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KENNEDY v. RUNYON

July 22, 1996

JERRY C. KENNEDY, Plaintiff,
v.
MARVIN T. RUNYON, JR., Postmaster General, and the UNITED STATES POSTAL SERVICE, Defendants.



The opinion of the court was delivered by: CINDRICH

 CINDRICH, District Judge

 July 22, 1996

 This is an action by plaintiff Jerry C. Kennedy ("Kennedy") alleging discrimination on the basis of Kennedy's handicap by defendants Postmaster General, Marvin T. Runyon, Jr., and the United States Postal Service ("USPS"). Before the court is defendants' motion to dismiss for lack of subject matter jurisdiction. For the following reasons, the motion to dismiss, after conversion to a motion for summary judgment, will be granted.

 FACTS

 Kennedy worked for the USPS from February 7, 1981 until his termination on February 8, 1993 based on conduct occurring during November, 1992. He is a veteran and had previously worked as a corrections officer. His employment with the USPS was terminated for using abusive language, showing a belligerent attitude toward fellow employees, and threatening to bring a gun to work to shoot various named and unnamed co-workers, for among other things, informing management about his lax work habits. Defs' Exs. A, B, attached to Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss, Doc. No. 10. Kennedy appealed his termination to the United States Merit Systems Protection Board ("MSPB" or "Board") on February 19, 1993. On June 22, 1993, after a full evidentiary hearing before an administrative judge at which Kennedy was represented by counsel, the administrative judge affirmed USPS's termination decision. Id. Ex. G.

 Kennedy filed a petition for review of the administrative judge's decision by the full Board. The Board denied Kennedy's petition for review and the initial decision became final on October 22, 1993. Id. Ex. H. At that time, a copy of the Board's order was sent certified mail to Kennedy's current counsel with notice that the order was final and that Kennedy had 30 days in which to file an appeal. Id. Exs. H, A. *fn1"

 Kennedy did not appeal the Board's final decision to the district court. Instead, he elected to contact a counselor with the USPS's equal employment opportunity ("EEO") office on December 6, 1993. Ex. 5, attached to Pl's Brief in Opposition of Defendants' Motion to Dismiss, Doc. No. 12. Kennedy complained that the USPS' decision against him constituted discrimination against his handicaps of alcohol and drug dependency and post traumatic stress disorder. On May 11, 1994, the Equal Employment Opportunity Commission ("EEOC") held that Kennedy's filing with them was not made within the requisite 45 days of the alleged discriminatory event and thus was barred. Id. Ex. 6. On August 10, 1995, after hearing Kennedy's request for reconsideration on the matter, the EEOC reiterated its holding that the filing was untimely. Id. Ex. 8.

 Kennedy then sued defendants in this court on September 11, 1995 for review of the Board's decision. He alleges that he was discriminated against because of his substance abuse problems and psychiatric condition. Defendants thereupon moved to dismiss the complaint for lack of subject matter jurisdiction.

 STANDARD FOR MOTION TO DISMISS

 What on the surface appears to be an uncomplicated case presents, as so many such cases do, a formidable question beneath the surface. Defendants have moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). Doc. No. 9. A motion under Rule 12(b)(1) requires us to examine the legal sufficiency of a claim. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3d Cir. 1991), cert. denied, 501 U.S. 1222, 115 L. Ed. 2d 1007, 111 S. Ct. 2839 (1991). Dismissal is proper only when the claim "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or ... is wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 682, 90 L. Ed. 939, 66 S. Ct. 773 (1946).

 A Rule 12(b)(1) motion differs from a Rule 12(b)(6) motion in two respects relevant to this case. First, the jurisdictional assertions having been challenged, the burden falls on the plaintiff to prove jurisdiction. "The person asserting jurisdiction bears the burden of showing that the case is properly before the court at all stages of the litigation." Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993), cert. denied sub nom. Upp v. Mellon Bank, 510 U.S. 964, 114 S. Ct. 440, 126 L. Ed. 2d 373 (1993). Second, the court may go outside the bounds of the complaint to examine other evidence to decide a Rule 12(b)(1) motion. Berardi v. Swanson Memorial Lodge, 920 F.2d 198, 200 (3d Cir. 1990).

 The question then arises whether it is appropriate to consider defendants' motion to dismiss as falling under Rule 12(b)(1). On one hand, defendants' argument is that Kennedy's claim of handicap discrimination is not timely, and therefore cannot be addressed by this court. In this sense, an argument that we are without jurisdiction has the ring of accuracy. Kennedy has otherwise stated a cognizable claim, *fn2" but the allegations that his claim falls well outside the time limits Congress set for such claims would seem to implicate our power to hear his particular claim.

 On the other hand, the limitations periods accompanying civil rights statutes are not jurisdictional. See, e.g., Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994) (Title VII). Such time limits can be waived or equitably altered where the facts -- such as intentional misrepresentation by an employer -- justify such treatment. Other courts have recognized this feature of the civil rights limitations periods in what has been called "a subtle distinction." See, e.g., Vinieratos v. Dept. of the Air Force, 939 F.2d 762, 768 n.5 (9th Cir. 1991) (collecting cases on both sides of the issue). While the ...


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