United States District Court, N.D. Illinois
February 5, 2004.
ARTHUR L. DAVIS, Plaintiff
JOHN E. POTTER, Postmaster General, United States Postal Service, Defendant
The opinion of the court was delivered by: AMY J. ST. EVE, District Judge Page 2
MEMORANDUM OPINION AND ORDER
On June 23, 2003, plaintiff Arthur L. Davis Jr. ("Davis") filed a pro
se complaint against Defendant John E. Potter, Postmaster General, United
States Postal Service ("Postal Service"), for employment discrimination
under Title VII of the 1964 Civil Rights Act*fn1, alleging that the
Postal Service unlawfully terminated his employment based on his age,
color, and race. Defendant seeks to dismiss Plaintiffs complaint pursuant
to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction. For the reasons stated herein, Defendant's motion is
Davis was employed by the Postal Service as a full-time Letter Carrier
at the Loop Post Office in Chicago ("post office"). (R-1-1, Compl.
Attach, at 5.) On December 22, 2000, the Postal Service attempted to give
Davis a letter of suspension stemming from events occurring on
December 21, 2000.*fn2 (R. 14-1, Def.'s Mem. Supp. Mot. Dismiss
Ex. F at 2.) Because Davis's union steward was not present, Davis refused
to accept the letter of suspension. (Id.)
A. December 28, 2000
On December 28, 2000, Davis reported to work at 10:00 a.m. and informed
his supervisor his assistant superintendent, and his superintendent that
he needed to attend an Equal Employment Opportunity ("EEO") pre-hearing
at his representative's office in a suburb of Chicago at 3:00 p.m. (R.
1-1, Compl. Br. at 4.) Davis's assistant superintendent telephoned
Davis's representative to confirm the time and location of the
pre-hearing. (Id.) Davis's superintendent then gave him his route and told
him that he could attend the EEO pre-hearing. (Id.) The superintendent
asked Davis to step into her office, and with his union steward present,
she gave Davis the seven-day suspension that the Postal Service had
attempted to give him on December 22. (Id.)
Davis left the station and began his delivery at about 11:45 a.m.,
returning his delivery truck to the Postal Service central garage
rather than the post office at approximately 2:00 p.m. (Id.) Davis, who
claims that he was never instructed to report back to his assistant
superintendent prior to departing for his pre-hearing, locked his
delivery truck and proceeded to his pre-hearing without checking in.
(Id.) At approximately 4:00 p.m., Davis's assistant superintendent
contacted Davis at his representative's office inquiring as to the
whereabouts of the keys to Davis's delivery truck, (Id.) He also asked
when Davis would return to the post office. (Id. at 5.)
Upon returning to the post office at approximately 4:45 p.m., Davis
observed his assistant
superintendent taking pictures of the undelivered mail in Davis's truck.
(Id.) Davis alleges that he would have had sufficient time to complete
his deliveries between the time of his return and the conclusion of his
shift at 6:30 p.m. (Id.)
Davis alleges that on January 17, 2001 he received a letter dated
January 12, 2001 placing him on administrative leave effective January
16, 2001. (Id.) Davis contends that he previously had been informed
orally that he was on administrative leave, effective January 9, 2001,
for his actions on December 28, 2001, including parking his truck in the
wrong place, failing to follow instructions, and keeping the keys to his
B. Notice of Removal and MSPB Appeal
On January 19, 2001, Davis received a proposed notice of removal for
"Failure to Follow Instructions, Unauthorized Delay of Mail, [and]
Unauthorized Deviation" stemming from the events of December 28.
(Id. at 6.) A Letter of Decision dated February 16, 2001 removed
Davis from the Postal Service. (R. 14-1, Def.'s Mem. Supp. Mot. Dismiss
Ex. B at 2.)
Davis appealed his removal from the Postal Service to the Merit Systems
Protection Board ("MSPB") on March 7, 2001, raising affirmative defenses
including disparate treatment and "[v]iolation of . . . the EEO process
and Title VII. . . ." (R. 14-1, Def.'s Mem. Supp. Mot. Dismiss Ex. C at
1-2.) The MSPB appeal also stated that Davis received the proposed notice
of removal "because he had to go to an EEOC pre hearing," (Id. at 5.) The
MSPB appeal stated that Davis had "not filed a complaint with [the] EEOC
in connection with" the matter appealed. (Id. at 3.)
C. The EEO Complaint
On March 8, 2001, Davis filed an EEO Complaint of Discrimination with
the Postal Service. (R. 14-1, Def.'s Mem. Supp. Mot. Dismiss Ex. D at 1.)
The complaint alleged that Davis received the December 28, 2001
suspension in retaliation for prior EEO activity. (Id.) In the
complaint, Davis discussed the events of December 22 and December 28, as
well as the fact that Davis was placed on administrative leave. (Id.)
Davis did not, however, mention his removal in the EEO complaint. (Id.)
When completing the complaint forms, Davis checked the
box that indicated that he had not filed an MSPB appeal on the issues
raised in the complaint. (Id. at 2.)
On April 4, 2001, Davis provided the EEO with information challenging
his removal from the Postal Service and requested that his March 8, 2001
complaint be amended to include the removal claim, (R. 19-1, Def.'s Reply
Supp. Mot. Dismiss Ex. A at 1.) At this time, he indicated that he had
filed an MSPB appeal on this issue, listing March 9, 2001 as the date of
the MSPB appeal, not March 7, 2001. (Id. at 3.)
D. The MSPB's Findings
An administrative judge ("AJ") from the MSPB held a telephonic status
conference with Davis's representative on May 7, 2001. (R. 14-1, Def.'s
Mem. Supp. Mot. Dismiss Ex. E at 1.) Davis's representative reiterated
that Davis was removed in reprisal for protected activity. (Id.)
at 2. Prior to addressing the merits of Davis's complaint, the AJ
recognized that Davis had filed a formal EEO discrimination complaint
with respect to his suspension, but not with respect to his removal.
On July 5, 2001, the MSPB found that Davis had not shown by a
preponderance of the evidence that the Postal Service effected his removal
in reprisal for protected activity (R. 14-1, Def.'s Mem. Supp. Mot.
Dismiss Ex. F at 10.). The MSPB therefore affirmed Davis's removal. (Id.
at 13.) Davis petitioned the Board to reconsider the initial decision.
(R. 14-1, Def.'s Mem. Supp. Mot. Dismiss Ex. G at 1.) The Board denied
the petition for review on June 12, 2002, making the initial decision
final. (Id.) The Final Order informed Davis that he had 30 calendar days
to request a review of the Final Order from the Equal Employment
Opportunity Commission ("EEOC"), and 30 days to file a civil action on the
discrimination claims in the appropriate United States District Court.
(Id. at 2.)
E. The EEO Final Agency Decision
Davis requested a hearing for his EEO complaint on November 12, 2002.
(R. 1-1, Compl. Attach, at 1.) On February 19, 2003, an AJ held a
pre-hearing conference regarding Davis's EEO complaint, and noted his
intent to dismiss the EEO complaint pursuant to a
regulation mandating dismissal "where the complainant has raised the
matter in . . . an appeal to the [MSPB]." (Id. at 2.) (citing
29 C.F.R. § 1614.107(a)(4)). The pre-hearing ruling required Davis to
object to the dismissal of the complaint by March 5, 2003, and to provide
a legal basis for why the AJ should not dismiss his complaint. (Id.)
On March 5, 2003, Davis withdrew his request for a hearing and
requested a final agency decision in the EEO proceedings. (Id.) The
agency issued a Final Agency Decision ("FAD") on April 11, 2003 that
dismissed the removal portion of the complaint and closed the remaining
issues including those issues regarding the suspension issued on
December 28, 2000 with a finding of no discrimination based on age,
race, or retaliation, (Id. at 7.) The FAD gave Davis 30 days to appeal to
the EEOC and 90 days to file a civil action in the appropriate United
States District Court. (Id.) Davis filed the present action in this Court
on June 18, 2003.
The Postal Service moves to dismiss Davis's complaint pursuant to
Federal Rule of Civil Procedure 12(b)(1), arguing that Davis cannot base
a civil action on either his MSPB appeal or his EEO complaint because
Davis failed to exhaust his administrative remedies and timely file a
civil action for judicial review. (R. 14-1, Def.'s Mem. Supp. Mot.
Dismiss at 4-5.) Because failure to exhaust administrative remedies is
not a jurisdictional issue, Gibson v. West, 201 F.3d 990, 994 (7th Cir.
2000), the Court will analyze this motion under Rule 12(b)(6) rather than
Rule 12(b)(1). Boutte v. Principi, No. 02 C 1916, 2003 WL 262425, *1
(N.D. Ill. Jan. 27, 2003). When addressing a motion to dismiss, the court
takes all of the facts pled by the plaintiff as true and construes all
inferences in favor of the plaintiff. Thompson v. Illinois Dep't of
Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002).
In assessing a motion to dismiss, the Court views the complaint "in the
light most favorable to the plaintiff, taking as true all well-pleaded
factual allegations and making all possible inferences from those
allegations in his or her favor." Lee v. City of Chicago, 330 F.3d 456,
459 (7th Cir. 2003). See also Thomas v. Law Firm of Simpson & Cybak,
354 F.3d 696 (7 Cir. Jan, 13, 2004). The Court may review documents
attached to a complaint on a motion to
dismiss "if they are referred to in the plaintiffs complaint and are
central to her claim." Albany Bank & Trust Co. v. Exxon Mobil Corp.,
310 F.3d 969, 971 (7th Cir. 2002) (citations and quotations omitted). "A
plaintiff may plead himself out of court by attaching documents to the
complaint that indicate that he or she is not entitled to judgment."
Northern Ind. Gun & Outdoor Shows, Inc. v. City of South Bend,
163 F.3d 449, 454 (7th Cir. 1998) (quotations omitted). The Court may
also consider documents referred to in a plaintiffs complaint and
attached to a motion to dismiss if they are central to the plaintiffs
claim, even if the plaintiff did not attach them to his complaint.
Duferco Steel, Inc. v. M/V Kalisti, 121 F.3d 321, 324 n. 3 (7th Cir.
1997). Furthermore, courts may take judicial notice of the record of an
administrative proceeding. Fornalik v. Ferryman, 223 F.3d 523, 529 (7th
Davis has attached a brief entitled "Chronology of Facts" to his
complaint, along with the EEO FAD. The EEO FAD references the MSPB
proceedings, which constitute the basis for the EEO's dismissal of
Davis's removal complaint. (R. 1-1, Compl. Attach, at 2.) Davis also
discusses the MSPB proceedings in his response to the Postal Service's
motion to dismiss. (R. 18-1, Pl.'s Resp. Def.'s Mot. Dismiss at 1.) The
complaint, the attachments to the complaint, and Davis's response to the
instant motion all evidence the centrality of the MSPB proceeding
documents to the dismissal of Davis's EEO complaint, and thus to his
instant complaint. Therefore, the Court will take judicial notice of the
administrative proceedings*fn3 and consider them here.
Similarly, Davis mentions filing the EEO complaint in his response to
the Postal Service's motion to dismiss. (R. 14-1, Def.'s Mem. Supp. Mot.
Dismiss Ex. D.) The allegations contained in the amended EEO complaint
formed the basis for the EEO's dismissal of the removal portion of the
complaint. (R. 19-1, Def.'s Reply Supp. Mot. Dismiss Ex. A.) The EEO
complaint and its amendment culminated in the EEO FAD attached to Davis's
complaint in this action. Accordingly, the Court will consider the EEO
complaint and its amendment.
The time limits for filing civil actions for judicial review of
administrative decisions stem from both regulation and statute.
Administrative deadlines for bringing a discrimination complaint to the
attention of an agency are treated as statutes of limitations rather than
jurisdictional requirements. Rennie v. Garret, 896 F.2d 1057, 1062-1063
(7th Cir. 1990). Similarly, although federal employees asserting Title
VII claims must exhaust their administrative remedies before filing a
civil action in federal district court, McAdams v. Reno, 64 F.3d 1137,
1141 (8th Cir. 1995) (citing Brown v. General Services Admin.,
425 U.S. 820, 832 (1976)), the exhaustion of administrative remedies is a
precondition to bringing a Title VII claim in federal court, rather than a
jurisdictional requirement. Gibson, 201 F.3d at 994.
If Davis has not timely filed his complaint or properly exhausted his
administrative remedies, he is barred from proceeding with the instant
complaint. Determining whether Davis exhausted his administrative
remedies and timely filed for judicial review of the administrative
proceedings requires an examination of the administrative proceedings
related to Davis's removal.
II. Administrative Framework and Proceedings
Congress has authorized the MSPB, an independent quasi-judicial federal
administrative agency, to review civil service decisions made by various
governmental agencies regarding the employees of these agencies. Chaney
v. Rubin, 986 F. Supp. 516, 520 (N.D. Ill. 1997). The MSPB's appellate
jurisdiction includes appeals from agency personnel actions, including
the action of "[r]emoval . . . for cause that will promote the efficiency
of the service." 5 C.F.R. § 1201.3. The Postal Service EEO, on the other
hand, processes individual and class complaints of employment
discrimination and retaliation prohibited by Title VII.
29 C.F.R. § 1614.103. Where the jurisdiction of the two administrative
tribunals overlap for example, when an agency allegedly effects an
adverse personnel action for retaliatory or discriminatory purposes a
"mixed" proceeding results. See 29 C.F.R. § 1614.302 (defining "mixed
case complaints" and "mixed case appeals").
A federal employee alleging that an agency took an adverse personnel
action*fn4 motivated by discrimination has two avenues to challenging
that action. 29 C.F.R. § 1614.302(b). He may initially file a "mixed
case complaint"*fn5 with an agency or a "mixed case appeal"*fn6
regarding the same matter with the MSPB, but he may not file both a
"mixed case complaint" and a "mixed case appeal." Id.
If an employee files both a "mixed case complaint" and a "mixed case
appeal," whichever he filed first shall be considered his election of that
forum. Id. If, prior to receiving a request for a hearing in a complaint
before the agency EEO, it learns that the aggrieved employee elected a
non-agency forum such as the MSPB, the agency shall dismiss the entire
complaint. 29 C.F.R. § 1614.107(a)(4). Similarly, if the agency
determines that the employee elected a non-agency forum for only some of
the claims in a complaint, the agency must dismiss those claims and
notify the aggrieved employee.*fn7 29 C.F.R. § 1614.107(a)(4). Where the
agency dismisses some of the claims in the complaint and neither the MSPB
nor the agency AJ question the MSPB's jurisdiction, the agency shall
notify the aggrieved employee that the rejected allegations of
discrimination must be brought to the attention of the MSPB.
29 C.F.R. § 1614.302(c)(2).
In his MSPB appeal, Davis indicated that he was removed "because he had
to go to an EEOC pre hearing." (R. 14-1, Def.'s Mem. Supp. Mot. Dismiss
Ex. C at 5.) Davis raised the affirmative defenses of disparate treatment
and "[v]iolation of . . . the EEO process and Title VII. . . ." (Id. at
1-2.) Therefore, Davis's appeal is properly classified as a "mixed case
appeal." Similarly, when Davis added the removal action to his EEO
complaint, the EEO complaint
became a "mixed case complaint."
Since Davis filed his "mixed case appeal" prior to filing his EEO
complaint or attempting to transform his existing EEO complaint into a
"mixed case complaint" with the EEO, Davis effectively elected the MSPB
as the forum for the resolution of his removal complaint. As directed by
the regulations, the EEO dismissed Davis's removal complaint without
objection from Davis from its proceedings due to Daviss prior election
of the MSPB as the forum for challenging his removal.
III. Notice of Election
An agency must inform every employee who has raised the issue of
discrimination during the processing of an action of the right to file
either a "mixed case complaint" with the agency or a "mixed case appeal"
with the MSPB. 29 C.F.R. § 1614.302(b). Under such circumstances, the
agency must advise the employee that he may not initially file both a
"mixed case complaint" and a "mixed case appeal" on the same matter, and
that whichever is filed first shall be considered an election of that
Davis complains that he "was never given any notice from the agency
about his election in a mixed case appeal." (R. 18-1, PL's Resp. Def.'s
Mot. Dismiss at 1.) Davis, however, did not raise the issue of
discrimination during the processing of his removal. Davis does not claim
that he responded to the proposed notice of removal by claiming that he
was discriminated against or otherwise bringing his discrimination or
retaliation claims to the attention of those processing his proposed
removal. Indeed, the removal letter indicates that Davis "did not submit
an oral or written reply [to the notice of proposed removal] within the
allowable time limits." (R, 14-1, Def.'s Mem. Supp. Mot. Dismiss Ex. B at
1.) On the contrary, Davis waited until he appealed the adverse action to
raise the issue of discrimination. Therefore, the Postal Service was
under no obligation to inform Davis that he could proceed either before
the MSPB or the EEO, but not both.
IV. Judicial Review
In any matter that includes issues of discrimination prohibited by law
appealable to the MSPB, an aggrieved employee may request judicial review
of a final agency decision within 90 days of receiving that decision.
42 U.S.C. § 2000e-16(c) ("[w]ithin 90 days of receipt of notice of final
action taken by a[n]. . . agency . . . an employee . . . if aggrieved by
the final disposition of his complaint . . . may file a civil action . .
. "); 29 C.F.R. § 1614.407(a). In an action involving discrimination
before an agency, it is the "decision of the agency in any such matter
[that] shall be a judicially reviewable action. . . ."
5 U.S.C. § 7702(a)(2) (emphasis added); see Harms v. Internal Revenue
Service, 146 F. Supp.2d 1128, 1136 n.14 (D. Kan. 2001) (noting that if
the plaintiff could have challenged the dismissal of an EEO complaint in
a federal court, the district court's review would be limited to
determining whether the EEO complaint was properly dismissed), aff'd,
321 F.3d 1001 (10th Cir. 2003), cert. denied, 124 S.Ct. 159 (2003).
An employee who has received a decision from the MSPB may request
judicial review of that decision within 30 days of receiving notice of
the final decision or final action, unless the individual files a
petition for consideration with the Equal Employment Opportunity
Commission ("EEOC"). 5 U.S.C. § 7702(a)(1), (3); 29 C.F.R. § 1614.310(b);
see 5. U.S.C. § 7703(b)(2) ("[n]otwithstanding any other provision of
law, [cases of discrimination subject to the provisions of section 7702
of this title] must be filed within 30 days after the date the individual
filing the case received notice of the judicially reviewable action under
such section 7702"). It is the "decision of the [MSPB that] shall be . .
. judicially reviewable. . . ." 5 U.S.C. § 7702(a)(3) (emphasis added).
Davis alleges that his removal was discriminatory and seeks relief from
it. The EEO FAD, however, never addressed the merits of Davis's removal.
Prior to issuing the FAD, the EEO AJ informed Davis in a pre-hearing
ruling that the removal portion of his EEO complaint would be dismissed,
and provided Davis with the opportunity to object to the dismissal. Davis
declined to object, withdrew his request for a hearing, and requested a
FAD. The EEO thereafter issued the requested FAD, dismissing the removal
portion of Davis's complaint and closing the remaining issues including
those related to his December 28, 2000 suspension with a finding
of no discrimination. Accordingly, the decisions that are subject
to judicial review from the EEO FAD include whether the EEO properly
dismissed Davis's removal complaint, and whether the Postal Service
discriminated against Davis when they suspended him or placed him on
In reviewing Davis's pro se complaint liberally, McCormick v. City of
Chicago, 230 F.3d 319, 325 (7th Cir. 2000), Davis seeks review of the
EEO's decision dismissing the removal portion of his complaint and of the
MSPB's Final Order finding that the Postal Service did not remove Davis
in retaliation for his participation in protected EEO activity. The Court
must therefore determine whether Davis has exhausted his administrative
remedies and timely filed this complaint.
V. Exhaustion of Administrative Remedies
The exhaustion doctrine affords administrative agencies the opportunity
to resolve matters internally and to avoid unnecessarily burdening the
courts. Wilson v. Pena, 79 F.3d 154, 165 (D.C. Cir. 1996). Although the
exhaustion of administrative remedies is not a jurisdictional requirement
to bringing a Title VII claim in federal court, Gibson, 201 F.3d at 994,
federal employees asserting Title VII claims must exhaust their
administrative remedies before filing a civil action in federal district
court. McAdams, 64 F.3d at 1141 (citing Brown, 425 U.S. at 832). If an
employee forces an agency to dismiss or cancel a complaint by refusing to
provide the information necessary for the agency to address the claim, he
may not file a judicial suit. Wilson, 79 F.3d at 164. Even though a
dismissal normally triggers the right to sue, a suit under these
circumstances is barred for failure to exhaust administrative remedies.
Id. at 164-165. On the other hand, once an employee files a complaint and
cooperates with the agency until the agency reaches a decision or the
requisite period of time has passed without a decision, the employee has
sufficiently exhausted his administrative remedies. Id. at 166; see
29 C.F.R. § 1614.407(b) (providing that a complainant may file a civil
action after 180 days from the date of filing a complaint have passed if
no action has been taken).
Davis did not exhaust his administrative remedies in the EEO
proceedings. When the AJ
informed Davis that the removal complaint would be dismissed, the AJ
provided Davis with the opportunity to object to the dismissal, requiring
Davis to provide the legal basis for why the complaint should not be
dismissed. Davis chose not to object, and withdrew his request for a
hearing. In doing so, Davis forced the AJ to dismiss Davis's complaint
and denied the EEO the opportunity to resolve the dispute internally and
thereby avoid unnecessarily burdening the courts. Accordingly, Davis
failed to exhaust his administrative remedies and cannot base a civil
action contesting his removal upon the EEO FAD. See Hill v. Potter,
352 F.3d 1142, 1146 (7th Cir. 2003) (stating that a Postal Service
employee's refusal to cooperate with the EEOC constituted failure to
exhaust); see also Rann v. Chao, 346 F.3d 192, 196-197 (D.C. Cir. 2003)
(indicating that forcing the dismissal of an agency EEO complaint by
refusing to respond to an EEO investigator's request constituted failure
On the other hand, Davis did exhaust his remedies with respect to the
MSPB proceedings. Davis cooperated with the MSPB proceedings until the
MSPB reached a decision regarding his removal. Once the MSPB reached its
decision, Davis had three options: (1) request the EEOC to review the
decision of the MSPB on the discrimination claims, (2) request the
Federal Circuit to review the decision of the MSPB on the
non-discrimination claims, or (3) file a civil action in an appropriate
district court within 30 days of receiving the final order. (R. 14-1,
Def.'s Mem. Supp. Mot. Dismiss Ex. G at 2.) Davis chose not to seek
review by the EEOC or the Federal Circuit, Similarly, Davis did not file
a civil action within the 30 days allotted. By not filing his action
within the allotted timeframe, Davis failed to fulfill a precondition to
filing a civil action in a district court. The Court must therefore
determine whether equitable considerations favor allowing Davis to
proceed with a civil action despite the tardiness of his complaint.
Because administrative deadlines for bringing a discrimination
complaint to the attention of an agency operate as statutes of
limitations rather than jurisdictional requirements, Rennie, 896 F.2d at
1062-1063, equitable estoppel may extend the period of time during which
aggrieved party may seek judicial review.*fn8 Cada v. Baxter Healthcare
Corp., 920 F.2d 446, 450 (7th Cir. 1990).
Generally speaking, a defendant that takes active steps that prevent a
plaintiff from suing in time gives the plaintiff cause to invoke the
doctrine of equitable estoppel. Cada, 920 F.2d at 450. Asserting
equitable estoppel against the government, however, requires more than
asserting equitable estoppel against a private employer: the government
must have engaged in "affirmative misconduct." Gibson, 201 F.3d at 994.
The government's mere failure to discharge an affirmative obligation does
not constitute affirmative misconduct. Id. Rather, such an omission
amounts to "ordinary negligence," and mere negligence on the part of the
government will not support the invocation of equitable estoppel because
affirmative misconduct requires the government to affirmatively
misrepresent or mislead. Id.
Davis does not claim that the conduct of the Postal Service entitles
him to the benefit of the doctrines of equitable estoppel. Davis does not
contend that the government engaged in affirmative misconduct that
prevented him from filing his complaint in a timely manner. Davis instead
complains that the government failed to inform him that proceeding in the
MSPB constituted an election of that forum. Even assuming that the
government was obliged to provide Davis with information regarding his
options in seeking administrative remedies,*fn9 the government's failure
to discharge that affirmative obligation would not rise to the level of
affirmative misconduct. Accordingly, equitable estoppel does not toll the
time that Davis had to file suit following the MSPB Final Order.
Davis failed to timely file a complaint after receiving the Final Order
in his MSPB appeal. The complaint neither pleads nor alleges any facts
that would entitle Davis to the benefit of equitable estoppel or
equitable tolling. Accordingly, Davis cannot base the instant complaint
upon the Final Order in his MSPB appeal.
For the foregoing reasons, the Postal Service's motion to dismiss is