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
-2-
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-
-3-
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.
-4-
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.
-5-
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.
-6-
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
-7-
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).
-8-
(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
-9-
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
-10-
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).
-11-
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
-12-
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.
-13-
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
-14-
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
-15-
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
-16-
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
-17-
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
-18-
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
-19-
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.
-20-