                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0654n.06

                                          Case No. 08-1822
                                                                                           FILED
                           UNITED STATES COURT OF APPEALS                              Sep 24, 2009
                                FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk


 ALBERT BURDEN,                                         )
                                                        )
         Plaintiff-Appellant,                           )
                                                        )       ON APPEAL FROM THE
                 v.                                     )       UNITED STATES DISTRICT
                                                        )       COURT FOR THE EASTERN
 UNITED STATES POSTAL SERVICE,                          )       DISTRICT OF MICHIGAN
 POSTMASTER GENERAL;                                    )
 CARNELL GEORGE,                                        )
                                                        )
         Defendants-Appellees.                          )
                                                        )
 _______________________________________                )

BEFORE: BATCHELDER, Chief Judge; SUHRHEINRICH and SUTTON, Circuit Judges.

        ALICE M. BATCHELDER, Chief Judge. Plaintiff-Appellant Albert Burden appeals the

district court’s granting of Defendants-Appellees’ motion to dismiss, or in the alternative, for

summary judgment on, his claims of race, age, gender, and disability discrimination, and retaliation,

in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2007); the Age

Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq.; and the Rehabilitation Act of

1973, 29 U.S.C. § 701 et seq. Burden claims that the United States Postal Service and Carnell

George, his direct supervisor at the Postal Service, violated his rights by discharging him because

of his race, age, gender, and disability, and in retaliation for his engaging in protected activity. The

district court found that Burden had not administratively exhausted two of his claims (race, age, and

gender discrimination, and retaliation) in the manner prescribed by the Civil Service Reform Act of
1978, and had not timely filed his appeal of the other claim (disability discrimination).1

       Burden was discharged following an incident in which he allegedly attempted to assault

George with the forklift he was driving. Burden appealed his discharge by filing a “mixed case

appeal” with the Merit Systems Protection Board (“MSPB”). After conducting a hearing, an

Administrative Judge (“AJ”) concluded that Burden had failed to prove his allegations of

discrimination, and that Defendants-Appellees had proved that Burden had engaged in the alleged

misconduct (i.e., the fork-lift assault), for which dismissal was the appropriate penalty. The AJ

advised Burden of his options for seeking review of the decision and Burden chose to challenge the

non-discrimination aspects of it (those related to the Postal Service’s allegations regarding the

alleged assault) through judicial review by the United States Court of Appeals for the Federal

Circuit. The Federal Circuit affirmed the MSPB’s decision on June 6, 2006, and later denied en banc

review. The Supreme Court denied Burden’s petition for certiorari. On November 13, 2007, Burden

commenced this action, alleging race, age, gender, and disability discrimination, and retaliation in

his discharge. The district court granted Appellees’ motion to dismiss, or in the alternative, for

summary judgment, on May 29, 2008.

       The district court found that Burden had exhausted his disability discrimination claim (Count

II of his complaint) by presenting it to the MSPB, but this action seeking district court review of the

disability discrimination claim was untimely. The district court therefore dismissed it for lack of

subject matter jurisdiction.

       The district court further held that Burden had failed to exhaust his claims of race, gender and

age discrimination, and retaliation (Counts I and III of the complaint) because he did not assert them


       1
        Burden does not appeal the district court’s dismissal of the other four counts in the Complaint.

                                                         2
with his disability claim (Count II) before the MSPB. The district court rejected Burden’s claim that

he had exhausted these issues by filing a complaint with the Equal Employment Opportunity

Commission (“EEOC”), concluding that an EEOC complaint is not a basis for resurrecting for

purposes of judicial review claims that were required to be, but were not, exhausted before the

MSPB. See McAdams v. Reno, 64 F.3d 1137, 1142 (8th Cir. 1995) (“Having chosen [to pursue the

claims in an MSPB proceeding], she was required to exhaust her claims in that forum before filing

a civil action.”). Because the claims in Counts I and III had not been exhausted, the district court

granted appellees summary judgment on those counts. See Myers v. Bethlehem Shipbuilding Corp.

303 U.S. 41, 50-51 n.9 (elucidating the general principle of exhaustion of administrative remedies

and cataloging the many cases in which the Supreme Court has applied it).

       After carefully reviewing the record, the controlling law, and the parties’ briefs, and having

had the benefit of the parties’ oral arguments, we conclude that the district court’s opinion and order

contains no reversible error. Because issuance of a full opinion would serve no jurisprudential

purpose, and would be duplicative, we AFFIRM, for the reasons stated in the district court’s well-

reasoned opinion, the dismissal of Count II and the grant of summary judgment as to Counts I and

III.




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