Birch v. Lehman, 81-2084
| Decision Date | 05 May 1982 |
| Docket Number | No. 81-2084,81-2084 |
| Citation | 677 F.2d 1006 |
| Parties | 28 Fair Empl.Prac.Cas. 1372, 28 Empl. Prac. Dec. P 32,686 Betty J. BIRCH, Appellant, v. John LEHMAN, Secretary of United States Department of the Navy, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Leslie J. Winner, Charlotte, N. C. (J. LeVonne Chambers, Chambers, Ferguson, Watt, Wallas, Adkins & Fuller, P. A., Charlotte, N. C., on brief), for appellant.
Alex H. Adkins, Dept. of the Navy, Washington, D. C. (Samuel T. Currin, U. S. Atty., Dennis Ian Moore, Asst. U. S. Atty., Raleigh, N. C., David E. Kirkpatrick, Litigation Div., Washington, D. C., on brief), for appellee.
Before WINTER, Chief Judge, and MURNAGHAN and SPROUSE, Circuit Judges.
Betty Birch appeals the district court's dismissal of her civil rights action brought against the Secretary of the Navy pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. Finding her contentions to be without merit, we affirm.
The United States Navy Regional Medical Center (NRMC) at Camp LeJeune, North Carolina, dismissed Birch from her position as librarian in December, 1976, following charges of poor work performance. Prior to her dismissal Birch had filed a formal administrative complaint, claiming that she had been denied several benefits because of her sex. She continued to pursue administrative remedies following her dismissal, and on April 23, 1979, NRMC informed her that several of the issues she had raised would receive further consideration, but that others, including that of her dismissal, had been rejected. She was informed that this was NRMC's final decision with respect to the rejected issues and was advised that she could appeal to the Equal Employment Opportunity Commission (EEOC) within 15 days of the final decision or directly to the district court within 30 days. A third option-appeal to the EEOC followed by a civil action in district court within 30 days of the EEOC decision-also was explained to her. Birch had been informed of these rights to appeal on several other occasions prior to the April 23 letter.
Birch appealed to the EEOC on May 7, 1979, and received that agency's decision on October 23, 1980, which held that the Navy had improperly rejected several discrimination allegations involving benefits, but that the rejection of the issue of her dismissal had been proper. The EEOC decision contained the following language:
Pursuant to 29 C.F.R. 1613.282, the appellant is hereby notified that this is the Commission's final decision and that appellant has a right to file a civil action in the appropriate United States District Court within thirty (30) calendar days of receipt of this decision. 1
In the same letter, both the appellant and the NRMC were notified that the Commission, in its discretion, could reopen and reconsider any previous decision. The NRMC was required to make any request for reopening within 30 days, but there was no time limit placed on Birch, who could petition for reopening at any time. On November 20, 1980, Birch requested the EEOC to reopen her case. That request was rejected on May 18, 1981, 2 because she failed to meet the criteria for reconsideration set forth in 29 C.F.R. 1613.235...
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