Vinieratos v. U.S., Dept. of Air Force Through Aldridge

• Decision Date: 23 July 1991
• Docket Number: Nos. 89-55718,89-55719,s. 89-55718
• Citation: 939 F.2d 762
• Parties: 56 Fair Empl.Prac.Cas. 843, 56 Empl. Prac. Dec. P 40,895 Edward R. VINIERATOS, Plaintiff-Appellant, v. UNITED STATES of America, DEPARTMENT OF the AIR FORCE, Through Edward C. ALDRIDGE, Jr., Secretary of the Air Force, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 762

939 F.2d 762

56 Fair Empl.Prac.Cas. 843,

56 Empl. Prac. Dec. P 40,895

Edward R. VINIERATOS, Plaintiff-Appellant, v. UNITED STATES of America, DEPARTMENT OF the AIR FORCE,

Through Edward C. ALDRIDGE, Jr., Secretary of the

Air Force, Defendant-Appellee.

Nos. 89-55718, 89-55719.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 5, 1990.

Decided July 23, 1991.

S. Timothy Buynak, Jr., Hatch & Parent, Santa Barbara, Cal., for plaintiff-appellant.

Jan L. Luymes, Asst. U.S. Atty., Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, Chief Judge, and O'SCANNLAIN and RYMER, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

Edward Vinieratos charges the United States Air Force with employment discrimination and wrongful removal from his civilian job. More specifically, he challenges two Air Force decisions: the decision to discontinue providing certain "accommodations" for his alleged mental handicap and the subsequent decision to terminate his employment as an engineer. After filing a multitude of formal and informal complaints under three separate administrative systems, he filed two virtually identical complaints in the district court. The court consolidated and dismissed both actions on jurisdictional grounds, and Vinieratos now appeals.

I

In essence, we are asked to sort out the interplay between the administrative systems under (a) the Equal Employment Opportunity Commission ("EEOC"), (b) the Merit Systems Protection Board ("MSPB"), and (c) the internal grievance system of the Air Force itself; their degree of overlap and exclusivity; and the role of exhaustion of administrative remedies as a prerequisite for judicial review.

Appellant Vinieratos was employed as a Program Planning Engineer at the Vandenberg Air Force Base. At least as early as 1984, he began to experience persistent headaches and insomnia, which his doctor, Miriam Yost, diagnosed as symptomatic of a "stress-related condition." Pursuant to her diagnosis, Dr. Yost recommended that appellant "be allowed to work [a] Flex[ible] Work Sched[ule] in attempts to decrease his stress level [and] maximize [his] exercise time." In fact, during the course of 1984, Dr. Yost gave appellant numerous prescription slips in which she urged that he be given flexible hours, a "[n]on-smoking environment," and "civil treatment with [an] optimal degree of autonomy." In one such prescription, Dr. Yost explained:

In my opinion, it is advisable to state explicitly the following stress reduction procedures to obtain optimal work performance from Mr. Vinieratos:

1. He works best autonomously[.]

2. [He works best] when treated politely[.]

3. [He works best] in a smoke-free environment.

Despite the vagueness and breadth of these prescriptions, the Air Force apparently was able to satisfy appellant's medical needs by providing special "accommodations" for approximately two years after 1984. As appellant describes them, these accommodations included a variable and flexible work schedule, a measure of personal "autonomy," and some degree of managerial authority. For a while at least, appellant appeared satisfied with the Air Force's efforts to accommodate him.

In January 1987, however, the Air Force assigned a new officer, Major James S. Johnson, to supervise appellant's work, and Johnson immediately denied appellant any special treatment. On February 6, 1987, Johnson committed the first of the Air Force's allegedly illegal acts: he discontinued appellant's accommodations. In response, appellant retained his current attorney, and on February 27, appellant filed an informal equal employment opportunity ("EEO") complaint with Vandenberg's Chief EEO Counselor, Sylvester Cole. In a letter accompanying his complaint, appellant purported to give Cole "unlimited permission to represent [sic] the resolution of my complaint until [its] satisfactory completion." Although appellant expressly contemplated "the need to file temporizing [sic] ... grievances" under the union-assisted negotiated grievance procedure, a wholly separate administrative system, he stated an unequivocal preference to have his dispute handled through the EEO process:

if the said [union-assisted] grievances are made mention of by base authorities so as to thwart the expediency of the processing of said EEO Complaints[,] I hereby give you discretionary permission to render you[r] efforts superior and to subordinate said blockages you might encounter. Please try to contact me or the union representative in the event of said problems. However, I vest in you the discretionary power, as stated.

Letter from Edward Vinieratos to Sylvester Cole (Feb. 27, 1987).

On March 13, 1987, appellant sent Chief Counselor Cole six pages of "supplemental data" in which he detailed "additional offenses" alleged to have been committed by the Air Force in the two-week period since his initial filing. A week later, on March 20, he again supplemented his EEO complaint and simultaneously began to pursue a different remedy. With the assistance of a union representative, appellant filed an informal grievance pursuant to the Air Force's negotiated grievance procedure.

Appellant now had actions proceeding in two separate administrative fora, and it was not long before he experienced an apparent change of heart about which process was preferable. On June 11, 1987, he delivered a handwritten note to Chief Counselor Cole in which he apparently attempted to countermand his February 27 letter: "Before [I file] a formal EEO complaint, I'd like to give [the] IG a chance. OK?" Note from Edward Vinieratos to Sylvester Cole (June 11, 1987). On June 22, however, appellant supplemented his informal EEO complaint for the third time.

In the midst of this procedural confusion, the Air Force agreed to meet with appellant informally to try to resolve the parties' differences. Accordingly, on June 30, 1987, appellant, Chief Counselor Cole, Air Force officials, and various attorneys met and agreed to a temporary arrangement by which the Air Force promised to continue to provide accommodations for appellant pending a second meeting scheduled for August 12, 1987.

The parties' accounts of what transpired in the days immediately following the June 30 meeting are not consistent. Appellant claims that on the following day, July 1, he left instructions with Chief Counselor Cole by which he purported to file a formal EEO complaint. The Air Force, on the other hand, maintains that appellant still wished to stall the EEO proceedings in order to pursue alternative avenues of relief and that he never actually filed his complaint. Chief Counselor Cole's records indicate that appellant and his representative informed Cole on June 30 that they were "not completely satisfied with the outcome of th[e] meeting" and that "in all probability they would be filing a formal [EEO] complaint." (Emphasis added). Cole's records also indicate that on July 2, appellant told Cole that "what he would really like to do is wait and see how this temporary agreement worked out, [and] then he would file his formal complaint." (Emphasis added). In any event, the complaint was never processed, and the document itself, which appears in the administrative record, is undated.

When the parties' temporary agreement expired on August 12, the Air Force offered to continue the arrangement adopted on June 30, but it declined to meet with appellant who, having not been satisfied with the accommodations, rejected the offer. Several weeks passed, and the parties' relationship steadily deteriorated. After an annual review in mid-September, the Air Force rated appellant's job performance "unacceptable," and on October 2, appellant filed another union-assisted informal grievance to challenge that rating and the Air Force's continued refusal to accommodate his alleged handicap. Appellant filed yet another informal grievance on October 8, and on October 23, he quit his job altogether "to maintain his sanity." Three days later, he filed two more grievances under the union-assisted procedure--one of which he designated as a formal grievance.

After responding to these various grievances, the Air Force issued appellant a notice of proposed removal on November 13, 1987. The eight-page notice detailed a long history of alleged misconduct and unexcused absences from work. The notice also claimed that appellant had failed to produce adequate documentation for his alleged mental handicap and that his demands for accommodation had been unreasonable. Finally, the notice advised appellant of his right to respond to these allegations. ¹ On January 8, 1988, appellant replied in writing, and on January 21, he reverted to the EEO process and filed two formal complaints. The first, dated July 1, 1987, was an apparent attempt to revive the complaint that appellant claims he originally filed on that date. The second, dated January 19, 1988, was filed in "response" to Chief Counselor Cole's Final Interview Report, which Cole actually issued two days later. Although it dismissed the first complaint as untimely, the Air Force accepted and proceeded to process the second.

Meanwhile, on February 24, 1988, the Air Force formally removed appellant from his position, thereby committing the second of its allegedly illegal acts. The removal notice advised appellant that he could appeal either to the Merit Systems Protection Board ("MSPB") or through the negotiated grievance procedure, but that he could not do both. On March 10, appellant elected the former option and filed an MSPB appeal. He now had actions pending in three administrative fora, and once again he undertook to explain which of the three he preferred.

On April 13, 1988, appellant's attorney wrote to Chief Counselor Cole's successor, Richard Kapinos, to convey appellant's desire that the EEO proceedings "defer to the MSPB proceedings." Letter from...