Roman-Martinez v. Runyon, ROMAN-MARTINEZ and M

• Decision Date: 03 June 1996
• Docket Number: ROMAN-MARTINEZ and M,No. 95-2253,95-2253
• Citation: 100 F.3d 213
• Parties: 6 A.D. Cases 138, 19 A.D.D. 80, 9 NDLR P 31 Edwinaribel Torres-Correa, Conjugal Partnership Composed of Edwin Roman-Martinez and Maribel Torres-Correa, Plaintiffs, Appellants, v. Mervin T. RUNYON, Postmaster General, United States Postal Service, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 213

100 F.3d 213

6 A.D. Cases 138, 19 A.D.D. 80, 9 NDLR P 31

Edwin ROMAN-MARTINEZ and Maribel Torres-Correa, Conjugal Partnership Composed of Edwin Roman-Martinez and Maribel Torres-Correa, Plaintiffs, Appellants, v. Mervin T. RUNYON, Postmaster General, United States Postal Service, Defendant, Appellee.

No. 95-2253.

United States Court of Appeals First Circuit.

Heard June 3, 1996.

Decided Nov. 18, 1996.

Carlos A. Del Valle Cruz, Mayagues, PR, for plaintiffs, appellants.

David G. Karro, Attorney, United States Postal Service, Falls Church, VA, with whom Guillermo Gil, United States Attorney, Fidel A. Sevillano Del Rio, Assistant United States Attorney, Hato Rey, PR, and R. Andrew German, Managing Counsel, Legal Policy, Washington, DC, were on brief, for defendant, appellee.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

This appeal is from a civil action brought against the Postmaster General in the United States District Court for the District of Puerto Rico by Roman-Martinez, a former postal employee. Shortly after ceasing to work for the Postal Service, Roman-Martinez complained administratively to the Postal Service that, while employed, he had been discriminated against because of his handicap in violation of his rights under The Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. (1985). After pursuing, without success, the prescribed course of administrative remedies within the Postal Service and before the Equal Employment Opportunity Commission (EEOC), Roman-Martinez instituted the current de novo judicial action under section 717 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(c) (1994). The district court entered summary judgment for the Postmaster General and refused to allow Roman-Martinez to file an amended complaint. We affirm.

I.

Roman-Martinez was honorably discharged from the United States Army in 1981. The Veterans Administration found that he had a ten percent service-connected disability based upon hepatitis and a ten percent disability based upon lumbar sprain. In 1987, he went to work for the Postal Service under the disabled veterans' preference provisions, see 5 U.S.C. §§ 3309, 3313(2)(A) (1996).

Initially employed as a labor custodian--a job which Roman-Martinez alleges was unsuitable because he was unfit to do heavy lifting and carrying--he soon became a distribution clerk. However, Roman-Martinez contends that his new supervisor's refusal to assign him light-duty functions caused him to injure his back.

A medical examiner for the Postal Service found that Roman-Martinez was unable to carry anything over ten pounds, placed him on limited duty and recommended that he be transferred to Ponce, near his home. The transfer to Ponce took place in January of 1988.

About the same time, Roman-Martinez filed a claim for workers' compensation with the United States Department of Labor. The Postal Service opposed the granting of workers' compensation, denying that Roman-Martinez's back injury had been work related. On February 16, 1988, his claim was initially disallowed for lack of supporting medical data. That same day, Roman-Martinez, having aggravated his back injury, saw a doctor who found him to be totally disabled.

A few days later, Roman-Martinez confronted his supervisor, Bernie Sprolito, with the letter denying his workers' compensation claim. Sprolito allegedly told Roman-Martinez that he had to surrender whatever had been paid to him under the claim, and that, notwithstanding Dr. Martin's medical report indicating total disability, he had to return to work or face discharge for absenteeism.

As a result of his conversation with Sprolito, Roman-Martinez continued to work at the Ponce office although allegedly suffering from severe pain. He also began feeling persecuted and harassed by Postal Service employees, causing him, he says, to become mentally ill.

Following an appeal, the United States Department of Labor reopened Roman-Martinez's workers' compensation case and, on June 13, 1988, determined that his back injury had been work related.

In mid-1989, he was found to have a schizophrenic-type disorder and was treated with psychotherapy and antipsychotic agents. A psychiatrist described him as being suspicious, hostile and agitated.

Roman-Martinez's bargaining agent, the American Postal Workers Union (APWU), filed two grievances on his behalf. In one, the APWU alleged that the Postal Service had violated the collective bargaining agreement by assigning him fewer hours than other part-time flexible employees. In the other, the APWU claimed that the Postal Service had failed to place him on the clerk's seniority list at the Ponce office. The APWU and the Postal Service settled both grievances shortly thereafter.

In June of 1990, Roman-Martinez stopped working for the Postal Service altogether, asserting that he had become totally incapacitated.

Not fully satisfied with the settlement of his grievances, Roman-Martinez contacted a Postal Service EEO counsellor on September 24, 1990, and argued that the Postal Service's refusal to give him a full complement of working hours and to place him on the clerk's seniority list had constituted discrimination on the basis of his physical disability. On November 7, 1990, he filed with the Postal Service a formal administrative complaint of such discrimination. In a final decision dated May 14, 1991, the Postal Service rejected Roman-Martinez's administrative complaint on the ground, among others, that he had failed to bring the allegedly discriminatory act to the attention of an Equal Employment Opportunity (EEO) counsellor within thirty days of its occurrence, as required by the relevant regulation, 29 C.F.R. § 1613.214(a)(1)(i) (1995).

Roman-Martinez appealed to the EEOC from the Postal Service's ruling. The EEOC, in January 1992, affirmed the Postal Service's determination that Roman-Martinez's claim was untimely because of his failure to have brought it to the attention of an EEO counselor within the thirty-day period. The EEOC thereafter denied a request from Roman-Martinez to reopen its decision.

On July 2, 1992, Roman-Martinez, his wife and their conjugal partnership brought this civil action pro se in the United States District Court for the District of Puerto Rico. ¹ After the district court had appointed counsel, 42 U.S.C. § 2000e-5(f)(1) (1994), Roman-Martinez filed an amended complaint in mid-April 1993.

In 1995, the district court entered an order granting the Postmaster General's motion for summary judgment, and dismissing Roman-Martinez's amended complaint. This appeal followed.

II.

The parties seem to agree, as do we, that the statutory basis for Roman-Martinez's action is 42 U.S.C. § 2000e-16(c) (1994). Such an action confers upon the federal complainant the same right to a trial de novo as is enjoyed by private sector and state government employees under the amended Civil Rights Act of 1964. Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). A district court does not simply engage in "substantial evidence" review, or the like, based upon the administrative record. Id. at 858, 863, 96 S.Ct. at 1958, 1960-61. On the other hand, as a prerequisite to de novo trial in the district court, a federal employee must first have exhausted the administrative remedies provided. See Brown v. General Serv. Admin., 425 U.S. 820, 832, 96 S.Ct. 1961, 1967-68, 48 L.Ed.2d 402 (1976); Jensen v. Frank, 912 F.2d 517, 520 (1st Cir.1990); see, e.g., McGuinness v. United States Postal Serv., 744 F.2d 1318, 1320 (7th Cir.1984).

Here, the district court granted the defendants summary judgment, a determination we review de novo, scrutinizing the entire record in the light most favorable to the nonmovant, and indulging all reasonable inferences in that party's favor. Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994).

III.

The Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. (1985), prohibits discrimination against any otherwise qualified handicapped individual solely by reason of his or her handicap. ² The Act incorporates the rights, remedies, and procedures set forth in the Equal Employment Opportunity Act. See Civil Rights Act of 1964, Sections 717, 706(f)-(k), 42 U.S.C. §§ 2000e-16, 2000e-5 (f)-(k) (1994).

Section 717 of Title VII does not set out the procedures, nor does it prescribe a limitations period, for the filing of grievances by a federal employee affected by an alleged unlawful practice. But it grants to the EEOC authority to "issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section." 42 U.S.C. § 2000e-16(b) (1994). Pursuant to this authority, the EEOC issued regulations published in 29 C.F.R. § 1613.214 (1995), which provided, in part: ³

(a) Time Limits. (1) ... The agency may accept the complaint for processing ... only if:

(i) The complainant brought to the attention of the Equal Employment Opportunity Counsellor the matter causing him/her to believe he/she had been discriminated against within 30 calendar days of the date of the alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action; ...

(4) The agency shall extend the time limits in this section when the complainant shows that he/she was not notified of the time limits and was not otherwise aware of them, was prevented by circumstances beyond the complainant's control from submitting the matter within the time limits; or for other reasons considered sufficient by the agency.

The Postal Service and the EEOC both found that Roman-Martinez had failed to bring "the matter causing [him] to believe [he] had been discriminated against" to the attention of the...