Unpublished Disposition, 921 F.2d 280 (9th Cir. 1989)Annotate this Case
Jerry J. PAULLUS, Plaintiff-Appellant,v.Anthony M. FRANK, Postmaster General, Defendant-Appellee.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 10, 1990.* Decided Dec. 13, 1990.
Before HUG, BEEZER and BRUNETTI, Circuit Judges.
On November 18, 1988, appellant Jerry J. Paullus (Paullus) filed an action under 42 U.S.C. section 2000e-16 against appellee Anthony M. Frank, Postmaster General of the United States Postal Services (Postal Service). Paullus' complaint alleged "disparate treatment, race, sex, and age bias." On May 31, 1989, the district court entered an order dismissing Paullus' complaint for failure "to exhaust the administrative remedy of timely filing for EEOC counseling." Paullus appeals that dismissal.
On April 10, 1987, the Postal Service terminated Paullus' employment. Paullus' termination was based on charges of conflict of interest for hiring his son and that he falsified mail volume. On April 8, 1987, Paullus appealed his termination to the Regional Director of Human Resources (agency) pursuant to chapter 650 of the Labor Relations Manual of the United States Postal Service.2 On August 25 and 26, 1987, a hearing on the appeal was held. During the hearing, Paullus' counsel referred to the possibility that Paullus may have been the subject of disparate treatment by the postal service. On April 17, 1987, Paullus also appealed his termination to the Merit System Protection Board, which denied his appeal for lack of jurisdiction on June 18, 1987.
Following the administrative hearing, Paullus learned of another possible incident of disparate treatment relating to the divisional manager and the postmaster of Monterey, California. Based on this information, Paullus, on November 16, 1987, requested that the postal service reinstate his employment. On December 1, 1987, Paullus was notified that his reinstatement request was denied. On or about March 29, 1988, Paullus received the final decision of the agency denying his complaint for unlawful employment discrimination. Paullus appealed this decision to the Equal Employment Opportunity Commission (EEOC). The EEOC affirmed the final agency decision stating that the complaint was untimely and that the reinstatement request failed to state a claim under 29 C.F.R. section 1613.212 because Paullus' name remained on the personnel rolls pending the administrative appeal. On August 5, 1988, Paullus requested that the EEOC reopen and reconsider its decision. This request was denied.
An order dismissing a complaint is based on issues of law and is thus reviewed de novo. Guillory v. County of Orange, 731 F.2d 1379, 1381 (9th Cir. 1984); California Home Brands, Inc. v. Ferreira, 871 F.2d 830, 832 (9th Cir. 1989).
The district court dismissed Paullus' complaint for failure to contact an EEO counselor within thirty days of his April 10, 1987 termination as required by 29 C.F.R. section 1613.214(a) (1) (i). Paullus contends that he sought EEO counseling in a timely fashion because the thirty-day time limit was triggered by the December 1, 1987 denial for reinstatement, rather than the termination date.
A complainant must bring to the attention of the EEOC the matter causing him to believe that he has been discriminated against within thirty days of the date of the alleged discriminatory event or the date the complainant knew or reasonably should have known of the discriminatory event. 29 C.F.R. section 1613.214(a) (1) (i); Boyd v. United States Postal Service, 752 F.2d 410, 414 (9th Cir. 1985).
Paullus attempts to label the denial of his reinstatement as the discriminatory event. Paullus argues that the disparate treatment with regard to his termination is based on the more lenient treatment of his supervisors implicated in the same charges. Paullus argues that the disparate treatment with regard to the denial of reinstatement is based on disparate treatment of the divisional manager and postmaster of Monterey, California. Paullus, however, fails to indicate why the two different instances of allegedly disparate treatment render the denial of reinstatement a separate discriminatory act from the termination. Paullus' request for reinstatement was an attempt to remedy the possibly discriminatory act of termination. The agency's decision not to reinstate Paullus was merely a refusal to grant such a remedy. Thus, the termination and the request for reinstatement cannot practically be separated.
Using the April 10, 1987 termination date as the discriminatory event, Paullus failed to timely file for counseling with the EEOC. Even if Paullus did not realize that the termination was discriminatory at the time he was terminated, Paullus admits in his complaint that he suspected that he had been treated disparately at the August 25 and 26 agency hearing. Thus, Paullus should have filed for counseling with the EEOC--within at the latest thirty days of August 25, 1987. See Boyd v. United States Postal Service, 752 F.2d 410, 414 (9th Cir. 1985). Although Paullus does not state in his complaint the precise date he filed for EEOC counseling, he does state that he filed some time after December 1, 1987, over two months after the thirty-day limit had expired. Thus, on the face of his complaint, Paullus failed to exhaust his administrative remedy of timely filing with the EEOC. Accordingly, the district court correctly granted the postal service's motion to dismiss.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3
In determining the propriety of a motion to dismiss we are required to resolve every factual difference in the plaintiff's favor. McKinney v. De Bord, 507 F.2d 501, 503 (9th Cir. 1974). Accordingly, the facts presented in this disposition have been taken from Paullus' complaint
Apparently, on March 23, Paullus was notified that he would be terminated on April 10th. This may account for the fact that Paullus' appeal to the agency was before the actual termination date