742 F.2d 257 (6th Cir. 1984), 83-1446, Smith v. United States Postal Service

Docket Nº:83-1446.
Citation:742 F.2d 257
Party Name:William Morrison SMITH, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.
Case Date:September 10, 1984
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 257

742 F.2d 257 (6th Cir. 1984)

William Morrison SMITH, Plaintiff-Appellant,

v.

UNITED STATES POSTAL SERVICE, Defendant-Appellee.

No. 83-1446.

United States Court of Appeals, Sixth Circuit

September 10, 1984

July 10, 1984.

Page 258

Kathleen L. Bogas, Susan Fellman (argued), Detroit, Mich., for plaintiff-appellant.

Leonard R. Gilman, U.S. Atty., Ellen Christensen, Ellen Ritteman (argued), Asst. U.S. Attys., Detroit, Mich., for defendant-appellee.

Before MERRITT, JONES and WELLFORD, Circuit Judges.

MERRITT, Circuit Judge.

This appeal raises a question of first impression in handicap discrimination cases; namely, whether a plaintiff alleging a cause of action for employment discrimination against the Postal Service under the Rehabilitation Act of 1973, 29 U.S.C. Secs. 701-796i (1982), must exhaust administrative remedies before proceeding to federal court. We conclude that exhaustion is required.

I.

Plaintiff Smith, who suffers from cerebral palsy, was employed by the United States Postal Service from 1964 until he retired in 1979 on disability. At that time, plaintiff indicated that he was retiring because his condition had worsened.

Two and one-half years later, plaintiff brought a lawsuit against the Postal Service for wrongfully terminating him on the basis of his handicap. It is undisputed that plaintiff did not present this claim of handicap discrimination to the Postal Service or its Equal Employment Opportunity Division at any time during or following his employment there. Plaintiff's initial cause of action was brought in a Michigan state court under the Michigan Handicapper's Civil Rights Act, MICH.COMP.LAWS ANN. Secs. 37.1101-.1607 (West Supp.1984). The case was subsequently recast as an action under sections 501 and 504 of the Rehabilitation Act of 1973, 29 U.S.C. Secs. 791 & 794 (1982), and transferred to federal court in Michigan.

The Postal Service moved for dismissal on grounds that plaintiff had failed to exhaust administrative remedies as required by sections 501 and 505(a)(1) of the Rehabilitation Act. In response, plaintiff maintained that exhaustion is not required of suits brought under section 504 and 505(a)(2) of the Act. After a hearing, the District Court ruled that the exhaustion requirement applies to both section 501 and section 504, and entered an order of dismissal without prejudice. Plaintiff appeals from this determination.

II.

A. Statutory Framework

The Rehabilitation Act of 1973, 29 U.S.C. Secs. 701-796i (1982), is a program designed to assist and protect the rights of the handicapped. Through it, Congress wanted to "develop and implement, through research, training, services, and the guarantee of equal opportunity, comprehensive and coordinated programs of vocational rehabilitation and independent living" for disabled persons. See id. Sec. 701 (statement of purpose).

Title V of the Act prohibits federal agencies, federal contractors, and recipients of

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federal funds from discriminating against the handicapped. Specifically, section 501(b), 29 U.S.C. Sec. 791(b), requires all executive branch agencies and departments, including the Postal Service, to submit affirmative action plans for the hiring and advancement of handicapped persons. Section 503, 29 U.S.C. Sec. 793, stipulates that all federal contracts contain a provision requiring the contractor to "take affirmative action to employ and advance in employment qualified handicapped individuals." Finally, section 504 of the Act, found at 29 U.S.C. Sec. 794, declares Congress' intention that

[n]o otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

The 1973 Act did not create an express private right of action on the part of handicapped employees against federal government employers. At that time, the language of section 501 merely required that federal agencies submit affirmative action plans. See Prewitt v. United States Postal Service, 662 F.2d 292, 302 & n. 12 (5th Cir.1981) (discussing private right of...

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