F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 16 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
EDWARD E. LOHF,
Plaintiff-Appellant,
v. No. 98-3087 (D.C. No. 96-CV-4088) MARVIN RUNYON, Postmaster (D. Kan.) General, United States Postal Service; MOE BILLER, President, American Postal Workers Union,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY , EBEL , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff-Appellant Edward E. Lohf appeals from summary judgment
granted in favor of defendants. Our jurisdiction arises under 28 U.S.C. § 1291,
and we affirm.
We review the grant of summary judgment de novo , applying the legal
standards set forth in Federal Rule of Civil Procedure 56(c). See Roe v. Cheyenne
Mountain Conference Resort, Inc. , 124 F.3d 1221, 1235 (10th Cir. 1997).
I. Background facts
Plaintiff requested compensatory damages, back and front pay, and benefits
against the United States Postal Service (USPS) and the American Postal Workers
Union (APWU). He claims that the USPS violated federal law and discriminated
against him when it placed him on restricted sick leave status on August 12, 1993
(which meant that plaintiff had to provide medical documentation whenever he
applied for sick leave). He also claims that the USPS discriminated against him
and violated federal law when it placed him on administrative leave on August 23,
1993, ordered him to attend a fitness-for-duty examination, required him to
participate in an inpatient program for veterans suffering from post-traumatic
stress disorder, and then terminated him in June 1995 for inability to perform the
duties for which he was hired. He requested punitive damages against the APWU
-2- for “intentional misrepresentation and abandonment of Plaintiff’s grievance
process, and abuse of his civil and veteran’s rights as a disabled combat veteran.”
First Amended Complaint, Appellant’s App. Vol. I at 19.
It appears that plaintiff sought relief under the Postal Reorganization Act,
39 U.S.C. § 401; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-
16(a); the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a; the
Vietnam Era Veterans’ Readjustment Assistance Act of 1974, 38 U.S.C. § 4214;
the Veterans Preference Act of 1944, 5 U.S.C. § 2108; the Federal Tort Claims
Act, 28 U.S.C. § 1346; the Civil Rights Act of 1871, 42 U.S.C. § 1985(3); the
Rehabilitation Act, 29 U.S.C. § 701; 39 U.S.C. § 1208 (concerning violation of
the parties’ collective bargaining agreement); the Civil Service Reform Act
(CSRA), 5 U.S.C. §§ 7101-7135; the merit systems principles codified at 5 U.S.C.
§ 2302; and the federal constitution. See First Amended Complaint, Appellant’s
App. Vol. I at 1-3.
The district court dismissed all of plaintiff’s claims on summary judgment
for various reasons. On appeal, plaintiff does not challenge the majority of the
court’s rulings and raises three issues. We must address plaintiff’s second claim
of error first because it resolves the issue of whether plaintiff failed to exhaust his
administrative remedies. The resolution of that issue governs whether plaintiff’s
claims of substantive error are reviewable.
-3- II. Exhaustion of administrative remedies
It is undisputed that plaintiff filed only one claim of discrimination with the
Equal Employment Opportunity Commission (EEOC), in which he alleged that the
USPS discriminated against him when it placed him on restricted sick leave status
in early August 1993. “Exhaustion of administrative remedies is a prerequisite to
filing a Title VII action in federal court.” Gulley v. Orr , 905 F.2d 1383, 1384
(10th Cir. 1990). Plaintiff asserts that the court erroneously concluded that
plaintiff’s EEOC claim alleging discriminatory placement on restricted medical
leave status was not reasonably related to his discrimination claims raised in
district court. We agree.
If a claim, including new acts occurring during the pendency of charges
before the EEOC, is like or reasonably related to the allegations of an EEOC
charge in which a plaintiff has exhausted his administrative remedies, the
plaintiff’s suit on the new charges should not be dismissed for failure to exhaust
administrative remedies. See Brown v. Hartshorne Pub. Sch. Dist. No. 1 , 864
F.2d 680, 682 (10th Cir. 1988). Although Brown dealt with whether a claim for
retaliation was reasonably related to an existing EEOC charge, it cited Brown v.
Continental Can Co. , 765 F.2d 810 (9th Cir. 1985), which held that an allegedly
discriminatory termination was an act reasonably related to an employee’s
previous allegedly discriminatory removal from a training program, such that the
-4- employee was not required to exhaust his administrative remedies as to the
termination in order to sue for that act when he sued for the discriminatory
removal. See Brown , 765 F.2d at 813. In his statement of the case, submitted to
the EEOC on July 16, 1995, plaintiff alleged continuing violations after his
placement on restricted medical leave, stating that these acts were part of a plan
to illegally eliminate veterans. See Appellant’s App. Vol. II at 229, 258. In Loe
v.
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 16 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
EDWARD E. LOHF,
Plaintiff-Appellant,
v. No. 98-3087 (D.C. No. 96-CV-4088) MARVIN RUNYON, Postmaster (D. Kan.) General, United States Postal Service; MOE BILLER, President, American Postal Workers Union,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY , EBEL , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff-Appellant Edward E. Lohf appeals from summary judgment
granted in favor of defendants. Our jurisdiction arises under 28 U.S.C. § 1291,
and we affirm.
We review the grant of summary judgment de novo , applying the legal
standards set forth in Federal Rule of Civil Procedure 56(c). See Roe v. Cheyenne
Mountain Conference Resort, Inc. , 124 F.3d 1221, 1235 (10th Cir. 1997).
I. Background facts
Plaintiff requested compensatory damages, back and front pay, and benefits
against the United States Postal Service (USPS) and the American Postal Workers
Union (APWU). He claims that the USPS violated federal law and discriminated
against him when it placed him on restricted sick leave status on August 12, 1993
(which meant that plaintiff had to provide medical documentation whenever he
applied for sick leave). He also claims that the USPS discriminated against him
and violated federal law when it placed him on administrative leave on August 23,
1993, ordered him to attend a fitness-for-duty examination, required him to
participate in an inpatient program for veterans suffering from post-traumatic
stress disorder, and then terminated him in June 1995 for inability to perform the
duties for which he was hired. He requested punitive damages against the APWU
-2- for “intentional misrepresentation and abandonment of Plaintiff’s grievance
process, and abuse of his civil and veteran’s rights as a disabled combat veteran.”
First Amended Complaint, Appellant’s App. Vol. I at 19.
It appears that plaintiff sought relief under the Postal Reorganization Act,
39 U.S.C. § 401; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-
16(a); the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a; the
Vietnam Era Veterans’ Readjustment Assistance Act of 1974, 38 U.S.C. § 4214;
the Veterans Preference Act of 1944, 5 U.S.C. § 2108; the Federal Tort Claims
Act, 28 U.S.C. § 1346; the Civil Rights Act of 1871, 42 U.S.C. § 1985(3); the
Rehabilitation Act, 29 U.S.C. § 701; 39 U.S.C. § 1208 (concerning violation of
the parties’ collective bargaining agreement); the Civil Service Reform Act
(CSRA), 5 U.S.C. §§ 7101-7135; the merit systems principles codified at 5 U.S.C.
§ 2302; and the federal constitution. See First Amended Complaint, Appellant’s
App. Vol. I at 1-3.
The district court dismissed all of plaintiff’s claims on summary judgment
for various reasons. On appeal, plaintiff does not challenge the majority of the
court’s rulings and raises three issues. We must address plaintiff’s second claim
of error first because it resolves the issue of whether plaintiff failed to exhaust his
administrative remedies. The resolution of that issue governs whether plaintiff’s
claims of substantive error are reviewable.
-3- II. Exhaustion of administrative remedies
It is undisputed that plaintiff filed only one claim of discrimination with the
Equal Employment Opportunity Commission (EEOC), in which he alleged that the
USPS discriminated against him when it placed him on restricted sick leave status
in early August 1993. “Exhaustion of administrative remedies is a prerequisite to
filing a Title VII action in federal court.” Gulley v. Orr , 905 F.2d 1383, 1384
(10th Cir. 1990). Plaintiff asserts that the court erroneously concluded that
plaintiff’s EEOC claim alleging discriminatory placement on restricted medical
leave status was not reasonably related to his discrimination claims raised in
district court. We agree.
If a claim, including new acts occurring during the pendency of charges
before the EEOC, is like or reasonably related to the allegations of an EEOC
charge in which a plaintiff has exhausted his administrative remedies, the
plaintiff’s suit on the new charges should not be dismissed for failure to exhaust
administrative remedies. See Brown v. Hartshorne Pub. Sch. Dist. No. 1 , 864
F.2d 680, 682 (10th Cir. 1988). Although Brown dealt with whether a claim for
retaliation was reasonably related to an existing EEOC charge, it cited Brown v.
Continental Can Co. , 765 F.2d 810 (9th Cir. 1985), which held that an allegedly
discriminatory termination was an act reasonably related to an employee’s
previous allegedly discriminatory removal from a training program, such that the
-4- employee was not required to exhaust his administrative remedies as to the
termination in order to sue for that act when he sued for the discriminatory
removal. See Brown , 765 F.2d at 813. In his statement of the case, submitted to
the EEOC on July 16, 1995, plaintiff alleged continuing violations after his
placement on restricted medical leave, stating that these acts were part of a plan
to illegally eliminate veterans. See Appellant’s App. Vol. II at 229, 258. In Loe
v. Heckler , 768 F.2d 409 (D.C. Cir. 1985) (also cited in Brown , 864 F.2d at 682),
the court held that when an employee’s EEOC charge is supplemented with
correspondence that provides the agency with adequate notice of later allegedly
discriminatory acts, the EEOC charge is sufficient to satisfy the exhaustion of
remedy requirements for those later, related acts. See Loe , 768 F.2d at 418.
We have stated that the purpose of the exhaustion of remedies requirement
is two-fold: to give notice of the alleged violation to the charged party and to
give the EEOC an opportunity to conciliate the claim. See Ingels v. Thiokol
Corp. , 42 F.3d 616, 625 (10th Cir. 1994). We hold that plaintiff’s claim that he
was terminated in violation of Title VII on the basis of age and disability is
reasonably related to his earlier claim that he was placed on restricted medical
leave in violation of Title VII on the basis of age and disability.
This does not end the inquiry, however. The district court noted that
plaintiff received notice of the agency’s final decision on the restricted medical
-5- leave claim on January 20, 1996, but did not file his complaint in district court
until May 17, 1996, which is more than ninety days after receiving the decision.
See Order at 23; see also 29 C.F.R. § 1614.408(c) (requiring that suit be filed
within ninety days); Irwin v. Department of Veterans Affairs , 498 U.S. 89 (1990)
(acknowledging that suits must be timely filed unless subject to equitable tolling).
Therefore, even though the claims are reasonably related, plaintiff’s failure to
timely file his suit in district court bars the action. Plaintiff has not stated any
facts that would equitably toll the statutory limitation period. See Irwin , 498 U.S.
at 95.
III. Substantive claims under the Rehabilitation Act
Plaintiff asserts what he perceives as an erroneous interpretation of the
USPS’s responsibilities to disabled employees under the Rehabilitation Act as
another claim of error. However, because plaintiff’s claims under this act were
foreclosed due to his failure to exhaust his administrative remedies, we will not
consider his allegations of substantive error. See Khader v. Aspin , 1 F.3d 968,
971 & n.3 (10th Cir. 1993) (stating that exhaustion of administrative remedies is a
jurisdictional prerequisite to instituting Title VII or Rehabilitation Act actions in
federal court).
-6- IV. Grievance claim
Finally, plaintiff complains that “the step 3 agreement between the union
and the agency . . . deprived [plaintiff] of his appeal rights, violated his due
process rights as a preference eligible veteran to a hearing regarding termination
of employment, deprived him of disability retirement benefits, and breached the
union’s duty of fair representation.” Appellant’s Br. at 6. The district court
dismissed plaintiff’s claims regarding the grievance process because they were
time-barred by the applicable statute of limitations, see Order at 12-15, because
plaintiff failed to exhaust his administrative remedies under the CSRA, see id. at
32, and because plaintiff failed to appeal from the settlement agreement, see id. at
30-32. Plaintiff does not address the bases of the court’s dismissal, arguing only
that because he was notified of the settlement agreement twelve days after the
thirty-day appeal date had expired, he was denied his appeal rights. See
Appellant’s Br. at 7. Plaintiff does not cite this court to the record to support his
claim, nor does he claim that he ever attempted to appeal the agreement. The
district court stated that plaintiff received a copy of the agreement “no later than
November 11, 1995,” see Order at 9, but appellee Moe Biller points this court to
an affidavit by Jerry Streeter, which states that he took a copy of the entire union
grievance file, including the settlement agreement, to plaintiff’s house no later
-7- than October 27, 1995, see Appellant’s App. Vol. I at 155. Plaintiff’s argument is
without merit.
V. Appellee Biller’s request for review
Although plaintiff did not appeal from the district court’s determination
that the APWU is not a covered entity under Title VII and the ADEA, appellee
Biller requests that this court affirm that determination. We decline to do so. We
will not reach out to create and then decide issues when an appealing party has
not appealed from an adverse ruling. See Snell v. Tunnell , 920 F.2d 673, 676
(10th Cir. 1990).
The judgment of the United States District Court for the District of Kansas
is AFFIRMED.
Entered for the Court
David M. Ebel Circuit Judge
-8-