Service cancelled that complaint on November 9, 1981 on the ground that
it did not come within the purview of EEO regulations. Maher did not
challenge this disposition.
On February 2, 1982 Maher and ten other employees made an EEO complaint
to the Service, charging that, "In the past year Mrs. Wynne has openly
discriminated against the male employees in this office," and, "All Mrs.
Wynne's disciplinary actions at present, have been directed toward male
not female employees." The record before the court does not show what
action, if any, was taken on this complaint.
On February 18, 1982 Wynne denied Maher a pay raise.
On February 22, 1983 Maher and others filed a "Report of Hazard, Unsafe
Condition or Practice" with the Postal Service Regional Safety Officer.
In essence, the complaint stated that letter carriers were more
vulnerable to accidents because Wynne did not give them enough time to
make their rounds. Again, the record before the court does not show how
this was disposed of.
On April 11, 1983 Maher injured himself while on the job. A doctor
prescribed medication and home bed-rest. On May 3 the doctor told Maher
that he could return to work in 5 days. Only 2 days later, postal
officials observed Maher giving racquetball lessons at a local park. One
official ordered him to return to work the following day. Maher did so.
He was paid during the period of his absence.
Wynne became postmaster of the Nanuet post office in early June of
1983. On June 16 she issued a Notice of Removal to Maher, discharging him
effective July 18, 1983 for "Attempting and Obtaining Continuation of Pay
Under False Pretenses" in connection with the April injury and May
On July 3, 1983 Maher filed an EEO complaint with the Postal Service,
alleging that Wynne terminated him in reprisal for his filing the
February 2 EEO claim against her. He also claimed that a former Nanuet
postmaster, John Mattinson, was involved with Wynne in having Maher
terminated, in reprisal for Maher's safety hazard complaint.
On December 23, 1983 the Postal Service issued Maher a Notice of
Proposed Disposition of the July 1983 complaint, informing him that the
Service had found his allegations to be unsupported by the facts. The
notice stated that if he was dissatisfied with the proposal, he could
request a final decision from the Service without a hearing or request a
hearing by a complaints examiner appointed by the Equal Employment
Opportunity Commission ("EEOC"). If such a hearing were held, the examiner
would submit his findings to the Postal Service for issuance of its final
decision. The notice further advised that if Maher failed to notify the
Postal Service of his wishes, the Service might adopt the proposed
disposition as its final decision, after which he could either appeal to
the EEOC or file a civil action in federal court within 30 days.
Finally, the notice advised him that he could file a civil action within
180 days from the date of filing his complaint on July 3, 1983 if no
final decision had been issued.
By letter of January 9, 1984, slightly over 180 days after the filing
of the complaint, Maher requested a hearing before the EEOC complaints
examiner. Maher was notified that a hearing would be held February 19,
1985 and that his claim could be cancelled for failure to prosecute if he
did not appear. Maher did not attend the hearing. On February 22, 1985
the examiner recommended that the Postal Service cancel the complaint for
failure to prosecute, which was done. On April 30, 1985 the Postal
Service notified Maher of this action and advised that he had a right to
appeal this disposition to the EEOC.
Maher appealed by letter of May 10, 1985, stating that he did not
appear at his hearing because a new job and various personal problems made
it impossible for him to find the time. He also stated that he no longer
lived at the address furnished to the Postal Service to which notices
were sent. As a consequence, he received his mail only when he was able
to stop by his old residence and pick it up. However,
Maher did not deny receipt of the notice prior to the scheduled hearing
On December 16, 1985 the EEOC affirmed the cancellation for failure to
prosecute. The EEOC sent a copy of its decision to Maher along with a
"Statement of Appellant's Rights" which advised that the decision was
final and that Maher had a right to file a civil action in federal
district court within 30 days.
Maher then commenced the present action. He sued pro se. The pro se
clerk's office received Maher's complaint in early January 1986, 23 days
after the time of the EEOC decision. However, it was not filed with the
Clerk of the Court until some time after the 30-day period expired.
This court ruled that the suit was timely brought but dismissed the
case for lack of subject matter jurisdiction, since Maher had failed to
name the Postmaster General as a defendant. The judgment was vacated on
appeal, and the case was remanded so that Maher could amend his
complaint. Maher, no longer proceeding pro se, filed an amended
complaint, naming the Postal Service, the Postmaster General, and Wynne.
Exhaustion of Administrative Remedies
Defendants contend that Maher's suit is barred because of his failure
to exhaust administrative remedies, pointing to the fact that he
requested a hearing before the EEOC and then failed to attend.
In dealing with this contention, it is necessary to take account of
certain provisions of the Equal Employment Opportunity Act of 1972, which
extended coverage of Title VII to employees of certain federal agencies,
including the Postal Service. A new § 717 was added to Title VII. 42
U.S.C. § 2000e16. Section 717(c) deals with the remedies afforded to
a federal employee who is covered by § 717 and who claims
discrimination. This section is as follows:
(c) Within thirty days of receipt of notice of final
action taken by a department, agency, or unit [charged
with discrimination], or by the Equal Employment
Opportunity Commission upon an appeal from a decision
or order of such department, agency, or unit on a
complaint of discrimination based on race, color,
religion, sex or national origin, . . . or after on
hundred and eighty days from the filing of the initial
charge with the department, agency, or unit or with
the Equal Employment Opportunity Commission on appeal
from a decision or order of such department, agency,
or unit until such time as final action may be taken
by a department, agency, or unit, an employee or
applicant for employment, if aggrieved by the final
disposition of his complaint, or by the failure to
take final action on his complaint, may file a civil
action . . . in which civil action the head of the
department, agency, or unit, as appropriate, shall be
Supreme Court has summarized § 717(c), and has described this
provision as imposing "certain preconditions" on the right of an aggrieved
federal employee to file a civil action claiming employment
discrimination. Brown v. General Services Administration, 425 U.S. 820,
832, 96 S.Ct. 1961, 1967, 48 L.Ed.2d 402 (1976). The Court stated:
Initially, the complainant must seek relief in the
agency that has allegedly discriminated against him.
He then may seek further administrative review with
the Civil Service Commission or, alternatively, he
may, within 30 days of receipt of notice of the
agency's final decision, file suit in federal district
court without appealing to the Civil Service
Commission. If he does appeal to the Commission, he
may file suit within 30 days of the Commission's final
decision. In any event, the complainant may file a
civil action if, after 180 days from the filing of the
charge or the appeal, the agency or Civil Service
Commission has not taken final action.
Subsequent to this decision, the statute was amended to refer to the
Equal Employment Opportunity Commission instead of the Civil Service
Commission. Where the preconditions for court action are fulfilled,