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KIEN v. UNITED STATES

October 11, 1990

F. MICHAEL KIEN, Plaintiff
v.
UNITED STATES OF AMERICA, et al., Defendants



The opinion of the court was delivered by: HOGAN

 THOMAS F. HOGAN, UNITED STATES DISTRICT JUDGE.

 Mr. Kien originally filed this action pro se against the United States, the Secretary of the Navy (Navy), the Director of the Office of Personnel Management (OPM), the Secretary of Labor, the Chairman of the Merit System Protection Board (MSPB), and the Chairman of the Equal Opportunity Employment Commission (EEOC). Mr. Kien's complaint arose out of his termination from the Department of the Navy, where he was employed as a Safety and Occupational Health Manager with the Military Sealift Command (MSC) in the Washington, D.C. area. Mr. Kien alleged violations of the Privacy Act of 1974, 5 U.S.C. § 552a, the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the Federal Employees Compensation Act, 5 U.S.C. §§ 7902, 8101, et seq. By order of November 9, 1989, this Court dismissed all defendants except the Navy, stating that the only proper action was an action de novo against the alleged discriminating employer under the Rehabilitation Act.

 On January 31, 1990, the Navy filed a motion to dismiss or in the alternative for summary judgment. The Court granted Mr. Kien an enlargement of time to respond while Mr. Kien obtained counsel. On July 13, 1990, counsel for Mr. Kien filed both an opposition to the Navy's motion and an amended complaint adding one count of reprisal for Mr. Kien's "whistleblowing" activities, in violation of 5 U.S.C. § 2302(b)(8) and the first amendment to the United States Constitution. On August 9, 1990, the Navy filed a motion to dismiss Mr. Kien's reprisal claim for lack of subject matter jurisdiction. Mr. Kien filed an opposition on August 24, 1990. *fn1" Having considered the motions and supporting memoranda and exhibits filed by the Navy, the oppositions thereto and supporting exhibits and affidavits filed by Mr. Kien, the arguments made at a hearing held on August 30, 1990, and the reasons that follow, the Court shall grant defendant's motions and enter summary judgment for the defendant.

 FACTS

 Prior to Mr. Kien's employment at the MSC, he had been diagnosed as having "Adult Situational Reaction," a psychological disorder aggravated by stress and anxiety. He has also been diagnosed as having a borderline personality/post-traumatic stress disorder, and myofascial pain syndrome. Mr. Kien's psychological condition allegedly was aggravated by his contentious relationship with Mr. Hinkell and by his two work-related accidents. As a result, Mr. Kien requested a transfer or reassignment under a new supervisor, but the Navy refused his requests. Mr. Kien also sought psychological counseling from Jon E. Williams, Ph.D., who, in June 1984, telephoned Mr. Hinkell to inform him of Kien's unstable psychological condition and to advise that Kien be transferred. On July 24, 1984, Dr. Williams wrote to Admiral W.H. Rowden, commander of the MSC, informing him of Mr. Kien's condition, including the possibility that Kien would become violent toward Mr. Hinkell, and again requesting that Kien be transferred. Eventually Mr. Kien refused to recognize Mr. Hinkell's authority and after Hinkell allegedly withdrew Kien's previously authorized leave, Kien took the leave anyway, beginning on June 26, 1984. On September 21, 1984, the Navy discharged Mr. Kien for unauthorized absences from work.

 Mr. Kien appealed his termination to the MSPB on October 2, 1984 and the MSPB upheld plaintiff's removal on February 7, 1985. *fn2" Mr. Kien then petitioned the full Board for a review of the MSPB decision, which the Board denied on May 29, 1985. With the denial of his petition, Mr. Kien was advised that he had the right to appeal within 30 days to the United States Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. § 7703(b)(1). Mr. Kien instead chose to appeal to the EEOC and filed a timely petition for review on June 29, 1985. *fn3" Determining that Mr. Kien had never raised his discrimination claim before the MSPB, the EEOC denied the petition on June 18, 1986. The EEOC advised Mr. Kien that he had a right to appeal to the appropriate federal district court within 30 days of the date of receipt of the EEOC's decision. Mr. Kien did not avail himself of that right; rather, he sought disability retirement from OPM and workers compensation from the Office of Workers Compensation Programs. Over the next year-and-a-half, Mr. Kien also attempted to reopen his case before the MSPB and the EEOC. On September 2, 1988, the EEOC rejected Mr. Kien's second petition for review of the MSPB's decision after discovering that he had previously filed a petition for review of the same MSPB decision, which had been denied.

 DISCUSSION

 The Navy bases both of its motions on procedural grounds: first arguing that Mr. Kien is precluded from bringing his handicap discrimination claim because he failed to file a timely appeal from the EEOC's June 18, 1986 decision, and second arguing that Mr. Kien is precluded from bringing his reprisal claim because he failed to file a timely appeal from the MSPB's May 29, 1985 decision.

 A. Plaintiff's Rehabilitation Act Claim

 Mr. Kien brings his handicap discrimination claim pursuant to § 501 of the Rehabilitation Act of 1973, which bars discrimination by the federal government in the hiring, placement, and advancement of handicapped individuals. 29 U.S.C. § 791. The section is designed to parallel § 717 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and thus requires aggrieved individuals to exhaust their administrative remedies before obtaining judicial review of alleged discrimination. Section 505 of the Act provides that "the remedies, procedures, and rights set forth in section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16) . . . shall be available, with respect to any complaint under section 501 of this Act, to any employee or applicant for employment aggrieved by the final disposition of such complaint, or by the failure to take final action on such complaint." 29 U.S.C. § 794a(a)(1). Under 42 U.S.C. § 2000e-16(c), a person aggrieved by the EEOC's decision may appeal to federal district court within 30 days of receipt of the EEOC's decision.

 In this case, the Navy argues that this Court lacks subject matter jurisdiction over Mr. Kien's discrimination claim because he failed to appeal the EEOC's June 18, 1986 decision within the time prescribed by § 2000e-16(c). Mr. Kien argues that the time limit is not jurisdictional, but is like a statute of limitations, subject to equitable tolling. He then argues that the Court should toll the time limit during the period between June 18, 1986 and September 26, 1988, on which date Mr. Kien filed this lawsuit. He argues that equitable tolling is warranted because his "aggravated psychological state prevented ...


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