
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2253                   EDWIN ROMAN-MARTINEZ AND MARIBEL TORRES-CORREA,                    CONJUGAL PARTNERSHIP COMPOSED OF EDWIN ROMAN-                         MARTINEZ AND MARIBEL TORRES-CORREA,                               Plaintiffs, Appellants,                                          v.                        MERVIN T. RUNYON, POSTMASTER GENERAL,                            UNITED STATES POSTAL SERVICE,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Salvador E. Casellas, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Carlos A. Del Valle Cruz for appellants.            ________________________            David G. Karro,  Attorney, United States Postal Service, with whom            ______________        Guillermo Gil,  United States  Attorney, Fidel A.  Sevillano Del  Rio,        _____________                            ____________________________        Assistant  United  States Attorney,  and  R.  Andrew German,  Managing                                                  _________________        Counsel, Legal Policy, were on brief for appellee.                                 ____________________                                  November 18, 1996                                 ____________________                      CAMPBELL,  Senior  Circuit Judge.   This  appeal is                                 _____________________            from a civil action brought against the Postmaster General in            the United States  District Court for the  District of Puerto            Rico by  Roman-Martinez, a  former postal employee.   Shortly            after ceasing to work for the Postal Service,  Roman-Martinez            complained administratively to the Postal Service that, while            employed, he  had been  discriminated against because  of his            handicap in violation of  his rights under The Rehabilitation            Act of 1973, 29 U.S.C.   794 et seq. (1985).  After pursuing,                                         _______            without  success, the  prescribed  course  of  administrative            remedies  within  the Postal  Service  and  before the  Equal            Employment  Opportunity   Commission  (EEOC),  Roman-Martinez            instituted the current de  novo judicial action under section                                   ________            717 of Title VII of the Civil Rights Act of 1964, 42 U.S.C.              2000e-16(c)  (1994).    The  district court  entered  summary            judgment  for the  Postmaster  General and  refused to  allow            Roman-Martinez to file an amended complaint.  We affirm.                                          I.                                          I.                      Roman-Martinez  was  honorably discharged  from the            United  States Army  in  1981.   The Veterans  Administration            found that he had  a ten percent service-connected disability            based upon hepatitis and a  ten percent disability based upon            lumbar  sprain.   In 1987,  he went  to  work for  the Postal                                         -2-            Service under the  disabled veterans' preference  provisions,            see 5 U.S.C.    3309, 3313(2)(A) (1996).            ___                      Initially employed  as a  labor custodian     a job            which  Roman-Martinez alleges  was unsuitable because  he was            unfit to do  heavy lifting and carrying     he soon  became a            distribution  clerk.   However, Roman-Martinez  contends that            his  new  supervisor's  refusal   to  assign  him  light-duty            functions  caused him to injure his back.                      A medical  examiner  for the  Postal Service  found            that  Roman-Martinez was  unable to  carry anything  over ten            pounds, placed him on limited duty and recommended that he be            transferred to Ponc , near  his home.  The transfer  to Ponc             took place in January of 1988.                      About the  same time, Roman-Martinez filed  a claim            for workers' compensation  with the United States  Department            of  Labor.   The  Postal  Service  opposed  the  granting  of            workers'  compensation,  denying  that Roman-Martinez's  back            injury  had been  work related.   On  February 16,  1988, his            claim was initially disallowed for lack of supporting medical            data.   That same day, Roman-Martinez,  having aggravated his            back  injury,  saw  a doctor  who  found  him  to be  totally            disabled.                      A few  days  later, Roman-Martinez  confronted  his            supervisor,  Bernie Sprolito,  with  the letter  denying  his            workers'  compensation claim.  Sprolito allegedly told Roman-                                         -3-            Martinez that he had  to surrender whatever had been  paid to            him under  the claim, and that,  notwithstanding Dr. Martin's            medical report indicating total  disability, he had to return            to work or face discharge for absenteeism.                      As  a  result  of his  conversation  with Sprolito,            Roman-Martinez continued to work at the Ponc  office although            allegedly suffering from  severe pain.  He also began feeling            persecuted and harassed by Postal  Service employees, causing            him, he says, to become mentally ill.                        Following an appeal,  the United States  Department            of Labor reopened Roman-Martinez's workers' compensation case            and,  on June 13, 1988,  determined that his  back injury had            been work related.                      In mid-1989, he was  found to have a schizophrenic-            type  disorder  and   was  treated  with  psychotherapy   and            antipsychotic agents.  A  psychiatrist described him as being            suspicious, hostile and agitated.                        Roman-Martinez's  bargaining  agent,  the  American            Postal  Workers Union  (APWU),  filed two  grievances on  his            behalf.  In one, the APWU alleged that the Postal Service had            violated the collective bargaining agreement by assigning him            fewer hours than other part-time flexible employees.  In  the            other, the APWU claimed that the Postal Service had failed to            place  him on the clerk's seniority list at the Ponc  office.                                         -4-            The  APWU  and the  Postal  Service  settled both  grievances            shortly thereafter.                        In June of 1990, Roman-Martinez stopped working for            the Postal  Service altogether, asserting that  he had become            totally incapacitated.                      Not  fully satisfied  with  the  settlement of  his            grievances,  Roman-Martinez  contacted a  Postal  Service EEO            counsellor on September 24, 1990, and argued  that the Postal            Service's refusal  to give him  a full complement  of working            hours  and to  place him  on the  clerk's seniority  list had            constituted discrimination  on  the  basis  of  his  physical            disability.   On November 7,  1990, he filed  with the Postal            Service   a   formal   administrative   complaint   of   such            discrimination.   In a final decision dated May 14, 1991, the            Postal   Service  rejected   Roman-Martinez's  administrative            complaint  on the ground, among others, that he had failed to            bring the allegedly discriminatory act to the attention of an            Equal Employment  Opportunity (EEO) counsellor  within thirty            days  of   its  occurrence,  as  required   by  the  relevant            regulation, 29 C.F.R.   1613.214(a)(1)(i) (1995).                      Roman-Martinez appealed to the EEOC from the Postal            Service's ruling.   The EEOC, in  January 1992, affirmed  the            Postal  Service's  determination that  Roman-Martinez's claim            was untimely because of his failure to have brought it to the            attention of  an EEO counselor within  the thirty-day period.                                         -5-            The EEOC  thereafter denied a request  from Roman-Martinez to            reopen its decision.                        On July 2, 1992, Roman-Martinez, his wife and their            conjugal partnership brought this civil action pro se in  the                                                           ______            United  States  District Court  for  the  District of  Puerto            Rico.1   After the district  court had appointed  counsel, 42            U.S.C.      2000e-5(f)(1)  (1994),  Roman-Martinez  filed  an            amended complaint in mid-April 1993.                        In  1995,  the  district  court  entered  an  order            granting   the  Postmaster   General's  motion   for  summary            judgment, and dismissing Roman-Martinez's  amended complaint.            This appeal followed.                                         II.                                         II.                      The  parties seem  to  agree, as  do  we, that  the            statutory basis  for Roman-Martinez's  action is 42  U.S.C.              2000e-16(c) (1994).  Such an action confers  upon the federal            complainant the same  right to a trial de  novo as is enjoyed                                                   ________            by private  sector and  state government employees  under the            amended Civil Rights Act of 1964.  Chandler v. Roudebush, 425                                               ________    _________                                            ____________________            1.  The  complaint  includes Torres-Correa,  Roman-Martinez's            wife, and  their conjugal  partnership as plaintiffs.   There            is, however,  no indication in the  record that Torres-Correa            was  an employee of the  Postal Service, or  an applicant for            such  employment.     They   were,  therefore,  outside   the            categories of persons  authorized to  sue under  42 U.S.C.               2000e-16(c) (1994),  which appears to be  the statutory basis            for Roman-Martinez's current suit.                                           -6-            U.S. 840 (1976).  A district court does not  simply engage in            "substantial evidence"  review, or  the like, based  upon the            administrative record.  Id. at 858,  863.  On the other hand,                                    ___            as a  prerequisite to de novo trial  in the district court, a                                  _______            federal employee must first have exhausted the administrative            remedies provided.   See Brown  v. General Serv.  Admin., 425                                 ___ _____     _____________________            U.S. 820, 832 (1976); Jensen v. Frank, 912 F.2d 517, 520 (1st                                  ______    _____            Cir.  1990); see,  e.g., McGuinness  v. United  States Postal                         ___   ____  __________     _____________________            Serv., 744 F.2d 1318, 1320 (7th Cir. 1984).            _____                      Here,  the  district court  granted  the defendants            summary  judgment,  a   determination  we  review   de  novo,                                                                ________            scrutinizing the entire record in the light most favorable to            the  nonmovant, and  indulging all  reasonable inferences  in            that party's favor.  Maldonado-Dennis  v. Castillo-Rodriguez,                                 ________________     __________________            23 F.3d 576, 581 (1st. Cir. 1994).                                         III.                                         III.                      The Rehabilitation  Act of 1973, 29 U.S.C.   794 et                                                                       __            seq. (1985), prohibits  discrimination against any  otherwise            ____            qualified handicapped  individual solely by reason  of his or            her handicap.2   The  Act incorporates the  rights, remedies,                                            ____________________            2.  29 U.S.C.   794 (1985) provides:  "No otherwise qualified            handicapped  individual  in  the United  States  . . . shall,            solely  by  reason of  his  handicap,  be excluded  from  the            participation in, be denied the benefits  of, or be subjected            to  discrimination under  any program  or activity  receiving            Federal financial assistance or under any program or activity            conducted by  any Executive  agency or  by the United  States                                         -7-            and procedures set forth  in the Equal Employment Opportunity            Act.  See Civil Rights Act of 1964, Sections 717, 706(f)-(k),                  ___            42 U.S.C.    2000e-16, 2000e-5 (f)-(k) (1994).                      Section  717  of Title  VII  does not  set  out the            procedures, nor  does it prescribe a  limitations period, for            the filing of grievances by a federal employee affected by an            alleged  unlawful  practice.   But  it  grants  to  the  EEOC            authority  to  "issue  such  rules, regulations,  orders  and            instructions as  it deems necessary and  appropriate to carry            out its responsibilities  under this section."   42 U.S.C.               2000e-16(b)  (1994).   Pursuant to  this authority,  the EEOC            issued regulations published in  29 C.F.R.   1613.214 (1995),            which provided, in part:3                      (a)   Time Limits.  (1)  . . . The agency                      may accept the  complaint for  processing                      . . . only if:                       (i)  The  complainant   brought  to   the                      attention   of   the   Equal   Employment                      Opportunity Counsellor the matter causing                      him/her  to  believe   he/she  had   been                      discriminated against  within 30 calendar                      days   of  the   date   of  the   alleged                      discriminatory event,  the effective date                      of  an  alleged discriminatory  personnel                      action,  or the  date that  the aggrieved                      person  knew  or  reasonably should  have                      known  of  the  discriminatory  event  or                      personnel action; . . .                                             ____________________            Postal Service . . . "            3.  The   quoted  regulations   were  applicable   to  Roman-            Martinez's  administrative  complaints  made  in  1990.    In            regulations effective in 1992,  the period for contacting the            EEO counsellor  was extended from 30 to 45 days.  29 C.F.R.              1614.105(a)(1) (1995).                                         -8-                      (4)  The  agency  shall extend  the  time                      limits   in   this   section   when   the                      complainant  shows  that  he/she was  not                      notified of  the time limits  and was not                      otherwise aware of them, was prevented by                      circumstances  beyond  the  complainant's                      control from submitting the matter within                      the time  limits;  or for  other  reasons                      considered sufficient by the agency.                      The  Postal Service  and the  EEOC both  found that            Roman-Martinez had failed to  bring "the matter causing [him]            to  believe  [he]  had  been discriminated  against"  to  the            attention of  the Postal Service's EEO  counsellor within the            thirty-day period prescribed in the above regulation.  On the            then undisputed  assumption that  he had first  presented his            complaints to EEO counsellor L pez on September 24, 1990, the            Postal Service  and the EEOC determined  that presentation on            that  date was  plainly  too late.    As Roman-Martinez  had,            indeed,  ceased to  work for  the Postal  Service  during the            previous  June  1990, the  effective  date  of the  personnel            actions  he  challenged     the refusal  to  give him  a full            complement of working hours and to place him on the seniority            list     would seem  necessarily to have  occurred more  than            thirty days before the September 24 meeting.                        Agreeing   that  Roman-Martinez   had  indisputably            failed to meet the thirty-day requirement, the district court            held  that he  was  barred from  proceeding  with this  civil            action.   The  court based  its ruling  on precedent  in this                                         -9-            circuit, and elsewhere, that  a federal employee's failure to            contact an  EEO counsellor  within the thirty-day  period, or            some   valid  extension   allowed   under  the   above-quoted            regulations, causes him to  lose his right to pursue  a later            de novo action in court.  Jensen, 912 F.2d at 520; Johnson v.            _______                   ______                   _______            United  States Treasury  Dept.,  27 F.3d  415, 416  (9th Cir.            ______________________________            1994).                      On  appeal  Roman-Martinez  raises  several  points            which we now discuss.            1.   Alleged  Invalidity  of  Regulation   Requiring  Federal                 ________________________________________________________                 Employees to  Bring Complaint  to EEO  Counsellor within                 ________________________________________________________                 Thirty Days                 ___________                      Roman-Martinez   argues   that  requiring   federal            employees  to  consult  with their  agency's  EEO  counsellor            within  thirty days  forces  compliance with  time limits  so            unreasonably  short  as  to  violate the  statutory  mandate.            Congress's intent, he says, was to provide federal employees,            when victimized by discrimination, with remedies identical to            those of state, municipal and private employees.  The latter,            he points out, are  allowed 180 days within  which to file  a            complaint before the EEOC.  42 U.S.C.   2000e-5(e)(1) (1994).                      Congress,  however,  refrained  from  legislatively            subjecting federal employees to the six-month period provided            for  other sorts of employees.   Rather, it  delegated to the            EEOC  the authority  to  regulate the  bringing of  claims by            federal  employees.  The thirty-day regulation forces federal                                         -10-            employees  to  try to  conciliate  their  grievances promptly            before  seeking more formal  administrative relief within the            agency and  before the EEOC.   Unlike the  180-day provision,            the thirty days  is not  the period within  which the  formal            complaint  must be  filed, but  rather is  the period  within            which  the grievance must be presented  for conciliation.  If            that  fails, a  further brief  period for  filing  the formal            complaint  is   afforded.    In  any   case,  the  challenged            procedures  for federal employees  were in  continuous effect            for nearly twenty years before appellant's claim arose.4  The            thirty-day time limit has  been accepted and enforced without            criticism  in  cases  litigated  before  the  lowewr  federal            courts, including this one.   See, e.g., Jensen, 912  F.2d at                                          ___  ____  ______            520.  We note, also, that  the Supreme Court has applied time            limitations  of equal duration to  the ones at  issue in this            case.  See  Irwin v. Dept. of  Veterans Affairs, 498  U.S. 89                   ___  _____    __________________________            (1990)  (applying the pre-1991  thirty-day limitations period            for filing Title VII  civil actions); Brown, 425 U.S.  at 820                                                  _____            (same).  Had  Congress wished to  tie federal employees  into            the 180  days established for other  categories of claimants,            it could  easily have done  so.  And,  of course, it  remains            open to Congress at any time, should it so wish, to legislate                                            ____________________            4.  Throughout this period, the time for federal employees to            present their  claims for counselling  was 30  days or  less.            Compare 5 C.F.R.    713.214(a)(1)(i) (1972) with 29  C.F.R.              _______                                     ____            1613.214(a)(1)(i) (1992).                                         -11-            time limits different from those established by the EEOC.  We            see  no   justification  for  us  to   override  these  well-            established   procedures  set   by   the  EEOC   pursuant  to            congressional authority.                      Nor  can we  see  anything so  unreasonable in  the            relevant EEOC regulations as  to violate the equal protection            clause  of  the  federal   Constitution  or  to  violate  the            requirements  of  due  process.    Congress  often  regulates            federal  employees  differently   from  other  categories  of            persons; there  is nothing grossly unfair  or arbitrary about            the  challenged  regulations.    We  accordingly  uphold  the            district  court's rejection  of  appellant's  attack  on  the            validity of the time limits in question.            2.   Roman-Martinez's Contention that He Earlier Brought this                 ________________________________________________________                 Claim to the EEO Counsellor's Attention                 _______________________________________                      When  Roman-Martinez sued  in  district  court,  he            asserted there, for the first time, that he had contacted EEO            counsellor  L pez  prior to  September  24,  1990, hence  had            complied with the thirty-day requirement.  Before considering            this contention, we examine the administrative record.                        The  EEOC, in  its initial  administrative decision            reviewing  the Postal Service's rejection of Roman-Martinez's            claims,  upheld  the  Postal  Service's  conclusion  that  by            waiting until  September 24, 1990,  Roman-Martinez had failed            timely  to seek  EEO counselling.   Roman-Martinez thereafter                                         -12-            asked the EEOC  to reconsider that  decision, tendering as  a            justification  for his delay  a psychiatrist's statement that            on  September  24, 1990,  the  "high  levels of  neuroleptic,            anxiolitics, antidepressive medications"  prescribed for  his            mental  disorder "limited  almost completely"  his functional            level.                      The EEOC  declined to  reopen the  case.  It  noted            that  while  appellant  complained  that   the  EEOC's  prior            decision involved  an  erroneous interpretation  of  law,  he            presented no arguments at all to support that allegation, and            "has not even addressed the substance of the EEOC's appellate            decision."  The psychiatrist's statement itself was held "not            new because it  was available and  could have been  presented            when  appellant  initially  appealed"   to  the  EEOC.    The            statement  did  not,  furthermore,  address  Roman-Martinez's            ability   to  have  sought   timely  EEO  counselling  before            September 24, 1990.                      In  opposing summary  judgment before  the district            court, Roman-Martinez did not renew the above contention that            his  failure  to  seek   EEO  counselling  earlier  had  been            justified because of the  medications provided for his mental            condition.  Instead, he raised an issue not presented  during            the administrative  proceedings, namely, that he  had in fact            sought EEO  counselling prior  to the untimely  September 24,            1990, meeting.                                         -13-                      In an affidavit filed in the district court action,            Roman-Martinez asserted that he had contacted  EEO counsellor            L pez "twice  via telephone prior  to September 24,  1990, at            some  period of time between  October 1989 and  June 1990, to            communicate the  discrimination I  was being subjected  to at            the  Ponc   Post Office  by  Postmaster  Oscar Rivera,  among            others."  The affidavit went on to report that "L pez told me            that she would  speak to  Oscar Rivera to  see what could  be            done about  the situation."   Roman-Martinez now  claims that            this  new contention raises a  factual issue on  which he was            entitled to have a trial in the district court.                      The district  court rejected the  above contention.            Citing  Theard v. United States  Army, 653 F.  Supp. 536, 541                    ______    ___________________            (M.D.N.C. 1987),  the court ruled that  plaintiff's affidavit            failed  to establish  that sufficient  facts were  brought to            L pez's  attention  "such  that  the  counsellor should  have            reasonably  concluded  that  the  employee  was  seeking   to            resolve,   through    EEO   channels,   an    allegation   of            discrimination."    The  court   noted  the  absence  of  any            reference  in the  alleged  phone discussions  with L pez  to            specific personnel actions.                        We are  inclined to  agree with the  district court            that  Roman-Martinez's affidavit was  insufficiently clear to            create  a genuine  issue  of fact  over  whether he  made  an            adequate presentation to an EEO counsellor prior to September                                         -14-            24,   1990.     Except  for   saying  he   communicated  "the            discrimination I  was being  subjected to at  the Ponc   Post            Office  by  Postmaster  Oscar  Rivera,"  appellant  does  not            describe  the nature of what  he told L pez.   Other evidence            indicates   that  during   this  period   Roman-Martinez  was            protesting, among others, the alleged violations of the union            contract and  the denial of his  workers' compensation claim,            leaving it unclear if in  the alleged conversations with  the            Postal  Service's   EEO  counsellor  Roman-Martinez   made  a            recognizable   claim   of  handicap   discrimination.     The            counsellor denied  having received  any such claims  prior to            September  24,  and  even   when  appellant's  affidavit   is            interpreted  in  a light  most  favorable  to appellant,  the            substance  of   the  claims   actually  conveyed   cannot  be            ascertained.                      But  while, therefore, the  district court may well            be right  that Roman-Martinez's affidavit did  not suffice to            raise a genuine issue of fact, we do not decide on that basis            alone.  Even supposing the affidavit were adequate to raise a            factual issue, there is the additional problem, also noted by            the  district  court,  that  Roman-Martinez  never  took  the            position  before the Postal Service  or the EEOC  that he had            presented  his claim  of  handicap discrimination  to an  EEO            counsellor  prior  to September  24,  1990.   Throughout  the            administrative proceedings, the apparently  unchallenged date                                         -15-            of his first presentation to an  EEO counsellor was September            24,  1990.   Far from  questioning this  date, Roman-Martinez            sought  to  justify  his  failure to  have  acted  sooner  by            presenting   a  psychiatrist's  letter  stating  that,  being            heavily  medicated on  September  24,  1990,  his  functional            levels were "limited almost completely."  The EEOC refused to            reopen in order  to consider this  evidence, saying that  the            psychiatrist's  statement  was  not  material  to  claimant's            ability  to have  sought timely  counselling in  the relevant            earlier periods,  and anyway  came too late.   Roman-Martinez            thereupon  abandoned  this contention  when  he  sued in  the            district  court.  He did not  mention it in his opposition to            the  motion  for summary  judgment  nor in  his  statement of            controverted facts.  Rather, for  the first time, he asserted            the  new  and  different  proposition that  he  had  actually            presented  his claim  of  handicap discrimination  to an  EEO            counsellor  prior to  September  24, 1990,  during  telephone            calls allegedly  made between October  1989 and June  1990 to            EEO counsellor L pez.                      We  agree  with  the  district  court  that  Roman-            Martinez, having never presented it during the administrative            proceedings,  may not  raise this  new factual  contention in            court  proceedings for  the  first time.    To be  sure,  the            exhaustion  requirement  should  be applied  with  reasonable            restraint where Congress has conferred the right to a de novo                                                                  _______                                         -16-            trial.   Nonetheless,  the  Supreme Court  has described  the            present   statutory   scheme   as   "a   careful   blend   of            administrative and judicial enforcement powers."  Brown,  425                                                              _____            U.S. at  833.   The  lower federal  courts have  consistently            found a duty in  proceedings of this character to  pursue and            exhaust administrative  remedies prior to the  de novo trial.                                                           _______            Jensen, 912 F.2d at 520; McGuinness, 744 F.2d at 1320.  We do            ______                   __________            not  think that appellant may, for the first time, present to            a judicial fact finder a  key factual issue which he did  not            raise during prior agency proceedings and which, indeed, runs            counter to assumptions  (i.e. the September 24 date)  that he            seemingly accepted throughout the agency proceedings.                      We  hold,  therefore,   that  the  district   court            properly  refused  to  consider   Roman-Martinez's  new-found            assertion  of having  sought  EEO counselling  at an  earlier            time.     That   argument  was   not  exhausted   before  the            administrative tribunals having jurisdiction to  grant relief            to appellant.                      For the same and  additional reasons, the  district            court  properly rejected  Roman-Martinez's assertion  that he            had  timely  presented  his  claims because  he  had  earlier            relayed them  to Bernie Sprolito, his  supervisor and manager            of the People with Handicap Program at the Ponc  Post Office.            Not only was this contention not brought up during the course            of the administrative proceedings, but it also falls short of                                         -17-            demonstrating,  even  if proven,  timely compliance  with the            thirty-day  requirement.   Bernie  Sprolito was  not the  EEO            counsellor,  nor  did  appellant  present  any  evidence that            Bernie Sprolito was  ever held out  to him as  being the  EEO            counsellor.   See Jensen,  912 F.2d  at 521  (appellant "must                          ___ ______            allege and prove . . . that  the employer actively misled him            and that he relied on the misconduct to his detriment").  Nor            has appellant asserted that he  lacked notice of the  correct            procedures and time limits.  We find nothing in the reference            to  the  conversations  with  Bernie  Sprolito  that  excuses            noncompliance with the thirty-day time limit.            3.   Dismissal of Amended Complaint                 ______________________________                      Roman-Martinez argues that the district court erred            in dismissing his amended complaint.  The district court held            that  the amended  complaint  would not  survive a  motion to            dismiss for  failure to exhaust administrative  remedies.  We            hold that the court was correct.                      The Supreme Court held in Forman v. Davis, 371 U.S.                                                ______    _____            178, 182 (1962), that a party ought ordinarily to be given an            opportunity  to test his claim  on the merits.   However, the            Court also noted  exceptions to this rule  as where prejudice            to  the  amending party's  adversary  is shown  or  where the            proposed  amendment would  constitute no  more than  a futile            exercise.    Id.;  see  also  Correa-Martinez  v.  Arrillaga-                         ___   _________  _______________      __________            Belendez,  903  F.2d  49, 59  (1st  Cir.  1990);  Kay v.  New            ________                                          ___     ___                                         -18-            Hampshire Democratic Party, 821 F.2d 31,  34 (1st Cir. 1987).            __________________________            The latter exception applies here.                      Roman-Martinez  filed  his   formal  complaint   of            discrimination on November 7, 1990.  On December 7, 1990, the            Postal Service  sent him a  letter outlining the  issues that            the investigation would cover, and inviting him to respond if            he disagreed with  the scope of the investigation.  Appellant            responded in a letter dated December 13,  1990, setting forth            ten allegations  of discrimination  dating back to  his first            year with  the Postal Service.   Of these,  most were new  to            those presented  in  the  original  complaint,  although  the            latter were also listed.                      If he wished to  pursue the new allegations, Roman-            Martinez was  required to  initiate a new  complaint covering            them.  He filed  a second, informal, administrative complaint            doing  so,  but never  got around  to  filing and  pursuing a            formal administrative complaint incorporating the  new items.            Instead,   without  ever   having  taken  steps   to  achieve            administrative  redress, he waited and eventually transferred            the contents  of the stillborn administrative  complaint into            his amended judicial complaint.                      On these facts, it was clear to the district  court            that  the  new  items  inserted  into  the  amended  judicial            complaint were  not only untimely because  (like the original            items   discussed  above)  they  dealt  with  incidents  that                                         -19-            occurred well  before the  appellant's first contact  with an            EEO counsellor, but were unripe for adjudication because they            were  never  made  the  subject of  a  formal  administrative            complaint  and proceedings.   To  hold otherwise  would allow            appellant to circumvent the exhaustion requirement imposed on            all who  bring claims  of handicap discrimination  in federal            court.  See Jensen, 912 F.2d at 520.  In these circumstances,                    ___ ______            allowing  the amended complaint to be filed would have been a            futile  exercise  since,  as  the  district  court  correctly            stated,  it would have been subject to a successful motion to            dismiss for failure to exhaust administrative remedies.                      Affirmed.                      ________                                         -20-
