DesRoches v. USPS

DesRoches v. USPS                      CV-05-88-PB    06/12/06

                   UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE


Robert P. DesRoches

     v.                                  Case N o . 05-cv-88-PB
                                         Opinion N o . 

John E . Potter, Postmaster General,
U.S. Postal Service


                       MEMORANDUM AND ORDER

     Plaintiff Robert P. DesRoches, a former employee of the U.S.

Postal Service (“USPS”), successfully litigated an employment

discrimination claim with the Equal Employment Opportunity

Commission Office of Federal Operations (“EEOC”).    He then filed

a petition with the EEOC to enforce its order awarding him relief

against the USPS.   In this action, DesRoches challenges the

EEOC’s determination that the USPS has accorded him all of the

relief to which he is entitled.   The USPS has moved for judgment

on the pleadings (Doc. N o . 9 ) arguing that DesRoches is not

entitled to judicial review of the EEOC’s order. For the reasons

set forth below, I grant the USPS’ motion.
                          I.    BACKGROUND

     Postal service employees must follow a complex procedural

path in pursuing discrimination claims against their employers.

I begin by describing the laws and regulations that govern such

claims and then turn to the specific facts of this case.

A.   The Regulatory Framework

     DesRoches’ disability claim arises under the Rehabilitation

Act of 1973, 

 et seq.    The Rehabilitation Act

prohibits discrimination against qualified individuals with

disabilities by federal agencies or the USPS.    

(a).   Claims under the Rehabilitation Act are enforceable in

the manner provided by Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. § 2000e et seq.     29 U.S.C. § 794a.

     Title VII empowers the EEOC to adopt regulations to enforce

the statute’s policy of nondiscrimination by federal employers.

42 U.S.C. § 2000e-16(b); 

 (transferring

authority to enforce § 2000e-16 from the Civil Service Commission

to the EEOC).   Pursuant to the statute, the EEOC has propounded

regulations for the adjudication of claims by alleged victims of

discrimination (hereinafter, “complainants”). The regulations


                                 -2-
provide an array of administrative remedies and, in certain

circumstances, authorize complainants to litigate their claims in

federal district court.

    All complainants are required to exhaust their

administrative remedies prior to seeking relief in federal court.

To comply with the exhaustion requirement, a complainant must

first undergo informal consultation with an equal employment

opportunity counselor.    

(a).   If the matter

is not resolved via informal consultation, the complainant must

file an official complaint with the offending agency.    

 §

1614.106(a).   The agency is required to conduct its own

investigation of the complaint, id. § 1614.106(e)(2), and to

provide a copy of the investigation file to the complainant.      Id.

§ 1614.108(f).   After receiving the investigation file, the

complainant may request a hearing before an EEOC administrative

law judge (“ALJ”).   Id. § 1614.108(g).

    The ALJ issues findings and conclusions after a hearing, or

if there are not facts in dispute, without a hearing.    Id. §§

1614.109(a), 1614.109(g).   The agency may accept or reject the

ALJ’s findings and conclusions. Id. § 1614.110(a).     The agency’s


                                -3-
response to the ALJ’s findings and conclusions is its “final

action.”   Id.    A complainant has exhausted his administrative

remedies when he receives notice of the agency’s final action or

when the agency has failed to issue a final action within 180

days.   See id. § 1614.407(a)-(b).

     A complainant who is not satisfied with the agency’s final

action may either file a civil action in federal district court

or   continue to litigate his claim with the EEOC by taking an

administrative appeal. Pursuant to 42 U.S.C. § 2000e-16(c), a

complainant must file any civil action within 90 days from his

receipt of the agency’s final action or 180 days from the filing

of the initial charge with the agency.    See also 

(a).     In the alternative, the complainant may appeal the

agency’s final action to the EEOC by invoking the optional

administrative appeal procedure. 

 §§ 1614.110(b);

1614.401(a).

     If the complainant is aggrieved by the EEOC’s appellate

decision, he once again has the opportunity to file a civil

action in federal district court. 42 U.S.C. § 2000e-16(c); 

(c).    Consistent with the procedural rules that


                                 -4-
govern civil actions following agency final actions, the

complainant must file his civil action within 90 days of his

receipt of the EEOC’s decision on the appeal or 180 days after

commencing the appeal. 

(c); 42 U.S.C. §§

2000e-16(c).

    If a complainant is satisfied with the EEOC’s appellate

decision but determines that the agency has not provided the

relief ordered therein, he may file a petition for enforcement

with the EEOC. 

(a).   The enforcement

regulation states that:

    [w]here the [EEOC] has determined that an agency is not
    complying with a prior decision, or where an agency has
    failed or refused to submit any required report of
    compliance, the [EEOC] shall notify the complainant of the
    right to file a civil action for enforcement of the decision
    pursuant to . . . the Rehabilitation Act and to seek
    judicial review of the agency’s refusal to implement the
    ordered relief pursuant to the Administrative Procedure Act,
    

 et seq., and the mandamus statute, 

, or to commence de novo proceedings pursuant to the
    appropriate statutes.

 § 1614.503(g).   A complainant may pursue an enforcement

proceeding in federal court if the EEOC “has determined that an

agency is not complying with a prior decision.”   

(g).


                                -5-
B.   Facts and Procedural History

     DesRoches worked at the USPS facility in Nashua, New

Hampshire. He alleges that on April 2 5 , 1994, the USPS refused

to promote him from Part-Time Flexible (“PTF”) Clerk to Full-Time

Regular (“FTR”) Clerk because of his disabling back condition.1

Information for Precomplaint Counseling at 1 .   Instead, the USPS

allegedly promoted another PTF Clerk with less seniority.       EEO

Compl. of Discrimination in the Postal Service at 1 .   On April

2 6 , 1994, DesRoches requested a meeting with an equal employment

opportunity counselor.   He subsequently filed an equal employment

opportunity complaint. On January 2 5 , 1995, he requested a

hearing before an ALJ.

     On August 1 , 1995, pursuant to 

(g), ALJ

Edwina L . S t . Rose issued findings and conclusions without

holding a hearing.   ALJ S t . Rose ordered summary judgment in

favor of DesRoches, determining that DesRoches was a qualified

individual with a disability within the meaning of the

Rehabilitation Act and that the USPS had not shown why DesRoches


     1
        DesRoches suffers from a herniated disc and lumbar
radiculopathy. Compl. ¶ 6.

                                -6-
could not be provided with reasonable accommodation in the FTR

Clerk position. ALJ Findings and Conclusions at 4-5.     ALJ S t .

Rose directed the USPS to award the FTR Clerk position to

DesRoches, retroactive to April 3 0 , 1994, and to reimburse him

for lost benefits. 

 at 5 .

     On September 1 , 1995, the USPS rejected ALJ S t . Rose’s

findings and conclusions, stating that summary judgment was

inappropriate and DesRoches was not a qualified individual with a

disability.   USPS Final Action at 2-4. DesRoches appealed to the

EEOC.   On May 1 2 , 1998, the EEOC reversed the USPS’

determination.   EEOC Appellate Decision at 2 .   It ordered the

USPS to award DesRoches a FTR Clerk position, retroactive to

April 3 0 , 1992, and to provide back pay and benefits. 

      On

July 1 9 , 2000, the EEOC denied the USPS’ request for

reconsideration.   The EEOC did not explain why it ordered relief

retroactive to 1992 even though DesRoches alleged that he was

first denied a promotion in 1994.

     On September 2 3 , 2002, DesRoches filed a petition with the

EEOC complaining that the USPS had not complied with the terms of

the EEOC appellate decision. Pl.’s B r . at 6.    The EEOC opened an


                                -7-
enforcement proceeding, and on February 1 0 , 2005, the EEOC

determined that the USPS had fully complied with the appellate

decision. In explaining that DesRoches was not entitled to

further relief, the EEOC first noted that it had made a

typographical error in awarding DesRoches relief retroactive to

April 3 0 , 1992 rather than April 3 0 , 1994. 2   Decision on Pet. for

Enforcement at 2 n.2. Next, it concluded that the USPS had

complied with the portion of the appellate decision that awarded

him an FTR Clerk position because it had offered him the position

prior to April 1994. 3   

 at 2 .   Finally, it concluded that

DesRoches was not entitled to back pay or benefits under the

appellate decision because he had stopped coming to work in

January 1994 whereupon the USPS had terminated him (an action


     2
        DesRoches contends that the date change was not an error
because the USPS had a “history of discriminatory activity” with
respect to DesRoches and because 

(b)(3)
permits back pay for a period of two years prior to the date on
which the aggrieved party files a complaint. DesRoches’ argument
is dubious. Nevertheless, it has no bearing on my resolution of
this matter.
     3
        The EEOC did not identify the evidence that it was
relying on when it made this determination. DesRoches argues
that the USPS made only an inadequate attempt to comply with the
appellate decision by offering him a “modified clerk” position on
August 2 3 , 2002. Pl.’s B r . ¶ 1 0 .

                                   -8-
that was upheld on appeal to the EEOC).      

     DesRoches filed his complaint in this court on February 1 0 ,

2005.    He seeks an order vacating the EEOC’s February 1 0 , 2005

ruling and directing the USPS to pay him back pay and benefits

from April 3 0 , 1992 through October 3 1 , 2004. 4



                       II.   STANDARD OF REVIEW

     A motion for judgment on the pleadings under Federal Rule of

Civil Procedure 12(c) is subject to the same standard of review

as a motion to dismiss for failure to state a claim under Rule

12(b)(6).    Collier v . City of Chicopee, 

 0 1 , 602 (1st

Cir. 1998).    Accordingly, in reviewing a motion for judgment on

the pleadings the court must “accept all of the non-movant’s well

pleaded factual averments as true.”      Rivera-Gomez v . De Castro,

 3 1 , 635 (1st Cir. 1988).   “Judgment on the pleadings

under Rule 12(c) may not be entered unless it appears beyond a

doubt that the nonmoving party can prove no set of facts in


     4
        DesRoches acknowledges that he is not entitled to back
pay after October 3 1 , 2004 because the USPS offered him the
position specified in the EEOC appellate decision on October 1 ,
2004. Compl. ¶16.

                                  -9-
support of [his] claim which would entitle [him] to relief.”

Feliciano v . Rhode Island, 

 8 0 , 788 (1st Cir. 1998).



                           III.    ANALYSIS

     DesRoches asks me to vacate the EEOC’s enforcement decision

and to enforce its appellate decision. The USPS responds by

arguing that DesRoches’ claim is not cognizable under the

governing statutes and regulations.5

     DesRoches’ claim arises under the Rehabilitation Act and is

enforceable as provided by Title VII. Title VII and its

implementing regulations authorize an employment discrimination

claimant to seek relief in federal court in only two


     5
        The USPS frames its argument as a challenge to this
court’s subject matter jurisdiction. I disagree that this suit
lacks jurisdictional basis. Resolution of the parties’ dispute
requires me to construe Title VII and the applicable EEOC
regulations. Accordingly, I have subject matter jurisdiction
under 

. Laber v . Harvey, 

 0 4 , 425 (4th
Cir. 2006); see also Bell v . Hood, 

 7 8 , 684 (1946)
(“[T]he right of the petitioners to recover under their complaint
will be sustained if the Constitution and laws of the United
States are given one construction and will be defeated if they
are given another. For this reason the District Court has
jurisdiction.”); Vera-Lozano v . Int’l Broad., 

 7 , 68 (1st
Cir. 1995) (subject matter jurisdiction over Title VII claims
under § 1331).

                                  -10-
circumstances: (1) in a judicial enforcement proceeding pursuant

to 

(g); and (2) in a civil action pursuant to

42 U.S.C. § 2000e-16(c).6   I discuss each in turn.

A.   Judicial Enforcement Proceeding

     The EEOC enforcement regulation authorizes a complainant to

file an action to enforce an EEOC appellate decision only if the

EEOC “has determined that an agency is not complying with a prior

decision.”   

(g) (emphasis added).   “When

construing a regulation or statute, it is appropriate first to

examine the regulatory language itself to determine its plain

meaning . . . . [i]f the regulatory language is clear and

unambiguous, the inquiry ends with the plain meaning.”    Roberto

v . Dep’t of the Navy, 

 (Fed. Cir. 2006)

(citations omitted); see also Prado v . Reno, 

, 292

     6
        DesRoches argues that he is entitled to judicial review
because the EEOC’s enforcement decision unlawfully modified its
appellate decision in contravention of 

(c),
which states that the EEOC may not “change the result of a prior
decision” when it issues a clarification.   DesRoches has not
cited any provision of either the Rehabilitation Act or Title VII
that authorizes a complainant to bring a civil action for an
alleged violation of § 1514.503(c). Nor has he identified any
other federal statute or regulation giving him such a right.
Accordingly, I limit my analysis to 

(g) and
42 U.S.C. § 2000e-16(c).

                               -11-
(1st Cir. 1999).    Because § 1614.503(g) plainly applies only if

the EEOC has determined that an agency has refused to comply with

a prior EEOC decision, the provision is inapplicable in cases

like the present one in which the litigant is seeking judicial

review of a determination by the EEOC that the agency has

complied with its prior decision. See Adcock v . Roche, N o . 5:04-

CV-208(DF), 

, at *6 (M.D. G a . May 5 , 2006) (“As is

indicated by the plain terms of subsection ( g ) , an employee’s

claim for judicial enforcement is proper only where the EEOC

determines that the agency is not in compliance with its previous

decision.”); Tshudy v . Potter, 

 0 1 , 907 (D.N.M.

2004) (finding of noncompliance with a final agency decision is a

“prerequisite” to an action for judicial enforcement).

B.   Civil Action

     Title VII authorizes a “party aggrieved” to file a lawsuit

in federal court following final action by an agency or the EEOC.

42 U.S.C. § 2000e-16(c); see also 

. An

action under this provision, however, is an action for de novo

review of the complainant’s employment discrimination claim.




                                -12-
     Civil actions under § 2000e-16(c) are governed by the

provisions of 42 U.S.C. §§ 2000e-5(f)-(k).      42 U.S.C. § 2000e-

16(d).   Section 2000e-5(g) authorizes federal district courts to

provide injunctive relief and back pay to a complainant “[i]f the

court finds that the [agency] has intentionally engaged in . . .

an unlawful employment practice.”       42 U.S.C. § 2000e-5(g)(1)

(emphasis added).   The statute’s use of the phrase “if the court

finds” suggests that a court must consider the merits of a

claimant’s discrimination claim rather than narrower issues such

as whether an agency has complied with an EEOC order awarding a

complainant particular relief. See Laber v . Harvey, 

, 419 n.14 (4th Cir. 2006).

     In Laber, the Fourth Circuit thoroughly reviewed the

relevant statutory framework and case law and concluded that a

civil action under § 2000e-16(c) is for de novo review of the

complainant’s claim.   

. The Fourth Circuit’s

reasoning in Laber is persuasive. In addition, a clear majority

of the courts of appeals that have squarely addressed this

question agree that review under § 2000e-16(c) is de novo.      See

Morris v . Rumfeld, 

 8 7 , 294 (3d Cir. 2005); Ellis v .


                                 -13-
England, 

 (11th Cir. 2005); Scott v . Johanns,

 (D.C. Cir. 2005); Timmons v . White, 

 (10th Cir. 2003); but see Girard v . Rubin, 

 (9th Cir. 1995).     Accordingly, because DesRoches seeks

to challenge the EEOC’s enforcement decision rather than to

litigate his discrimination claim, his complaint is not

cognizable under § 2000e-16(c).



                          IV.    CONCLUSION

      For the reasons set forth above, defendant’s motion for

judgment on the pleadings (Doc. N o . 9 ) is granted.     This order is

without prejudice to any right that DesRoches otherwise may have

to file an action seeking de novo review of his discrimination

claim.   The clerk is instructed to enter judgment accordingly.

      SO ORDERED.


                                          /s/Paul Barbadoro
                                          Paul Barbadoro
                                          United States District Judge

June 1 2 , 2006

cc:   T . David Plourde, Esq.
      Lawrence M . Edelman, Esq.


                                   -14-