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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.

  Because of potentially confusing terminology, it is helpful to note briefly the two major methods of review of alleged discriminatory action by a federal agency. I refer to the first, an intra-agency route, as "direct" agency review. The second major route is an "adverse-action appeal"-currently to the Merit Systems Protection Board, formerly to the Appeals Authority. The plaintiff used this second route. See generally notes 7-8 infra.

 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 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. *fn7" 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). *fn8"

 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. *fn9" 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.

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