Opinion
No. C 03-01065 CRB
September 5, 2003
MEMORANDUM AND ORDER
In this Title VII lawsuit plaintiff alleges that she was forced to involuntary resign from her position with the United States Coast Guard. Now before the Court is defendant's motion for summary judgment. After carefully considering the papers filed by the parties, and having had the benefit of oral argument, defendant's motion is GRANTED.
BACKGROUND
A. The Merit System Protection Board
The Merit System Protection Board ("Merit Board") is a "quasi-judicial Government agency [which] adjudicates Federal employee appeals of agency personnel actions." Sloan v. West, 140 F.3d 1255, 1259 (9th Cir. 1998) (citing 5 U.S.C. § 1201 et seq.). The Merit Board has appellate jurisdiction of "adverse employment actions" which fall within one of five categories: (1) a removal, (2) a suspension for more than 14 days, (3) a reduction in grade, (4) a reduction in pay, or (5), or a furlough of 30 days or less. See 5 U.S.C. § 7512(1)-(5); Sloan, 140 F.3d at 1259. Appeals to the Merit Board must be filed within 30 days of the adverse employment action. See Sloan. 140 F.3d at 1259 (citing 5 C.F.R. § 1201.22).
An initial decision on the employee's appeal of the adverse employment action is made by a Merit Board Administrative Judge. An employee may subsequently file a petition for review of the initial decision with the three member Merit Board. If the Merit Board denies the petition, the employee may file an appeal with the Federal Circuit, which has exclusive jurisdiction of such appeals. See 5 U.S.C. § 7703(b)(1);Williams v. Department of the Army. 715 F.2d 1485, 1487 (Fed. Cir. 1983). The Merit Board does not have appellate jurisdiction of claims that do not fall within one of the five "adverse employment action" categories identified in section 7512. See Sloan, 140 F.3d at 1260.
The Merit Board also has pendent jurisdiction over discrimination claims brought in connection with an appeal of an "adverse employment action," that is, an appeal of an agency action that falls within one of the five categories of adverse employment actions. See Sloan. 140 F.3d at 1259. A federal employee asserting discrimination claims must ordinarily exhaust administrative remedies before the Equal Employment Office ("EEO") of his agency. Once the EEO issues a final decision the employee may file a discrimination action in federal district court.See id. When a federal employee claims he has been affected by both an "adverse employment action" and a related discrimination violation, however, he may exhaust his administrative remedies by asserting both claims before the Merit Board. See id. His Merit Board complaint would allege that he suffered an adverse employment action that was affected, in whole or in part, by unlawful discrimination. Such a complaint is known as a "mixed case complaint."See id.
If the Merit Board decides it has jurisdiction of the mixed case complaint, the complaint becomes a "mixed case appeal" appropriately adjudicated by the Merit Board. See id. at 1260. The Merit Board does not have jurisdiction over a claim of discrimination that is completely divorced from an adverse employment action that is within its jurisdiction. See id. A Merit Board ruling that it lacks jurisdiction to hear a claim is appealable only to the Federal Circuit.See id. at 1261. A "mixed case appeal," that is, a case in which the Merit Board decides the merits of both the non-discrimination claim (that is, the appeal of the adverse employment action) and the discrimination claim, may be appealed to a federal district court. See id. at 1261. Indeed, the Federal Circuit does not have jurisdiction of such mixed case appeals. See Williams v. Department of the Army. 715 F.2d 1485, 1491 (Fed. Cir. 1983).
B. Undisputed Facts
Plaintiff resigned from her GS-7 position with the United States Coast Guard ("Coast Guard") on February 8, 2002. Shortly after her resignation, plaintiff sought reinstatement in her former position. Defendant refused. On February 21, 2002, defendant issued plaintiff a notice of her appeal rights to the Merit Board ("Merit Board"). The written notice advised plaintiff that she had 30 days from the date of the letter to file her appeal.
Plaintiff alleged that her resignation was caused by discriminatory treatment, namely, discrimination on the basis of her gender and national origin, so defendant also advised plaintiff, by written notice dated March 4, 2002, that she could file a complaint of discrimination with the Department of Transportation or file a "mixed case appeal" with the Merit Board. By letter dated April 1, 2002, plaintiff's Equal Employment Opportunity ("EEO") counselor again advised plaintiff that she could file a complaint of discrimination with the DOT Departmental Office of Civil Rights, but that she must do so within 15 days of the date of the letter.
Plaintiff subsequently filed a "mixed case appeal" with the Merit Board. Defendant subsequently filed a prehearing statement. Rather than submitting the required prehearing statement, plaintiff asked the Merit Board to withdraw her appeal. The Administrative Judge granted plaintiff's request and dismissed her appeal by order dated June 14, 2003. Plaintiff then filed a Petition for Review asking that her appeal be reinstated. The full Merit Board denied her petition by order dated September 4, 2002.
Two months later plaintiff filed an appeal of the Merit Board's denial of her Petition for Review with the Court of Appeals for the Federal Circuit. Less than one month later plaintiff withdrew her appeal by letter dated November 27, 2002. The Federal Circuit dismissed the appeal on December 10, 2002.
On October 11, 2002, plaintiff also filed an appeal of the Merit Board's denial to the Office of Federal Operations ("OFO") of the U.S. Equal Employment Opportunity Commission ("EEOC"), requesting that the EEOC reverse the Merit Board's decision on her claims of discrimination. The OFO dismissed plaintiff's appeal on the ground that it did not have jurisdiction since the Merit Board had not considered the merits of plaintiff s discrimination claims. Plaintiff subsequently filed this Title VII lawsuit in federal court.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is "material" only if it could affect the outcome of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A principal purpose of the summary judgment procedure "is to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett. 477 U.S. 317, 323-24 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
DISCUSSION
Defendant moves for summary judgment on the ground that the Court lacks jurisdiction of plaintiff s claims because plaintiff failed to exhaust her administrative remedies. "In order to establish subject matter jurisdiction over her Title VII claim, Plaintiff was required to exhaust her administrative remedies." BKB v. Maui Police Dept., 276 F.3d 1091, 1099 (9th Cir. 2002). "Under Title VII, a plaintiff must exhaust her administrative remedies by filing a timely charge with the EEOC, or the appropriate [federal] agency, thereby affording the agency an opportunity to investigate the charge." Id. (citing 42 U.S.C. § 2000e-5(b). "The administrative charge requirement serves the important purposes of giving the charged party notice of the claim and narrow[ing] the issues for prompt adjudication and decision." Id. (Internal quotations and citation omitted).
The undisputed evidence establishes that plaintiff did not exhaust her administrative remedies. She elected to file a mixed case appeal before the Merit Board. Before the Merit Board Administrative Law Judge could issue a decision on the merits, indeed, before plaintiff even filed her prehearing statement, plaintiff unequivocally sought to withdraw her appeal. The Administrative Law Judge granted her request and dismissed the appeal, and the full Merit Board affirmed. Plaintiff then appealed to the Federal Circuit, but she also withdrew this appeal. The EEOC ruled it did not have jurisdiction of plaintiff's discrimination claims since the Merit Board never ruled on the merits of plaintiff s discrimination claims. Plaintiff abandoned her discrimination claims before the Merit Board and therefore did not exhaust her administrative remedies. See McAdams v. Reno, 64 F.3d 1137, 1142 (8th Cir. 1995): see also Greenlaw v. Garrett, 59 F.3d 994, 997 (9th Cir. 1995) ("a plaintiff may not cut short the administrative process prior to its final disposition, for upon abandonment a claimant fails to exhaust administrative relief and may not thereafter seek redress from the courts"); Riviera v. United States Postal Service, 830 F.2d 1037, 1039 (9th Cir. 1987) ("To withdraw is to abandon one's claim, to fail to exhaust administrative remedies."); Tanious v. IRS, 915 F.2d 410, 411 (9th Cir. 1990) (holding that federal employee's failure to cooperate with his Merit Board appeal by failing to appear for hearing constituted a failure to exhaust administrative remedies).
Plaintiffs belated claim that she withdrew her appeal because she believed she had entered into a settlement is of no moment. If she had entered into a valid settlement (which defendant vigorously denies), she should have pursued enforcement of that settlement. Her "explanation" merely confirms that she did in fact abandon her administrative claim. Accordingly, the Court lacks jurisdiction of plaintiff s Title VII complaint.
In her opposition plaintiff appears to contend that she also makes an Equal Pay Act claim. The Court does not interpret plaintiff's complaint as making such a claim. Plaintiff's complaint is directed to her allegedly involuntary resignation due to gender and national origin discrimination.
CONCLUSION
For the foregoing reasons the Court concludes that it lacks jurisdiction of plaintiff s Title VII complaint. Defendant's motion for summary judgment is GRANTED.
IT IS SO ORDERED.
JUDGMENT
The Court having granted defendant's motion for summary judgment by Memorandum and Order dated September 5, 2003, it is hereby ordered that judgment be entered in favor of defendant and against plaintiff.IT IS SO ORDERED.