The opinion of the court was delivered by: Hillman, District Judge
Plaintiff George Starr filed a complaint alleging that Defendant United States Postal Service ("USPS") violated the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. ("Rehabilitation Act"), when the USPS terminated Starr's employment. The USPS subsequently filed a motion to dismiss for lack of subject matter jurisdiction and, in the alternative, for summary judgment in its favor. For the reasons expressed below, this Court first concludes that it lacks subject matter jurisdiction over any appeal or review of Plaintiff's prior petition contesting his dismissal before the Merit Systems Protection Board ("MSPB"). Second, this Court finds that Plaintiff waived his right to bring any claim of discrimination before this Court or any other tribunal by failing to first raise such a claim before the MSPB. Lastly, we find that even if Plaintiff had not waived such a claim, the Equal Employment Opportunity Commission ("EEOC") properly dismissed his administrative petition. Accordingly, the USPS's motion is granted.
Plaintiff, a former federal employee, alleges, among other things, that he was discriminated against in violation of Section 504 of the Rehabilitation Act and seeks review of adverse administrative decisions of the MSPB and the EEOC. Therefore, this Court exercises subject matter jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. § 1331 (federal question jurisdiction). To the extent Defendant challenges this Court's subject matter jurisdiction over certain constructions of Plaintiff's claims, we properly exercise jurisdiction to determine the scope of our subject matter jurisdiction.
Employers Ins. of Wausau v. Crown Cork & Seal Co., Inc., 905 F.2d 42, 45 (3d Cir. 1990).
George Starr was employed by the USPS for nearly nine years as a mail handler at its Bellmawr, New Jersey facility. The USPS initially elected to terminate Starr's employment on June 23, 2005, as a result of excessive absenteeism. After he filed a petition for appeal of his termination to the MSPB, Starr and the USPS engaged in settlement negotiations. These negotiations continued for several months until, on October 5, 2005, the parties entered into a Release of Claim and Last Chance Settlement Agreement ("Last Chance Agreement"). Under this arrangement the USPS rescinded its decision of removal, in exchange for which Starr agreed to a number of terms, including a stipulation that he regularly attend work and a waiver of the right to appeal any termination resulting from his breach of the Agreement.
On January 13, 2006, after Starr had resumed work for several months and compiled additional absences,*fn1 the USPS issued a letter warning that his conduct represented a potential violation of the Last Chance Agreement. Starr apparently failed to challenge or respond to this letter. Starr alleges that he was banned from the work site on or around March 17, 2006, and that such action by the USPS was in breach of the Last Chance Agreement. On April 5, 2006, a Notice of Removal confirming that Starr's absences constituted a breach of the Last Chance Agreement was issued, followed a month later by a Letter of Decision that effectively ended his employment.
Following his termination, Starr filed petitions with the MSPB and the EEOC on May 16 and July 24, 2006, respectively. The MSPB dismissed Starr's petition for lack of jurisdiction, observing that the Last Chance Agreement was a valid and enforceable contract. The MSPB further found that, in the event Starr had breached the Last Chance Agreement, the contract's terms effectively precluded him from appealing to the MSPB. As a result, the primary issue according to the MSPB was whether Starr breached the Agreement by failing to be in attendance regularly. After citing a lengthy history of attendance troubles, the MSPB rejected Starr's justifications that his absences were mischaracterized by the USPS, finding instead that his actions were sufficient to constitute a breach of the Last Chance Agreement.*fn2 Starr subsequently filed a petition for review with the Court of Appeals for the Federal Circuit, but the petition was dismissed for failure to pay the docketing fee.
In separate EEOC complaint filed more than a month after his petition to the MSPB,*fn3 Plaintiff alleged discrimination on account of disability and age in addition to challenging his removal.*fn4 Starr, a veteran, maintains that he suffers from bursitis, psoriasis, and Post-Traumatic Stress Disorder ("PTSD"), for which he has been classified by the Department of Veterans Affairs ("VA") as 60% disabled. A Final Agency Decision was issued by the EEOC on November 13, 2006, finding that no discrimination had occurred. Specifically, the Final Agency Decision held that Starr, to the extent he was unable to demonstrate he was disabled within the meaning of the Rehabilitation Act, failed to meet any of the three elements essential to establishing a prima facie case of discrimination based upon disability, or that he was treated differently than similarly situated non-disabled individuals. The Decision further noted that, even in the event Starr had met his burden of establishing a prima facie case, his violation of the Last Chance Agreement constituted a legitimate, nondiscriminatory reason for the USPS's decision to terminate. With regard to the age discrimination claim, the Decision stated that there was no evidence age was a consideration in the termination.
Plaintiff then brought this action. The Complaint sets forth two counts: Count I alleges Plaintiff was subjected to discriminatory treatment in his employment for the USPS; Count II, although not entirely clear, we construe as either (a) requesting this Court review the MSPB decision that the USPS had just cause in its decision to terminate Plaintiff's employment, or (b) asserting that the MSPB decision does not preclude Plaintiff from bringing his discrimination claim before this Court.
Defendant has filed a motion for dismissal and summary judgment on the basis that (1) this Court lacks jurisdiction to review the MSPB determination; (2) because Plaintiff improperly filed an EEOC challenge to his termination after filing an MSPB challenge, he is not entitled to review of the EEOC decision; (3) Plaintiff has failed to establish a prima facie case of discrimination based on disability pursuant to the Rehabilitation Act; and (4) Plaintiff waived any right to appeal his removal by entering into the Last Chance Agreement.
A. Standard for Summary Judgment
We adjudge Defendant's motion under the standard set forth in Federal Rule of Civil Procedure 56.*fn5 Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, ...