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DAVIS v. SECRETARY OF THE TREASURY

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


August 17, 1995

WINSTON C. DAVIS, Plaintiff,
v.
SECRETARY OF THE TREASURY; INTERNAL REVENUE SERVICE; MARIE TOURLOS, LOCAL CHAPTER 20 PRESIDENT, NATIONAL TREASURY EMPLOYEES UNION, Defendants.

The opinion of the court was delivered by: VAUGHN R. WALKER

ORDER.

 Plaintiff, proceeding pro se, filed a Title VII employment discrimination complaint against the Secretary of the Treasury and the Internal Revenue Service (collectively, "defendants"). *fn1" Plaintiff accuses defendants of retaliation against him for filing Equal Employment Opportunity ("EEO") complaints against the IRS. Plaintiff also complains of race, gender, disability and "possibly age" discrimination. On December 2, 1994, defendants moved to dismiss plaintiff's complaint for failure to prosecute. The court dismissed the complaint without prejudice and granted plaintiff leave to amend. Plaintiff filed his amended complaint on January 5, 1995.

 On May 10, 1995, defendants filed a motion to dismiss the complaint pursuant to FRCP 12(b)(1) and 12(b)(6). Defendants contend that plaintiff failed to seek timely judicial review of a final agency decision addressing the majority of the claims raised in his complaint and may not maintain such claims in district court. Defendants also argue that plaintiff failed to exhaust administrative remedies, fulfill jurisdictional prerequisites to filing suit, and/or bring his lawsuit within the applicable statute of limitations with respect to his remaining claims.

  I

 Plaintiff first alleges that he experienced interference by IRS management officials in his campaign for president of the National Treasury Employees Union ("NTEU") Chapter 20, a locally chartered chapter of NTEU representing employees in the San Francisco/Oakland District IRS office. After losing the election to another candidate, plaintiff filed a challenge to the election with the NTEU National President, Robert Tobias, pursuant to the NTEU constitution and bylaws. Tobias issued a decision denying plaintiff's challenge. Plaintiff neither exercised his right to appeal under the NTEU Constitution and Bylaws nor filed any challenge with the Department of Labor. Defendants argue that plaintiff cannot maintain this claim in district court because he failed to exhaust his administrative remedies under the Federal Labor-Management Relations Statute, 5 USC § 7101 et seq.

 Section 7118(a)(1) provides a mechanism for the filing of a complaint with the Federal Labor Relations Authority ("FLRA") in any case in which an agency is charged with having engaged in an unfair labor practice. The definition of unfair labor practice includes actions taken by an agency to "discourage membership in any labor organization * * * ." 5 USC § 7116(a)(2). The Ninth Circuit has held that "Title VII specifically requires a federal employee to exhaust his administrative remedies as a precondition to filing suit." Vinieratos v US Dept of Air Force, 939 F.2d 762, 768 (9th Cir 1991) (citing Brown v General Servs Admin, 425 U.S. 820 832, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976)).

 Under Vinieratos, plaintiff has not fulfilled jurisdictional prerequisites to filing suit in district court and the court is without jurisdiction to hear the claim. The NTEU Constitution and Bylaws section 4(c) outlines the process by which a member may appeal an unfavorable decision of the NTEU National President to the National Executive Board. Similarly, section 4(d) allows a member to appeal the Executive Board's decision to the National Convention. Plaintiff chose not to exercise his right to appeal the National President's finding and never filed an unfair labor practice charge with the FLRA. Moreover, even if plaintiff had filed a claim with the FLRA, appeals from final decisions by the FLRA go to the United States circuit courts of appeals, not the district courts. 5 USC § 7123. Thus, plaintiff has failed to exhaust his administrative remedies and this claim is not properly before this court.

 II

 In the second section of his complaint, plaintiff alleges that he was discriminated against on the basis of race, sex, disability and "possibly age," and subjected to reprisal for prior EEO activity, when his supervisor made "inadmissible and inappropriate" statements in his 1992 annual performance appraisal. The court will construe these allegations as an attempt to state claims under both Title VII and the Age Discrimination in Employment Act ("ADEA").

 Documents attached to the original complaint indicate that plaintiff pursued an administrative grievance against the IRS at which he was represented by counsel. An administrative law judge found insufficient evidence to support plaintiff's claims of discrimination by the IRS, and the Treasury Department adopted the administrative law judge's findings of fact in a final agency decision on October 12, 1993, concluding plaintiff did not have an actionable discrimination claim. Plaintiff did not file this claim until February 3, 1994. Defendants argue plaintiff's claim of race or sex-based discrimination is time-barred, and that plaintiff fails to state a claim of age-based discrimination.

 Claims of discrimination based upon race or gender are governed by Title VII § 717. Although a federal employee must first file a complaint in the administrative process (and exhaust his administrative remedies), a plaintiff may file for de novo review by a district court, and "prior administrative findings may, of course, be admitted as evidence at a federal sector trial de novo." Charles v Garrett, 12 F.3d 870, 873 (9th Cir, 1993). The Ninth Circuit has specified, however, that claims under Title VII must be filed in district court within 30 days of receipt of notice of an agency's final decision. Id (citing 42 USC § 2000e-16(c)); See also Lubniewski v Lehman, 891 F.2d 216 (9th Cir 1989).

 Plaintiff failed to seek timely review of his claims of race or sex discrimination relating to his 1992 performance evaluation. Plaintiff did not file his claim in this court until 114 days after the final agency decision was issued by the Treasury Department. Plaintiff contends that he did not receive notice of the final agency decision until November 6, 1993 (Pl's opp at 2). However, plaintiff still failed to file suit in district court within 30 days of receipt of the decision. Under Title VII, plaintiff's claim is time-barred and the court is without jurisdiction to hear the claim.

 Claims of discrimination based upon age are governed by ADEA, 29 USC § 633(a). Defendants concede that plaintiff's age-based discrimination claim is not time-barred, but argue that plaintiff failed to allege any harm that resulted from the allegedly discriminatory evaluation. In support of this contention, defendants point out that plaintiff failed to allege any harm that resulted from the allegedly discriminatory evaluation. The Ninth Circuit recently enumerated the elements of a prima facie case of age discrimination in Wallis v JR Simplot Co, 26 F.3d 885 (9th Cir 1994). A plaintiff must show he or she was: (1) a member of a protected class; (2) performing his or her job in a satisfactory manner; (3) discharged; and (4) replaced by a substantially younger employee with equal or inferior qualifications. After reviewing plaintiff's amended complaint, the court concludes that defendants are correct in their assertion that plaintiff failed to allege facts in support of his claim of age-based discrimination. Plaintiff failed to make any allegations in support of at least two elements -- that he was discharged and that he was replaced by a younger employee. (Pl's amended compl at 6-7). Consequently, plaintiff has failed to state a claim of age-based discrimination.

 III

 Finally, plaintiff seeks relief for an alleged informal EEO complaint that he settled under duress while he was employed in the Sacramento District of the IRS. The informal complaint apparently concerned plaintiff's placement in a smoking area of the IRS office in Santa Rosa in 1986, which he contends was the result of "blatant race-sex discrimination." Plaintiff claims that he accepted a transfer to the Vallejo office "under duress," which resulted in adverse personal consequences, such as damage to his credit history, loss of his car and sale of his home for "no proceeds." (Pl's amended compl at 10). Plaintiff seems to suggest that defendants' failure to comply with the terms of the settlement agreement led to these adverse consequences. Defendants cite 29 CFR § 1614.504 of the Equal Employment Opportunity Commission in support of their argument that plaintiff's claim is barred from seeking review in federal court (Def's motion at 8).

 As indicated above, plaintiff is required to exhaust his administrative remedies prior to filing suit in district court under Title VII. Vinieratos, 939 F.2d at 768. The administrative remedies available to plaintiff are spelled out in 29 CFR § 1614.504. Under this section, a complainant must first notify the EEO director in writing of an agency's alleged failure to comply with the terms of a settlement agreement. If the director does not respond to complainant or complainant is unsatisfied with the agency's attempt to resolve the matter, complainant may then appeal to the EEOC for a determination whether the agency has complied with the terms of the settlement agreement. Only after a complainant has taken these steps may he or she seek review in federal court. In the instant case, plaintiff failed to pursue administrative relief; thus, the court is without jurisdiction to hear plaintiff's claim.

 The court concludes that it lacks subject matter jurisdiction to hear plaintiff's claims under Title VII and that plaintiff failed to state a claim under ADEA. Accordingly, the court GRANTS defendants' motion to dismiss.

 IT IS SO ORDERED.

 VAUGHN R. WALKER

 United States District Judge

  JUDGMENT.

 In accordance with the court's orders of December 7, 1994, and August 17, 1995, defendants' motions to dismiss are granted.


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