Smith v. Donahoe
OPINION. Signed by Honorable Judge Myron H. Thompson on 9/29/2015. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
JERRY S. SMITH,
PATRICK R. DONAHOE,
CIVIL ACTION NO.
Postmaster General, claiming retaliation in violation
amended (42 U.S.C. §§ 1981a & 2000e through 2000e-17).
This court has original jurisdiction over his claims
under 28 U.S.C. §§ 1331 (federal question) and 1343
(civil rights), and 42 U.S.C. § 2000e-5(f)(3) (Title
This cause is before the court on the Postmaster
judgment will be granted in favor of the Postmaster
I. SUMMARY-JUDGMENT STANDARD
“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter
Fed. R. Civ. P. 56(a).
The court must view
the admissible evidence in the light most favorable to
the non-moving party and draw all reasonable inferences
in favor of that party.
Matsushita Elec. Indus. Co.
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
favorable to Smith.
Smith, a white male veteran, is
both disabled and over 40 years old.1
He works as a
postal carrier for the United States Postal Service and
also serves as the union shop steward for his branch
complaint with the United States Postal Service’s Equal
Employment Office (“EEO”) for discrimination due to his
His EEO complaint was dismissed and
because union affiliation is not a valid EEO factor
under Postal-Service guidelines.
Smith alleges that, about two months after he filed
the complaint (and one month after he was told that his
EEO complaint was invalid), he began to be targeted by
his supervisors for his age and disability.
told that he must complete work with the same speed as
younger, more physically able employees; he was closely
1. Smith does not specify his disability. His EEO
May 31, 2012, EEO Complaint (doc.
no. 13-2) at 2.
failure to follow parking and driving instructions for
his postal vehicle.
After a few weeks of this treatment, he threatened
his supervisor, claiming that he had brought a gun to
work in his car and that management had “better be
USPS Notice (doc. no. 13-4) at 2.
of this threat, he was placed on emergency off-duty
status and suspended without pay in April 2012, and he
was ultimately removed in July for improper conduct.
While he was suspended, he filed another EEO complaint
with the Postal Service, alleging discrimination based
on age, disability, and retaliation for his previous
He indicated on his complaint that he was a
preference-eligible employee because he was a qualified
The Postal Service investigated his complaint, and,
on January 7, 2013, it issued a final agency decision
Smith’s lawyer received this decision
on January 11.
The form he received notified him that
Smith had presented a “mixed case,” and that he was
entitled to appeal to the federal government’s Merit
Systems Protection Board (“MSPB”) within 30 days or, in
the alternative, to file a judicial complaint in United
States District Court within the same 30-day timeline.
Meanwhile, Smith separately engaged in arbitration
with the Postal Service.
On February 15, 2013--after
his 30-day appeal deadline had passed--the arbitrator
Smith returned to work.
On April 4,
2013, he filed a judicial complaint alleging Title VII
retaliation based on the facts described above.
barred; because the discrimination he alleges is not
protected by Title VII; because he failed to support
his complaint with sufficient factual allegations; and
because he cannot meet
the “but-for” causation test
required in University of Texas Southwestern Medical
Center v. Nassar, 133 S. Ct. 2517 (2013).
court agrees that Smith’s claims are time-barred, it
does not reach the Postmater General’s other arguments.
The Civil Service
Reform Act of 1978
See Kloeckner v. Solis, 133 S. Ct. 596, 600
federal civil servants is particularly serious--such as
a removal, a long suspension, or a reduction in grade
or pay--the affected employee may appeal the decision
to the MSPB,
an “independent adjudicator of federal
Id.; see 5 U.S.C. §§ 1204, 7512,
7701; see also Chappell v. Chao, 388 F.3d 1373, 1375
that is related to or stemming from an action that may
be appealed to the MSPB, the complaint is classified as
a “mixed case.”
See Kloeckner, 133 S.Ct. at 601 (“When
an employee complains of a personnel action serious
another federal statute], she is said (by pertinent
regulation) to have brought a ‘mixed case.’”); see also
5 U.S.C. § 7702(a)(1); 29 C.F.R. § 1614.302.
“The CSRA and regulations of the MSPB and Equal
from those used when the employee either challenges a
Kloeckner, 133 S.Ct. at 601; see also 5 U.S.C. §§ 7702,
When the mixed-case regulations apply,
The statute and regulations governing
mixed cases also outline special procedures for these
complaints, including filing deadlines.
See, e.g., 5
U.S.C. § 7703(b)(2); 29 C.F.R. § 1614. 310(a).
challenging a personnel practice not appealable to the
MSPB could do.”
Kloeckner, 133 S.Ct. at 601; see 5
C.F.R. § 1201.154(a); 29 C.F.R. § 1614.302(b).
agency decides against the employee, he then may appeal
to the MSPB, or he may bypass further administrative
review and sue the agency in district court.
C.F.R. § 1614.310(a).
In either case, the MSPB appeal
or the civil action must be filed within 30 days of
when the employee receives the agency’s decision on the
5 U.S.C. § 7703(b)(2); 29 C.F.R.
§ 1614.310(a); see also Butler v. W., 164 F.3d 634, 638
decision she can file an appeal with the MSPB or a
discrimination on the basis of age, disability, and
personnel actions that were appealable to the MSPB,
Smith brought a mixed-case complaint to his agency’s
29 C.F.R. § 1614.302(a).
As such, Smith’s claim
was processed and reviewed as a mixed case.
claim was denied, he was given notice and instructions
that, because he raised a mixed case, he had 30 days
from receipt of that final decision to file his appeal
or his civil action.
Smith did not appeal the agency’s decision to the
Instead, he chose to treat his administrative
appeals as exhausted, and he filed a lawsuit in federal
But he filed too late.
Specifically, he filed
his judicial complaint 84 days after he received the
final agency decision--well outside the 30-day window
clearly set forth in the statute, the regulations, and
notice of appeal rights.
Because he filed late, his
lawsuit is time-barred.
Smith attempts to save his lawsuit by reference to
the 90-day statutory deadline applicable to Title VII
See also 29 C.F.R. § 1614.407.
Smith argues that this
given that arbitration resolved the adverse employment
actions in his favor--he now charges the agency with
Put differently, Smith believes that
deadline simply by dropping his personnel-action claim
(that is, the challenge to his suspension and removal).
Because Smith brought a mixed case, he was required
to follow the mixed-case deadlines, and he cannot opt
Indeed, even the statute that
governs the filing of judicial actions prohibits him
from relying on the statutes of limitation set out by
“other provision[s] of law.”
See 5 U.S.C. § 7703(b)(2)
(“Notwithstanding any other provision of law, any such
case [of discrimination subject to the provisions of 5
within 30 days after the date the individual filing the
action under such section 7702.”) (emphasis added); see
also Kloeckner v. Solis, 133 S. Ct. 596, 601 (2012)
In short, Smith’s attempt to save his lawsuit from
being time-barred by splitting his allegations fails as
Smith’s favor on Smith’s personnel-action claim does
not afford him additional time to file a discrimination
timeline had already expired.2
Having filed and pursued
2. Indeed, the arbitrator did not even make its
decision in Smith’s favor on the personnel-action claim
until after the deadline to file in court or to appeal
the agency’s decision to the MSPB had long passed on
either claim. Because Smith could not have known that
he would win his case with the arbitrator such that
only his discrimination claim would remain, the court
a mixed-case complaint, he was obliged to follow the
time limits for those complaints as set out in the
statute and regulations.
judgment will be granted.
An appropriate judgment will
DONE, this the 29th day of September, 2015.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
does not believe that Smith even relied on the Title
VII statutory deadline when he failed to file a timely
appeal or lawsuit.
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