Plaintiff

attempts to allege his age discrimination

complaints pursuant to 42 U.S.C. Section

1985 or the Vevexens Reemployment Act, the

claims must be dismissed. Plaintiff's sole

remedy for relief from any age

discrimination is the ADEA.

The Defendant makes the same argument

with the Plaintiff's handicap

discrimination complaint, claiming that

the sole remedy available to Plaintiff is

the Rehabilitation Act. See Prewitt v.

United States Postal Service, 662 F.2d

292, 304 (5th Cir. 1981). Prewitt holds

that a Plaintiff alleging a handicap

discrimination claim may raise the claim

under either Section 501 or Section 504 of

the Rehabilitation Act. The Court need not

address this issue however, because the

Plaintiff's complaint does not state a

claim for handicap discrimination under

any statue other thant the Rehabilitation

Act.

B. Exhaustion of remedies.

Both the ADEA and the Rehabilitation

Act contain provisions relating to

exhaustion of remedies but the provisions

differ to some extent. The Defendant

argues that the Plaintiff has failed to

exhaust his remedies under either statues

and these claims should be dismissed on

that basis.

I. ADEA

When a Plaintiff brings an action under

the ADEA he has two choices regarding

exhaustion of remedies. First, he can

choose to bypass the administrative track

entirely, and by giving notice in a timely

fashion to the EEOC, he can head straight

to federal court. See Patterson, 644 F.2d

at 523-24; See also 29 U.S.C. Section

633a(d). His other option is to pursue his

administrative remedies first. If he makes

this choice, however, he must completely

exhaust his adminstrative remedies before

commencing suit in federal court. See

Purtill, 658 F.2d at 138; Castro v. United

States, 775 F.2d 399, 404 (lst Cir. 1985);

Limnogelli v. Postmaster General of the

United States, 707 F.2d 368, 373 (9th Cir.

1983). But see Langford v. U.S. Army Corp

iss

of Engineers, 839 F.2d 1192, 1194-95 (6th

Cir. 1988). Unlike the Title VII process

(which is applicable to the Rehabilitation

Act), an ADEA Plaintiff may not choose to

abandon his administrative claims once he

Starts down that track. Purtill, 658 F.2d

at 138.

With respect to Plaintiff's September

zO, 1985 application, plaintiff never

filed an administrative complaint. Thus,

his action is proper only if he fulfilled

the requirements of 29 U.S.C. Section

633a(d). That section requires that at

least thirty (30) days prior to filing

suit, the Plaintiff must give the EEOC

notice of intent to sue. The notice must

also be given no more than 180 days after

the alleged unlawful practice occurred. No

notice of intent to sue was ever served on

the EEOC, and the suit was filed more than

two years after the alleged unlawful

practice. Thus, with respect to the 1985

hiring decision, Plaintiff is barred from

Suing under the ADEA. 29 U.S.C. Section

633a(d).

With reference. to the May 23, 1986

application, the plaintiff chose to follow

the administrative process. He began that

process by filing a formal appeal with the

Postal Service. He pursued the matter

further when he appealed the Postal

Service's decision to the EEOC on November

9, 1987. On December 22, 1987, prior to

any decision on the appeal, Plaintiff

filed suit. The EEOC handed its decision

down on March 30, 1988, affirming the

Postal Service's findings, thus Plaintiff

did not complete the administrative

process prior to filing suit, and under

the cases cited above, the ADEA claims

related to the May 23, 1986 application

must be dismissed.

Plaintiff argues that in Patterson, the

Fifth Circuit held that an ADEA Plaintiff

need not completely exhaust his

adminstrative remedies prior to filing

suit. He contends that an ADEA Plaintiff

is free to file an action in federal court

at any time after the administrative

process is started, and that no final

agency action is necessary. In support of

this argument, he cites this statement

from Patterson:

"An employee who believes he has

been discriminated against

because of his age has two

avenues of relief. He may file

an administrative complaint with

the employing federal agency,

and if the employing agency's

determination is adverse to him,

he may appeal to the Civil

Service Commission 2 for

administrative review. 29 U.S.C.

Section 633a(b); See 29 C.F.R.

Section 1613.501-1613.521

(1980). After the administrative

2 The EEOC is now the Agency

designated to hear such matters. See 92

Stat. 3781.

complaint has been filed with

the commission a _ civil action

then may be instituted. 29

U.8.C. Section 633a(c),(d).

Alternatively, the employee has

the option under the Act to

bypass the administrative

process either in part or in its

entirety and proceed directly to

federal court thirty days after

notice of intent to sue has been

given to the commission as long

as such notice is give within

180 days after the alleged

unlawful practice occurred". 29

U.S.C. Section 633a(d);See Hall

v. United States, 436 F.Supp.

505 (D. Minn. 1977).

Patterson, 644 F.2d at 523-24 (footnote

and emphasis added).

The Court does not agree that this

statement supports the Plaintiff's

argument. First, the language emphasized

above is simply not supported by the

language of 633a(c), and (da). Section

633a(d) says nothing about the suit being

permitted any time after a complaint is

filed with the EEOC. Rather, it states

that the requirements of that section must

be met when a complaint is not filed with

the Commission. 29 U.S.C. Section 633a

(ad). Further, Section 633a(c) does not

even purport to address the requirements

faced by a Plaintiff that alleged to

pursue the EEOC remedies provided in

633a(b). To construe these sections as

Plaintiff suggests would effectively read

the EEOC provisions of 633a(b) out of the

statue.

Moreover, the Patterson court stated

that if a plaintiff elects to bypass the

administrative process in part, he is

still required to follow the dictates of

29 U.S.C. Seciton 633a(d). The only

logical reading of the quote in part and

language is that it applies to one (like

plaintiff) who commences the

administrative process, but does not

complete it. As noted earlier, Section

633a(d) requires that the individual to

give the EEOC notice of his intent to sue

and to give such notice within 180 days of

the unlawful practice. Plaintiff has not

complied with this section. 3

Most importantly, the Fifth Circuit was

not presented with the instant factual

Situation in Patterson. The issue there

was whether the Plaintiff had adequately

plead his claim under FED.R.CIV.P. 8(a) (2)

to avoid a "facial attack" on

jurisdiction, as opposed to a "factual

attack". Patterson, 644 F.2d at 524.

Indeed the court found that the Plaintiff

had "exhausted all administrative channels

then known to him", Id. at 522, and never

discusses the scenario whether Plaintiff

abandons the administrative process mid-

3 Even if the court construed the

Plaintiff's appeal to the EEOC to be the

notice of intent to sue (which would be

quite a liberal reading of the appeal),

the appeal, filed November 9, 1987, was

not filed within 180 days of the alleged

unlawful practice, which occurred almost

18 months earlier, on June 5, 1986.

stream. At best, therefore, the portion of

the court's statement is dicta, and this

court is not bound by it.

As noted earlier, the First, Third and

Ninth Circuits have explicitly held that

when an ADEA Plaintiff commences’ the

administrative process, he must completely

pursue his administrative remedies prior

to filing suit. Purtill, 658 F.2d at 134;

Castro, 775 F.2d at 399; Limongelli, 707

F.2d at 373. As the Plaintiff notes, the

Sixth Circuit has ruled to the contrary,

and cited Patterson in support of that

result. Langford, 839 F.2d at 1194-95. As

is obvious from the above analysis, the

Court finds the reasoning of Purtill,

Castro and Limongelli more persuasive on

this point and considers the Sixth

Circuits citing of Patterson to be based

upon a misreading of that case.

Thus the Court concludes that an ADEA

Plaintiff does not have the choice to

abandon his administrative remedies once

he has commenced that process, and the

reasons for this rule are clear. If the

Plaintiff chooses to start that process,

it would be grossly inefficient to allow

him to abandon it whenever he grows tired

of it. For the EEOC procedures to work

efffectively, and for the system to have

intergrity, claimants must be required to

pursue their administrative remedies to

completion, or not pursue them at all.

Because the Plaintiff failed to allow the

administrative process to come to a

conclusion prior to filing suit, his suit

must be dismissed for failure to exhaust

administrative remedies.

2. Rehabilitation Act

Claims brought under the Rehabilitation

Act are governed by the administrative

procedure sections of Title VII. 29

U.S.C. § 794a(a) (1); Prewitt, 662 F.2d at

303-304. The procedures for exhaustion of

remedies have been set out by the EEOC in

regulations. See 29 C.F.R. § 1613.211-

1613. 283 (1988). These requirements

include a strict exhaustion rule.

Prewitt. 662 F.2d at 303-304. Among these

regulations is the rule that eae

plaintiff proceeds to an appeal before the

EEOC Office of Review and Appeals, he may

not file suit until 180 days after the

appeal is filed. 29 C.F.R. § 1613.281(d).

As to the discrimination complaint

regarding the September 20, 1985

application, no administrative complaint

of any kind was ever filed. Thus,

Plaintiff is barred from proceeding with

this claim under the Rehabilitation Act.

Prewitt, 662 F.2d at 303-304. See also

Oaxaca v. Roscoe, 641 F.2d. 386 (5th

Cir.1981); Bickham v. Miller, 584 F.2d 736

(5th Cir.1978).

As to the May 26, 1986 application,

Plaintiff filed -an appeal to the EEOC,

Office of Review and Appeals on November

9, 1987. Prior to any decision py the

EEOC, he filed this suit on December 22,

1987, well before the 180 day waiting

period of 29 C.F.R. Q 1613.281(d) had

elapsed. His suit is therefore premature,

and must be dismissed. Moreover, the fact

that Plaintiff's suit was on file when the

180 day period had passed does not cure

the problem. To so hold would render

meaningless the provisions of 29 C.F.R §

1613.281(d), creating the 180 day waiting

period.

C. Veterans Reemployment Act

Plaintiff does not respond to the

Defendant's arguments that the Veterans

Reemployment Act ("VRA") is inapplicable

to this case. It is clear that the VRA

claims are completely without merit.

First, the Act specifically states that it

applies to one's reemployment. See 38

U.S.C. § 2021, et seq. Thus, the VRA

protects one's interest in his job if he

leaves that job to enter the military

service. There is, however, no allegation

that the Plaintiff left the Postal Service

to join the military. Indeed, the only

allegation is that the Plaintiff left the

Postal Service to seek "another

opportunity”, and it appears to be without

dispute that the other opportunity was a4

civil service job. The VRA does not

protect civil servants, but rather

protects individuals that are drafted,

enlist, or are called to active duty in

the Armed Services. The VRA is thus

wholly inapplicable to this case.

Further, even if the VRA applied in

theory, on its face -the Act is not

applicable to a veteran in the Plaintiff's

Situation. As the Complaint alleges, the

Plaintiff served in the Air Force for a

total of 30 years between 1953 and 1984.

A veteran who enlisted or is called to

active duty can only claim the Act's

protection if "the total of such person's

service performed between June 24, 1948,

and August 1, 1961, did not exceed four

years, and the total of any

service...performed by such person after

August 1, 1961, does not exceed five

years..." 38 U.S.C. § 2024(a). Clearly

the Plaintiff does not fall within the

protection of the VRA, having served more

than four years prior to 1961. The claims

under the VRA must therefore be dismissed

for failure to state a claim.

D. 42 U.S.C. § 1985(2) and (3)

Plaintiff's Complaint alleges that

Defendant conspired to deny Plaintiff

ST ———

reemployment as the result of Plaintiff's

age, and that Defendant retaliated against.

Plaintiff for filing an EEOC complaint, in

violation of 42 U.S.C § 1985. Both of

these claims must be dismissed. The

conspiracy claim for denial of equal

protection based upon age discrimination

must be dismissed because, as set out in

section II.B, the ADEA is the Plaintiff's

exclusive remedy for age discrimination.

See Patterson, 644 F.2d at 524-25. The

retaliation claim must be dismissed

because the Pliantiff's own Complaint

alleged that he did not file any EEOC

complaint until after he was denied

reemployment. It is thus impossible

factually, legally, and in any other

sense, for the Defendant's decision not to

rehire Plaintiff to have been in

retaliation for his filing of the EEOC

complaint. These claims therefore fail to

state a claim.

IV. CONCLUSION

Under the undisputed facts it is clear

the the Defendant is entitled to dismissal

and summary judgment. The facts show that

with respect to the claims under Veteran's

Reemployment Act and 42 U.S.C. § 1985(2)

and (3), the Complaint failed to state a

claim upon which relief may be granted.

With respect to the claims under the ADEA

and the Rehabilitation Act, the Plaintff

has failed to exhaust his administrative

remedies, and summary judgment is

therefore proper.

ACCORDINGLY, IT Is ORDERED that

Defendant's Motion to Dismiss or in the

alternative, for Summary Judgment is

GRANTED. An appropriate judgment be

entered this date.

' |

APPENDIX (iii)

29 U.S.C. 633a (a) - (@)

(1989)

(a) Federal Agencies affected

All personnel actions affecting employees

or applicants for employment who are at

least 40 years of age (except personnel

actions with regard to aliens employed

outside the limits of the United States)

in military departments as defined in

section 102 of Title 5, in executive

agencies as defined in section 105 of

Title 5 (including employees and appli-

cants for employment who are paid from

nonappropriated funds), in the United

States Postal Service and the Postal Rate

Commission, in those units in the govern-

ment of the District of Columbia having

positions in the competitive service, and

in those units of the legislative and

judicial branches of the Federal Govern-

ment having positions in the competitive

service, and in the Library of Congress

shall be made free from any discrimination

based on age.

(b) Enforcement by Equal Employment

Opportunity Commission and by Libraries of

Congress in Library of Congress; remediess

rules, regulations, orders, and instruc-

tions of Commission: compliance by Feder-

al agencies; powers and duties of Commis-

sion; notification of final action on

complaint of discrimination; exemptions:

‘bona fide occupational qualification.

Except as otherwise provided in this

subsection, the Equal Employment Opportu-

nity Commission is authorized to enforce

the provisions of subsection (a) of this

section through appropriate remedies,

including reinstatement or hiring of

employees with or

without backpay, as will effectuate the

policies of this section.

The Equal Employment Opportunity Commis-

sion shall issue such rules, regulations,

orders, and instructions as it deems

necessary and appropriate to carry out its

responsibilities under this section. The

Equal Employment Opportunity Commission

shall--

(1) be responsible for the review and

evaluation of the operation of all agency

programs designed to carry out the policy

of this section, periodically obtaining

and publishing (on at least a semiannual

basis) progress reports from each depart-

ment,

agency, or unit referred to as subsection

a a

(a) of this section;

(2) consult with and solicit the

recommendations of interested individuals,

groups, and organizations relating to

nondiscrimination in empioyment on account

of age; and

(3) provide for the acceptance and

processing of complaints of discrimination

in federal employment on account of age.

The head of each such department, agency,

Or unit shall comply with such rules,.

regulations, orders, and instructions of

the Equal Employment Opportunity Commis-

sion which shall include a provision that

an sapkesne or applicant for employment

shall be notified of any final action

taken on any complaint of discrimination

filed by him thereunder. Reasonable

exemptions to the provisions of this

section may be established by the Commis-

sion but only when the Commission has

established a maximum age requirement on

the basis of a determination that age is a

bona fide occupational qualification

necessary to the performance of the duties

of the position. With respect to employ-

ment in the Library of Congress, authori-

ties granted in this subsection to the

Equal Employment Opportunity Commission

shall be exercised by the Librarian of

Congress.

Any person aggrieved may bring a civil

action in any Federal district court of

competent jurisdiction for such legal or

equitable relief in eat effectuate the

purposes of this chapter.

(d) Notice to Commission; time of

notice; Commission notification of pro-

spective defendants; Commission elimina-

tion of unlawful practices.

When the individual has not filed a

complaint concerning age discrimination

with the commission, no civil action may

be commenced by any individual under this

section until the individual has given the

Commission not less than thirty days'

notice of an intent to file such action.

Such notice shall be filed within one

hundred and eighty days after the alleged

unlawful practice occurred. Upon receiv-

ing a notice of intent’ to sue, the Commis-

sion shall promptly notify all persons

named therein as prospective defendants in

the action and take any appropriate action

to assure the elimination of any unlawful

practice.

42 U.S.C. Sec. 2000e-16

Discriminatory practices

prohibited; employees or applicants for

employment subject to coverage.

(a) All personnel actions affecting

employees or applicants for employment

(except personnel actions with regard to

aliens employed outside the limits of the

United States) in military departments as

defined in section 102 of Title 5, in

executive agencies as defined in section

105 of Title 5 (including employees and

applicants for employment who are paid

from nonappropriated funds), in the United

States Postal Service and the Postal Rate

Commission, in those units in the govern-

ment of the District of Columbia having

positions in the competitive service, and

in those units of the legislative and

judicial branches of the Federal Govern-

ment having positions in the competitive

service, and in the Library of Congress

shall be made free from any discrimination

based on race, color, religion, sex, or

national origin.

Civil action by employee or applicant

for employment for redress of grievances;

time for bringing of action; head of

department, agency, or unit as defendant.

notice of final action taken by a depart-

ment, agency, or weit referres to in

subsection (a) of this section, or by the

Equal Employment Opportunity Commission

upon an appeal from a decision or order -of

“such department, agency, or unit ona

complaint of discrimination based on race,

color, religion, sex or national origin,.

brought pursuant to subsection (a) of this

section, Executive Order 11478 or any

succeeding Executive orders, or after one

hundred and eighty days from the filing of

the initial charge with the department,

agency, or unit or with the Equal Employ-

ment Opportunity Commission on appeal from

a decision or order of such department,

agency, or unit until such time as final

action may be taken by a department,

agency, or unit, an employee or applicant

for employment, if aggrieved by the final

disposition of his complaint, or by the

failure to take final action on his com-

plaint, may file a civil action as provid-

ed in section 2000e-5 of this title, in

which civil action the head of the depart-

ment, agency or unit, as appropriate,

shall be the defendant.

RIGHT TO FILE A CIVIL ACTION

29 C.F.R. 1613.281 Statutory right

An employee or applicant is authorized

by section 717(c) of the Civil Rights Act,

as amended, 84 Stat. 112, to file a civil

action in an appropriate United States

district court:

(a) Within thirty (30) calendar days

of receipt of notice of final action taken

by the agency on a complaint.

(b) After one hundred and eighty (180)

calendar days from the date of filing a

complaint with the agency if there has

been no decision.

after receipt of final action taken by the

Commission on the complaint, or

(d) After one hundred and eighty (180)

calendar days from the date of filing an

appeal with the Commission, if there has

been no Commission decision.

For purposes of this part, the decision of

an agency shall be final only when the

agency makes a determination on all of the

issues in the complaint, including whether

or not to award attorney's fees or costs.

If a determination to award attorneys fees

is made the decision will not be final

until the procedure is followed for deter-

mining the amount of the award as set

forth in 1613.271]l(c)

29 C.F.R. 1613.282 Notice of

right

An agency shall notify an employee or

applicant of his right to file a civil

action, and of the 30 day time limit for

filing, in any final action on a complaint

under 1613.215, 1613.217, 1633.220, or

1613.221. The Commission shall notify an

employee or applicant of his right to file

)

been no Commission decision.

For purposes of this part, the decision of

an agency shall be final only when the

agency makes a determination on all of the

issues in the complaint, including whether

Or not to award attorney's fees or costs.

If a determination to award attorneys fees

is made the decision will not be final

until the procedure is followed for deter-

mining the amount of the award as set

forth in 1613.271l(c)

29 C.F.R. 1613.282 Notice of

cright 'e

An agency shall notify an employee or

applicant of his right to file a civil

action, and of the 30 day time limit for

filing, in any final action on a complaint

under 1613.215, 1613.217, 1613.220, or

1613.221. The Commission shall notify an

employee or applicant of his right to file

a civil action, and of the 30-day time

limit for filing, in any decision under.

1613.234.

Subpart E--Nondiscrimination on Account

of Age

29 C.F.R. 1613.501 Purpose and applica-

bility

(a) Purpose. This subpart sets forth the

policy under which an agency shall estab-

lish a continuing program to assure non-

discrimination on account of age and the

regulations under which an agency will

process complaints of discrimination on

account of age.

(b) Applicability. (1) This subpart

applies (i) to military departments as

defined in section 102 of Title 5, United

States Code, and Executive agencies as de-

fined in section 105 of Title 5, United

States Code, the United States Postal

Service and the Postal Rate Commission,

and to the employees thereof, including

employees paid from non-appropriated

funds, and (ii) to those units of the

legislative and judicial branches of the

Federal Government and the Government of

the District of Columbia having positions

in the competitive service and to the

employees of those positions. (2) This

subpart does not apply to aliens employed

outside the limits of the United States.

(3) except as provided by paragraph

(b)(2) of this section, this subpart

applies to applicants for seattions to

which paragraph (b)(1) of this section

applies. (4) This subpart applies to

employees and applicants for employment

who are at least 40 years of age.

to the provisions of this subpart may be

established by the Commission for each

position for which Commission established

a maximum age requirement on the basis of

a determination that age is a bona fide

occupational qualification necessary to

the performance of the duties of the

position.

AGENCY REGULATIONS FOR PROCESSING COM-

PLAINTS OF DISCRIMINATION

29.C.F.R. 1613.513 Effect on Administra-

tive Processing.

The filing of a civil action by an

employee or applicant involving a com-

plaint filed under this subpart terminates

processing of that complaint.

29 C.F.R. 1613.514 Exclusions

Sections 1613.281 and 1613.282 shall

not apply to the processing of discrimina-

tion complaints on account of age. The

reference to 1613.281 in 1613.215,

1613.217, 1613.220, and 1613.221 may not

be included in agency regulations required

by this subpart.

No.

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1989

BEeGe bbe GELIbs IRe-e

Petitioner

Vv.

ANTHONY M. FRANK,

U.S. POSTMASTER GENERAL,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

CERTIFICATE OF SERVICE

The undersigned, an attorney, a member

of the Bar of this Court, certifies that

pursuant to Rule 29.3, Supreme Court Rules,

he served the within Petition for Writ of

Certiorari on the Counsel for Respondent by

enclsoing a copy thereof in an envelope,

with first-class postage prepaid, addressed

to counsel of record at his address:

MARK H. MARSHALL

Assistant U.S. Attorney

816 Congress Avenue, Suite 650

First City Centre

Austin, Texas 78/701

PHILIP W. EGLSAER

Attorney

Office of Field pen Services

Southern Division

United States Postal Service

Memphis, TN. 38166-0170

and depositing same in the United States

Post Office at ae rns Texas, on May

27, 1990 and further certifies that all

parties required to be served have been

served. Ln Ch Ay

a y Y,

DAN A.

Counsel of Record

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