* This order and judgment is not binding precedent, except under the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. 

** The Honorable J. Thomas Marten, District Judge, United States District

Court for the District of Kansas, sitting by designation.

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 10 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PHILLIP R. ADAIR,

Plaintiff-Appellant,

v.

JESSE BROWN, Secretary of the

Veterans Administration, United

States Department of Veterans Affairs,

Defendant-Appellee.

No. 96-7128

(D.C. No. 95-CV-379)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before PORFILIO and LUCERO, Circuit Judges, and MARTEN,** District Judge.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument. 
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Plaintiff appeals the district court’s entry of summary judgment in favor of

the Veterans Administration (VA) on plaintiff’s claim that its failure to hire him

was the result of handicap discrimination, in violation of section 501 of the

Rehabilitation Act, 29 U.S.C. § 791. The district court determined that plaintiff

failed to exhaust his administrative remedies before filing suit because he did not

file his administrative complaint in a timely manner and no equitable grounds

existed to extend the filing time. In the alternative, the district court determined

that, even if plaintiff’s administrative complaint were timely filed, plaintiff failed

to establish either a prima facie case of handicap discrimination or to show that

defendant’s reasons for not hiring plaintiff were pretextual. We exercise

jurisdiction under 28 U.S.C. § 1291 and affirm.

Background

In November 1992, plaintiff, who walks with a cane, applied for the

position of Chief of Prosthetics and Sensory Aids at the Veterans Administration

Medical Center (VAMC) in Muskogee, Oklahoma. Plaintiff sent his application

to the central VA office in Washington, D.C. On January 19, 1993, the central

VA office issued a certificate to the Muskogee VAMC containing the names of

three candidates who, based on their applications, were qualified for the position. 

Plaintiff was one of the candidates listed on the certificate.
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Meanwhile, in late December 1992, it came to the attention of Mr. Baxter,

the Director of the Muskogee VAMC, that another person, Barbara Corbin, was

also available for the position. Ms. Corbin, who is a black, paraplegic, veteran of

the U.S. Armed Forces, was completing a VA Prosthetics Intern Program, which

was designed to train people for the position at issue, at the VAMC in Decatur,

Georgia. The Director of the Prosthetics and Sensory Aids Service at the central

VA referred Ms. Corbin’s application directly to Mr. Baxter. After speaking with

the director of the Decatur VAMC, who recommended Ms. Corbin highly, Mr.

Baxter decided to hire Ms. Corbin, in early January 1993. As a result, the

Muskogee VAMC never considered any of the candidates, including plaintiff,

who had been referred for consideration on the January 19 certificate.

In March 1994, plaintiff consulted an EEO Counselor with the Muskogee

VAMC because he thought he had been discriminated against on the basis of his

handicap. The EEO Counselor conducted a final interview with plaintiff on

April 21, 1994, by telephone. In that conversation, the EEO Counselor advised

plaintiff that he had fifteen days to file a formal administrative complaint if he

wanted to pursue his claim further. Although the EEO Counselor averred in an

affidavit that he also sent plaintiff written notice on April 21 of his right to file an

administrative complaint within fifteen days, plaintiff, in turn, averred that he

never received any written notice. Plaintiff did not file an administrative
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complaint with the VA until February 9, 1995. The VA took final action on the

complaint in September 1995, after plaintiff had filed the present lawsuit, by

dismissing the complaint.

Analysis

We review the grant of summary judgment de novo, applying the same legal

standards as the district court, under Fed. R. Civ. P. 56(c). See Wolf v.

Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995). We, therefore,

examine the factual record, and draw all reasonable inferences therefrom, in the

light most favorable to plaintiff, the nonmoving party. See Kaul v. Stephan,

83 F.3d 1208, 1212 (10th Cir. 1996).

We turn first to the timeliness of plaintiff’s administrative complaint,

which is a prerequisite to suit. See, e.g., Williams v. Rice, 983 F.2d 177, 180

(10th Cir. 1993); Miller v. Runyon, 77 F.3d 189, 191 (7th Cir.), cert. denied, 117

S. Ct. 316 (1996). Based on our examination of the record, we agree with the

district court that, if plaintiff received sufficient notice in April 1994 to trigger

the fifteen-day filing period, then his complaint was untimely, because the

evidence does not support any extension of the filing time on equitable grounds. 

The question remains, however, whether plaintiff actually received sufficient

notice to trigger the fifteen-day filing period. Under the applicable regulations,

the complainant’s duty to file an administrative complaint is triggered upon
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receipt of written notice informing him of the right to file a discrimination

complaint within fifteen days. See 29 C.F.R. §§ 1614.105(d)-(f), 1614.106(b). 

While plaintiff does not deny that he received oral notice of his obligation to file

an administrative complaint, he does deny that he ever received written notice of

this obligation. We need not decide whether oral notice is sufficient to trigger the

duty to file, or whether plaintiff’s averment that he did not receive written notice

is sufficient to overcome the presumption of delivery of a properly addressed

piece of mail, see Moya v. United States, 35 F.3d 501, 504 (10th Cir. 1994),

because we agree with the district court that, even if plaintiff’s administrative

complaint was timely filed, plaintiff’s case would fail on the merits.

To establish a claim for handicap discrimination under section 501 of the

Rehabilitation Act, plaintiff must show: (1) he is “disabled” within the meaning

of the Act; (2) he can perform the essential functions of the job, with or without

accommodation; (3) he was not hired because of his disability; and (4) the

program with which he sought a position receives federal funding. See McCarter

v. West, 910 F. Supp. 519, 526 (D. Kan. 1995), adopted as opinion of Tenth

Circuit, 105 F.3d 1335 (10th Cir. 1997). Even if we assume plaintiff is disabled

and can perform the essential functions of the position at issue, there is no

evidence suggesting that he was not hired for the position “solely by reason of his
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handicap,” Johnson ex rel. Johnson v. Thompson, 971 F.2d 1487, 1492 (10th Cir.

1992).

Plaintiff bases his claim of discrimination on defendant’s alleged failure to

comply with 29 C.F.R. § 1614.203(b), which provides, in part, that federal

agencies “shall give full consideration to the hiring, placement, and advancement

of qualified individuals with mental and physical handicaps.” Plaintiff argues

that, because he is a qualified individual with a physical handicap, yet the agency

did not fully consider his application for the position at issue, the agency violated

this regulation and, therefore, violated the Rehabilitation Act as a matter of law.

Plaintiff evidently construes § 1614.203(b)’s language to require the agency

to consider every qualified applicant who is handicapped. However, the plain

language of the regulation requires the agency only to give full consideration to

hiring a qualified handicapped person. As defendant points out, that is exactly

what the Muskogee VAMC did when it hired Ms. Corbin. Moreover, plaintiff has

not cited any facts or controlling authority linking defendant’s alleged violation

of § 1614.203(b) to a violation of the Rehabilitation Act. For the same reasons,

plaintiff’s argument based on the Muskogee VAMC’ s policy statement about the

hiring, placement, and use of disabled veterans and handicapped persons is also

unavailing.
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Plaintiff has neither shown that he was not hired for the position under

circumstances giving rise to an inference that he was not hired solely because of

his handicap, see Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1387

(10th Cir. 1981), nor shown that the reasons articulated by defendant for hiring

Ms. Corbin, rather than plaintiff, were pretextual. Therefore, the district court

properly entered summary judgment in favor of defendant on plaintiff’s claim of

handicap discrimination.

The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.

Entered for the Court

J. Thomas Marten

District Judge