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 ROMANMARTINEZ 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,
______________
Guillermo Gil,
_____________
Assistant

Attorney, United States Postal Service, with w

United States

United

Attorney, Fidel A. Sevillano Del R

__________________________

States Attorney,

and

R.

Andrew German,

Manag

_________________
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

Rico by

District Court for the

Roman-Martinez, a

District of Puerto

former postal employee.

after ceasing to work for the Postal Service,

Shortly

Roman-Martinez

complained administratively to the Postal Service that, while

employed, he

had been

discriminated against because

handicap in violation of

Act of 1973, 29 U.S.C.

without

success, the

remedies

Employment

within

his rights under The Rehabilitation

794 et seq. (1985).

_______

prescribed

the Postal

Opportunity

of his

course

Service

Commission

and

After pursuing,

of

administrative

before the

(EEOC),

Equal

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)

judgment

(1994).

for the

The

district court

entered

General and

refused to

Postmaster

Roman-Martinez to file an amended complaint.

summary

allow

We affirm.

I.
I.

Roman-Martinez

United

States Army

found that he had

in

was

honorably discharged

1981.

The Veterans

from the

Administration

a ten percent service-connected disability

based upon hepatitis and a

ten percent disability based upon

lumbar

he went

sprain.

In 1987,

-2-

to

work for

the Postal

Service under the

see 5 U.S.C.
___

disabled veterans' preference

3309, 3313(2)(A) (1996).

Initially employed

which

distribution

his

as a

Roman-Martinez alleges

unfit to do

new

provisions,

labor custodian

was unsuitable because

heavy lifting and carrying

clerk.

supervisor's

he soon

However, Roman-Martinez

refusal

a job

to

assign

he was

became a

contends that

him

light-duty

functions

caused him to injure his back.

A medical

that

examiner

Roman-Martinez was

for the

unable to

Postal Service

carry anything

found

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

for workers' compensation

of

Labor.

workers'

injury

The

Postal

compensation,

had been

with the United States

Service

denying

work related.

opposed

the

a claim

Department

granting

that Roman-Martinez's

On

February 16,

of

back

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

supervisor,

workers'

days

later, Roman-Martinez

Bernie Sprolito,

compensation claim.

with

confronted

the letter

denying

his

his

Sprolito allegedly told Roman-

-3-

Martinez that he had

him under

to surrender whatever had been

paid to

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

result

of his

conversation

Roman-Martinez continued to work at the Ponc

allegedly suffering from

severe pain.

persecuted and harassed by Postal

with Sprolito,

office although

He also began feeling

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

antipsychotic agents.

was

treated

with

psychotherapy

and

psychiatrist described him as being

suspicious, hostile and agitated.

Roman-Martinez's

Postal

behalf.

Workers Union

bargaining

(APWU),

agent,

filed two

the

American

grievances on

his

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

-4-

office.

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

grievances,

fully satisfied

Roman-Martinez

with

the

contacted a

settlement of

Postal

his

Service EEO

counsellor on September 24, 1990, and argued

Service's refusal

hours

and to

to give him

place him

disability.

On November 7,

Service

formal

a full complement

on the

constituted discrimination

that the Postal

on

clerk's seniority

the

basis

of

1990, he filed

administrative

his

of working

list had

physical

with the Postal

complaint

of

such

discrimination.

In a final decision dated May 14, 1991, the

Postal

rejected

Service

complaint

Roman-Martinez's

administrative

on the ground, among others, that he had failed to

bring the allegedly discriminatory act to the attention of an

Equal Employment

days

of

its

Opportunity (EEO) counsellor

occurrence,

regulation, 29 C.F.R.

as

required

by

within thirty

the

relevant

1613.214(a)(1)(i) (1995).

Roman-Martinez appealed to the EEOC from the Postal

Service's ruling.

Postal

Service's

The EEOC, in

January 1992, affirmed

determination that

the

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

______

United

States

District Court

Rico.1

After the district

U.S.C.

2000e-5(f)(1)

for

the

District of

court had appointed

(1994),

the

Puerto

counsel, 42

Roman-Martinez

filed

court

an

an

amended complaint in mid-April 1993.

In

granting

the

1995,

the

Postmaster

district

General's

motion

judgment, and dismissing Roman-Martinez's

This appeal followed.

II.
II.

entered

for

order

summary

amended complaint.

The

parties seem

statutory basis

agree, as

for Roman-Martinez's

2000e-16(c) (1994).

do

we, that

action is 42

Such an action confers

complainant the same

by private

to

the

U.S.C.

upon the federal

right to a trial de novo as is enjoyed

________

sector and

state government employees

amended Civil Rights Act of 1964.

under the

Chandler v. Roudebush, 425

________
_________

____________________

1.

The

wife, and

complaint

their conjugal

is, however,
was
such

includes Torres-Correa,

partnership as plaintiffs.

no indication in the

an employee of the
employment.

categories of persons
2000e-16(c) (1994),

Roman-Martinez's

record that Torres-Correa

Postal Service, or

They

were,

authorized to

an applicant for

therefore,
sue under

which appears to be

for Roman-Martinez's current suit.

There

outside

the

42 U.S.C.

the statutory basis

-6-

U.S. 840 (1976).

A district court does not

"substantial evidence"

review, or

administrative record.

Id. at 858,
___

as a

prerequisite to de novo trial

_______

simply engage in

the like, based

863.

upon the

On the other hand,

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,

summary

the

judgment,

district court

granted

determination

we

the defendants

review

de novo,
________

scrutinizing the entire record in the light most favorable to

the

nonmovant, and

that party's favor.

indulging all

reasonable inferences

Maldonado-Dennis
________________

in

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.

handicapped
solely

by

794 (1985) provides:

individual

reason of

in
his

"No otherwise qualified

the United
handicap,

States

be excluded

participation in, be denied the benefits

to

discrimination under

any program

. . . shall,
from

the

of, or be subjected

or activity

receiving

Federal financial assistance or under any program or activity

conducted by

any Executive

agency or

-7-

by the United

States

and procedures set forth

Act.

in the Equal Employment Opportunity

See Civil Rights Act of 1964, Sections 717, 706(f)-(k),

___

42 U.S.C.

2000e-16, 2000e-5 (f)-(k) (1994).

Section

procedures, nor

717

of Title

VII

does it prescribe a

does not

set

out the

limitations period, for

the filing of grievances by a federal employee affected by an

alleged

authority

unlawful

to

instructions as

practice.

"issue

such

But

it

rules, regulations,

it deems necessary and

out its responsibilities

grants

to

the

EEOC

orders

and

appropriate to carry

under this section."

42 U.S.C.

2000e-16(b)

(1994).

Pursuant to

issued regulations published in

this authority,

29 C.F.R.

1613.214 (1995),

which provided, in part:3

(a)

Time Limits.

may accept the

(1)

. . . The agency

complaint for

processing

. . . only if:
(i)

The

complainant

attention

of

the

brought
Equal

to

the

Employment

Opportunity Counsellor the matter causing

him/her

to

believe

discriminated against
days

of

the

date

discriminatory event,
of

an

known

or the
knew
of

the

or

of

Postal Service . . . "

been

the

alleged

the effective date

date that

personnel

the aggrieved

reasonably should
discriminatory

personnel action; . . .

____________________

had

within 30 calendar

alleged discriminatory

action,
person

he/she

the EEOC

event

have
or

3.

The

Martinez's

quoted

regulations

administrative

were

complaints

regulations effective in 1992,

EEO counsellor

applicable
made

in

to
1990.

was extended from 30 to 45 days.

29 C.F.R.

-8-

The

limits

agency

In

the period for contacting the

1614.105(a)(1) (1995).

(4)

Roman-

shall extend

the

time

section

when

the

in

this

complainant

shows

notified of

the time limits

that

he/she was

not

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

Roman-Martinez had failed to

to

believe

[he]

attention of

had

and the

EEOC both

found that

bring "the matter causing [him]

been discriminated

the Postal Service's EEO

against"

to

counsellor within the

thirty-day period prescribed in the above regulation.

then undisputed

assumption that

the

he had first

On the

presented his

complaints to EEO counsellor L pez on September 24, 1990, the

Postal Service

and the EEOC determined

that

plainly

date was

indeed,

previous

ceased to

June

too late.

work for

1990, the

that presentation on

As Roman-Martinez

the Postal

effective

date

Service

of the

had,

during 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

action.

The

was

barred from

court based

proceeding

its ruling

-9-

with this

on precedent

civil

in this

circuit, and elsewhere, that

contact an

some

EEO counsellor

valid

extension

regulations, causes him to

de novo action in court.

_______

a federal employee's failure to

within the thirty-day

allowed

under

the

period, or

above-quoted

lose his right to pursue

a later

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

employees

within

to

consult

thirty days

unreasonably

short

argues

that

with their

requiring

agency's

forces

compliance with

as

violate the

to

EEO

federal

counsellor

time limits

statutory

so

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.

he points out, are

allowed 180 days within

complaint before the EEOC.

Congress,

42 U.S.C.

however,

refrained

The latter,

which to file

2000e-5(e)(1) (1994).

from

legislatively

subjecting federal employees to the six-month period provided

for

other sorts of employees.

Rather, it

delegated to the

EEOC

the authority

federal

employees.

to

regulate the

bringing of

claims by

The thirty-day regulation forces federal

-10-

employees

before

to

try to

conciliate

seeking more formal

agency and

before the EEOC.

their

grievances promptly

administrative relief within the

Unlike the

180-day provision,

the thirty days

complaint

which

that

is not

must be

the period within

filed, but

rather is

the grievance must be presented

fails, a

complaint

procedures

is

further brief

afforded.

for federal employees

any

formal

the period

within

for conciliation.

period for

In

which the

filing

case,

were in

the

the formal

challenged

continuous effect

for nearly twenty years before appellant's claim arose.4

thirty-day time limit has

criticism

in

cases

520.

We note, also, that

limitations

case.

See
___

The

been accepted and enforced without

litigated

courts, including this one.

If

before

the

lowewr

federal

See, e.g., Jensen, 912

___ ____ ______

F.2d at

the Supreme Court has applied time

of equal duration to

the ones at

issue in this

Irwin v. Dept. of Veterans Affairs, 498

_____
__________________________

U.S. 89

(1990)

(applying the pre-1991

for filing Title VII

thirty-day limitations period

civil actions); Brown, 425 U.S.

_____

(same).

Had

the 180

days established for other

it could

Congress wished to

easily have done

so.

at 820

tie federal employees

And,

into

categories of claimants,

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

Compare 5 C.F.R.
_______

was 30

days or

713.214(a)(1)(i) (1972) with 29

____

1613.214(a)(1)(i) (1992).

-11-

less.

C.F.R.

time limits different from those established by the EEOC.

see

no

justification

established

for

procedures

us

set

to

by

override

the

EEOC

these

We

well-

pursuant

to

congressional authority.

Nor

can we

see

anything so

relevant EEOC regulations as

clause

of

requirements

the

of

federal

due

unreasonable in

the

to violate the equal protection

Constitution

process.

or

Congress

to

violate

often

the

regulates

federal

employees

persons; there

the

from

other

is nothing grossly unfair

challenged

district

differently

regulations.

court's rejection

We

of

categories

of

or arbitrary about

accordingly

appellant's

uphold

attack

on

the

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,

complied with the thirty-day requirement.

1990, hence

had

Before considering

this contention, we examine the administrative record.

The

EEOC, in

its initial

administrative decision

reviewing

claims,

the Postal Service's rejection of Roman-Martinez's

upheld

waiting until

timely

to seek

the

Postal

Service's

conclusion

that

by

September 24, 1990,

Roman-Martinez had failed

EEO counselling.

Roman-Martinez thereafter

-12-

asked the EEOC

to reconsider that

decision, tendering as

justification

for his delay

on

24, 1990,

September

a psychiatrist's statement that

the

"high

levels of

anxiolitics, antidepressive medications"

mental

disorder "limited

neuroleptic,

prescribed for

almost completely"

his

his functional

level.

The EEOC

that

while

declined to

appellant

decision involved

an

reopen the

complained

that

case.

the

erroneous interpretation

It

noted

EEOC's

prior

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

when

appellant

statement

did

was available and

initially

not,

could have been

appealed"

furthermore,

to

address

the

presented

EEOC.

The

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

justified because of the

condition.

counselling

earlier

had

been

medications provided for his mental

Instead, he raised an issue not presented

the administrative

sought EEO

EEO

proceedings, namely, that he

counselling prior

to the untimely

1990, meeting.

-13-

during

had in fact

September 24,

In an affidavit filed in the district court action,

Roman-Martinez asserted that he had contacted

L pez "twice

some

via telephone prior

period of time between

communicate the

the

Ponc

others."

Post Office

by

to September 24,

October 1989 and

discrimination I

EEO counsellor

1990, at

June 1990, to

was being subjected

Postmaster

Oscar Rivera,

to at

among

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

this

the situation."

Roman-Martinez now

claims that

factual issue on

which he was

new contention raises a

entitled to have a trial in the district court.

The district

Citing

court rejected the

above contention.

Theard v. United States Army, 653 F.

______
___________________

(M.D.N.C. 1987),

the court ruled that

failed

to establish

L pez's

attention

reasonably

resolve,

"such

concluded

through

discrimination."

reference

that sufficient

in the

that

that

EEO

The

the

the

court

alleged

plaintiff's affidavit

facts were

noted

brought to

counsellor should

employee

channels,

Supp. 536, 541

was

an

the

phone discussions

have

seeking

to

allegation

of

absence

of

with L pez

any

to

specific personnel actions.

We are

inclined to

agree with the

district court

that

create

Roman-Martinez's affidavit was

a genuine

issue

of fact

insufficiently clear to

over

whether he

made

an

adequate presentation to an EEO counsellor prior to September

-14-

24,

1990.

discrimination I

Except

for

was being

saying

he

communicated

subjected to at

the Ponc

"the

Post

Office

by

describe

Postmaster

Oscar

the nature of what

indicates

that

during

Rivera,"

appellant

he told L pez.

this

period

does

not

Other evidence

Roman-Martinez

was

protesting, among others, the alleged violations of the union

contract and

the denial of his

leaving it unclear if in

Postal

Service's

recognizable

EEO

claim

counsellor denied

September

24,

interpreted

substance

in

of

ascertained.

workers' compensation claim,

the alleged conversations with

counsellor

of

handicap

having received

and

even

a light

the

Roman-Martinez

when

most

claims

made

discrimination.

any such claims

appellant's

favorable

actually

the

The

prior to

affidavit

is

to appellant,

the

conveyed

cannot

be

But

be right

while, therefore, the

district court may well

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

position

presented

counsellor

court,

that

Roman-Martinez

before the Postal Service

his claim

prior

of

never

or the EEOC

handicap discrimination

to September

24,

1990.

administrative proceedings, the apparently

-15-

took

the

that he had

to an

EEO

Throughout

the

unchallenged date

of his first presentation to an

24,

1990.

sought

to

presenting

heavily

Far from

justify

questioning this

his

failure to

psychiatrist's

medicated on

EEO counsellor was September

date, Roman-Martinez

have

letter

September

24,

stating

1990,

levels were "limited almost completely."

reopen in order

psychiatrist's

ability

to have

to consider this

statement

was

sought timely

acted

sooner

that,

his

being

functional

The EEOC refused to

evidence, saying that

not

by

material

counselling in

to

the

claimant's

the relevant

earlier periods,

thereupon

district

the

and anyway

abandoned

court.

motion

the

new

this contention

He did not

for summary

controverted facts.

and

his claim

counsellor

prior to

calls allegedly

of

when

Roman-Martinez

he

sued in

the

mention it in his opposition to

judgment

Rather, for

different

presented

came too late.

nor in

his

statement of

the first time, he asserted

proposition that

he

had

handicap discrimination

September

24, 1990,

made between October

actually

to an

during

EEO

telephone

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

exhaustion

the

requirement

first time.

should

To be

be applied

with

sure,

the

reasonable

restraint where Congress has conferred the right to a de novo

_______

-16-

trial.

Nonetheless,

the

present

statutory

scheme

Supreme Court

as

"a

has described

careful

blend

the

of

administrative and judicial enforcement powers."

U.S. at

833.

The

found a duty in

lower federal

courts have

Brown,
_____

consistently

proceedings of this character to

exhaust administrative

remedies prior to the

pursue and

de novo trial.
_______

Jensen, 912 F.2d at 520; McGuinness, 744 F.2d at 1320.

______
__________

not

425

We do

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

properly

assertion

hold,

refused

therefore,

to

of having

consider

sought

that

the

district

Roman-Martinez's

EEO counselling

at an

court

new-found

earlier

time.

That

argument

was

not

exhausted

administrative tribunals having jurisdiction to

before

the

grant relief

to appellant.

For the same and

court

had

properly rejected

timely

relayed them

presented

additional reasons, the

district

Roman-Martinez's assertion

that he

his

claims because

to Bernie Sprolito, his

he

had

earlier

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,

thirty-day

counsellor,

even

requirement.

nor

did

Bernie Sprolito was

counsellor.

if proven,

timely compliance

Bernie

appellant

Sprolito was

present

ever held out

See Jensen,
___ ______

allege and prove . . . that

912 F.2d

any

to him as

at 521

with the

not the

EEO

evidence that

being the

EEO

(appellant "must

the employer actively misled him

and that he relied on the misconduct to his detriment").

has appellant asserted that he

lacked notice of the

Nor

correct

procedures and time limits.

to

the

conversations

We find nothing in the reference

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.

that

the amended

dismiss for

complaint

The district court held

would not

survive a

failure to exhaust administrative

motion to

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

Court also noted

on the merits.

exceptions to this rule

However, the

as where prejudice

to

the

proposed

exercise.

Belendez,
________

amending party's

amendment would

Id.;
___

903

adversary

constitute no

see also
_________

F.2d

is shown

49, 59

-18-

Cir.

where the

more than

Correa-Martinez
_______________

(1st

or

v.

1990);

a futile

Arrillaga__________

Kay v.
___

New
___

Hampshire Democratic Party, 821 F.2d 31,

__________________________

34 (1st Cir. 1987).

The latter exception applies here.

Roman-Martinez

filed

his

discrimination on November 7, 1990.

Postal Service

sent him a

formal

complaint

of

On December 7, 1990, the

letter outlining the

issues that

the investigation would cover, and inviting him to respond if

he disagreed with

the scope of the investigation.

responded in a letter dated December 13,

ten allegations

year with

of discrimination

the Postal Service.

those presented

in

the

original

1990, setting forth

dating back to

Of these,

Appellant

his first

most were new

complaint,

although

to

the

latter were also listed.

If he wished to

Martinez was

required to

pursue the new allegations, Roman-

initiate a new

complaint covering

them.

He filed

doing

so,

a second, informal, administrative complaint

filing and

pursuing a

formal administrative complaint incorporating the

new items.

Instead,

but never

without

administrative

the contents

got around

ever

having

to

taken

steps

to

achieve

redress, he waited and eventually transferred

of the stillborn administrative

complaint into

his amended judicial complaint.

On these facts, it was clear to the district

that

the

new

complaint were

items

items

inserted

into

the

not only untimely because

discussed

above)

they

-19-

dealt

amended

court

judicial

(like the original

with

incidents

that

occurred well

before the

appellant's first contact

with an

EEO counsellor, but were unripe for adjudication because they

were

never

complaint

made

the

subject of

and proceedings.

To

formal

administrative

hold otherwise

would allow

appellant to circumvent the exhaustion requirement imposed on

all who

court.

bring claims

of handicap discrimination

See Jensen, 912 F.2d at 520.

___ ______

in federal

In these circumstances,

allowing

futile

stated,

the amended complaint to be filed would have been a

exercise

since,

as

the

district

court

correctly

it would have been subject to a successful motion to

dismiss for failure to exhaust administrative remedies.

Affirmed.
________

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