Opinion
Civil Action No: 99-2710 Section "S"(4).
October 13, 2000.
ORDER AND REASONS
On July 21, 2000, William Henderson, the Postmaster General of the United States Postal Service (the "Postmaster") filed a Motion for Reconsideration (doc# 19), seeking reconsideration of the Court's July 10, 2000, Order and Reasons. Specifically, the Postmaster contends that the Court's Order should be amended to: (1) dismiss, rather than to transfer, the plaintiffs removal claim; and (2) to dismiss the plaintiff's employment discrimination claim under the Louisiana Civil Rights Act for Handicapped Persons. The plaintiff did not file an opposition to the defendant's Motion for Reconsideration. For the reasons assigned herein, the Court grants the Postmaster's Motion for Reconsideration.
See Rec. doc. #18, Order and Reasons. A Notice of Right to Consent to Proceed Before a Magistrate Judge under 28 U.S.C. § 636 (c) was mailed to the parties on May 23, 2000 (doc. #15). The parties filed a joint consent on June 14, 2000 (doc. #16).
I. Factual Summary
On October 8, 1998, the Office of Labor Relations of the United States Postal Service issued a Notice of Proposed Removal to Jerry Harris ("Harris"), a letter carrier technician and member of the Letter Carriers Union No. 619, because of Harris' absenteeism and failure to request leave on three separate occasions. Harris was further advised of his right to respond to the charges and to appeal to the Merit Selection Protection Board ("MSPB"). Harris, however, did not respond to the charges of his employer.
Harris was absent without official leave ("AWOL") on August 22, 1998 (8 his), August 28, 1998 (14 minutes), and September 4, 1998 (8 hours) (Gov't. Exhibit 1).
On November 18, 1998, the Office of Labor Relations issued a Letter of Decision to Harris, upholding his removal and advising him of his right to appeal the decision. Harris was further advised that he would be removed from the position of letter carrier technician, effective November 20, 1998.
Gov't Exhibit 2.
On December 18, 1998, Harris filed an appeal with the MSPB, seeking reversal of the Office of Labor Relations' removal decision, reinstatement to his former position and back pay. Harris alleged that he was on Family Medical Leave under the Family Medical Leave Act (FMLA) and absent with authorization. Harris also acknowledged that he had not filed a discrimination complaint with his employer or any other agency regarding the matter appealed.
Gov't Exhibit 3.
On August 6, 1999, the MSPB's Administrative Law Judge affirmed the agency's denial of FMLA leave to Harris. The judge held that on each of the dates in which Harris was absent, he failed to give notice to his employer, which would have entitled him to FMLA leave. Harris was thereafter advised that the MSPB's decision would become final on September 10, 1999.
Gov't Exhibit 4.
II. Procedural History
On October 27, 1999, Harris filed suit against the Postmaster General and the National Association of Letter Carriers, alleging that his removal from the United States Postal Service constituted a violation of the Family and Medical Leave Act ("FMLA"), the Labor-Management Relations Act ("LMRA"), the Louisiana Civil Rights Act for Handicapped Persons ("LCRAHP") and the Rehabilitation Act. Harris also alleges that the defendants' actions have resulted in the loss of certain retirement, life, and health insurance benefits, in violation of the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq.
Harris' claim against the National Association of Letter Carriers is based upon a different legal theory.
A. Standard of Review
Initially, the Postmaster contends that his request for dismissal of the plaintiff's removal and employment discrimination claims should be dismissed pursuant to 12(b)(1) and not FRCP Rule 56. The Court upon further consideration of the allegations of the plaintiff finds that the appropriate method of review is pursuant to Rule 12(b)(1) as to the two remaining claims, because the Court's review of these claims do not require review of a factual attack on the plaintiff's claims.
A motion under Rule 12(b)(1) should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992). "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).
The Court will therefore analyze the plaintiff's motion pursuant to the standard of review appropriate for a 12(b)(1) motion.
B. FMLA Rehabilitation Act
The Postmaster seeks dismissal of Harris' FMLA and Rehabilitation Act claims on the grounds that Harris failed to exhaust his administrative remedies. The plaintiff has failed to file a response to the defendant's 12(b)(1) motion.
The Merit Selection Protection Boards jurisdiction is limited to the review of specific "appealable actions," which include demotions and removals See 5 U.S.C. § 7701. However, a district court has jurisdiction over an appeal from a final decision of the MSPB under 5 U.S.C. § 7702, if the claim is a "mixed claim" consisting of an appeal from a MSPB removal decision and a claim of discrimination. See 5 U.S.C. § 7702(A)(1) (2).
The Merit Selection Protection Board is a quasi-judicial federal administrative agency established to review civil service decisions. See 5 U.S.C. § 1201.
In this case, Harris has filed a claim consisting of an appeal from a MSPB removal decision and Rehabilitation Act discrimination claim. Thus, the issue is whether Harris' claim is a "mixed claim", such that this Court has subject matter jurisdiction.
1. Adverse Employment Action Based Upon Discrimination
The Civil Service Reform Act ("CSRA") provides two paths toward redress for postal service employees who allege that an adverse employment action was wholly or partly based on prohibited discrimination. Specifically, the CSRA provides that aggrieved employees may either bring a "mixed complaint" before the postal service's Equal Employment Office ("EEO"), or a "mixed appeal" before the MSPB. See 5 U.S.C. § 7702(a)(1) (2); 29 C.F.R. § 1614.302(a)(1) (defining mixed case complaint); 29 C.F.R. § 1614.302(a)(2) (defining mixed appeal).
An appeal before the MSPB is "mixed" if the aggrieved postal worker alleges that an action by his employer was effected, wholly or in part, by employment discrimination based on race, color, religion, sex, national origin, age, or handicap. See 5 U.S.C. § 7702(a)(1); 29 C.F.R. § 1614.302(a)(2). A "mixed complaint" is filed and processed in similar fashion to standard Title VII/Rehabilitation Act complaints, with a few notable exceptions. See 29 C.F.R. § 1614.302(d). Significantly, an appeal from an EEO determination of a mixed complaint must be made before the MSPB, rather than the EEOC. See C.F.R. § 1614.302(d)(3). Thus, an aggrieved employee may bring a "mixed appeal" before the MSPB in two ways: as a direct appeal of an adverse employment action, or as an appeal of an EEO determination of a mixed complaint. See 5 U.S.C. § 7702(a)(3); 29C.F.R.§ 1614.302(b); 5 C.F.R. § 1201.151. Harris was, therefore, required to raise his claim that the defendant's removal decision violated the Rehabilitation Act, either as a mixed complaint before the EEO or as a mixed appeal before the MSPB. See 29 C.F.R. § 1614.302(b).
"Mixed appeals" are those appeals brought under § 7702(a)(1)(B), which states:
(a)(1) Notwithstanding any other provision of law, and except as provided in paragraph (2) of this subsection, in the case of any employee or applicant for employment who—
(A) has been affected by an action which the employee or applicant may appeal to the Merit Systems Protection Board, and
(B) alleges that a basis for the action was discrimination prohibited by —
1. section 717 of the Civil Rights Act of 1964 ( 42 U.S.C. § 2000e-16),
2. section 6(d) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. § 206(d)),
3. section 501 of the Rehabilitation Act of 1973 ( 29 U.S.C. § 791),
4. sections 12 and 15 of the Age Discrimination in Employment Act of 1967 ( 29 U.S.C. § 631, 633(a)). or
5. any rule, regulation, or policy directive prescribed under any provision of law described in clauses (i) through (iv) of this subparagraph, the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board's appellate procedures under section 7701 of this title and this section.
Under the applicable regulations, a federal employee who claims to have been discriminated against must first seek counseling with his federal employer's EEO agency to try to resolve the matter informally. See 29 C.F.R. § 1614.105(a). If the matter has not been resolved, the employee must then file a complaint with the employer's EEO agency. See 29 C.F.R. § 1614.106. The federal employee may file suit in federal district court after waiting 180 days for the EEO agency to issue a final decision or within ninety days of receipt of the EEO's agency's final action. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.408; Knopp v. Magaw, 9 F.3d 1478, 1479 (10th Cir. 1993). If the employee has appealed an EEO decision to the Equal Employment Opportunity Commission (EEOC), the employee may file a civil action within ninety days of receipt of the EEOC's final decision, or after waiting 150 days for the EEOC to issue a final decision. See 29 C.F.R. § 16 14.408.
The record shows that Harris filed an appeal with the MSPB, challenging his employer's removal decision on the grounds that it violated the FMLA. Harris' appeal before the MSPB did not include an allegation that the agency's decision was affected in whole or in part by discrimination.
The record also does not contain any proof that Harris asserted his discrimination claim with the EEO. His appeal before the MSPB was therefore not mixed. Having determined that Harris did not file either a mixed complaint or mixed appeal during the administrative process, the next question, is whether he can proceed with a mixed claim in federal court. The Court finds that he cannot.
The exhaustion of administrative remedies is a jurisdictional pre-requisite to filing a Rehabilitation Act discrimination claim in federal court. Tolbert v. U.S., 916 F.2d 245 (5th Cir. 1990). Because Harris has failed to exhaust his administrative remedies, this Court, therefore, lack's subject matter jurisdiction over the Rehabilitative Act claim.
The next issue is whether the Court has subject matter jurisdiction over the MSPB removal decision. The Court finds that it does not.
The Federal Courts Improvement Act of 1982 provides the United States Court of Appeals for the Federal Circuit with exclusive jurisdiction of an appeal from a final order or decision of the Merit Systems Protection Board, pursuant to Sections 7703(b)(1) and (d) of Title 5. See 28 U.S.C. § 1295(a)(9). Accordingly, all appeals of final orders and decisions of the MSPB are to be filed in the Federal Circuit. Excepted from the Federal Circuit's jurisdiction, however, are "cases of discrimination," which "shall be filed" in the United States District Courts.
The statute provides that suits shall be filed under § 717(c) of the Civil Rights Act of 196442 U.S.C. § 2000e-16(c), § 15(c) of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633a(C), and § 16(b) of the Fair Labor Standards Act of 1938 as amended, 29 U.S.C. § 216 (b), where applicable. See 5 U.S.C. § 7703(b)(2). Disability cases brought pursuant to the Rehabilitation Act are filed under § 717 of the Civil Rights Act of 1964. See 29 U.S.C. § 791, 794(a)(1). The United States District Courts have jurisdiction over cases filed under Section 717. See 42 U.S.C. § 2000e-5 (f)(3).
Because he failed to exhaust his administrative remedies, Harris' discrimination claim is not properly before this Court. As such, the remaining claim challenging the MSPB's removal decision is within the exclusive jurisdiction of the United States Court of Appeals for the Federal Circuit.
2. Transfer to Proper Court
The next issue is whether the Court can transfer the claim to the Federal Circuit Court in lieu of issuing a dismissal order. Upon reconsideration of this issue, the Court finds that it cannot.
Title 28 U.S.C. § 1631 provides that "whenever a civil action is filed in a court as defined in section 610 of this title . . . and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest ofjustice, transfer such action . . . to any other such court in which the action . . . could have been brought at the time it was filed. Thus, a district court may transfer a case to the Federal Circuit pursuant to § 1631, if it was filed in the district court within thirty (30) days of receipt of a final Board decision.
The record shows that Harris exhausted his administrative remedies regarding the removal decision and that the MSPB administrative law judges' decision became final on September 10, 1999. Harris filed his suit in the Eastern District of Louisiana on October 27, 1999, more than thirty days of the date that the decision became final. Harris' claim, in which he seeks review of a MSPB removal decision is therefore DISMISSED with prejudice.
C. Louisiana Civil Rights Act for Handicapped Persons
The defendant also contends that the Louisiana Civil Rights Act for Handicapped Persons ("LCRAHP"), La. Rev. Stat. § 46:2251, et. seq., does not apply to the Postmaster General. According to the defendant, the statutory definition of "persons" does not include the federal government. The defendant also contends that Title VII is the exclusive remedy for a federal employee alleging discrimination.
1. Federal Government not a Person
Section 46:2253(1) defines a "handicapped person" as "any person who has an impairment which substantially limits one or more life activities or (a) has a record of such an impairment or (b) is regarded as having such an impairment." Subsection (2) defines an impairment as "retardation, any physical or physiological disorder or condition, or prior mental disorder or condition . . . . "
The statutory definition of "person" expressly includes an individual, agent, association, corporation, joint stock company, labor union, legal representative, mutual company, partnership, receiver, trust, trustee in bankruptcy, unincorporated organization, the state, or any other legal or commercial entity or state, local or political governmental entity or agency except that, the persons presently in compliance with federal statutes regarding discrimination of the handicapped and elderly are excluded.
Although the defendant contends that the definition of "person" does not include the federal government, a fair reading of the statute suggests otherwise. The definition of "person" includes "political governmental entity or agency," which would include the federal government unless it currently complies with the federal statutes regarding discrimination.
2. Title VII Preemption
The defendant alternatively contends that Title VII is the exclusive remedy available to Harris for his claim of handicap discrimination. In support of his position, the defendant relies upon Brown v. General Servs. Amin., 425 U.S. 820, 829 (1976) in which the Supreme Court noted that it was Congress' intent that Title VII would be the "exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination."
In Pfau v. Reed, 125 F.3d 927 (5th Cir. 1997), the Fifth Circuit Court of Appeals interpreted this language to mean that when a plaintiff against a federal employer relies upon the same facts to establish a Title VII claim and a non-Title VII claim, the non-Title VII claim is "not sufficiently distinct to avoid" preemption. Rowe v. Sullivan, 967 F.2d 186 (5th Cir. 1992). The Fifth Circuit in Pfau concluded that a claim of emotional distress was preempted because the same facts may establish the state law emotional distress claim and the Title VII claim.
Applying the Pfau rule to Harris' claim, the Court finds that his state law claim of handicap discrimination would require the use of the same facts needed to establish a Title VII claim. Therefore, the Court finds that Harris' state law claim that the defendant violated the Louisiana Civil Rights Act for Handicapped Persons ("LCRAHP"), Louisiana Revised Statute § 46:2251 is preempted by Title VII and therefore is DISMISSED with prejudice.
ORDER
The defendant, William Henderson, the Postmaster General of the United States Postal Service's Motion for Reconsideration (doc# 19) is therefore GRANTED.
1. Harris' claim, in which he seeks review of a MSPB removal decision is DISMISSED WITH PREJUDICE.
2. Harris' state law claim that the defendant violated the Louisiana Civil Rights Act for Handicapped Persons ("LCRAHP"), La. Rev. Stat. § 46:2251 is preempted by Title VII and therefore is DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this, 13th day of October, 2000.
Karen Wells Roby, United States Magistrate Judge.