The opinion of the court was delivered by: ASPEN
MARVIN E. ASPEN, Chief Judge:
Lawrence Chaney filed this Title VII suit alleging that his employer, the Department of the Treasury (Treasury), discharged him because of his race and in retaliation for his filing of several Equal Employment Opportunity (EEO) complaints. Treasury has filed a motion to dismiss or for summary judgment, in part on the ground that this Court lacks jurisdiction over the case. We agree, and we grant Treasury's motion to dismiss.
Following stints as a communications technician and specialist in the Air Force and Federal Protective Service, Chaney applied for similar work with the U.S. Customs Service (Customs), an agency within Treasury, in January of 1989. See Def.'s 12M PP 1-2, 6. As part of his application for that position, he completed form SF-86, a standard background form for national security and law enforcement personnel. See id. P 7. That form inquired as to whether Chaney had been arrested for or charged with any offenses within the past five years, and in it Chaney certified that he had been charged only once during that period. See id. P 8. He was lying: he had been arrested in 1985 (for running a red light and driving with a suspended license), and in 1988 (for disorderly conduct, a charge to which he pled guilty), and he reported neither of these incidents on the form. See id. P 9; Pl.'s 12N Ex. 1.
In January of 1989, Chaney began work for Customs as a Senior Enforcement Specialist, a position which primarily required that he answer radio and telephone calls from Customs field agents who were in need of assistance. See Def.'s 12M P 6. Shortly thereafter, on April 7, he was arrested on a battery charge stemming from a barroom brawl. See id. P 10. In his next SF-86 form (September, 1993), which his security clearance required that he file, Chaney did not disclose this arrest. See id. P 15-17.
Meanwhile, trouble brewed on other fronts. As the result of a 14-day suspension in May of 1992, see id. Ex. 1 at 30, Chaney filed an EEO complaint, a formal administrative charge of discrimination, in January of 1993, alleging that his supervisors denied him the sick leave he had requested on account of his back problems. See id. P 13, Ex. 2. Chaney checked the "Color" box (not the "Race" box, though he testified at his deposition that the EEOC later corrected the form and told him that race, not color, was the proper box, see id. Ex. 1 at 32; 12N Ex. 7) on the complaint form to describe the basis of the discrimination against him. His 3-page narrative of the underlying events does not, however, ever mention any incident or facts which even remotely concern color or race. Instead, the complaint states that
I have been suffering . . . every [sic] since I was requested to participate in an investigation of one of my supervisors conducted by the Inspector General's Office in 1991. I have be [sic] punished for not using proper procedures for using leave, when I use the same procedures as everyone else that works there. I have been accused of not calling and informing my supervisor when I take leave when in fact I have contacted them on every occasion that I have requested leave.
Def.'s 12M P 13, Ex. 2. Chaney's charge was never resolved, and he did not file suit in district court to pursue it. See id. Ex. 1 p. 32.
Chaney filed a second EEO complaint in December, this time alleging that his supervisors denied him sick leave in retaliation for his January EEO complaint. On this form, he checked only the "Retaliation/Reprisal for Involvement In Complaints Process" box, and his narrative again did not mention race discrimination. See id. P 18, Ex. 3. The EEO counselor, who spoke with Chaney concerning this second complaint, filed a report indicating that "Mr. Chaney feels he is being punished because of his illness and that the treatment is racial" and that "Management stated that the issue is not racial." Pl.'s 12N Ex. 3. The cover sheet to the report, in the section concerning discriminatory actions, stated in full that "Mr. Chaney feels that he is being retaliated against because of prior complaints. He feels he is being punished because of an illness he has no control over." Id. This was the counselor's entire discussion of race. See id.
Nearly a year later, in September of 1994, Customs Electronics Technician Willie Cowart accused Chaney of sleeping on the job, a serious charge given that Chaney monitored the emergency calls and requests for backup from Customs agents in the area. See Def.'s 12M P 19. This was not the first such complaint against him: the Special Agent in Charge of the Customs Field Office for Detroit had complained in 1992 that no one was answering calls during Chaney's shift. See id. Chaney denied sleeping on the job, and Customs conducted an inquiry (called a "red book" investigation) into the 1994 sleeping incident. Louis Cegala, the Director of Customs's communications management division, then issued Chaney a proposed notice of removal. See id. PP 22, 23. That notice advised Chaney of several grounds for his removal: his sleeping on the job, his nondisclosure of his 1989 arrest on his 1993 SF-86, and his failure (in violation of Customs rules) to inform his supervisor of his 1989 arrest. See id. P 23. It also stated that Cegala took into account Chaney's suspensions in 1991 (for being absent without leave) and in 1992 (for security violations, negligent performance of duty, sleeping on the job, failure to follow proper procedures, and absence without leave) when considering whether to propose Chaney's removal. See id. Ex. 5.
In March of 1995, Chaney filed a third EEO complaint, in which he again complained about his supervisors' refusal to grant him appropriate sick leave. He did not mention his pending termination. See id. P 24. This complaint was marked as raising both "Race" and "Retaliation" claims, though Chaney's narrative, like the ones he provided with his prior 2 EEO complaints, concerned only retaliation. See id. Ex. 6.
Chaney's final notice of termination arrived from Leonard S. Walton, the Deputy Assistant Commissioner (Office of Investigation) on September 26, 1995, and it gave the same reasons as Cegala's proposed notice of termination as to why Chaney's employment was to end. See id. P 25. It also notified Chaney of his right to contest the termination decision, either via the filing an EEO complaint with Customs or via an appeal to the Merit Systems Protection Board (MSPB). See id. Ex. 7. Chaney chose the latter route and filed an appeal with the MSPB in October, 1995. See id. P 26. In his appeal form, which specified that he was represented by counsel, Chaney asserted that his discharge violated the law because (1) he was discharged without just cause; (2) actions were taken against him because of his race; (3) actions were taken against him in retaliation for his previous EEO complaints; and (4) the actions taken against him violated the Rehabilitation Act. See id. Ex. 8. In the part of the Appeal Form which required that he "indicate, by specific examples, how [he] was discriminated against," Chaney stated in full: "I believe this Action [i.e. his discharge] was executed because of prior EEOC complaints file. I believe this is retaliation for me filing those EEOC complaints. The employee that stated he saw me sleeping was a good friend of management." Id. Ex. 8.
Howard J. Ansorge, an administrative law judge (ALJ), found that the evidence supported all three of Customs's claimed grounds for Chaney's discharge and that these grounds constituted sufficient reasons for Customs to discharge him. See id. Ex. 10. His review of Chaney's affirmative defenses -- petitioners assert matters such as retaliation and discrimination as affirmative defenses before the MSPB, see McAdams v. Reno, 858 F. Supp. 945, 952 n.10 (D. Minn. 1994), aff'd 64 F.3d 1137 (8th Cir. 1995) -- was limited to Chaney's claim that his discharge was in retaliation for his EEO complaints. See id. Ex. 10 at 11. Judge Ansorge ruled that the discharge came so long after the first and second complaints that it was not likely in retaliation for them, and he reasoned that the discharge couldn't have been in retaliation for the third complaint since Chaney filed it several months after he received from Cegala the proposed notice of termination. See id. Ex. 10 at 12. In addition, he noted that Chaney had neither prevailed on any of the complaints nor shown that his supervisors suffered adverse consequences as a result of ...