claim in his brief that the inclusion of an attachment to question 30.c of his appeal form was sufficient notice to MSPB that the issue of discrimination was raised is without merit. That attachment does not claim discrimination, but merely acknowledges that Kennedy has a substance abuse problem, which he believes is a mitigating factor in the disciplinary decision. Id.
In a situation where a claimant merely has to check a box on a form, and may conceivably state the basis of his claim in one sentence to successfully allege handicap discrimination, the burden Kennedy seeks to place on the agency (and the courts) in divining his intentions is unacceptable. Moreover, accepting his argument would open the door to the type of after-the-fact charges that the review statute does not countenance. 5 U.S.C. § 7703. Accordingly, Kennedy's failure to raise the issue of discrimination before the MSPB court is fatal to his claim here.
Furthermore, even if Kennedy had raised the issue of discrimination with the MSPB, we would nonetheless dismiss his claim for his failure to exhaust available administrative remedies. The controlling statute requires that an employee seeking judicial review of an MSPB final order file an appeal within 30 days of notice. 5 U.S.C. § 7703(b)(2). Kennedy received notice of MSPB's final order on October 26, 1993. Thus, the limitations period ran on November 25, 1993, well before this action was filed on September 11, 1995.
B. Kennedy's EEOC Claim
Though his Complaint is not a model of draftsmanship in setting forth his entitlement to proceed in this court,
read fairly, the Complaint seeks to make out a claim of handicap discrimination. Having found that Kennedy did not raise this claim before the MSPB, we look to whether we have authority to consider it here outside the confines of the MSPB process and consistent with the facts.
The short answer is no. Having lost before the MSPB, Kennedy then made a complaint about handicap discrimination to the USPS's EEO office on December 6, 1993. The USPS EEO counselor advised Kennedy by letter dated December 29, 1993 that his complaint was untimely for not having been brought within 45 days of the adverse action, his termination on February 8,1993. Pl's Ex. 5. The EEOC considered and denied Kennedy's appeal from this decision for the same reason on May 11, 1994. Pl's Ex. 6. The EEOC then denied Kennedy's request for reconsideration on August 10, 1995. Pl's Ex. 7. Kennedy filed his Complaint here on September 11, 1995.
The interplay of the authority and jurisdiction of the MSPB, EEOC, and the district courts where a federal employee complains about discrimination is fairly complex. A recent summary of the area in McAdams v. Reno, 64 F.3d 1137 (8th Cir. 1995), proves helpful. The relevant bottom line is that an employee in a mixed case can bring his claims before the MSPB or the agency's EEO office, but not both. Id. at 1141. Kennedy's fault, as correctly pointed out by the USPS and the EEOC, is his failure to take advantage of this flexibility in pursuing a handicap discrimination claim in the first instance. Put simply, since Kennedy did not complain about handicap discrimination before the MSPB, it was not considered. By the time Kennedy did make such a complaint to the EEOC, he was far too late. Under 29 C.F.R. section 1614.105(a)(1) (1993), a complainant must bring his grievance to the attention of an EEO counselor (or the MSPB) within 45 days of the effective date of the alleged discriminatory event. Kennedy was terminated on February 8, 1993. He contacted an EEO counselor on December 6, 1993. Pl's Ex. 6. All the evidence demonstrates that Kennedy could have pursued a discrimination claim administratively, but failed to do so.
There is no question that failure of a federal employee to adhere to the 45 day limitations period renders a subsequent district court complaint under the Rehabilitation Act dismissible. Spence v. Straw, 54 F.3d 196, 202 (3d Cir. 1995). As the EEOC found in deciding Kennedy's claim, we also find that Kennedy's claim of discrimination is barred by the 45 day limitations period. This court thus cannot entertain Kennedy's handicap discrimination claim made through the EEOC.
C. Federal Circuit Jurisdiction
Under 5 U.S.C. section 7703(b)(1), jurisdiction over non-discrimination claims lies solely with the United States Court of Appeals for the Federal Circuit. If Kennedy's Complaint here raised any non-discrimination issues, we would consider whether a transfer of such issues to the Federal Circuit would be appropriate under 28 U.S.C. section 1631.
Since the Complaint can only be read as making out a claim of handicap discrimination, however, we need not address this issue.
In sum, there is no genuine dispute of material fact that Kennedy did not raise his handicap discrimination claim expressly or impliedly before the MSPB, though he had every opportunity to do so. In addition, there is no dispute that his attempt to make such a claim through EEOC procedures was untimely. Finally, we find no issue requiring us to consider transfer of this case to the Federal Circuit. Accordingly, the defendants' motion will be granted. An order consistent with this memorandum opinion will be entered.
In accordance with the accompanying memorandum opinion, defendants' Motion to Dismiss, Doc. No. 9, converted to a motion for summary judgment, is GRANTED. Judgment is hereby entered for the defendants and against the plaintiff. The Clerk is directed to mark this case closed.
SO ORDERED this 22 day of July, 1996.
ROBERT J. CINDRICH
United States District Judge