630 Fed.Appx. 735 (10th Cir. 2015), 14-6232, Hung Thai Pham v. James

Docket Nº:14-6232
Citation:630 Fed.Appx. 735
Opinion Judge:Timothy M. Tymkovich Circuit Judge
Party Name:HUNG THAI PHAM, Plaintiff - Appellant, v. DEBORAH LEE JAMES, Secretary Department of Air Force, Defendant - Appellee
Attorney:For Hung T. Pham, Plaintiff - Appellant: Daniel J. Gamino, Daniel J. Gamino & Associates, Oklahoma City, OK. For DEBORAH LEE JAMES, Secretary Department of Air Force, Defendant - Appellee: Kay Sewell, Office of the United States Attorney, Western District of Oklahoma, Oklahoma City, OK.
Judge Panel:Before TYMKOVICH, Chief Judge, HOLMES and McHUGH, Circuit Judges.
Case Date:October 20, 2015
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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630 Fed.Appx. 735 (10th Cir. 2015)

HUNG THAI PHAM, Plaintiff - Appellant,

v.

DEBORAH LEE JAMES, Secretary Department of Air Force, Defendant - Appellee

No. 14-6232

United States Court of Appeals, Tenth Circuit

October 20, 2015

UNPUBLISHED OPINION

(D.C. No. 5:13-CV-00743-L). (W.D. Okla.).

For Hung T. Pham, Plaintiff - Appellant: Daniel J. Gamino, Daniel J. Gamino & Associates, Oklahoma City, OK.

For DEBORAH LEE JAMES, Secretary Department of Air Force, Defendant - Appellee: Kay Sewell, Office of the United States Attorney, Western District of Oklahoma, Oklahoma City, OK.

Before TYMKOVICH, Chief Judge, HOLMES and McHUGH, Circuit Judges.

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ORDER AND JUDGMENT [*]

Timothy M. Tymkovich Circuit Judge

Hung Thai Pham appeals the district court's order dismissing his Title VII case for lack of subject-matter jurisdiction for failure to exhaust his administrative remedies. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm, although for different reasons than those relied on by the district court.

I. Background

The relevant facts are undisputed. Mr. Pham is employed as a civilian electrical engineer at Tinker Air Force Base in Midwest City, Oklahoma. He filed numerous complaints with the EEOC claiming that he was the victim of workplace harassment based on his disability and in retaliation for prior EEO activity. An EEOC administrative judge (AJ) informed Mr. Pham repeatedly that his complaints were not actionable because he failed to state a claim on his allegation that his interim appraisal contained false and misleading statements and he was not subjected to discrimination. The AJ warned him that if he continued to file similar claims, an abuse-of-process dismissal may be warranted.

Notwithstanding this warning, Mr. Pham filed two additional similar EEO complaints. Consequently, the AJ issued an order to show cause why the cases should not be dismissed for abuse of process. The order gave the parties fifteen days to submit an objection or response. The Air Force Review Board (Board) responded, supporting the dismissal of Mr. Pham's cases. Neither Mr. Pham nor his attorney filed a response to the show-cause order. The AJ dismissed Mr. Pham's EEO cases for failing to respond to the show-cause order and for abuse of process. The Board then issued a final order of dismissal stating that it would fully implement the AJ's decision. The Board's order included a notice of Right to File Civil Action, indicating that " the complainant may be authorized under Title VII, ADEA, or the Rehabilitation Act to file such action." Aplt. App. at 53 (emphasis added).

Mr. Pham filed suit in federal court under Title VII claiming " unlawful harassment (non-sexual) and retaliation for Plaintiff's prior EEO activity and disability discrimination." Aplt. App. at 3. In her answer to the complaint, the Secretary of the Air Force (Secretary) included the affirmative

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defense that the court lacked subject-matter jurisdiction...

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