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October 15, 1980

Wilton LAYNE, Plaintiff,
Max CLELAND, as Director of the United States Veterans Administration; and Ruth T. Prokop, as Chairperson of the United States Merit Systems Protection Board; and the United States Civil Service Commission, Defendants

The opinion of the court was delivered by: PLATT


This is an action brought under 29 U.S.C. § 794a by plaintiff, Wilton Layne, in which he alleges he was discharged by his employer, the United States Veterans Administration ("VA") in violation of 5 U.S.C. § 7203, 29 U.S.C. § 791 and 29 C.F.R. § 1613 et seq. Those sections prohibit discrimination in employment based on physical handicaps. Plaintiff seeks reinstatement and compensation for lost wages and benefits or, in the alternative, a remand to the VA for further consideration.

 Defendant has moved for judgment on the pleadings on the ground that plaintiff has failed to exhaust his administrative remedies prior to instituting this action or, in the alternative, on the ground that the action is time-barred. Defendant has also moved for summary judgment on the merits.


 Plaintiff, Wilton Layne, was employed as a food service worker at the VA Hospital, St. Albans facility, on September 15, 1974. In October 1975 plaintiff experienced a loss of consciousness which was diagnosed as epilepsy. He was placed on medication and had no further episodes on the job until once in September 1977, on a day he claims he forgot to take his medication. On May 30, 1978 he was notified by letter that he would be terminated because his epilepsy rendered him unfit to work as a food service worker. Plaintiff was informed he could respond in writing to the hospital director. On June 12, 1978 he did respond by letter, indicating he felt he was being discriminated against because of his handicap in violation of the law. The VA rejected plaintiff's response and terminated him as of July 14, 1978. The notice informed him of his right to appeal to the Civil Service Commission. Plaintiff filed his appeal on July 26, 1978, in which by reference to his June 12 letter he charged the VA with discrimination.

 On October 13, 1978 a hearing was held before the Civil Service Commission pursuant to the provisions of 5 C.F.R. §§ 752-772. These sections set forth the grievance procedures in cases of routine adverse agency actions including dismissal from employment in non-discrimination cases. The Commission upheld plaintiff's dismissal by letter dated December 14, 1978.

 On January 17, 1979 plaintiff again wrote to the VA charging discrimination. The VA responded on February 15, 1979, informing plaintiff he had 30 days from the date of the alleged discriminatory act (which was July 14, 1978) to consult an Equal Employment Opportunity ("EEO") counselor.

 On May 9, 1979 plaintiff asked the Merit System Protection Board (the erstwhile Civil Service Commission) to reconsider its prior determination. That request was denied on July 24, 1979.

 In September 1979 plaintiff retained his present counsel. On October 31, 1979 counsel called the VA on the telephone, requesting that it reprocess plaintiff's grievance under 29 C.F.R. § 1613 et seq., which sets forth the grievance machinery applicable in cases of charges of discrimination. *fn1" In the same phone conversation the VA replied that the claim would not be reprocessed. Counsel sent a letter to the VA later on the same day reiterating the substance of the conversation. Thereafter, on February 8, 1980, the instant action was commenced.

 In this motion, defendant claims the suit must be dismissed because plaintiff has failed to exhaust his administrative remedies by not having had agency consideration of his discrimination charge. At the same time defendant asserts that an EEO complaint is time-barred for plaintiff's failure to act within 30 days of the alleged discriminatory act. Finally defendant claims that even if this action is not barred for failure to exhaust, civil suit is barred by 42 U.S.C. § 2000e-16, which requires that civil actions by federal employees based on employment discrimination must be brought within 30 days of the final agency action denying the claim. For this purpose, defendant claims October 31, 1979, the date counsel spoke with the VA, to be the operative date.

 By contrast, plaintiff claims that it was incumbent on defendant, once notified by plaintiff that he considered his discharge to be based on discrimination, to process his appeal under the regulations dealing with discrimination, and that any failure to comply with applicable time limits was as a result of defendant's failure to process the claim in the manner required by law. Further, plaintiff claims that civil suit is not barred by the 30-day period of 42 U.S.C. § 2000e-16, since the conversation and letter of October 31, 1979 between counsel and the VA cannot be construed to be "receipt of notice of final action" under that section.


 A review of the regulations relevant to the case at bar demonstrates that the United States Government has undertaken to become a "model employer" by providing procedural safeguards against all forms of discrimination in employment. See 29 C.F.R. § 1613.202 and 29 C.F.R. § 1613.203. It further appears on the face of the regulations in issue that in keeping with this policy, the government has shifted the responsibility for ensuring the fair adjudication of allegations of discrimination from the aggrieved employee to the discharging agency. Once an employee has communicated a claim of discrimination to the agency taking the adverse action, ...

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