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May 14, 1982

Stanley M. EDWARDS

The opinion of the court was delivered by: GILES

Defendant moves to dismiss on the ground that plaintiff failed to exhaust properly the administrative remedies that are prerequisites for Title VII suits by federal employees. For the reasons which follow, the motion is denied.

 Defendant's position comprises two factual contentions and a legal argument. Defendant ("government") contends that plaintiff failed to comply with the regulation requiring him to bring the matter to the attention of an Equal Employment Opportunity Counselor ("EEO counselor") as part of pre-complaint processing. *fn1" Defendant also contends that plaintiff failed to file timely a complaint of discrimination. Defendant argues that these inactions amount to a failure to exhaust properly administrative remedies, thus barring plaintiff from filing a Title VII suit.

 Plaintiff presents a different version of the facts. He first contends that allegations of discriminatory firing were brought to the attention of his EEO counselor. Second, he contends that his counselor dissuaded him from filing a direct complaint, so that under the regulations, his time has not yet run. Finally, plaintiff observes that he pursued, to a final decision, an adverse-action appeal, and that this constitutes sufficient exhaustion of administrative remedies to allow a Title VII civil suit.


 Plaintiff worked as a civilian security guard for the Aviation Supply Office of the Department of the Navy. In June, 1975, plaintiff was accused of various official wrongdoings, his badge was taken away, and he was denied access to the work compound. On July 11, 1975, he was terminated. Between June and August, he and EEO personnel had discussions, the substance of which is disputed. It is, however, undisputed that plaintiff never filed the complaint needed to initiate direct agency review; instead, he initiated an adverse-action appeal.

 The government contends that during the discussions with his EEO counselor, plaintiff raised only the issue of revocation of his badge and denial of access, and never mentioned his firing, the matter he complains about in this lawsuit. The government also contends that EEO officers never attempted to dissuade plaintiff from pursuing intra-agency remedies. The government's position is supported by affidavits. *fn2"

 Through counsel, plaintiff disputes these contentions. Counsel's argument, however, cannot overcome the government's affidavits. As the government has pointed out, the inclusion of affidavits with the motion papers makes the motion one for summary judgment. Defendants' Second Supplemental Memorandum at 6; see Fed.R.Civ.Pro. 12(b). When a summary judgment motion is supported by affidavits, the adverse party may not rest upon the pleadings, but must supply proper affidavits or discovery creating a specific factual dispute. See Fed.R.Civ.Pro. 56(e). Counsel's disputation cannot create a genuine dispute. Thus, it appears "without substantial controversy," see id. 56(d), that plaintiff never complained to his EEO officers about discriminatory firing, and that his EEO officers never tried to dissuade him from pursuing direct agency review.

 These facts have immediate legal consequences in terms of the regulations governing direct agency administrative procedures. Those regulations provide that to avail himself of his direct administrative remedy for discrimination, a federal employee must satisfy two time requirements. First, he must have brought the matter or personnel action to the attention of his EEO counselor within thirty days of the matter or action. 5 C.F.R. § 713.214(a)(1)(i) (1976); accord 29 C.F.R. § 1613.214(a)(1)(i) (1981). Second, he must file a formal, written complaint within fifteen days of the final interview with his counselor. 5 C.F.R. § 713.214(a)(1)(ii) (1976); accord 29 C.F.R. § 1613.214(a) (1)(ii) (1981). The agency, however, must extend the time limits if plaintiff was not aware of the limits, if plaintiff was prevented from complying by circumstances beyond his control, or for other sufficient reasons. 5 C.F.R. § 713.214(a)(4) (1976); accord 29 C.F.R. § 1613.214(a)(4) (1981).

 The consequences of the established facts are twofold. First, plaintiff has complied with neither time requirement. Second, because defendant has established that plaintiff was not dissuaded, no factual basis exists for plaintiff's attempt to invoke an extension. *fn3" Because plaintiff has failed to comply with the regulations on time limits, he is foreclosed from using the direct agency administrative remedy. See 5 C.F.R. § 713.214(a)(1) (1976); 29 C.F.R. § 1613.214(a)(1) (1981).

 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. *fn4"

 When plaintiff was fired, he chose to appeal this "adverse action" to the Federal Appeals Authority of the Civil Service Commission. *fn5" 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. *fn6" Essentially, the ...

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