IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-60134

Summary Calendar

DONALD F. MADDOX,

Pl aintiff-Appellant,

versus

MARVIN T. RUNYON, Postmaster; LEE COLLINS,

Plant Manager of the United States Postal Service and

individually; GREGORY BODY, Supervisor at the

United States Postal Service and individually,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Mississippi

April 21, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

STEWART, Circuit Judge:

The sole issue in this case is whether Donald F. Maddox (“Maddox”), a former United States

Postal Service employee, filed his Title VII employment discrimination claim against the Postmaster

General in a t imely manner in the district court. Finding that Maddox failed to file suit within ninety

days of the final agency action as required by 29 C.F.R. § 1614.408(a), we affirm the district court’s

dismissal of Maddox’s claim.

I.

By Letter of Decision dated May 26, 1994, the United States Postal Service informed Maddox

that he would be removed from his job ( i.e.

, that of a mail handler) effective June 3, 1994. The Postal

Service’s actions stemmed from allegations that Maddox had threatened his supervisor.1 Article 16.1 of the National Agreement provides as follows:

In the administration of this Article, a basic principle shall be t hat discipline should be

corrective in nature, rather than punitive. No employee may be disciplined or discharged except for

just cause such as, but not limit ed to, insubordination, pilferage, intoxication (drug s or alcohol),

incompetence, failure to perform work as requested, violatio n o f t he terms of this Agreement, or

failure to observe agency rules and regulations. Any such discipline or discharge shall be subject to

the grievance-arbitra t io n pro cedure provided for in this Agreement, which could result in

reinstatement and restitution, including back pay.

2 Alleging that the Postal Service’s actions were race- and age-based discriminatory, (1) the

National Postal Mail Handlers Union on May 17, 1994 instituted grievance and arbitration procedures

on behalf of Maddox pursua nt t o Article 16.1 of the National Agreement; 1 and (2) Maddox on

August 3, 1994 initiated contact with the Equal Employment Opportunity (EEO) office within the

Postal Service. Maddox is a white male who was 43 years old at the time.

On January 25, 1995, an arbitrator held that the Postal Service had good reason to terminate

Maddox’s employment and denied his grievances. As for Maddox’s EEO action, it was dismissed

via Final Agency Decision on December 29, 1994; the Decision stated that Maddox’s contact with

the EEO office was untimely because it was initiated more than forty-five days after the effective date

of his removal. See 29 C.F.R. § 1614.105(a)(1). Maddox did not seek review of this Decision by

the Equal Employment Opportunity Commission (“EEOC”), see 29 C.F.R. §§ 1614.401-1614.407,

or in federal court, see 29 C.F.R. § 1614.408. In its Final Agency Decision, the Postal Service EEO

office informed Maddox that he could “file a civil action in an appropriate U.S. District Court within

90 days of [his] receipt of this decision.”

Maddox subsequently filed a second complaint with the Postal Service EEO office on

February 8, 1995, alleging that he had been discriminated against on the basis of race, age, and sex

durin g t he aforementioned arbitration hearing. The EEO office dismissed this complaint via Final

Agency Decision on May 1, 1995, noting (once again) Maddox’s untimely initiation of contact with

the EEO office. Maddox appealed this decision to the EEOC, Office of Federal Operations, which

dismissed the claims by decision dated November 1, 1995.2 As mentioned, Maddox did not seek EEOC or federal court review of this Decision.

3 "A complai nant typically has several opportunities to elect between continuing to pursue

administrative remedies and fi ling a civil action [including, i nter alia ,] during

. . . the ninety-day

period following the final agency decision [or] during the ninety-day period following the EEOC’s

decision on the appeal of a final agency d ecision.” S ee Major John P. Stimson, Unscrambling

Federal Merit Protection , 150 M IL

. L. R EV 165, 195 (Fall 1995) (citing 29 C.F.R. § 1614.408).

4 Fed.R.Civ.P. 60(b)(6) provides for relief from a judgment, or reconsideration of a judgment, for

any “reason justifying relief from the operation of the judgment.”

3 On December 7, 1995, Maddox filed the instant suit, alleging (1) race-based discriminatory

termination in violation of Title VII against the Postmaster Gen eral (Runyon); (2) B ivens claims

(based on the Fifth Amendment) against Runyon and two of his (Maddox’s) supervisors; and (3) state

law contract claims against all three defendants. By its Opinion and Order dated December 6, 1996,

the court dismissed with prejudice all of Maddox’s claims except his Title VII claim against Runyon.

As to Maddox’s Title VII claim, the court found that because it was unclear whether notice of the

forty-five-day period during which Maddox was required to contact the Postal Service EEO Office

had been properly posted, there was a genuine issue of material fact concerning whether the fortyfive-day period had been equitably tolled. Defendant Runyon then fi l ed a Moti on for Partial

Reconsideration, raising for the first time his argument that Maddox failed to file suit in the district

court within ninety days of the final action by the EEO office as required by 29 C.F.R. § 1614.408.

(As mentioned, Maddox filed this Title VII suit on December 7, 1995, approximately one year after

the Postal Service EEO office’s December 29, 1994 Final Agency Decision dismissing his first EEO

comp laint, 2 but within ninety days of the EEOC’s November 1, 1995 affirmation of the Postal

Service EEO Office’s Final Agency Decision dismissing his second EEO complaint.) 3

Reviewing Runyon’s motion pursuant to Fed.R.Civ.P. 60(b)(6), 4 the di stri ct court on

February 3, 1997 granted the motion and dismissed with prejudice Maddox’s Title VII claim against

Runyon. Focusing on the Final Agency Decision of December 29, 1994, the court refused to

equitably toll the ninety-day filing requirement because Maddox “voluntarily chose to disregard

. .

. notice [of this] requirement in his right to sue letter” and instead chose to pursue internal arbitration4

procedures. In addition, noting that Maddox was “attempting to bootstrap himself back into his claim

of discriminatory termination by alleging discrimi nat ion in the arbitration hearing” and that “the

arbitration hearing was held precisely for t he purpose of determining whether [Maddox’s]

discriminatory termination claims had merit,” the court held that it would be “meaningless to allow

him to continue with his claim of discrimination at the arbitration hearing” given that the court had

“already determined that Maddox may not proc eed with his discriminatory termination claim.”

Maddox’s instant appeal is limited to the district court’s February 3, 1997 decision.

II.

S TANDARD OF R EVIEW

“The broad language o f Fed.R.Civ.P. 60(b)(6) provides the court ample power to vacate

judgments whenever such action is appropriat e t o accomplish justice.” H arrell v. DCS Equipment

Leasing Corp.

, 951 F.2d 1453, 1458 (5th Cir. 1992) (quotati ons and citations omitted). Because the

trial court’s decision concerning Ru le 60(b)(6) is one that is addressed to its sound discretion, we

review the trial court’s determination only for an abuse of discretion. Id

.

D ISCUSSION

Maddox alleges that he was terminated on the basis of his race in violation of Title VII. As

discussed, this claim was advanced in Maddox’s initial EEO complaint, which was denied by Final

Agency Decision on December 29, 1994. Although the C.F.R. § 1614.408 ninety-day filing period

allowed Maddox to file a civil action alleging this claim any time before April 8, 1995, Maddox

neglected to file the instant suit until December 7, 1995.

Maddox argues that his failure to file suit within the applicable ninety-day period should be

overlooked because action on his init ial EEO complaint should have been deferred until completion

of the invoked arbitration procedures. Maddox cites three reasons to support this contention. First,

he posits that his administrative remedies were not fully exhausted until the arbitrator decided against

him on his claims brought pursuant to the National Agreement. S ee Pacheco v. Rice

, 966 F.2d 904,5 The handbook is not a part of the record. The above-cited language appears in Runyon’s brief.

5 905 (5th Cir. 1992) (“[F]ederal employees must first exhaust their administrative remedies before they

may bring suit in federal court.”) (emphasis added). Second, he notes that the United States Postal

Service’s EEO handbook explicitly acknowledges the possibility of deferral:

[I]n the event an aggrieved employee file[s] both a[n] EEO complaint and continue[s]

to pursue grieva nce procedures, then the EEO complaint may be deferred until the

grievance procedure [is] completed. 5

Finally, Maddox claims—in a conclusory manner—that arbit ration and EEO processes cannot be

pursued simultaneously, and therefore, deferral of the EEO action was mandatory.

In sum, we take Maddox’s argument to be as follows: (1) the EEO action that culminated in

the December 29, 1994 Fina l Agency Decision rejecting his claims of discriminatory termination

should have been deferred ( i.e., for the reasons mentioned above); (2) the EEO’s failure to defer the

action rendered invalid or irrelevant all subsequent determinations or events in this case; and (3) in

light of these consequences, he should now be allowed to either re-pursue his init ial EEO complaint

and/or proceed with this case.

We reject Maddox’s argument for several reasons. First, Maddox has not set forth any

authority (nor have we found any) for the proposition that pursuit of internal grievance procedures

is an administrative remedy that must be exhausted before a Title VII suit can be brought. Second,

the above-cited language from the EEO Handbook does not indicate that the EEO Office must defer

action on a complaint if the complainant also pursues arbitration. Indeed, Maddox has not cited any

authority that construes the Handbook to require such a deferral.

At first glance

, however, certain provisions of the Federal Labor-Management Relations Act,

5 U.S.C. §§ 7101-35, ostensibly support Maddox’s claim that arbitration and EEO processes cannot

be pursued simultaneously. “Under the terms of the Act, a federal employee [with exclusive union

representation] who alleges employment discrimination must elect to pursue his claim under either

a statutory procedure [( e.g.

, the EEO process)] or a union-assisted negotiated grievance procedure

[unless the grievance procedure specifically excludes discrimination claims]; he cannot pursue both6 After an arbitration is concluded, “a grievant may appeal [the] arbitration decision to the EEOC.

[In addition,] the union

and t he agency may file exceptions with the [Federal Labor Relations

Authority (the “FLRA”)]. The FLRA decision binds t he agency, but the grievant may appeal that

decision to the EEOC. The grievant also . . . [may] file a civil action at almost every juncture in the

process.” Stimson, 150 M I L

. L. R EV

. at 202 (internal citations omitted). Maddox has not indicated

how, or under what conditions, he can utilize this procedural backdrop to advance his argument.

7 In Gilmer v. Interstate/Johnson Lane Corporati on

, 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d

(1991), the Supreme Court limit ed Alexander considerably when it held that, pursuant to the Federal

Arbitration Act, a claim for age discrimination “can be subjected to compulsory arbitration pursuant

to an arbitration agreement in a securities registration application.” 111 S.Ct. at 1650. Because there

is no indication in the instant case— from the parties’ briefs or the record—that a provision in the

National Agreement or any statute required arbitration of Maddox’s discrimination claim, we find

Alexander ’s application to this case to be unimpeded by Gilmer

.

6 avenues, and his election is irrevocable.” Vinieratos v. United States Dep’t of the Air Force

, 939 F.2d

762, 768 (9th Cir. 1991) (citing 5 U.S.C. § 7121(d) (emphasis added). Because the grievance

procedure at issue in this case (apparently) allowed Maddox to pursue his discrimination complaint,

and because Maddox’s first step in pursuit of his claim was inv ocation of this procedure, secti on

7121(d) seemingly trumps any simultaneous EEO consideration of his claim that occurred in this case.

Id

. 6

As noted by the Federal Circuit, however, section 7121(d) is inapplicable to Postal Service

employees. S tahl v. Merit Sys. Protecti on Bd.

, 83 F.3d 409, 411 (Fed. Cir. 1996) (“. .

. 5 U.S.C. §

7121(d) . . . does not appl y to Postal Service employees.”); see also Burke v. United States Postal

Service

, 888 F.2d 833, 834 (Fed. Cir. 1989); B acashihua v. Merit Sys. Protecti on Bd.

, 811 F.2d

1498, 1502 (Fed. Cir. 1987). As such, we are left with the Supreme Court’s pronouncement that

contractual rights under a collective-bargai ning agreement and the statutory right provided by

Congress under Title VII “have legally independent origins and are equally available to the aggrieved

employee.” Alexander v. Gardner-Denver Co. , 415 U.S. 36, 52, 94 S.Ct. 1011, 1022, 39 L.Ed.2d

147 (1974) (emphasis added); 7 cf. Alford v. Dean Witter Reynolds, Inc.

, 939 F.2d 229, 230 (5th Cir.

1991) (noting that Gilmer read Alexander as invo lving only the issue of whether arbi trati on of

contract-based claims precluded subsequent judicial resolution of statutory claims). Maddox’s claim8 Maddox does not argue on appeal: (1) that the district court erred by finding that the ninety-day

limitations period was not equitably tolled, or (2) that the district court erred in finding that it would

be meaningless t o allo w him to continue with his claim of discrimination at the arbitration hearing

(after the court had already determined that he could not proceed with his discriminatory termination

claim). These arguments have therefore been waived. S ee United States v. Musa

, 45 F.3d 922, 925

(5th Cir. 1995) (“Although we liberally construe briefs in determining issues presented for review,

issues which are not raised . . . are not considered on appeal.”) (citation omitted).

7 alleging unwarranted simultaneous pursuit of arbitration and EEO procedures is therefore without

merit.

III.

Each of Maddox’s argume nt s alleging mandatory deferral of action on his initial EEO

complaint has thus been rejected. Because Maddox failed to file the instant suit within ninety days

of the Final Agency Decision dismissing his complaint, the district court’s dismissal of Maddox’s Title

VII claim is AFFIRMED. 8

AFFIRMED.