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FAULKNER v. BOLGER

February 2, 1987

Charles Faulkner, Plaintiff,
v.
William F. Bolger, Postmaster General of the United States Postal Service; United Postal Service, Defendants



The opinion of the court was delivered by: BOGUE

 ANDREW W. BOGUE, SENIOR JUDGE

 This is an action brought pursuant to the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-794 (1975 and Supp. 1983). The Plaintiff alleges that he was discriminatorily denied reinstatement with the United States Postal Service because he was handicapped. *fn1"

 The Plaintiff prevailed before a complaint-examiner of the EEOC who found that the Postal Services's reason for denying him reinstatement was "neither legitimate, reasonable, nor convincing, and that the agency did engage in forbidden discrimination against complainant because of physical handicap." The examiner then set forth the following recommended remedial action:

 
1. Reinstate complainant retroactive to the first date when a Distribution Clerk PS-5 was hired or reinstated after complainant's denial of reinstatement;
 
2. Award the complainant retroactive within-grade step increases, applicable cost of living raises, and fringe benefits;
 
3. Award complainant back pay computed in the manner prescribed by 5 CFR 550.804.

 The examiner's decision was reviewed by Postal Officials and on June 22, 1984 a letter was sent to the Plaintiff advising him of the examiner's decision. Enclosed with the letter was the decision as well as the transcript of the Plaintiff's hearing before the examiner. The letter informed the Plaintiff that the Postal Service would effectuate the complaint-examiner's recommended remedial action. Further, the letter informed Plaintiff of his right to either an administrative appeal or his right to maintain a civil action. With respect to the commencement of a civil action, the June 22, 1984 letter informed the Plaintiff that in lieu of an administrative appeal "you may file a civil action in an appropriate United States District Court within thirty (30) calendar days of this final agency decision."

 The Defendant Postal Service reinstated Plaintiff as a part-time flexible manual distribution clerk effective July 21, 1984. The complaint-examiner's recommendation action was to "reinstate complainant retroactive to the first date when a distribution clerk PS-5 was hired or reinstated after complainant's denial of reinstatement." On July 26, 1984, the Defendant notified Plaintiff that it would award Plaintiff back pay from March 31, 1984, the date on which one type of distribution clerk called a "manual distribution clerk", had been hired.

 Plaintiff disagreed with the Defendant's computation of back pay. The Plaintiff asserted that the Defendant had hired a multi-position letter sorting machine distribution clerk (MPLSM Operator) on April 3, 1982, and notified the Defendant by letter dated October 2, 1984 that the April 3, 1982 date should be the back pay commencement date. On January 14, 1985, the Defendant responded maintaining its position that the back pay was only due from March 31, 1984. On February 15, 1985, the Plaintiff initiated this civil action.

 The Rehabilitation Act of 1973, 29 U.S.C. §§ 701-794 (1975 and Supp. 1983), was initially intended primarily to help states develop and implement vocational rehabilitation services for handicapped persons. It was later amended to provide more comprehensive protection for handicapped persons subjected to discriminatory treatment. See 29 U.S.C. § 701 (1975 and Supp. 1983) (Congressional Declaration of Purpose).

 Section 501 of the Act in its original form required Federal agencies, including the Postal Service, to adopt affirmative action plans for employment of the handicapped, but it contained no private right of action. In 1978 Congress added a private right of action by enacting Section 505(a)(1), 29 U.S.C. § 794a(a)(1), which provided that the rights and remedies of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, were available to a person complaining of discrimination in violation of Section 501. One effect of this incorporation was that the requirement of exhaustion of administrative remedies applicable to federal employees under Title VII. See Brown v. General Services Administration, 425 U.S. 820, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976), was imported into claims brought under Section 501. See Boyd v. United States Postal Service, 752 F.2d 410, 412-413 (9th Cir. 1985); McGuinness v. United States Postal Service, 744 F.2d 1318-1319 (7th Cir. 1984).

 It is undisputed that the Plaintiff has exhausted his administrative remedies. Once administrative remedies have been exhausted, an individual is entitled to de novo consideration of his employment discrimination claim in the district courts. Prewitt v. United States Postal Service, 662 F.2d 292, 303 (5th Cir. 1981). In order to properly perfect a civil action in the district court, 42 U.S.C. § 2000e-16(c) provides that such a suit be filed within thirty (30) days of receipt of notice of final action taken by the agency.

 The question presented in this case is whether the receipt by the Plaintiff of the Postal Service letter dated June 22, 1984, constituted "receipt of notice of final ...


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