Adler v. Espy

• Decision Date: 09 September 1994
• Docket Number: No. 93-3302,93-3302
• Citation: 35 F.3d 263
• Parties: 65 Fair Empl.Prac.Cas. (BNA) 1342, 65 Empl. Prac. Dec. P 43,392 Stephen I. ADLER, Plaintiff-Appellant, v. Michael ESPY, Secretary of Agriculture, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 263

35 F.3d 263

65 Fair Empl.Prac.Cas. (BNA) 1342,

65 Empl. Prac. Dec. P 43,392

Stephen I. ADLER, Plaintiff-Appellant, v. Michael ESPY, Secretary of Agriculture, Defendant-Appellee.

No. 93-3302.

United States Court of Appeals, Seventh Circuit.

Submitted Aug. 9, 1994.

Decided Sept. 9, 1994.

Stephen I. Adler, pro se.

Matthew V. Richmond, Asst. U.S. Atty., Milwaukee, WI, for defendant-appellee.

Before POSNER, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.

POSNER, Chief Judge.

This appeal requires us to consider the applicability of McGinty v. United States Department of the Army, 900 F.2d 1114 (7th Cir.1990), which holds that a person who initiates the optional federal administrative procedure for remedying employment discrimination on grounds of age must exhaust his administrative remedies before he may file suit.

The Age Discrimination in Employment Act, 29 U.S.C. Secs. 621 et seq., allows claimants either to sue in federal district court under the Act after giving the Equal Employment Opportunity Commission 30 days' notice of intent to sue, or, alternatively, to file an administrative complaint with the EEOC and, if necessary, file suit in federal district court later. 29 U.S.C. Sec. 633a(c). Neither the statute, nor the regulations in effect when either McGinty or our plaintiff, Adler, filed their claims, indicate when or in what circumstances the claimant who follows the second, the administrative, route may sue. McGinty had gone the second route, then changed her mind and decided to sue; we held that it was too late, that she had to exhaust her administrative remedies once she stepped onto that road, though she had not had to step onto it in the first place. The other circuits are divided on the issue, as the Supreme Court noted in Stevens v. Department of Treasury, 500 U.S. 1, 8-10, 111 S.Ct. 1562, 1567-68, 114 L.Ed.2d 1 (1991). The Court did not resolve the issue, because the Solicitor General had advised the court that the government no longer believed that exhaustion of administrative remedies was required in such a case. The government made the same concession in a recent case in this court, Espinueva v. Dalton, No. 93-1582, 1994 WL 109019 (7th Cir. Feb. 22, 1994), and we accepted the concession.

Adler, the appellant in this case, started down the administrative route, like McGinty, and, again like McGinty, failed to go the whole way. He lost in the district court on the ground of failure to exhaust administrative remedies. The district judge cited no cases. Appealing pro se, Adler did not discover the government's concession in Stevens. The government's brief urges affirmance on the basis of McGinty, with no mention of Stevens and no suggestion that it is aware of the Justice Department's change of position, which apparently has not percolated down to the U.S. Attorney's office in Milwaukee.

Our unpublished order in Espinueva (joined by the author of McGinty ) points out a significant amendment to the EEOC's regulations in McGinty which suggests that cases under the amended regulations should be decided differently. The amendment, which became effective on October 30, 1987, yet was not (for reasons we needn't go into) applicable to McGinty's claim, provides that if the administrative complainant is a party to a pending suit in district court, the administrative complaint shall be dismissed. 29 C.F.R. Sec. 1613.215(a)(3) (1989). That...