998 F.2d 1016 (7th Cir. 1993), 92-3197, Everage v. Runyon

Docket Nº:92-3197.
Citation:998 F.2d 1016
Party Name:Johnnie EVERAGE, Plaintiff-Appellant, v. Marvin RUNYON, Postmaster General, [**] Defendant-Appellee.
Case Date:July 07, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 1016

998 F.2d 1016 (7th Cir. 1993)

Johnnie EVERAGE, Plaintiff-Appellant,


Marvin RUNYON, Postmaster General, [**] Defendant-Appellee.

No. 92-3197.

United States Court of Appeals, Seventh Circuit

July 7, 1993

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)

Decided July 21, 1993.

Appeal from the United States District Court for the Eastern District of Wisconsin, No. 90 C 712; John W. Reynolds, Sr., Senior Judge.



Before CUMMINGS, COFFEY and RIPPLE, Circuit Judges.


Johnnie Everage brought a complaint against the Postmaster General alleging discrimination on account of race and handicapping condition in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e, et seq., and the 1973 Rehabilitation Act, 29 U.S.C. § 791. The district judge gave summary judgment for the Postmaster General because Everage failed to contact an Equal Employment Opportunity counselor within thirty days, as required by 29 C.F.R. § 1613.214(a)(1)(i), and because Everage's illiteracy and ignorance of his legal rights provided no justification for tolling this time period. See Barrow v. New Orleans Steamship Ass'n, 932 F.2d 473, 478 (5th Cir.1991). After reviewing the record and the parties' briefs, we agree with the district judge's conclusion, and therefore AFFIRM his decision for the reasons stated in the attached order. We note additionally that Everage's brief fails to advance any legal argument regarding the propriety of the district judge's decision, and contains no citation to case authority, in noncompliance with Rule 28(a)(5) of the Federal Rules of Appellate Procedure. Fed.R.App.P. 28(a)(5); McCottrell v. EEOC, 726 F.2d 350, 351 (7th Cir.1984); Pelfresne v. Village of Williams Bay, 917 F.2d 1017, 1023 (7th Cir.1990).




Johnnie Everage, Plaintiff,


Anthony M. Frank, Postmaster General, U.S. Postal Service, Defendant.

July 13, 1992.

Civil Action No. 90-C-0712


Presently before this court is the defendant Postmaster General's October 5, 1990 motion for summary judgment. For the reasons below, this court grants the motion and dismisses this action.


  1. Everage's Discharge

    Plaintiff Everage began working in the Postal Service's Milwaukee Division on January 7, 1984 (Def.'s Oct. 5 Mem. in Supp. of Mot. to Dismiss and/or Summ.Judg., Ex. C). On October 26, 1988, the Postal Service issued Everage a notice of proposed indefinite suspension (Id. Ex. B). The notice of proposed indefinite suspension charged Everage with (1) exaggerating the extent of an on-the-job injury for which Everage was attempting to claim disability compensation, and (2) falsifying his job application by failing to report an alleged arrest for lewd and lascivious behavior (Id.).

    On October 29, 1988, attorney Thomas J. Flanagan ("Flanagan"), purporting to represent Everage in his effort to clear his record of the arrest for lewd and lascivious behavior, wrote the Milwaukee Police Department to request information regarding the arrest. The record does not reflect that Flanagan undertook any other actions on Everage's behalf.

    On December 28, 1988, the Postal Service issued Everage a notice of proposed removal advising him that he would be discharged within thirty days for the same reasons listed in the notice of proposed indefinite suspension (See id. Ex. A). On February 28, 1989, the Postal Service discharged Everage (Id. Ex. G at 1).

  2. Everage's Grievance-Arbitration Challenge

    Everage challenged his discharge and suspension through the grievance-arbitration procedure contained in his union's collective bargaining agreement (See id. Ex. D (Dec. 13, 1989 Arbitration Award)). Everage's grievance proceeded to arbitration, and on December 13, 1989, an arbitrator denied the grievance, thereby upholding the suspension and discharge (Id.).

    On May 4, 1990, Everage appealed the arbitrator's decision to the Merit Systems Protection Board ("MSPB"). On July 5, 1990, the MSPB dismissed Everage's appeal as untimely (Id. Ex. E (Jul. 5, 1990 MSPB Order)). The Federal Circuit Court of Appeals affirmed the MSPB's decision dismissing Everage's union grievance, reasoning that Everage had not justified his untimely appeal to the MSPB. The court of appeals noted that Everage had been informed...

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