* This order and judgment is not binding precedent, e xcept under the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

** The Honorable J. Thomas Marten, District Judge, Uni ted States District Court for the District of Kansas, sitting by design ation. 

## 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, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff appeals the district court’s entry of sum mary judgment in favor of the Veterans Administration (VA) on plaintiff’s cla im 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 befor e filing suit because he did not file his administrative complaint in a timely manne r and no equitable grounds existed to extend the filing time. In the alternat ive, 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 p retextual. 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 c ertificate.-3-

Meanwhile, in late December 1992, it came to the attention of Mr. Baxter, the Director of the Muskogee VAMC, that another per son, Barbara Corbin, was also available for the position. Ms. Corbin, who i s a black, paraplegic, veteran of the U.S. Armed Forces, was completing a VA Prosthet ics Intern Program, which was designed to train people for the position at is sue, at the VAMC in Decatur, Georgia. The Director of the Prosthetics and Senso ry 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 M s. Corbin highly, Mr. Baxter decided to hire Ms. Corbin, in early January1993. As a result, the Muskogee VAMC never considered any of the candidate s, including plaintiff, who had been referred for consideration on the Janu ary 19 certificate. In March 1994, plaintiff consulted an EEO Counselorwith the Muskogee VAMC because he thought he had been discriminated a gainst on the basis of his handicap. The EEO Counselor conducted a final inte rview 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 E EO Counselor averred in an affidavit that he also sent plaintiff written notic e on April 21 of his right to file an administrative complaint within fifteen days, plain tiff, in turn, averred that he never received any written notice. Plaintiff did n ot file an administrative-4-

complaint with the VA until February 9, 1995. The VA took final action on the complaint in September 1995, after plaintiff had fi led the present lawsuit, by dismissing the complaint.
Analysis We review the grant of summary judgment de novo, ap plying 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 admi nistrative 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 sufficie nt notice in April 1994 to trigger the fifteen-day filing period, then his complaint w as untimely, because the evidence does not support any extension of the fili ng time on equitable grounds. The question remains, however, whether plaintiff ac tually received sufficient notice to trigger the fifteen-day filing period. U nder the applicable regulations, the complainant’s duty to file an administrative co mplaint is triggered upon-5-

receipt of written notice informing him of the righ t 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 oralnotice of his obligation to file an administrative complaint, he does deny that he e ver received written notice of this obligation. We need not decide whether oral n otice 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 delive ry 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 un der 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 functi ons 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 fe deral 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 assum e plaintiff is disabled and can perform the essential functions of the posi tion at issue, there is no evidence suggesting that he was not hired for the p osition “solely by reason of his-6-

handicap,” Johnson ex rel. Johnson v. Thompson , 971 F.2d 1487, 1492 (10th Cir. 1992). Plaintiff bases his claim of discrimination on defe ndant’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 hiri ng, placement, and advancement of qualified individuals with mental and physical h andicaps.” Plaintiff argues that, because he is a qualified individual with a p hysical handicap, yet the agency did not fully consider his application for the posi tion at issue, the agency violated this regulation and, therefore, violated the Rehabi litation Act as a matter of law. Plaintiff evidently construes § 1614.203(b)’s langu age to require the agency to consider every qualified applicant who is handic apped. However, the plain language of the regulation requires the agency onlyto 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 linkin g defendant’s alleged violation of § 1614.203(b) to a violation of the Rehabilitati on 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 andhandicapped persons is also unavailing.-7-

Plaintiff has neither shown that he was not hired f or the position under circumstances giving rise to an inference that he w as 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 articu lated by defendant for hiring Ms. Corbin, rather than plaintiff, were pretextual. Therefore, the district court properly entered summary judgment in favor of defen dant on plaintiff’s claim of handicap discrimination. The judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED.

Entered for the Court

J. Thomas Marten District Judge