failed to file such a petition. The Navy argues that because Mr. Kien failed to comply with the jurisdictional time limit, his complaint of reprisal must be dismissed.
Mr. Kien contends that he was under no obligation to petition the Federal Circuit for review because his claim was a "mixed claim" involving both reprisal and discrimination, and therefore was appealable to the EEOC rather than to the Federal Circuit, pursuant to 5 U.S.C. § 7703(b)(2). Accepting Mr. Kien's assertions, the Court is faced with the same analysis it engaged in with respect to Mr. Kien's discrimination claim. Although Mr. Kien timely petitioned the EEOC for review, he did not timely petition this Court for review of the EEOC's decision, pursuant to 42 U.S.C. § 2000e-16(c). Because he did not comply with the 30-day limit of § 2000e-16(c), his claim must be dismissed unless the Court determines that the time limit should be equitably tolled. For the reasons stated above, this Court holds that Mr. Kien's circumstances do not justify equitable tolling and therefore it must grant defendant's motion for summary judgment on Mr. Kien's reprisal claim.
The Court has carefully reviewed all of the evidence supporting Mr. Kien's argument for equitable tolling based on psychological handicap. Mr. Kien has submitted evidence that he has for several years, including the period in question, suffered from a "Borderline Personality Disorder," which at times impairs his judgment. Based on this evidence, Mr. Kien argues that he was unable to logically assess his legal options at the time his right to an appeal in federal district court accrued. Thus, he argues that the 30-day time limit for filing an appeal from an EEOC decision should be equitably tolled. The Court, while giving due consideration to this evidence, is also cognizant of the fact that Mr. Kien filed several other timely petitions during the period in which he now claims to have been psychologically impaired. He filed a timely appeal with the MSPB, a timely petition for review with the Board, and a timely petition for review with the EEOC. He also filed timely requests for disability retirement and workers compensation. Viewing all of this evidence in the light most favorable to Mr. Kien, the Court cannot hold that this evidence rises to the level of incapacity needed to justify tolling the 30-day limit of 42 U.S.C. § 2000e-16(c). Therefore, the Court must grant the Navy's motions to dismiss Mr. Kien's reprisal and discrimination claims.
ORDER - October 12, 1990, Filed
In accordance with the memorandum opinion issued herewith and for the reasons stated therein, it is this 11th day of October, 1990,
ORDERED that Defendant's Motions to Dismiss or, in the Alternative, for Summary Judgment are GRANTED.