Kosanowsky v. United States Department of Army

659 F. Supp. 872, 43 Fair Empl. Prac. Cas. (BNA) 1372, 1987 U.S. Dist. LEXIS 3628, 43 Empl. Prac. Dec. (CCH) 37,307
CourtDistrict Court, S.D. New York
DecidedMay 8, 1987
DocketNo. 85 Civ. 3982 (CLB)
StatusPublished
Cited by1 cases

This text of 659 F. Supp. 872 (Kosanowsky v. United States Department of Army) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kosanowsky v. United States Department of Army, 659 F. Supp. 872, 43 Fair Empl. Prac. Cas. (BNA) 1372, 1987 U.S. Dist. LEXIS 3628, 43 Empl. Prac. Dec. (CCH) 37,307 (S.D.N.Y. 1987).

Opinion

MEMORANDUM AND ORDER

BRIEANT, Chief Judge:

Defendant United States Department of the Army moves to dismiss plaintiff Stephen Kosanowsky’s pro se Complaint, which ultimately relates to Kosanowsky’s discharge by defendant from the position of Supervisory Civil Engineer at Goeppingen Military Community in the Federal Republic of Germany, effective September 11, 1982. Because we find that we lack subject matter jurisdiction over Kosanowsky’s appeal from the Merit Systems Protection Board (MSPB), but that the Court of Appeals for the Federal Circuit does have subject matter jurisdiction, the motion is denied and the case transferred to that Court under 28 U.S.C. § 1631 (1982).

The administrative record reveals the following facts. On April 5, 1982, Kosanowsky failed to return to Goeppingen upon the expiration of a period of approved leave. On April 8, Major Denton R. Brown, Director of Engineering and Housing at Goeppingen, wrote Kosanowsky at his post office box at Pond Eddy, New York, in this district, informing him that he was absent without leave and that he would be deemed to have abandoned his position if he did not return by April 23. On May 28, Major Brown sent Kosanowsky a Notice of Proposed Removal setting forth two reasons for Kosanowsky’s termination. First, Kosanowsky had remained AWOL, and had expressed interest in converting his Federal Employee Health Benefits plan to a private health plan, actions that led Major Brown to conclude that Kosanowsky intended to relinquish his position. Second, Kosanowsky had moved from a private apartment to the Goeppingen bachelor officers barracks, thereby disqualifying himself for a Living Quarters Allowance (LQA), without reporting the change.

On August 27, 1982, Lieutenant Colonel John R. Wakelin rendered a final decision implementing Major Brown’s recommendation to terminate Kosanowsky, finding that Kosanowsky’s absence and his failure to report his loss of LQA entitlement were unauthorized.

Kosanowsky exercised his right to appeal to the MSPB on September 14, 1982. He alleged that the decision to terminate him was unjustified because he was medically unfit for duty, and admitted his failure to report his change of quarters but maintained that he had “not been overpaid.”

The MSPB affirmed Kosanowsky’s dismissal in an initial opinion dated August 1, 1983. Several letters from physicians in support of Kosanowsky’s claim of mental incapacity were before the MSPB. Interpreting those that were allegedly presented to the Army as supporting an implied request for sick leave, the MSPB Presiding Officer discounted them, among other reasons because they contained neither a definite diagnosis nor a prognosis. Moreover, the Presiding Officer found that the three medical statements submitted directly to the MSPB did not render the Army’s decision to carry Kosanowsky as AWOL improper, for two reasons. First, Kosanow[874]*874sky had not submitted these letters to the Army although he had the opportunity; second, none of the physicians claimed to have been treating Kosanowsky during his absence, so that their statements did not relate directly to his condition at that time.

The Presiding Officer found that the Army had demonstrated that Kosanowsky had forfeited his LQA by moving into the bachelor officers’ barracks. She observed that in view of the fact that Kosanowsky’s Foreign Allowance Application contained a provision, above the signature line, obligating him to report any changes in situation that might affect his allowance, Kosanowsky’s explanation that he did not report the change because he did not think it would affect his allowance was “incredible.” In consequence, she sustained the Army’s charge.

Finally, the Presiding Officer considered sua sponte whether the Army had a responsibility to accommodate Kosanowsky due to a known mental or physical handicap, finding that Kosanowsky’s medical evidence did not sustain his burden of establishing that he suffered from a handicapping condition. She rejected Kosanowsky’s defenses that the AWOL charge was pretextual and that there was no nexus between his absence and the efficiency of the service; and she found that removal was a reasonable penalty.

Kosanowsky appealed to the full MSPB, which denied his petition for review on February 17, 1984. He next appealed to the Equal Employment Opportunity Commission (EEOC), which, on March 1, 1985, upheld the MSPB’s finding that Kosanowsky had failed to establish that he was handicapped and had therefore failed to prove discrimination.

Kosanowsky then initiated an action in this Court for review of the MSPB decision.

This Court lacks subject matter jurisdiction over this Complaint. The powers of the MSPB to review employment decisions of federal agencies are set out at 5 U.S.C. § 7701 (1982). Title 5 U.S.C. § 7702 sets out a special category of MSPB decisions, those involving an allegation of discrimination under four enumerated statutes, one of which is the Rehabilitation Act of 1973, 29 U.S.C. § 791. See 5 U.S.C. 7702(a)(l)(B)(iii) (1982). Judicial review of a § 7702 decision is vested in the district courts by 5 U.S.C. § 7703(b)(2) (1982), which provides that the appeal shall be deemed to arise under one of three statutes that grant original jurisdiction to the district courts. In a § 7702 case, the employee may, under § 7702(b)(1), petition the EEOC to consider the MSPB’s decision; § 7702(b)(5)(A) provides that if the EEOC concurs in the MSPB’s decision, that decision is judicially reviewable. In all other cases, under 5 U.S.C. § 7703(b)(1) (1982) judicial review of MSPB decisions is vested exclusively in the Court of Appeals for the Federal Circuit, although that Court will not take jurisdiction over any part of a “mixed” case, one that combines discrimination and nondiscrimination claims. Williams v. Department of the Army, 715 F.2d 1485 (Fed.Cir.1983) (en banc).

Our examination of the administrative record convinces us that Kosanowsky has not successfully alleged that he was discriminated against on the basis of a handicap, and that his case ought not to have proceeded, as it did, through the channels of MSPB and EEOC review prescribed by § 7702. The problem is that nowhere in his voluminous submissions does Kosanowsky actually assert that the Army discriminated against him on the basis of a handicap, as is required to confer jurisdiction on this Court. Indeed, he appears to have declined the opportunity to make any such assertion.

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659 F. Supp. 872, 43 Fair Empl. Prac. Cas. (BNA) 1372, 1987 U.S. Dist. LEXIS 3628, 43 Empl. Prac. Dec. (CCH) 37,307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kosanowsky-v-united-states-department-of-army-nysd-1987.