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BARRETT v. FRANK

October 31, 1991

DONALD R. BARRETT, Plaintiff,
v.
ANTHONY M. FRANK, Postmaster General, United States Postal Service, Defendant



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court is defendant Anthony Frank's motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For reasons that follow, the court grants the motion.

 FACTS

 Plaintiff, Donald R. Barrett ("Barrett") is a disabled veteran who suffers from a hearing impairment and receives compensation based on ten percent disablement. He applied for and was offered a position as a distribution clerk with the postal service's Moraine Valley facility, scheduled to begin February 14, 1987. Shortly before that date, he was in an automobile accident and notified the Postal Service he would be unable to begin on the scheduled day. Consistent with policy, the Postal Service required plaintiff to submit medical documentation of the injury. He failed to comply and the job offer was terminated on February 24, 1987.

 On March 31, 1987, plaintiff was offered a position as a part-time flexible carrier at the Brookfield facility. To qualify, plaintiff was required to take a driving test. He appeared at the proper place and time, but because his van had no seat belts he was not permitted to take the test. He rescheduled twice, but he failed to appear both times. On April 27, 1987, the offer was withdrawn because of plaintiff's failure to take the driving test.

 On July 4, 1987, Barrett was offered the position of window clerk at the Chicago Ridge facility. He accepted and completed his training sessions for this position in a timely manner. However, in a letter dated August 1, 1987, Barrett resigned stating that his hearing impairment prevented him from hearing the customers.

 On October 23, 1987, Barrett contacted an Equal Employment Opportunity ("EEO") Counselor complaining that the Moraine Valley and Brookfield jobs had been withdrawn because of his handicap. On July 20, 1988, he filed a formal EEO complaint. In February, 1990, before an Administrative Law Judge ("A.L.J."), Barrett claimed for the first time that his resignation from the Chicago Ridge post was actually a constructive discharge because of his handicap. He failed to provide written explanation for his delay in raising the claim even though the A.L.J. discontinued the hearing and ordered him to do so. In a decision rendered July 2, 1990, the Postal Service rejected Barrett's claim with respect to the Chicago Ridge facility as untimely. The Service also waived its defense that the claim was barred by the thirty-day time limit violations for the remaining two jobs, but nonetheless found that no discrimination because of Barrett's physical handicap occurred. The decision to reject the Chicago Ridge claim as untimely was affirmed by the Equal Employment Opportunity Commission ("EEOC") on October 23, 1990.

 On November 26, 1990, plaintiff filed a complaint alleging violations of Title VII (42 U.S.C. § 2000e-16(c)), and 29 C.F.R. § 1613.281(b),(c). He asserted that the Moraine Valley and Brookfield positions were discriminatorally withdrawn because of his hearing handicap and that he was constructively discharged from the Chicago Ridge facility job. The complaint sought injunctive relief, reinstatement into these positions with back pay and benefits, or an award of front pay and benefits. On March 29, 1991, defendant filed his motion to dismiss the complaint. Despite two extensions of the original briefing schedule, the second of which required plaintiff's response on or before June 14, 1991, plaintiff has not filed any responsive pleadings.

 DISCUSSION

 On a motion to dismiss, all well-pleaded factual allegations are taken as true. Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). All reasonable inferences to be drawn from those allegations are also accepted as true. Doe v. St. Joseph's Hosp., 788 F.2d 411 (7th Cir. 1986). Dismissal under Rule 12(b)(6) is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Papapetropoulous v. Milwaukee Transp. Servs., Inc., 795 F.2d 591, 594 (7th Cir. 1986).

 The court initially notes that plaintiff has deprived the court of the benefit of his response to defendant's motion to dismiss. Despite this failure, the court will consider the merits of the motion bearing in mind the appropriate legal standards.

 Defendant's first basis for dismissal concerns that portion of the complaint alleging constructive discharge from the Chicago Ridge facility. Defendant maintains that plaintiff's failure to comply with 29 C.F.R. § 1613.214(a)(1)(i), requiring filing with the administrative agency within thirty days after the date the plaintiff knew or should have known of the violation, bars his action on that basis as untimely. The court agrees.

 The right to bring a Title VII case against the federal government as a result of deprivation of rights, is dependent upon plaintiff's timely exhaustion of his administrative remedies. Benford v. Frank, 943 F.2d 609 (6th Cir. 1991). Title 29 of the Code of Federal Regulations, § 1613.214(a)(1)(i), requires the complaintant to file for administrative remedies within thirty days of termination. Rennie v. Garrett, 896 F.2d 1057, 1059 (7th Cir. 1990). This provision is jurisdictional in nature. Williams v. U.S. Postal Serv., 873 F.2d 1069, 1074 (7th Cir. 1989). Thus failure to comply with this ...


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