Adair v. Brown ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 10 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
PHILLIP R. ADAIR,
Plaintiff-Appellant,
v.
No. 96-7128
JESSE BROWN, Secretary of the (D.C. No. 95-CV-379)
Veterans Administration, United (E.D. Okla.)
States Department of Veterans Affairs,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
Plaintiff appeals the district court’s entry of summary judgment in favor of
the Veterans Administration (VA) on plaintiff’s claim that its failure to hire him
was the result of handicap discrimination, in violation of section 501 of the
Rehabilitation Act, 29 U.S.C. § 791. The district court determined that plaintiff
failed to exhaust his administrative remedies before filing suit because he did not
file his administrative complaint in a timely manner and no equitable grounds
existed to extend the filing time. In the alternative, the district court determined
that, even if plaintiff’s administrative complaint were timely filed, plaintiff failed
to establish either a prima facie case of handicap discrimination or to show that
defendant’s reasons for not hiring plaintiff were pretextual. We exercise
jurisdiction under 28 U.S.C. § 1291 and affirm.
Background
In November 1992, plaintiff, who walks with a cane, applied for the
position of Chief of Prosthetics and Sensory Aids at the Veterans Administration
Medical Center (VAMC) in Muskogee, Oklahoma. Plaintiff sent his application
to the central VA office in Washington, D.C. On January 19, 1993, the central
VA office issued a certificate to the Muskogee VAMC containing the names of
three candidates who, based on their applications, were qualified for the position.
Plaintiff was one of the candidates listed on the certificate.
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Meanwhile, in late December 1992, it came to the attention of Mr. Baxter,
the Director of the Muskogee VAMC, that another person, Barbara Corbin, was
also available for the position. Ms. Corbin, who is a black, paraplegic, veteran of
the U.S. Armed Forces, was completing a VA Prosthetics Intern Program, which
was designed to train people for the position at issue, at the VAMC in Decatur,
Georgia. The Director of the Prosthetics and Sensory Aids Service at the central
VA referred Ms. Corbin’s application directly to Mr. Baxter. After speaking with
the director of the Decatur VAMC, who recommended Ms. Corbin highly, Mr.
Baxter decided to hire Ms. Corbin, in early January 1993. As a result, the
Muskogee VAMC never considered any of the candidates, including plaintiff,
who had been referred for consideration on the January 19 certificate.
In March 1994, plaintiff consulted an EEO Counselor with the Muskogee
VAMC because he thought he had been discriminated against on the basis of his
handicap. The EEO Counselor conducted a final interview with plaintiff on
April 21, 1994, by telephone. In that conversation, the EEO Counselor advised
plaintiff that he had fifteen days to file a formal administrative complaint if he
wanted to pursue his claim further. Although the EEO Counselor averred in an
affidavit that he also sent plaintiff written notice on April 21 of his right to file an
administrative complaint within fifteen days, plaintiff, in turn, averred that he
never received any written notice. Plaintiff did not file an administrative
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complaint with the VA until February 9, 1995. The VA took final action on the
complaint in September 1995, after plaintiff had filed the present lawsuit, by
dismissing the complaint.
Analysis
We review the grant of summary judgment de novo, applying the same legal
standards as the district court, under Fed. R. Civ. P. 56(c). See Wolf v.
Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995). We, therefore,
examine the factual record, and draw all reasonable inferences therefrom, in the
light most favorable to plaintiff, the nonmoving party. See Kaul v. Stephan,
83 F.3d 1208, 1212 (10th Cir. 1996).
We turn first to the timeliness of plaintiff’s administrative complaint,
which is a prerequisite to suit. See, e.g., Williams v. Rice, 983 F.2d 177, 180
(10th Cir. 1993); Miller v. Runyon, 77 F.3d 189, 191 (7th Cir.), cert. denied, 117
S. Ct. 316 (1996). Based on our examination of the record, we agree with the
district court that, if plaintiff received sufficient notice in April 1994 to trigger
the fifteen-day filing period, then his complaint was untimely, because the
evidence does not support any extension of the filing time on equitable grounds.
The question remains, however, whether plaintiff actually received sufficient
notice to trigger the fifteen-day filing period. Under the applicable regulations,
the complainant’s duty to file an administrative complaint is triggered upon
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receipt of written notice informing him of the right to file a discrimination
complaint within fifteen days. See 29 C.F.R. §§ 1614.105(d)-(f), 1614.106(b).
While plaintiff does not deny that he received oral notice of his obligation to file
an administrative complaint, he does deny that he ever received written notice of
this obligation. We need not decide whether oral notice is sufficient to trigger the
duty to file, or whether plaintiff’s averment that he did not receive written notice
is sufficient to overcome the presumption of delivery of a properly addressed
piece of mail, see Moya v. United States, 35 F.3d 501, 504 (10th Cir. 1994),
because we agree with the district court that, even if plaintiff’s administrative
complaint was timely filed, plaintiff’s case would fail on the merits.
To establish a claim for handicap discrimination under section 501 of the
Rehabilitation Act, plaintiff must show: (1) he is “disabled” within the meaning
of the Act; (2) he can perform the essential functions of the job, with or without
accommodation; (3) he was not hired because of his disability; and (4) the
program with which he sought a position receives federal funding. See McCarter
v. West, 910 F. Supp. 519, 526 (D. Kan. 1995), adopted as opinion of Tenth
Circuit, 105 F.3d 1335 (10th Cir. 1997). Even if we assume plaintiff is disabled
and can perform the essential functions of the position at issue, there is no
evidence suggesting that he was not hired for the position “solely by reason of his
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handicap,” Johnson ex rel. Johnson v. Thompson, 971 F.2d 1487, 1492 (10th Cir.
1992).
Plaintiff bases his claim of discrimination on defendant’s alleged failure to
comply with 29 C.F.R. § 1614.203(b), which provides, in part, that federal
agencies “shall give full consideration to the hiring, placement, and advancement
of qualified individuals with mental and physical handicaps.” Plaintiff argues
that, because he is a qualified individual with a physical handicap, yet the agency
did not fully consider his application for the position at issue, the agency violated
this regulation and, therefore, violated the Rehabilitation Act as a matter of law.
Plaintiff evidently construes § 1614.203(b)’s language to require the agency
to consider every qualified applicant who is handicapped. However, the plain
language of the regulation requires the agency only to give full consideration to
hiring a qualified handicapped person. As defendant points out, that is exactly
what the Muskogee VAMC did when it hired Ms. Corbin. Moreover, plaintiff has
not cited any facts or controlling authority linking defendant’s alleged violation
of § 1614.203(b) to a violation of the Rehabilitation Act. For the same reasons,
plaintiff’s argument based on the Muskogee VAMC’ s policy statement about the
hiring, placement, and use of disabled veterans and handicapped persons is also
unavailing.
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Plaintiff has neither shown that he was not hired for the position under
circumstances giving rise to an inference that he was not hired solely because of
his handicap, see Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1387
(10th Cir. 1981), nor shown that the reasons articulated by defendant for hiring
Ms. Corbin, rather than plaintiff, were pretextual. Therefore, the district court
properly entered summary judgment in favor of defendant on plaintiff’s claim of
handicap discrimination.
The judgment of the United States District Court for the Eastern District of
Oklahoma is AFFIRMED.
Entered for the Court
J. Thomas Marten
District Judge
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