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DAVIS v. SECRETARY OF THE TREASURY

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

 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. ...


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