Downey v. Runyon

• Decision Date: 26 January 1999
• Docket Number: Docket No. 97-6239
• Citation: 160 F.3d 139
• Parties: 8 A.D. Cases 1469 Francis X. DOWNEY, Plaintiff-Appellant, v. Marvin T. RUNYON, Jr., Postmaster General, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 139

160 F.3d 139

8 A.D. Cases 1469

Francis X. DOWNEY, Plaintiff-Appellant, v. Marvin T. RUNYON, Jr., Postmaster General, Defendant-Appellee.

Docket No. 97-6239.

United States Court of Appeals Second Circuit.

Argued Sept. 14, 1998.

Decided Nov. 13, 1998.

Order on Rehearing Jan. 26, 1999.

Francis X. Downey, Buffalo, NY, Plaintiff-Appellant Pro Se.

Janet E. Smith, Attorney, United States Postal Service, Washington, D.C. (R. Andrew German, Managing Counsel, United States Postal Service, Washington, D.C., Patrick H. NeMoyer, United States Attorney for the Western District of New York, Buffalo, New York, Mary E. Fleming, Assistant United States Attorney, Buffalo, New York), for Defendant-Appellee.

Before: KEARSE, Circuit Judge, POLLACK ^* and CASEY, ^** District Judges. ^***

Pollack, Senior District Judge:

PRELIMINARY

Plaintiff, an employee of the United States Postal Service ("USPS"), having asserted an employment claim involving discrimination on the basis of disability, brought a "mixed appeal" before the Merit Systems Protection Board ("MSPB"), which dismissed the appeal for untimeliness. After the Equal Employment Opportunity Commission ("EEOC") denied jurisdiction and determined not to review the MSPB's decision, plaintiff brought suit in the district court on his discrimination claim. Held, the district court has statutory jurisdiction, pursuant to the Civil Service Reform Act, the Rehabilitation Act, and Title VII of the Civil Rights Act of 1964, to exercise a de novo review of plaintiff's discrimination claim.

BACKGROUND

The plaintiff Francis X. Downey was a preference eligible employee who worked for the Postal Service as a Mail Handler in the Buffalo Processing & Distribution Center in Buffalo, New York.

On December 19, 1991, Mr. Downey was placed in an off-duty, non-pay status due to improper conduct in the workplace on December 15, 1991. The Postal Service issued plaintiff a Notice of Proposed Removal on December 20, 1991 charging him with conduct unbecoming a postal employee based on his abusive and threatening behavior to his supervisor and others. On December 20, 1991, Downey and his Union representative met with a Post Office representative to discuss the complaint against him. The matters were discussed again at further meetings.

On January 24, 1992, the Postal Service determined that the charges were fully supported by evidence and warranted removal from the Postal Service effective February 3, 1992. The Postal Service issued plaintiff a Letter of Decision, upholding the removal and advising him of his appeal rights to the MSPB and of the grievance procedure. He was notified that the right to appeal must be exercised within 20 calendar days and of his right to request a hearing and was given an appeal form and a copy of the MSPB regulations. Plaintiff opted to challenge his removal through the grievance procedure under Article 15 of the Collective Bargaining Agreement between the United States Postal Service and the National Postal Mail Handlers Union.

Article 15 of the National Agreement sets forth the grievance-arbitration procedure for employees of the bargaining unit represented by the National Postal Mail Handlers Union, such as plaintiff. This procedure consists of four steps, culminating in final and binding arbitration.

A resolution was achieved through the grievance process. Plaintiff, his representative, and the Postal Service's representative signed a Last Chance Agreement dated February 18, 1992.

Stipulation number 3 of that Agreement states:

The grievant agrees to actively participate in the Employee Assistance Program ("EAP") and agrees to enroll in an approved in-patient substance abuse program. Upon satisfactory completion of this in-patient substance abuse program, the grievant will provide satisfactory documentary evidence of his successful completion of the program to Postal Management. The grievant further agrees to fully cooperate and participate in their program until such time as the EAP professionals determine that such participation is no longer necessary.

Stipulation number 8 of the Agreement states:

Should the grievant fail to abide by this Last Chance Agreement, ... the original removal first issued on December 20, 1991 will be invoked, and the grievant will have no right of appeal to any forum, including but not limited to, the grievance/arbitration procedure, the Merit Systems Protection Board, the Equal Employment Opportunity Commission, or appeal to any other forum. The removal imposition will be effected within 48 hours of the Grievance's written notice of imposition.

Following the execution of the Last Chance Agreement, the Postal Service returned Downey to work.

On March 24, 1992, he signed an Employee Assistance Program ("EAP") participation agreement requiring that he attend at least two meetings per week of Alcoholic Anonymous or Narcotics Anonymous and provide documentation of his attendance to the EAP office. He agreed to participate in the Beacon Center out-patient program. He went to the Beacon Center only once. He agreed to sending a monthly report of participation in the program. The first such report indicated he was not participating to an acceptable level.

In September of 1992 the EAP was notified that plaintiff had been dropped from the program for non-attendance. The letter indicated that plaintiff had last attended a meeting on September 10, 1992. Accordingly, EAP's next report to Labor Relations on October 10, 1992 indicated that plaintiff was not in compliance with his EAP agreement.

On October 30, 1992, a supervisor issued a notice to plaintiff reimposing the prior removal, based on his violation of his Last Chance Agreement. The effective date of that action was November 2, 1992. Plaintiff challenged the removal action through the grievance procedure. An Arbitration hearing was held on June 3, 1993 before an Arbitrator. On July 7, 1993, the Arbitrator issued his decision upholding the termination.

The Arbitrator's award held that the agency did not violate the National Agreement when it implemented the terms of the Last Chance Agreement and terminated appellant. It was this award that sealed Downey's removal date as of October 1992.

The Civil Service Reform Act ("CSRA") provides two paths toward redress for postal service employees who allege that an adverse employment action was wholly or partly based on prohibited discrimination. CSRA provides that aggrieved employees may either bring a "mixed complaint" before the postal service's Equal Employment Office ("EEO"), or a "mixed appeal" before the MSPB. See 5 U.S.C. § 7702(a)(1) & (2); 29 C.F.R. § 1614.302(a)(1) (defining mixed case complaint); 29 C.F.R. § 1614.302(a)(2) (defining mixed appeal). An appeal is "mixed" if the aggrieved postal worker alleges that an action by an employer to the MSPB was effected, wholly or in part, because of employment discrimination based on race, color, religion, sex, national origin, age, or handicap. See 5 U.S.C. § 7702(a)(1); 29 C.F.R. § 1614.302(a)(2). Mixed complaints are filed and processed in similar fashion to standard Title VII/Rehabilitation Act complaints, with a few notable exceptions. See 29 C.F.R. § 1614.302(d). Significantly, an appeal from an EEO determination of a mixed complaint must be made before the MSPB, rather than the EEOC. C.F.R. § 1614.302(d)(3). Thus, an aggrieved employee may bring a "mixed appeal" before the MSPB in two ways: as a direct appeal of an adverse employment action, or as an appeal of an EEO determination of a mixed complaint. 5 U.S.C. § 7702(a)(3); 29 C.F.R. § 1614.302(b); 5 C.F.R. § 1201.151.

On May 22, 1995, Downey filed an appeal with the MSPB challenging his 1992 termination from the Postal Service. In his appeal he alleged as affirmative defenses to the removal action, discrimination based on physical disability (Hemochromatosis) as well as prohibited personnel practices. Among his defenses, he wrote "Having me sign a Last Chance Agreement while I was under the influence. Also imposing punishment while I was on sick leave. I was denied due process and my rights as a preference eligible veteran and discriminated because of disability." He stated that he believed the action he was appealing violated the Americans With Disabilities Act and the Freedom of Information Act. Because appellant's petition was untimely filed, he was ordered, within 15 days to show good cause for a waiver of the regulatory time limit by acknowledgment order of May 24, 1995. He filed an amended appeal on June 10, 1995.

Appellant alleged that he was not afforded a copy of the MSPB's regulations and that he was under the influence of drugs when he signed the Last Chance Agreement. The record shows that appellant was again informed of his notice of removal of January 24, 1992 which incorporated his Board appeal rights in the Removal Imposition Letter of October 30, 1992. Downey had been represented at the Arbitration by an attorney and he and his attorney made a choice of forum, namely, Arbitration, and his hearing was held on June 3, 1993. At the Arbitration, appellant never contested his capacity to enter into a Last Chance Agreement but only his ability to carry out its terms.

On June 20, 1995, Judge William J. Lee of the MSPB issued an Initial Decision on plaintiff's appeal. Administrative Judge Lee dismissed Downey's appeal as untimely; he had failed to file with the Board within the regulatory time period. The Administrative Judge noted that the Board's regulations allowed 25 days to file a request for a review from an Arbitrator's decision. 5 C.F.R. § 1201.154(d) (1993). He also noted that the 30th day for appellant to file was August 6, 1993. Downey's envelope to the Board is post-marked May 19, 1995, nearly two years later.

Administrative Judge Lee noted that an Administrative Judge may waive the time limit in an individual case for good cause, 5 C.F.R. § 1201.12 (1993). However, an appellant bears the...