Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81-C-5096 -- James B. Moran, Judge.
Before WOOD and POSNER, Circuit Judges; and REYNOLDS, Chief District Judge.*fn*
REYNOLDS, Chief District Judge. Darrel L. Bartholomew appeals from the district court's order granting summary judgment to the defendants in an action that he brought following his discharge from his probationary position as a letter carrier. The issues before the court are: (1) whether Bartholomew was still a probationary employee at the time of the discharge, and (2) whether Bartholomew's discharge was effected in violation of the Postal Service's regulations. The district court concluded that at the time Bartholomew was discharged, he was serving a probationary period that commenced upon reinstatement following a previous discharge. The district court also concluded that although the defendants did not adhere to the letter of the regulations at the time of Bartholomew's second discharge, the regulations had been substantially complied with. We affirm the district court's judgment.
Bartholomew was hired by the United States Postal Service to work as a letter carrier for the Aurora, Illinois, Post Office, effective November 1, 1980. Pursuant to the Postal Service's regulations, Bartholomew's appointment was subject to a ninety-day probationary period that would end on January 29, 1981. See Employee and Labor Relations Manual Section 377.1.
On November 21, 1980, Bartholomew's supervisor told him that he would be discharged for unsatisfactory performance. Bartholomew's attorney protested the discharge, and ultimately the Postmaster of Aurora agreed to rescind the termination and reinstate Bartholomew. The reinstatement was effective on January 10, 1981.
On February 9, 1981; March 16, 1981; and March 27, 1981, Bartholomew received adverse evaluations from his supervisor. The former two evaluations described Bartholomew's performance as not fully satisfactory, but recommended that he be retained. The latter evaluation found Bartholomew's performance unsatisfactory, and recommended separation. On March 27, 1981, Bartholomew's supervisor told him verbally that he would be terminated, effective April 3, 1981.
Prior to the effective date of the discharge. Bartholomew did not receive a written notice from the appointing official informing him of the termination, stating the reasons for the termination, or providing any information regarding grievance procedure or administrative review. On April 8, 1981, Bartholomew was sent a Postal Service Form 50, which served as the official notice of his discharge. The form was issued under the authorization of the Regional Postmaster, and stated the reasons for Bartholomew's discharge.
Bartholomew appealed the discharge to the Merit Systems Protection Board on April 14, 1981. In a decision dated June 17, 1981, the Board held that it lacked jurisdiction over the appeal. It found that Bartholomew was a preference eligible employee, but further that he had not completed the one year of continuous service necessary to enable him to appeal the discharge.
Bartholomew filed a complaint in the Northern District of Illinois on September 9, 1981. He alleged that the Postal Service had failed to comply with its regulations in discharging him on April 3, 1981; that he was unlawfully denied back pay for the period between his November 25, 1980, discharge and his reinstatement; that the defendants had acted arbitrarily and capriciously when they discharged him on April 3, 1981; and that he had been unlawfully discriminated against. The defendants moved for dismissal of the complaint for lack of subject matter jurisdiction or, in the alternative, for summary judgment.
On April 27, 1983, the district curt granted the motion for summary judgment on all four counts. The district court first concluded that it had subject matter jurisdiction over the complaint. The court then found that despite Bartholomew's contentions to the contrary, he was still a probationary employee at the time he was dismissed on April 3, 1981. This conclusion was based on Postal Service's regulations providing that employees who are reinstated must serve new probationary periods, and that only periods of absence during which an employee remains on the payrolls are counted toward completion of the probationary period. The district court also held that by issuing the Postal Service Form 50, the defendants had substantially complied with the regulatory notice provisions:
Plaintiff had previously been advised of his effective termination date. The notification form thereafter advised plaintiff both of the reasons for termination and of the effective date of separation. Although plaintiff received the form after he was actually terminated, the employment decision was memorialized prior to the end of the probationary period and plaintiff received the written notification promptly after it was executed. There was no "back-dating," as condemned by section 365.327 [of the Employee and Labor Relations Manual], to avoid the restrictions on termination of nonprobationary employees. The mere fact that the form served a recordkeeping function for the government does not preclude its use to also provide the plaintiff with notice pursuant to the regulations. Concededly, the fact that plaintiff received the notice after his actual termination is not precise compliance with the regulations. Here, however, the termination decision was made and memorialized during the probationary period, and the plaintiff was advised of it first orally and then in writing, and that is enough.
The district court went on to conclude that as a Postal Service employee, Bartholomew was not entitled to back pay by virtue of 39 U.S.C. § 410(a), that a determination of whether his discharge was arbitrary and capricious was beyond the scope of the court's jurisdiction, and that he had not exhausted his administrative remedies with respect to his claim of discrimination.
On this appeal, Bartholomew challenges the district curt's conclusions that he was still a probationary employee on April 3, 1981, and that the defendants substantially complied with the Postal Service regulations governing the separation of probationary employees.
With respect to the former conclusion Bartholomew argues that the November 21, 1980, discharge was rescinded and should therefore be treated as a nullity for the purpose of determining the expiration of his probationary period. In his view, the first discharge was effected in violation of Postal Service regulations, and it was for this reason that he was permitted to return to his job. He relies on a letter from the Aurora Postmaster to the Merit Systems Protection Board's Chicago Field Office, stating that Bartholomew's termination ". . . should be rescinded and that Mr. Bartholomew be reinstated." (Emphasis added.) Because his termination was rescinded, Bartholomew urges that it should be treated as though it never occurred. Thus, there was no break in the probationary period beginning Novmeber 1, 1980, and the period expired on January 29, 1981. When he was discharged on April 3, ...