United States District Court, S.D. New York
March 31, 2004.
RICHARD CULLIMORE HODGSON, Plaintiff -against- THE UNITED STATES POSTAL SERVICE, Defendants
The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge
This is an employment discrimination case brought under the Federal
Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701 et
seq., and the Americans with Disabilities Act of 1990 (the "ADA"),
42 U.S.C. § 12112-12117. Plaintiff Richard Hodgson resigned from his
position as a Customer Service Supervisor with the defendant United
States Postal Service and signed a resignation agreement. Hodgson alleges
that he was forced to resign without according him a reasonable
opportunity for rehabilitation in connection with his alcoholism. He
further alleges that the Postal Service breached the resignation
agreement. Hodgson requests that the Court vacate the agreement and
reinstate him with back pay.
The Postal Service moves for summary judgment dismissing the
action on the ground that Hodgson has failed to exhaust
administrative remedies. In the alternative, the Postal Service moves to
dismiss the complaint for failure to assert valid claims. Hodgson moves
for preliminary injunction. Hodgson's motion for a preliminary injunction
is denied. The motion of the Postal Service for summary judgment is
granted to a limited degree. Pursuant to the Rehabilitation Act, which is
the federal statute under which Hodgson must sue, Hodgson is required to
exhaust `administrative remedies before seeking court relief. Hodgson has
not done so. However, for reasons to be described, the court will not
dismiss the action, but will stay it to allow Hodgson to use the
administrative procedures. As to the motion of the Postal Service to
dismiss for failure to state valid claims, the court will not reach those
issues, and the motion is denied as moot.
The complaint alleges that Hodgson suffers from a disability as a
recovering alcoholic and has been discharged in violation of the
Rehabilitation Act and the ADA. It is now conceded that he cannot sue the
Postal Service under the latter statute. See 42 U.S.C. § 12111(5)(B)
(an "employer" subject to the ADA "does not include . . . a
corporation wholly owned by the government
of the United States").
Hodgson alleges that he was employed by the Postal Service for nearly
25 years. His most recent position appears to have been with the New
Rochelle, New York facility. On September 19, 2002 Hodgson had a physical
altercation with a co-worker, John Melvin, after Hodgson had consumed
large amounts of alcohol during his lunch break. Hodgson alleges that,
because of his intoxication, he has no recollection of the incident, but
relies on the reports of others with regard to the incident. Hodgson
alleges that, on September 25, 2002, his employer presented him with a
choice either to be terminated or to resign within the hour, subject to
the terms of a resignation agreement. Hodgson signed the agreement. The
resignation agreement is attached to the complaint. It provides for
Hodgson's resignation and contains certain related provisions. Paragraph
7. Mr. Hodgson agrees to withdraw any current
appeals in any administrative forum, including EEO
and MSPB [Merit System Protection Board] and
further agrees not to file any future appeals in
any administrative forums, including EEO and MSPB,
concerning his employment and/or this settlement
In signing the agreement Hodgson acknowledged "that he understands all
of the provisions of this Settlement Agreement and he enters into it
voluntarily, without coercion, intimidation or force."
Although Paragraph 7 refers to any "current appeals," there was
apparently no administrative proceeding pending at the time of the
Hodgson complains that he was forced to resign in violation of the
Rehabilitation Act. He further alleges that he had been diagnosed as
suffering from a disability, namely alcoholism, depression and anxiety,
that his behavior on September 19 was directly caused by his disability,
and that he should have been given a reasonable opportunity for
The complaint also charges that the Postal Service breached the
resignation agreement, but does not make any factual allegations as to
how, or what aspect of, the agreement was breached.
An employee suing under the Rehabilitation Act must exhaust
administrative remedies before instituting a lawsuit in federal court.
Bruce v. United States Dep't of Justice, 314 F.3d 71, 74 (2d
Cir. 2002). The administrative procedures are set forth in
29 C.F.R. § 1614.105-1614.106. According to these regulations, a claimant must
first consult a Counselor at the Postal Service's Equal Employment
Opportunity office within 45 days of the alleged discriminatory action.
§ 1614.105(a)(1). If the matter is not resolved
after a mandatory counseling period, the Counselor must provide the
employee with a written notice of the employee's right to file a
discrimination complaint with the agency's EEO office. The employee has
15 days from the receipt of the notice to file that complaint. §
1614.106(b). After filing a formal administrative complaint, the employee
is authorized to file a civil action in federal court (1) within ninety
days of the agency's final decision, or (2) if no final decision has been
rendered, 180 days from the filing of the complaint with the agency.
Because Hodgson served as a supervisor in the Postal Service for one
continuous year, he had an additional administrative remedy available to
him. He enjoys the protections afforded by Civil Services Reform Act
provided under 5 U.S.C. § 7501-7543. See 39 U.S.C. § 1005(a)(4)
(Postal Service Supervisors who have held their position for
one year are covered by Subchapter II of Chapter 75 of title 5). Hodgson
has the right to an administrative review of major adverse agency
actions, such as termination or constructive discharge, before the Merit
System Protection Board ("MSPB"). 5 U.S.C. § 7513(d) & 7701.
Hodgson may thus elect to file a complaint with the Postal Service EEO
or make appeal to the MSPB, but not both. 29 C.F.R. § 1614.302(b);
Economou v. Caldera, 286 F.3d 144, 149 (2d Cir. 2002);
German v. Pena, 88 F. Supp.2d 222, 225 (S.D.N.Y. 2000).
Hodgson has not filed a complaint with the Postal Service EEO or an
appeal with the MSPB. The Postal Service contends that Hodgson cannot
proceed with the present action until he has exhausted the administrative
remedies. However, the Postal Service asked Hodgson to agree
not to pursue administrative remedies when it presented him
with the resignation agreement, which Hodgson signed.
Courts have found equitable relief appropriate where an agency misleads
or misdirects a claimant so as to prevent the claimant from seeking an
administrative remedy. Economou, 286 F.3d at 146 n.3. Equitable
relief is in order in the present case. This is not to say that the
Postal Service was barred from reaching a settlement with Hodgson in
which Hodgson agreed to refrain from using administrative procedures.
However, there is surely an anomaly now in having the Postal Service
insist on the exhaustion of administrative remedies, which it effectively
prevented him from using. Under the circumstances there are two possible
forms of equitable relief. One would be to allow the court action to
proceed and to rule that the Postal Service had waived a right to insist
on the exhaustion of administrative remedies. The
other is to void the ban on administrative proceedings in the
resignation agreement and to require Hodgson to make use of these
procedures before continuing with his litigation.
The policy favoring resort to administrative remedies is strong and
well founded. In recognition of this, the court rules that Paragraph 7
of the resignation agreement, barring resort to administrative
procedures, is null and void. Hodgson is therefore entitled to and
required to exhaust administrative remedies before maintaining the court
However, the court will not dismiss the action. The court will stay the
action in order to give Hodgson the opportunity to resort to the
administrative remedies. As to the time requirement for commencing such
proceedings, it shall be deemed to start with the date of this opinion.
Moreover, the Postal Service is directed to use its best efforts to
expedite the administrative proceedings.
The court will retain jurisdiction of this action, and will entertain
any application by either party for appropriate relief.
Since the action is being stayed, as already described, there is no
occasion to deal with the merits of the pleadings. The need to do
so will come if and when the litigation is activated. Thus the motion of
the Postal Service to dismiss the complaint for failure to assert valid
claims is denied as moot.
© 1992-2004 VersusLaw Inc.