II. LEGAL ARGUMENT
The government argues that plaintiff's failure to meet the timeliness requirements for direct agency review also has the ultimate legal consequence of precluding a Title VII suit. Plaintiff disagrees.
When plaintiff was fired, he chose to appeal this "adverse action" to the Federal Appeals Authority of the Civil Service Commission.
It is undisputed that plaintiff in fact pursued this appeal to a final conclusion; that the issue of discrimination was raised, investigated, and adjudicated; and that plaintiff received a right-to-sue letter. The government also concedes the legal proposition that after properly pursuing an adverse-action appeal, a grievant is entitled to bring a civil suit.
Essentially, the government argues that the timeliness of the Appeals Authority's review of a discriminatory adverse action is controlled by the regulations on direct agency complaints.
This argument is unsupported by the regulations, which allow direct agency complaints and adverse-action appeals as alternate, independent means of satisfying the administrative prerequisites.
Those regulations provide that intra-agency and adverse-action review are "separate rights of appeal." 5 C.F.R. § 772.306(a) (1976); cf. 5 C.F.R. § 1201.154(c) (1982) (adverse action appellant "must either file a timely complaint of discrimination with the agency or appeal ... within 20 days after the effective date of the agency action being appealed"). The grievant must be informed of the "alternate rights of appeal" so that he may "elect which avenue of appeal he wishes to pursue." 5 C.F.R. § 772.306(a) (1976).
Because these two routes of administrative review are separate, plaintiff was entitled to follow only the avenue of an adverse-action appeal. There is no reason in statute or regulation why the timeliness of the adverse-action appeal should be controlled by regulations dealing with direct complaints.
Therefore, plaintiff's failure to follow the regulations on direct agency review has no bearing on the timeliness or propriety of his adverse-action appeal. By raising the question of discrimination in that appeal, and pursuing it to a final decision, plaintiff has complied with the statutory and regulatory requirements of exhaustion of administrative remedies. Therefore, defendant's motion will be denied.
An appropriate order follows.
AND NOW, this 14th day of May, 1982, it is hereby ORDERED that:
1. The following facts "appear without substantial controversy" and are deemed established, see Fed.R.Civ.Pro. 56(d):
(a) Plaintiff never raised the issue of discrimination in firing with his EEO officers.
(b) The EEO officers did not attempt to dissuade plaintiff from filing a complaint.
(c) Plaintiff knew the deadline for filing a complaint, and elected to pursue an adverse-action appeal instead.
2. Defendant's motion to dismiss is DENIED.
3. By June 1, 1982, defendant shall file its answer to the complaint.
4. Discovery shall be completed by September 1, 1982.
5. By September 15, 1982, plaintiff shall file a pretrial memorandum, as well as proposed findings of fact and conclusions of law, and memoranda of law on disputed or unusual legal issues.
6. By September 27, 1982, defendant shall file a pretrial memorandum, as well as proposed findings of fact and conclusions of law, and memoranda of law on disputed or unusual legal issues.
7. A final pretrial conference will be held on October 6, 1982, at 8:45 a.m., in Room 8613.
8. The case is deemed ready for trial at any time after the final pretrial conference. Once listed in the published trial pool, the parties shall be ready to proceed on telephone notice.