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HARRIS v. UNITED STATES

February 26, 1996

SHIRLEY HARRIS, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.



The opinion of the court was delivered by: RHOADES

 This matter is before the Court on a motion to dismiss brought by Defendant Robert E. Rubin, Secretary of the United States Department of the Treasury, ("Rubin"). *fn1" For the reasons stated below, Defendant's motion to dismiss is granted.

 I. Background

 On November 18, 1994, Plaintiff Shirley Harris ("Harris"), a Special Agent with the United States Customs Service, initiated a formal administrative complaint against her employer agency for discrimination. During the 180 day period for agency review, Harris consented to a 90 day extension pursuant to 29 C.F.R. § 1614.108(e). On June 8, 1995, Plaintiff was notified by letter pursuant to 29 C.F.R. § 1614.108(f) that the investigation of her complaint was completed and that she had three options: (1) request a hearing before an administrative judge; (2) request a final decision from the agency pursuant to § 1614.110; or (3) terminate her complaint. *fn2"

 Harris returned the Election Form after having checked Box C, indicating that she wished to withdraw her complaint. In addition to checking Box C, Harris added the following notation to the form: "I do not intend to pursue this matter further at the administrative level." In response to Harris' reply, the investigation of Harris' complaint was terminated, no final decision was ever made at the agency level and Harris was sent notice that the agency had "terminated processing of the complaint." See Defendant's Opposition at Exhibit E. Harris did not respond to the agencies notification of termination.

 II. Discussion

 In order to bring a Title VII cause of action in a district court, Harris must first exhaust her administrative remedies. Greenlaw v. Garrett, 59 F.3d 994, 997 (9th Cir. 1995) (citing Brown v. General Services Administration, 425 U.S. 820, 832, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976)). Exhaustion requires that a plaintiff comply with regulatory and judicially imposed exhaustion requirements. Id. Judicially imposed exhaustion requirements for Title VII are not jurisdictional, but are treated as conditions precedent which are subject to waiver and estoppel. See Vinieratos v. United States Department of Air Force, 939 F.2d 762, 768 n.5 (9th Cir. 1991); Greenlaw, 59 F.3d at 997 n.8; Stache v. International Union of Bricklayers and Allied Craftsmen, 852 F.2d 1231, 1233 (9th Cir. 1988). *fn3" The Ninth Circuit has recognized both a requirement that a claimant cooperate with the agency, and that the claimant not abandon her claims. See Vinieratos, 939 F.2d at 772 ("An administrative exhaustion requirement is meaningless if claimants may impede and abandon the administrative process and yet still be heard in the federal courts.").

 A. Abandonment of Claims

 Among the judicially imposed exhaustion requirements recognized by the Ninth Circuit is that a claimant cannot abandon her claims before a final decision is reached. The Ninth Circuit reasoned that allowing claimants who abandon their claims in front of the administrative agency to proceed in federal court would "frustrate the congressional policy favoring administrative resolution of complaints for no discernible reason." Id. The abandonment of the administrative process "may suffice to terminate an administrative proceeding before a final disposition is reached, thus preventing exhaustion and precluding judicial review." Vinieratos, 939 F.2d at 770 (citing Rivera v. United States Postal Service, 830 F.2d 1037 (9th Cir. 1987), cert denied, 486 U.S. 1009, 108 S. Ct. 1737, 100 L. Ed. 2d 200 (1988)). Any other rule would "tend to frustrate the ability of the agency to deal with complaints. All participants would know that at any moment an impatient complainant could take his claim to court and abort the administrative proceedings. Moreover, such a course would unnecessarily burden courts with cases that otherwise might be terminated successfully by mediation and conciliation." Vinieratos, 939 F.2d at 771 (citing Purtill v. Harris, 658 F.2d 134 (3d Cir. 1981), cert. denied, 462 U.S. 1131, 103 S. Ct. 3110, 77 L. Ed. 2d 1365 (1983)).

 Here, Harris fully cooperated with all EEOC proceedings throughout the pendency of her case. However, at the moment when the Commission informed her that the investigation had been completed, she withdrew her complaint, apparently because she was impatient and wished to commence immediately in federal court.

 Harris claims that she thought Option C gave her the option to dismiss her claims at the administrative level and go straight to the district court. *fn4" However, the plain language of the form certainly gives no such indication, and Harris has not asserted what led her to such a belief. Harris may have been representing herself before the agency and, if so, should not be held to have the knowledge and sophistication of an attorney versed in such matters. However, the agency also needs to be able to rely on Harris' own voluntary responses to questions put to her. *fn5" See, e.g., Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.), cert. denied, 133 L. Ed. 2d 69, 116 S. Ct. 119 (1995) ("Pro se litigants are bound by the rules of procedure."). The letter sent with the form clearly stated that if Harris ...


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