Filed: Jul. 02, 2003
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 2 2003 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk PERCY L. PALMER, Plaintiff-Appellant, v. No. 02-5143 (D.C. No. 01-CV-307-EA) UNITED STATES POSTAL (N.D. Okla.) SERVICE, William Henderson, Postmaster General, U.S.A., Defendant-Appellee. ORDER AND JUDGMENT * Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 2 2003 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk PERCY L. PALMER, Plaintiff-Appellant, v. No. 02-5143 (D.C. No. 01-CV-307-EA) UNITED STATES POSTAL (N.D. Okla.) SERVICE, William Henderson, Postmaster General, U.S.A., Defendant-Appellee. ORDER AND JUDGMENT * Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral a..
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 2 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
PERCY L. PALMER,
Plaintiff-Appellant,
v. No. 02-5143
(D.C. No. 01-CV-307-EA)
UNITED STATES POSTAL (N.D. Okla.)
SERVICE, William Henderson,
Postmaster General, U.S.A.,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 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This order and judgment is not binding precedent, except under the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.
Plaintiff Percy L. Palmer, proceeding pro se, appeals the district court’s
order granting summary judgment in favor of his former employer, the United
States Postal Service (USPS). We exercise jurisdiction under 28 U.S.C. § 1291
and affirm.
Background
Mr. Palmer was disciplined for various violations of USPS rules and
regulations occurring in 1994 and 1995. His employment was terminated in 1996.
He filed grievances for the disciplinary actions and termination, claiming race
discrimination and retaliation. After the USPS issued its final agency decision on
each claim in 1996 and 1997, Mr. Palmer timely filed suit in federal court.
He filed four separate cases. The district court consolidated them and ordered
Mr. Palmer to file a single amended complaint in June 1997. The deadline was
later extended to January 5, 1998, with a warning that failure to comply would
result in dismissal of the action for failure to prosecute. When he failed to file
an amended complaint, the district court dismissed the consolidated cases on
January 16, 1998.
On April 25, 2001, Mr. Palmer filed this lawsuit seeking redress for one or
more of his grievances against the USPS. The district court granted summary
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judgment 1 in favor of the USPS because the case was filed well past the
ninety-day filing deadline prescribed by 42 U.S.C. § 2000e-16(c). Mr. Palmer
challenges that ruling on the following grounds: (1) he did not receive notice
of the final agency action on grievance number 4G-730-0011-97 2
; (2) the USPS
told him it was still investigating his case; (3) despite his efforts to obtain a
right-to-sue letter, the USPS refused to issue one; (4) the USPS engaged in a
cover-up of race discrimination and concealed his case to aid in the cover-up;
(5) USPS personnel committed perjury to conceal his grievances; and (6) his
failure to follow through with his previously filed cases should not deprive
him of his right to file a new case.
Discussion
We review de novo the district court’s grant of summary judgment, viewing
the record in the light most favorable to the party opposing summary judgment.
McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998).
Summary judgment is appropriate if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Celotex Corp. v.
Catrett,
477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). Because plaintiff is
1
Although the district court granted both dismissal and summary judgment in
favor of the USPS, we construe the order as one for summary judgment.
2
This grievance was assigned two different case numbers. The original
claim was assigned number 4G-730-0011-97. It was processed by the USPS EEO
office as case number H0-0080-97. R. Vol. I, doc. 14, Ex. A.
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representing himself on appeal, his pleadings will be liberally construed. Haines
v. Kerner, 404 U.S. 519, 520 (1972).
A civil action by an employee for redress of grievances must be filed
within ninety days of receipt of the notice of final agency action. 42 U.S.C.
§ 2000e-16(c); Belhomme v. Widnall , 127 F.3d 1214, 1217 (10th Cir. 1997)
(“Because Mr. Belhomme filed this civil action more than ninety days after the
EEOC’s final action, the district court was barred from considering it.”). In this
case, Mr. Palmer’s complaint was filed on April 25, 2001, much longer than
ninety days after the notices of final agency action were issued in 1996 and 1997.
Accordingly, summary judgment was correct.
Mr. Palmer claims he never received a notice of final agency action for
grievance number 4G-730-0011-97, despite his repeated efforts to obtain one.
He does not dispute, however, that he filed a lawsuit based on this grievance or
that he failed to file an amended complaint as ordered in 1998. He certainly had
notice from the court in 1998 that he had to take action to protect his rights,
which he failed to do. Therefore, his claim that he did not receive a notice of
final agency action cannot defeat summary judgment.
We turn to Mr. Palmer’s claims that the USPS told him it was still
investigating his case, concealed his grievances as part of a cover-up of race
discrimination, and caused its personnel to commit perjury to conceal his
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grievances. It is unclear whether these claims arose from the same facts as the
cases dismissed in 1998, or whether they are new claims against the USPS. Either
way, they are not properly before this court. As discussed above, it is too late for
Mr. Palmer to maintain a lawsuit on the charges dismissed in 1998. For new
charges, he must file an administrative complaint with the USPS, which he did
not do. See 29 C.F.R. § 1614.106(a) (federal employee must file complaint with
agency that allegedly discriminated against him). Moreover, these conclusory
allegations are not supported by evidence and are, therefore, insufficient to resist
summary judgment. See Kidd v. Taos Ski Valley, Inc. , 88 F.3d 848, 853
(10th Cir. 1996).
Finally, we consider Mr. Palmer’s claim that his failure to follow through
with his previously filed cases should not deprive him of his right to file a new
case. In enacting 42 U.S.C. § 2000e-16(c), Congress clearly intended that
a claimant who did not act promptly be deprived of a right to bring a lawsuit.
Furthermore, a plaintiff may not sit by without taking some steps to preserve his
rights. See Sec. Nat’l Bank v. John Deere Co. , 927 F.2d 519, 520 (10th Cir.
1991) (“At any rate, when it became apparent that the joint stay motion would not
be ready, it was incumbent upon plaintiff to take some steps to preserve his
rights. . . .”). Therefore, we must reject Mr. Palmer’s argument that he should
be permitted to file a new case at this late date.
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The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Robert H. Henry
Circuit Judge
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