Belgrave v. Pena

• Decision Date: 17 May 2001
• Docket Number: Docket No. 00-6307
• Citation: 254 F.3d 384
• Parties: (2nd Cir. 2001) WAYNE BELGRAVE, Plaintiff-Appellant, v. FREDERICO PENA, Secretary of the United States Department of Energy, Defendant-Appellee. August Term 2000 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 384

254 F.3d 384 (2nd Cir. 2001)

WAYNE BELGRAVE, Plaintiff-Appellant, v. FREDERICO PENA, Secretary of the United States Department of Energy, Defendant-Appellee.

Docket No. 00-6307

August Term 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: May 17, 2001

Decided: June 20, 2001

Plaintiff-appellant Wayne Belgrave appeals from a September 18, 2000 judgment of the United States District Court for the Southern District of New York (Henry B. Pitman, Magistrate Judge). The judgement dismissed plaintiff's suit pursuant to Rule 56(c) of the Federal Rules of Civil Procedure because plaintiff (1) failed to timely exhaust his administrative remedies at the Department of Energy ("DOE") prior to filing suit, and (2) did not establish that DOE's asserted business justifications were pretext for race or age discrimination under the McDonnell Douglas burden-shifting framework.

Because we find that the plaintiff's efforts to exhaust his administrative remedies at the DOE were untimely, we affirm the district court's judgment.

Michael H. Sussman, (Stephen Bergstein, on the brief); Law Offices of Michael H. Sussman; Goshen, NY (for Plaintiff-Appellant).

Sean C. Cenawood, Assistant United States Attorney (Mary Jo White, United States Attorney for the Southern District of New York, Jeffrey Oestericher, Assistant United States Attorney, on the brief), New York, NY (for Defendant-Appellee).

Before: WALKER, Chief Judge, FEINBERG and CABRANES, Circuit Judges.

PER CURIAM:

Plaintiff-appellant Wayne Belgrave appeals from a September 18, 2000 judgment of the United States District Court for the Southern District of New York (Henry B. Pitman, Magistrate Judge) granting the motion for summary judgment of defendant-appellee Federico F. Pena, Secretary of the United States Department of Energy ("DOE").

Belgrave, a former DOE employee, brought suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., alleging that the DOE discriminated against him by failing to offer him one of two newly created Federal Energy Management Program ("FEMP") positions. Belgrave is an African-American male who, at the time of the events in question, was 66 years of age.

The district court asserted two alternative bases for granting summary judgment: (1) that Belgrave had failed to timely exhaust his administrative remedies; and (2) that he had not established a material factual question as to whether the DOE's asserted business justification for not offering him one of the two FEMP positions was merely a pretext for race or age discrimination, see Belgrave v. Pena, No. 98 Civ. 2517, 2000 WL 1290592 (S.D.N.Y. Sept. 13, 2000). Because we agree with the district court that Belgrave failed to exhaust his administrative remedies in a timely fashion, we affirm the district court's grant of summary judgment.

Prior to bringing suit under either Title VII or the ADEA, a federal government employee must timely "exhaust the administrative remedies at his disposal." Downey v. Runyon, 160 F.3d 139, 145 (2d Cir. 1999). Failure to do so can be asserted by the government as an affirmative defense.

Regulations promulgated by the Equal Employment Opportunity Commission ("EEOC") establish the applicable administrative procedures that a federal employee must exhaust prior to filing suit. The EEOC regulations require that the aggrieved employee, inter alia, (1) consult with a counselor at the relevant agency's Equal Employment Office ("EEO") within 45 days of the alleged discriminatory act, see 29 C.F.R. § 1614.105(a)(1), and, if the matter is not resolved after a mandatory counseling period, (2) file a formal written administrative complaint ("EEO complaint") within 15 days of receipt of the EEO counselor's notice of final interview and right to file a formal complaint ("EEO notice"), see id. § 1614.106(a), (b). The employee may then file a civil action (i) within 90 days of notice of a final agency decision on his or her EEO complaint, or (ii) after 180 days from the filing of the EEO complaint if the agency has not yet rendered a decision. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.408 (a), (b).

As the government points out, Belgrave admitted both in sworn deposition testimony and in his response to the government's Local Rule of Civil Procedure 56.1 Statement that he received the EEO notice through the mail "on or about April 22, 1996." Nevertheless, Belgrave did not file his formal administrative complaint until May 14, 1996, approximately twenty-two days after the EEO notice was first received. Belgrave's EEO complaint therefore was untimely.

Belgrave makes three arguments in response. First, he argues that he did not receive the EEO notice until May 3, 1996, and thus, he contends, his filing of the EEO complaint eleven days later on May 14, 1996 was timely. We conclude that Belgrave has failed to preserve this argument, however, because he did not argue it to the district court at any point during the pendency of the summary judgment motion. See Gurary v. Winehouse, 190 F.3d 37, 44 (2d Cir. 1999).

Second, Belgrave contends that the government waived any objection to his failure to timely exhaust his administrative remedies because the government's original answer did not assert failure to timely exhaust as an affirmative defense. See Briones v. Runyon, 101 F.3d 287, 290 (2d Cir. 1996) ("[T]he statutory requirement [of timely administrative exhaustion] is analogous to a statute of limitations and is, therefore, considered subject to waiver, estoppel, and equitable...