                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                                 JUL 1 1997
                                       TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk

 Ronald R. Blackwell,

           Plaintiff - Appellant,
                                                             No. 96-6406
 v.                                                   (D.C. No. Civ-96-1231-A)
                                                    (Western District of Oklahoma)
 Marvin T. Runyon, Postmaster General,

           Defendant - Appellee.


                                    ORDER AND JUDGMENT*


Before TACHA, BALDOCK and LUCERO, Circuit Judges.



       Plaintiff Ronald Blackwell appeals pro se from summary judgment granted to

Marvin Runyon, the Postmaster General, on claims arising out of his constructive

discharge on July 29, 1993. In the district court, Blackwell’s complaint alleged violations

of the Rehabilitation Act of 1973, 29 U.S.C. § 794, Title VII, 42 U.S.C. § 2000e-16, and

the First and Fifth Amendments to the United States Constitution. The district court



       *
        The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 36.3.
granted summary judgment, holding that Blackwell’s discrimination claims were barred

by his failure to properly follow the administrative grievance process, and that statutory

remedies foreclosed his right to bring separate constitutional claims. On appeal,

Blackwell has abandoned his constitutional claims, but argues that he should be allowed

to proceed with his Title VII and Rehabilitation Act claims.

       Blackwell, a postal employee with many years of tenure at the Edmond and

Oklahoma City postal facilities, was forced to resign on July 29, 1993, after being

confronted by postal inspectors with alleged mail tampering. The next day he was

arrested for mail tampering. At the time of his forced resignation, Blackwell was

suffering from post-traumatic stress disorder caused in part from his witnessing a 1986

massacre by a disgruntled employee at the Edmond post office (in which 14 people were

murdered). According to Blackwell’s affidavit in response to summary judgment, the day

of his resignation he called his union representative for advice but was rebuffed.

Blackwell was then committed to a hospital for ten days to undergo psychiatric

evaluations, after which he was released on his own recognizance. A number of medical

evaluations performed in 1993 suggest that Blackwell continued to suffer from

psychiatric disorders, but none state that he could not care for himself or administer to his

affairs. In November, 1993, Blackwell entered into a plea bargain of his criminal case,

apparently with the assistance of an attorney, and received a sentence of probation and an

order to continue counseling.


                                              2
       On February 2, 1994, 187 days after his constructive discharge, Blackwell

contacted a Postal Service EEO Counselor regarding his discharge. The EEO complaint

form, which states that Blackwell was represented by counsel, alleged that his dismissal

was in retaliation for previous EEO activity, and also in violation of the Rehabilitation

Act because the Postal Service did not take his documented mental disability into account

when orchestrating his discharge. His complaint was denied by the Postal Service and,

upon appeal to the EEOC, the decision was affirmed. Both the Postal Service and the

EEOC found that Blackwell’s failure to contact an EEO Counselor within 45 days of his

discharge barred his claims. Thereafter, Blackwell filed a complaint in federal district

court. After the first complaint was dismissed for lack of service, Blackwell filed and

served a second, identical complaint.

        The district court, in granting summary judgment, held that Blackwell failed to

exhaust his administrative remedies by waiting more than 45 days to contact an EEO

counselor with his grievance and, thus, his claims were time-barred. While not treating

this failure as a jurisdictional bar, the district court found, as had the EEOC before it, that

equitable tolling was not applicable on the facts of the case. Although Blackwell may

have been suffering from a mental disability, he had not provided evidence to support his

claim of a diminished mental state sufficient to find that he had been prevented from

asserting his rights.




                                               3
       Employees of the Postal Service may bring discrimination claims. See 42 U.S.C.

2000e-16; 29 C.F.R. § 1614.101. There are a number of administrative steps they must

first complete before filing a complaint with the EEOC or filing a claim in federal court.

See, e.g., 29 C.F.R. § 1614.105; Sampson v. Civiletti, 632 F.2d 860, 862 (10th Cir. 1980)

(“[B]efore an applicant can properly invoke the jurisdiction of a court under [42 U.S.C. §

2000e-16] he must exhaust his administrative remedies.”).1 As a first step, “[a]n

aggrieved person must initiate contact with a Counselor within 45 days of the date of the

matter alleged to be discriminatory or, in the case of personnel action, within 45 days of

the effective date of the action.” 29 C.F.R. § 1614.105(a)(1). The regulation does allow

the agency or the EEOC to extend the 45 day time limit when

       the individual shows that he or she was not notified of the time limits and
       was not otherwise aware of them, that he or she did not know and
       reasonably should not have known that the discriminatory matter or
       personnel action occurred, that despite due diligence he or she was
       prevented by circumstances beyond his or her control from contacting the
       counselor within the time limits, or for any other reasons considered
       sufficient by the agency or the Commission.



       1
         It is unclear whether the failure to timely comply with administrative prerequisites
is a jurisdictional bar to filing a discrimination claim in federal court, or whether the
failure merely operates as an affirmative defense, like a statute of limitations defense.
The Supreme Court has held that the failure to file a timely charge with the EEOC in the
private discrimination context is not jurisdictional, but is “a requirement that, like a
statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 393 (1982). Our circuit, however, has continued to
adhere to its previous statement that failure to exhaust administrative remedies is a
jurisdictional bar to a federal court action. See Jones v. Runyon, 91 F.3d 1398, 1399 n.1
(10th Cir. 1996), cert. denied, 117 S. Ct. 1243 (1997).

                                              4
 29 C.F.R. § 1614.105(a)(2).

       We review de novo the district court’s grant of summary judgment, applying the

same legal standard used by the district court. Kaul v. Stephan, 83 F.3d 1208, 1212 (10th

Cir. 1996). Summary judgment is appropriate if the record on file before the district court

shows that there is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law. Id. On appeal, Blackwell states that he does “not

believe that administrative convenience should EVER be allowed over hearing the merits

of the case.” Appellant’s Br. at 5. As noted above, that simply is not the law. The real

issue is whether Blackwell raised an issue of material fact as to whether the 45 day limit

should be extended. Whether the failure to timely contact a counselor is treated as a

jurisdictional bar or a time bar, the result is the same. See Jones, 91 F.3d at 1400 n.1.

       We conclude that Blackwell has not raised facts precluding summary judgment

that would entitle him to an extension under § 1614.105(a)(2). Specifically, Blackwell

takes issue with the district court’s conclusion that he was able to take care of his affairs,

as evidenced by his procuring an attorney to represent him in his legal defense. Blackwell

asserts on appeal that in reality his parents procured his attorney. Nowhere is this

statement corroborated in the record. In fact, Blackwell’s actions in dealing with his

discharge and his subsequent arrest belie his claim of incompetence. While Blackwell is

correct that the record does suggest that he was suffering from a medical disability, we

cannot conclude that he has raised a question of material fact supporting his contention


                                               5
that he “was prevented by circumstances beyond his control from contacting the

counselor within the time limits.” § 1614.105(a)(2).

AFFIRMED. The mandate shall issue forthwith.



                                         ENTERED FOR THE COURT



                                         Carlos F. Lucero
                                         Circuit Judge




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