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GOLLIS v. SECRETARY

April 27, 1993

MORRIS GOLLIS
v.
SECRETARY, DEPARTMENT OF THE NAVY



The opinion of the court was delivered by: BY THE COURT; HARVEY BARTLE, III

 Bartle, J.

 April 27, 1993

 This is a civil action based on allegations of handicap discrimination in violation of Title VII of the Civil Rights Act of 1964. *fn1" Plaintiff, Morris Gollis ("Gollis"), a civilian machinist with the Department of the Navy ("Navy"), seeks to recover back pay between the period of September 3, 1990 and October 9, 1990. Presently before this Court is a defense motion to dismiss under Rule 12(h)(3) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. *fn2"

 On September 3, 1990 the Navy removed plaintiff from his position as a result of a non-occupational disabling back condition. Plaintiff thereafter timely appealed to the Merit Systems Protection Board ("MSPB") alleging, in part, that he was discriminated against on the basis of his physical handicap. The administrative law judge found no handicap discrimination. Nevertheless, he restored plaintiff to his position effective October 9, 1990 because he sufficiently demonstrated that he could perform the duties of a machinist and because his removal was not "for such cause as will promote the efficiency of the service." Both the plaintiff and the Navy then timely filed cross-petitions for review with the full MSPB.

 On June 5, 1991, the MSPB refused to hear the Petitions for Review. However, its Final Decision, which did not address the merits of plaintiff's discrimination claim, ordered the Navy to cancel plaintiff's removal retroactively, effective September 3, 1990. The MSPB also ordered the Navy to issue a check for the appropriate amount of back pay, interest on back pay, and other benefits no later than 60 days from the date of the Final Decision. Finally, it directed the Navy to notify plaintiff, in writing, of all actions taken to comply fully with the MSPB Order and to advise him when it believed it had fully complied with the Order.

 By a letter dated July 18, 1991, the Navy notified the plaintiff that it intended to restore him effective September 3, 1990. The Navy, however, determined that the plaintiff was only eligible to receive back pay from October 9, 1990, the date the Navy determined he was ready, willing and able to work. *fn3" Although it is not totally clear from the record, it appears that plaintiff has received the appropriate amount of back pay for the period from October 9, 1990 onward. This action involves back pay only for the one month period in dispute.

 On July 5, 1991, almost two weeks before plaintiff received the Navy's letter indicating compliance with the MSPB's Order, plaintiff timely filed a Petition for Review with the Equal Employment Opportunity Commission ("EEOC"). On November 18, 1991, the EEOC denied consideration of the Petition for Review as moot. It reasoned that it could provide no further relief because the Final Decision of the full MSPB had restored plaintiff to his position effective September 3, 1990 and thus made him "whole." The EEOC stated in a footnote that if plaintiff alleged that the Navy was not fully complying with MSPB's Order, plaintiff should bring a Petition for Enforcement before the MSPB.

 Plaintiff did not seek enforcement by the MSPB but, rather, filed this complaint requesting a de novo review of his discrimination based claims. The complaint alleges that the Navy discriminated against plaintiff on the basis of physical handicap when he was terminated and that, therefore, he is entitled to retroactive restoration, including back pay from September 3, 1990.

 Plaintiff alleges that this Court has jurisdiction to hear his discrimination based claims pursuant to 5 U.S.C. § 7703. *fn4" The Navy, however, has moved to dismiss for lack of subject matter jurisdiction under Rule 12(h)(3) on the grounds that: (1) plaintiff's claim of handicap discrimination is moot; and (2) that jurisdiction for the remedy the plaintiff seeks, that is, compliance with the MSPB's order, lies with either the MSPB or the Federal Circuit.

 The proper basis for an appeal from an adverse MSPB decision depends on whether the employee raises allegations of unlawful discrimination in his or her initial MSPB appeal. If a federal employee does not allege that the employment action was a result of unlawful discrimination, he or she may seek review of the MSPB's final decision only before the United States Court of Appeals for the Federal Circuit, which would review the decision using an abuse of discretion standard. See 5 U.S.C. § 7703(b)(1).

 On the other hand, if the employee alleges that the employment action was motivated by discrimination, including handicap discrimination, he or she may seek a de novo judicial review of the merits of the MSPB appeal before the appropriate federal district court. See 5 U.S.C. § 7703(b)(2). The employee can seek review of both the discrimination claim and other aspects of the MSPB decision not involving discrimination. This is known as a "mixed case." See Kean v. Stone, 926 F.2d 276 (3d Cir. 1991). Jurisdiction then lies with the district court since the Court of Appeals for the Federal Circuit and a local district court may not exercise concurrent jurisdiction over different aspects of the case. See Williams v. Department of Army, 715 F.2d 1485 (Fed. Cir. 1983) (en banc).

 In addition, before filing suit in the district court on a discrimination claim raised in a MSPB appeal, the employee may first petition the EEOC to review the MSPB's decision regarding the discrimination aspects of the employee's complaint and wait to file suit until after the EEOC's final decision. See 5 U.S.C. § 7702(b); 29 C.F.R. § 1613.421. If the EEOC declines to consider the decision of the MSPB, the employee may file suit following receipt of the EEOC's final decision. See 29 C.F.R. § 1613.421(c).

 Applying the law to the facts in this case, it is clear that the plaintiff can seek a de novo review of his discrimination based claims before this Court. *fn5" The EEOC's refusal to hear the plaintiff's discrimination based claim constitutes a judicially reviewable action by this Court. The plaintiff timely filed his complaint. ...


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