The opinion of the court was delivered by: SHAPIRO
Plaintiff Donald Francis Mackay, Jr., an employee of the United States Postal Service ("USPS"), brings this action for discrimination based on physical handicap in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq., as amended. Mackay also claims damages for "cruel and unusual treatment of a physically handicapped employee," in violation of the Eighth Amendment to the United States Constitution. Finally, Mackay alleges a cause of action for slander. Defendant USPS moves to dismiss for lack of subject matter jurisdiction over the plaintiff's claims or, in the alternative, for summary judgment because Mackay failed to exhaust administrative remedies before commencing this action.
Plaintiff was initially employed by USPS in September, 1976. Shortly after commencing employment, he suffered a back injury and began to receive benefits under the Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq., for full disability. As the result of a medical examination of Mackay, conducted at the request of the Department of Labor in 1982, the Department of Labor determined that Mackay's medical condition permitted him to return to work. On September 15, 1982, the Department of Labor discontinued Mackay's benefits and ordered USPS to restore him to limited duties as a mail handler under a Rehabilitation Program; the work limitations were imposed by the Postal Service medical officer. Mackay petitioned the Merit System Protection Board ("MSPB") for a review of that decision; that petition was dismissed for lack of jurisdiction on August 18, 1983.
In addition to petitioning the MSPB, Mackay filed a claim with the Office of Workers' Compensation Programs ("OWCP") for an alleged recurrence of his disability commencing November 5, 1982. On April 22, 1983, the OWCP rejected that claim on the grounds that Mackay had "failed to submit the necessary evidence in support of his claim." Mackay appealed to the Employees' Compensation Appeals Board ("ECAB"). On November 3, 1983, the ECAB issued an order remanding the case to the OWCP with instructions that the OWCP consider certain doctors' reports offered by Mackay but not considered by the OWCP. But there is no evidence of record of such a rehearing.
After Mackay returned to work as ordered, he received four warning letters from USPS for violating regulations regarding safety and attendance. On February 19, 1983, he received a written warning for running at work. On March 28, 1983 he received another written warning for failure to meet attendance requirements. On April 8, 1983 he received a warning for wearing improper footwear. On June 11, 1983, he received a second written warning for failure to meet attendance requirements. Following these warnings Mackay was disciplined. On July 11, 1983, he received a Note of Suspension for seven days. On August 4, 1983, he received notice that his periodic step increase would be withheld. On September 29, 1983, he was suspended again for seven days.
Mackay filed the present action against USPS on October 6, 1983. Thereafter, he lodged an informal complaint with the Equal Employment Opportunity Commission ("EEOC") officer at USPS concerning the September 29, 1983 suspension. Reports dated October 8, 1983 and October 12, 1983 stated that this disciplinary action was not the result of discrimination based on handicap. On October 26, 1983, plaintiff filed a formal EEOC complaint of discrimination alleging that an incident occurring on October 6, 1983 (the date this suit was filed) was the most recent act of discrimination. Nothing in the record reveals the nature of this particular alleged discriminatory act. On November 30, 1983, plaintiff was notified of receipt of this formal complaint but in December he was informed that the formal complaint was not sufficiently specific regarding the alleged discriminatory act. Mackay was allowed seven days to provide more specific information; because this was not provided, plaintiff's formal complaint was cancelled for lack of prosecution on February 6, 1984.
The issue presented is whether or not the court has jurisdiction to consider Mackay's claims; each claim must be separately considered.
WORKMEN'S COMPENSATION CLAIM
Mackay has contended that he is not fit for employment as determined by the OWCP. On his appeal from the determination, the ECAB remanded the case to the OWCP on November 3, 1983 to consider doctors' reports offered by Mackay in connection with his claim of a recurrence of disability commencing November 5, 1982. There is no record that such reconsideration was made; if a de novo decision adequately setting forth the basis relied upon has not been issued, Mackay should petition the ECAB to require that reconsideration because the April 22, 1983 decision of the OWCP has been set aside. If Mackay was improperly ordered fit for duty, or not placed on light duty status if that was required, he may be entitled to compensation or other relief but he must pursue this matter administratively.
The ECAB, appointed by the Secretary of Labor, makes final decisions on appeals taken from determinations and awards with respect to claims of employees; 5 U.S.C. § 8149. This action is not subject to review by the court, 5 U.S.C. § 8128(b); DiPippa v. United States, 687 F.2d 14 (3d Cir. 1982), or another agency. Neither the MSPB nor this court have authority to consider or review compensation claims.
DISCRIMINATION BASED ON HANDICAP
A private cause of action for relief from discrimination based on handicap by the federal government may arise under either § 501 or § 504 of the Rehabilitation Act as amended in 1978. Under § 501, Title VII, administrative remedies must be exhausted first. This is not expressly required under § 504, which prohibits handicap discrimination under any program receiving federal assistance, or activity conducted by an executive agency or by USPS. Handicapped persons claiming discrimination by a recipient of federal assistance or provider of federal assistance are entitled to the remedies of Title VI by the express provisions of § 505(a)(2). Title VI does not require exhaustion of administrative remedies prior to suit.
The issue is whether § 505(a)(1) or § 505(a)(2) applies if § 504 provides a cause of action for handicap discrimination by USPS. If § 505(a)(2) applies, Mackay may bring this action whether or not he has exhausted Title VII administrative remedies. But if § 505(a)(1) not § 505(a)(2) applies, to a § 504 claim against USPS, or if there is no cause of action against USPS under § 504 and claims of handicap discrimination against USPS can only be asserted under § 501, Mackay may not maintain this action until he has exhausted the Title VII administrative remedies that are a prerequisite to court action. It would then remain to be determined whether or not he has done so.
Mackay claims a violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794 only; the Government's brief addresses § 501 of the Rehabilitation Act, 29 U.S.C. § 791, exclusively. Since plaintiff is proceeding pro se, we will consider whether his complaint may be maintained under either § 501 or § 504.
CLAIMS ARISING UNDER § 501 OF THE REHABILITATION ACT
Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, addresses the employment of handicapped persons by the federal government. Subsection (b) provides, in pertinent part, that:
each department, agency, and instrumentality (including the United States Postal Service and the Postal Rate Commission) in the executive branch shall, within one hundred and eighty days after September 26, 1973, submit to the Civil Service Commission and to the [Interagency Committee on Handicapped Employees] an affirmative action program plan for the hiring, placement, and advancement of handicapped individuals in such department, agency, or instrumentality.
Since 1978, the functions of the Civil Service Commission have been delegated to the EEOC. See Section 4 of the 1978 Reorganization ...