Roman-Martinez v. Runyon

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-2253

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.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Carlos A. Del Valle Cruz for appellants.

David G. Karro, Attorney, United States Postal Service, with whom

Guillermo Gil, United States Attorney, Fidel A. Sevillano Del Rio,

Assistant United States Attorney, and R. Andrew German, Managing

Counsel, Legal Policy, were on brief for appellee.

November 18, 1996

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.
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

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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 Ponc , near his home. The transfer to Ponc

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-

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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 Ponc 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 Ponc office.

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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.

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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.
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

1. The complaint includes Torres-Correa, Roman-Martinez's
wife, and their conjugal partnership as plaintiffs. There
is, however, no indication in the record that Torres-Correa
was an employee of the Postal Service, or an applicant for
such employment. They were, therefore, outside the
categories of persons authorized to sue under 42 U.S.C.
2000e-16(c) (1994), which appears to be the statutory basis
for Roman-Martinez's current suit.

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U.S. 840 (1976). A district court does not simply engage in

"substantial evidence" review, or the like, based upon the

administrative record. Id. at 858, 863. 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 (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-Dennis v. Castillo-Rodriguez,

23 F.3d 576, 581 (1st. Cir. 1994).

III.
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,

2. 29 U.S.C. 794 (1985) provides: "No otherwise qualified
handicapped individual in the United States . . . 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

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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; . . .

Postal Service . . . "

3. The quoted regulations were applicable to Roman-
Martinez's administrative complaints made in 1990. In
regulations effective in 1992, the period for contacting the
EEO counsellor was extended from 30 to 45 days. 29 C.F.R.
1614.105(a)(1) (1995).

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(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 Postal Service's EEO counsellor within the

thirty-day period prescribed in the above regulation. On the

then undisputed assumption that he had first presented his

complaints to EEO counsellor L pez on September 24, 1990, the

Postal Service and the EEOC determined that presentation on

that date was plainly too late. As Roman-Martinez had,

indeed, ceased to work for the Postal Service during the

previous June 1990, the effective date of the personnel

actions he challenged the refusal to give him a full

complement of working hours and to place him on the seniority

list would seem necessarily to have occurred more than

thirty days before the September 24 meeting.

Agreeing that Roman-Martinez had indisputably

failed to meet the thirty-day requirement, the district court

held that he was barred from proceeding with this civil

action. The court based its ruling on precedent in this

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circuit, and elsewhere, that a federal employee's failure to

contact an EEO counsellor within the thirty-day period, or

some valid extension allowed under the above-quoted

regulations, causes him to lose his right to pursue a later

de novo action in court. Jensen, 912 F.2d at 520; Johnson v.

United States Treasury Dept., 27 F.3d 415, 416 (9th Cir.

1994).

On appeal Roman-Martinez raises several points

which we now discuss.

1. Alleged Invalidity of Regulation Requiring Federal

Employees to Bring Complaint to EEO Counsellor within

Thirty Days

Roman-Martinez argues that requiring federal

employees to consult with their agency's EEO counsellor

within thirty days forces compliance with time limits so

unreasonably short as to violate the statutory mandate.

Congress's intent, he says, was to provide federal employees,

when victimized by discrimination, with remedies identical to

those of state, municipal and private employees. The latter,

he points out, are allowed 180 days within which to file a

complaint before the EEOC. 42 U.S.C. 2000e-5(e)(1) (1994).

Congress, however, refrained from legislatively

subjecting federal employees to the six-month period provided

for other sorts of employees. Rather, it delegated to the

EEOC the authority to regulate the bringing of claims by

federal employees. The thirty-day regulation forces federal

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employees to try to conciliate their grievances promptly

before seeking more formal administrative relief within the

agency and before the EEOC. Unlike the 180-day provision,

the thirty days is not the period within which the formal

complaint must be filed, but rather is the period within

which the grievance must be presented for conciliation. If

that fails, a further brief period for filing the formal

complaint is afforded. In any case, the challenged

procedures for federal employees were in continuous effect

for nearly twenty years before appellant's claim arose.4 The

thirty-day time limit has been accepted and enforced without

criticism in cases litigated before the lowewr federal

courts, including this one. See, e.g., Jensen, 912 F.2d at

520. We note, also, that the Supreme Court has applied time

limitations of equal duration to the ones at issue in this

case. See Irwin v. Dept. of Veterans Affairs, 498 U.S. 89

(1990) (applying the pre-1991 thirty-day limitations period

for filing Title VII civil actions); Brown, 425 U.S. at 820

(same). Had Congress wished to tie federal employees into

the 180 days established for other categories of claimants,

it could easily have done so. And, of course, it remains

open to Congress at any time, should it so wish, to legislate

4. Throughout this period, the time for federal employees to
present their claims for counselling was 30 days or less.
Compare 5 C.F.R. 713.214(a)(1)(i) (1972) with 29 C.F.R.

1613.214(a)(1)(i) (1992).

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time limits different from those established by the EEOC. We

see no justification for us to override these well-

established procedures set by the EEOC pursuant to

congressional authority.

Nor can we see anything so unreasonable in the

relevant EEOC regulations as to violate the equal protection

clause of the federal Constitution or to violate the

requirements of due process. Congress often regulates

federal employees differently from other categories of

persons; there is nothing grossly unfair or arbitrary about

the challenged regulations. We accordingly uphold the

district court's rejection of appellant's attack on the

validity of the time limits in question.

2. Roman-Martinez's Contention that He Earlier Brought this

Claim to the EEO Counsellor's Attention

When Roman-Martinez sued in district court, he

asserted there, for the first time, that he had contacted EEO

counsellor L pez prior to September 24, 1990, hence had

complied with the thirty-day requirement. Before considering

this contention, we examine the administrative record.

The EEOC, in its initial administrative decision

reviewing the Postal Service's rejection of Roman-Martinez's

claims, upheld the Postal Service's conclusion that by

waiting until September 24, 1990, Roman-Martinez had failed

timely to seek EEO counselling. Roman-Martinez thereafter

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asked the EEOC to reconsider that decision, tendering as a

justification for his delay a psychiatrist's statement that

on September 24, 1990, the "high levels of neuroleptic,

anxiolitics, antidepressive medications" prescribed for his

mental disorder "limited almost completely" his functional

level.

The EEOC declined to reopen the case. It noted

that while appellant complained that the EEOC's prior

decision involved an erroneous interpretation of law, he

presented no arguments at all to support that allegation, and

"has not even addressed the substance of the EEOC's appellate

decision." The psychiatrist's statement itself was held "not

new because it was available and could have been presented

when appellant initially appealed" to the EEOC. The

statement did not, furthermore, address Roman-Martinez's

ability to have sought timely EEO counselling before

September 24, 1990.

In opposing summary judgment before the district

court, Roman-Martinez did not renew the above contention that

his failure to seek EEO counselling earlier had been

justified because of the medications provided for his mental

condition. Instead, he raised an issue not presented during

the administrative proceedings, namely, that he had in fact

sought EEO counselling prior to the untimely September 24,

1990, meeting.

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In an affidavit filed in the district court action,

Roman-Martinez asserted that he had contacted EEO counsellor

L pez "twice via telephone prior to September 24, 1990, at

some period of time between October 1989 and June 1990, to

communicate the discrimination I was being subjected to at

the Ponc Post Office by Postmaster Oscar Rivera, among

others." The affidavit went on to report that "L pez told me

that she would speak to Oscar Rivera to see what could be

done about the situation." Roman-Martinez now claims that

this new contention raises a factual issue on which he was

entitled to have a trial in the district court.

The district court rejected the above contention.

Citing Theard v. United States Army, 653 F. Supp. 536, 541

(M.D.N.C. 1987), the court ruled that plaintiff's affidavit

failed to establish that sufficient facts were brought to

L pez's attention "such that the counsellor should have

reasonably concluded that the employee was seeking to

resolve, through EEO channels, an allegation of

discrimination." The court noted the absence of any

reference in the alleged phone discussions with L pez to

specific personnel actions.

We are inclined to agree with the district court

that Roman-Martinez's affidavit was insufficiently clear to

create a genuine issue of fact over whether he made an

adequate presentation to an EEO counsellor prior to September

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24, 1990. Except for saying he communicated "the

discrimination I was being subjected to at the Ponc Post

Office by Postmaster Oscar Rivera," appellant does not

describe the nature of what he told L pez. Other evidence

indicates that during this period Roman-Martinez was

protesting, among others, the alleged violations of the union

contract and the denial of his workers' compensation claim,

leaving it unclear if in the alleged conversations with the

Postal Service's EEO counsellor Roman-Martinez made a

recognizable claim of handicap discrimination. The

counsellor denied having received any such claims prior to

September 24, and even when appellant's affidavit is

interpreted in a light most favorable to appellant, the

substance of the claims actually conveyed cannot be

ascertained.

But while, therefore, the district court may well

be right that Roman-Martinez's affidavit did not suffice to

raise a genuine issue of fact, we do not decide on that basis

alone. Even supposing the affidavit were adequate to raise a

factual issue, there is the additional problem, also noted by

the district court, that Roman-Martinez never took the

position before the Postal Service or the EEOC that he had

presented his claim of handicap discrimination to an EEO

counsellor prior to September 24, 1990. Throughout the

administrative proceedings, the apparently unchallenged date

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of his first presentation to an EEO counsellor was September

24, 1990. Far from questioning this date, Roman-Martinez

sought to justify his failure to have acted sooner by

presenting a psychiatrist's letter stating that, being

heavily medicated on September 24, 1990, his functional

levels were "limited almost completely." The EEOC refused to

reopen in order to consider this evidence, saying that the

psychiatrist's statement was not material to claimant's

ability to have sought timely counselling in the relevant

earlier periods, and anyway came too late. Roman-Martinez

thereupon abandoned this contention when he sued in the

district court. He did not mention it in his opposition to

the motion for summary judgment nor in his statement of

controverted facts. Rather, for the first time, he asserted

the new and different proposition that he had actually

presented his claim of handicap discrimination to an EEO

counsellor prior to September 24, 1990, during telephone

calls allegedly made between October 1989 and June 1990 to

EEO counsellor L pez.

We agree with the district court that Roman-

Martinez, having never presented it during the administrative

proceedings, may not raise this new factual contention in

court proceedings for the first time. To be sure, the

exhaustion requirement should be applied with reasonable

restraint where Congress has conferred the right to a de novo

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trial. Nonetheless, the Supreme Court has described the

present statutory scheme as "a careful blend of

administrative and judicial enforcement powers." Brown, 425

U.S. at 833. The lower federal courts have consistently

found a duty in proceedings of this character to pursue and

exhaust administrative remedies prior to the de novo trial.

Jensen, 912 F.2d at 520; McGuinness, 744 F.2d at 1320. We do

not think that appellant may, for the first time, present to

a judicial fact finder a key factual issue which he did not

raise during prior agency proceedings and which, indeed, runs

counter to assumptions (i.e. the September 24 date) that he

seemingly accepted throughout the agency proceedings.

We hold, therefore, that the district court

properly refused to consider Roman-Martinez's new-found

assertion of having sought EEO counselling at an earlier

time. That argument was not exhausted before the

administrative tribunals having jurisdiction to grant relief

to appellant.

For the same and additional reasons, the district

court properly rejected Roman-Martinez's assertion that he

had timely presented his claims because he had earlier

relayed them to Bernie Sprolito, his supervisor and manager

of the People with Handicap Program at the Ponc Post Office.

Not only was this contention not brought up during the course

of the administrative proceedings, but it also falls short of

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demonstrating, even if proven, timely compliance with the

thirty-day requirement. Bernie Sprolito was not the EEO

counsellor, nor did appellant present any evidence that

Bernie Sprolito was ever held out to him as being the EEO

counsellor. See Jensen, 912 F.2d at 521 (appellant "must

allege and prove . . . that the employer actively misled him

and that he relied on the misconduct to his detriment"). Nor

has appellant asserted that he lacked notice of the correct

procedures and time limits. We find nothing in the reference

to the conversations with Bernie Sprolito that excuses

noncompliance with the thirty-day time limit.

3. Dismissal of Amended Complaint

Roman-Martinez argues that the district court erred

in dismissing his amended complaint. The district court held

that the amended complaint would not survive a motion to

dismiss for failure to exhaust administrative remedies. We

hold that the court was correct.

The Supreme Court held in Forman v. Davis, 371 U.S.

178, 182 (1962), that a party ought ordinarily to be given an

opportunity to test his claim on the merits. However, the

Court also noted exceptions to this rule as where prejudice

to the amending party's adversary is shown or where the

proposed amendment would constitute no more than a futile

exercise. Id.; see also Correa-Martinez v. Arrillaga-

Belendez, 903 F.2d 49, 59 (1st Cir. 1990); Kay v. New

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Hampshire Democratic Party, 821 F.2d 31, 34 (1st Cir. 1987).

The latter exception applies here.

Roman-Martinez filed his formal complaint of

discrimination on November 7, 1990. On December 7, 1990, the

Postal Service sent him a letter outlining the issues that

the investigation would cover, and inviting him to respond if

he disagreed with the scope of the investigation. Appellant

responded in a letter dated December 13, 1990, setting forth

ten allegations of discrimination dating back to his first

year with the Postal Service. Of these, most were new to

those presented in the original complaint, although the

latter were also listed.

If he wished to pursue the new allegations, Roman-

Martinez was required to initiate a new complaint covering

them. He filed a second, informal, administrative complaint

doing so, but never got around to filing and pursuing a

formal administrative complaint incorporating the new items.

Instead, without ever having taken steps to achieve

administrative redress, he waited and eventually transferred

the contents of the stillborn administrative complaint into

his amended judicial complaint.

On these facts, it was clear to the district court

that the new items inserted into the amended judicial

complaint were not only untimely because (like the original

items discussed above) they dealt with incidents that

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occurred well before the appellant's first contact with an

EEO counsellor, but were unripe for adjudication because they

were never made the subject of a formal administrative

complaint and proceedings. To hold otherwise would allow

appellant to circumvent the exhaustion requirement imposed on

all who bring claims of handicap discrimination in federal

court. See Jensen, 912 F.2d at 520. In these circumstances,

allowing the amended complaint to be filed would have been a

futile exercise since, as the district court correctly

stated, it would have been subject to a successful motion to

dismiss for failure to exhaust administrative remedies.

Affirmed.

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