# Petition for Writ of Certiorari — White v. Frank > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1792%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 498 U.S. 890 ## Text No. naar Supreme Court, V8: Fis B way 29 1900 _QOREPH F. BPANION, WR i OLERK , | IN THE SUPREME COURT OF THE UNITED STATES October Term, 1989 BRUCE L. WHITE, JR., Petitioner V. 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 10 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 ll 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. 12 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. 13 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 14 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 15 ee 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- 16 | 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 17 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- 18 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 19 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 20 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 21 WARD L kth Goce A. /V Cou KATHLEEN A. MCGOWAN KARAM, NARANJO & KRUGER 22 APPENDIX 23 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, 24 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 25 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 26 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 27 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 28 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. 29 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. 30 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, 31 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 32 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 34 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, 35 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, 36 —— 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 a7 CE 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 38 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 39 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 40 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 41 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 42 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. 43 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. 44 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 45 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 46 a 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. 47 i 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 48 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 49 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 50 (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 51 a 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 52 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 23 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 54 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. 55 ' | 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- 56 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 57 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 58 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- 59 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. (c) Civil actions; jurisdictions; relief 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- 60 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. 61 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- 62 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. (c) Within thirty days of receipt of 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 63 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. 64 a 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. (c) Within thirty (30) calendar: days 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 65 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 66 ) 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 67 a civil action, and of the 30-day time limit for filing, in any decision under. 1613.234. 68 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 69 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. (c) Exceptions. Reasonable exemptions 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 70 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 71 by this subpart. 72 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 73 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. 74 Counsel of Record 75 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1792%3A1. Public record. Not legal advice.