* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 2 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PERCY L. PALMER,

Plaintiff-Appellant,

v. UNITED STATES POSTAL SERVICE, William Henderson, Postmaster General, U.S.A.,

Defendant-Appellee. No. 02-5143 (D.C. No. 01-CV-307-EA) (N.D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff Percy L. Palmer, proceeding pro se, appea ls the district court’s order granting summary judgment in favor of his former employer, the United States Postal Service (USPS). We exercise jurisdic tion under 28 U.S.C. § 1291 and affirm. Background Mr. Palmer was disciplined for various violations o f USPS rules and regulations occurring in 1994 and 1995. His employ ment was terminated in 1996. He filed grievances for the disciplinary actions an d termination, claiming race discrimination and retaliation. After the USPS iss ued its final agency decision on each claim in 1996 and 1997, Mr. Palmer timely file d suit in federal court. He filed four separate cases. The district court c onsolidated them and ordered Mr. Palmer to file a single amended complaint in Ju ne 1997. The deadline was later extended to January 5, 1998, with a warning that failure to comply would result in dismissal of the action for failure to pr osecute. When he failed to file an amended complaint, the district court dismissed the consolidated cases on January 16, 1998. On April 25, 2001, Mr. Palmer filed this lawsuit se eking redress for one or more of his grievances against the USPS. The distr ict court granted summary1 Although the district court granted both dismissal and summary judgment in

favor of the USPS, we construe the order as one forsummary judgment.

2 This grievance was assigned two different case numb ers. The original claim was assigned number 4G-730-0011-97. It was p rocessed by the USPS EEO office as case number H0-0080-97. R. Vol. I, doc. 14, Ex. A. -3- judgment 1 in favor of the USPS because the case was filed we ll past the ninety-day filing deadline prescribed by 42 U.S.C. § 2000e-16(c). Mr. Palmer challenges that ruling on the following grounds: ( 1) he did not receive notice of the final agency action on grievance number 4G-730-0011-97 2 ; (2) the USPS told him it was still investigating his case; (3) d espite his efforts to obtain a right-to-sue letter, the USPS refused to issue one; (4) the USPS engaged in a cover-up of race discrimination and concealed his c ase to aid in the cover-up; (5) USPS personnel committed perjury to conceal his grievances; and (6) his failure to follow through with his previously filedcases should not deprive him of his right to file a new case. Discussion We review de novo the district court’s grant of sum mary judgment, viewing the record in the light most favorable to the partyopposing summary judgment. McKnight v. Kimberly Clark Corp. , 149 F.3d 1125, 1128 (10th Cir. 1998). Summary judgment is appropriate if there is no genu ine issue of material fact and the moving party is entitled to judgment as a matte r of law. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). Because plaintiff is-4-

representing himself on appeal, his pleadings will be liberally construed. Haines
v. Kerner , 404 U.S. 519, 520 (1972). A civil action by an employee for redress of grievances must be filed within ninety days of receipt of the notice of fina l agency action. 42 U.S.C. § 2000e-16(c); Belhomme v. Widnall , 127 F.3d 1214, 1217 (10th Cir. 1997) (“Because Mr. Belhomme filed this civil action more than ninety days after the EEOC’s final action, the district court was barred from considering it.”). In this case, Mr. Palmer’s complaint was filed on April 25, 2001, much longer than ninety days after the notices of final agency actio n were issued in 1996 and 1997. Accordingly, summary judgment was correct. Mr. Palmer claims he never received a notice of fin al agency action for grievance number 4G-730-0011-97, despite his repeat ed efforts to obtain one. He does not dispute, however, that he filed a lawsu it based on this grievance or that he failed to file an amended complaint as orde red in 1998. He certainly had notice from the court in 1998 that he had to take a ction to protect his rights, which he failed to do. Therefore, his claim that h e did not receive a notice of final agency action cannot defeat summary judgment. We turn to Mr. Palmer’s claims that the USPS told h im it was still investigating his case, concealed his grievances as part of a cover-up of race discrimination, and caused its personnel to commit perjury to conceal his-5-

grievances. It is unclear whether these claims aro se from the same facts as the cases dismissed in 1998, or whether they are new cl aims against the USPS. Either way, they are not properly before this court. As d iscussed above, it is too late for Mr. Palmer to maintain a lawsuit on the charges dis missed in 1998. For new charges, he must file an administrative complaint w ith the USPS, which he did not do. See 29 C.F.R. § 1614.106(a) (federal employee must fil e complaint with agency that allegedly discriminated against him). Moreover, these conclusory allegations are not supported by evidence and are, therefore, insufficient to resist summary judgment. See Kidd v. Taos Ski Valley, Inc. , 88 F.3d 848, 853 (10th Cir. 1996). Finally, we consider Mr. Palmer’s claim that his fa ilure to follow through with his previously filed cases should not deprive him of his right to file a new case. In enacting 42 U.S.C. § 2000e-16(c), Congres s clearly intended that a claimant who did not act promptly be deprived of a right to bring a lawsuit. Furthermore, a plaintiff may not sit by without tak ing some steps to preserve his rights. See Sec. Nat’l Bank v. John Deere Co. , 927 F.2d 519, 520 (10th Cir. 1991) (“At any rate, when it became apparent that the joint stay motion would not be ready, it was incumbent upon plaintiff to take some steps to preserve his rights. . . .”). Therefore, we must reject Mr. Pal mer’s argument that he should be permitted to file a new case at this late date.-6-

The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED. The mandate shall issue f orthwith.

Entered for the Court

Robert H. Henry Circuit Judge