Castro v. U.S.
| Decision Date | 14 March 1985 |
| Docket Number | No. 84-1316,84-1316 |
| Citation | 775 F.2d 399 |
| Parties | 39 Fair Empl.Prac.Cas. 162, 38 Empl. Prac. Dec. P 35,583 Eligio CASTRO and Rafael Diaz Diaz, Plaintiffs, Appellants, v. UNITED STATES of America, et al., Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Eligio Castro and Rafael Diaz Diaz, on brief, pro se.
Arthur L. Beamon, Asst. Gen. Counsel, Ingeborg G. Chaly, Washington, D.C., Daniel F. Lopez-Romo, U.S. Atty., and Osvaldo Carlo Linares, Asst. U.S. Atty., Hata Rey, P.R., on brief, for defendants, appellees.
Before CAMPBELL, Chief Judge, COFFIN and BREYER, Circuit Judges.
This appeal involves one of several suits filed by one or both pro se appellants against the Federal Deposit Insurance Corporation (FDIC) after the FDIC did not renew appellants' temporary appointments with the FDIC. 1 In this case, appellants appeal an order dismissing with prejudice their complaint against the FDIC, and permanently enjoining them from filing additional pleadings in the instant case and from commencing future legal proceedings against the United States or the FDIC regarding the nonrenewal of their temporary appointments. Appellants additionally appeal the district court's assessment of costs against them.
We affirm the judgment of the district court.
On August 28, 1978, appellant Eligio Castro became employed at the FDIC's San Juan, Puerto Rico, Liquidation Office. Castro's employment consisted of a series of successive, finite, temporary excepted appointments. His last appointment expired on November 10, 1982, and was not extended by the FDIC.
Appellant Rafael Diaz Diaz also held a series of successive, finite, temporary excepted appointments with the FDIC's San Juan Liquidation Office beginning on February 12, 1979. Diaz Diaz's employment with the FDIC ended when his last appointment expired on December 10, 1982.
Appellants subsequently filed a complaint and an amended complaint against the United States, the FDIC, and William Isaac, Chairman of the FDIC (appellees). Appellants' central claims were that the FDIC's refusal to renew appellants' appointments violated their federal statutory and constitutional rights. Appellants' requested relief included monetary relief and reinstatement in their former jobs.
Appellants also filed a motion for a preliminary injunction seeking, among other things, reinstatement in their former jobs with the FDIC. Appellants subsequently filed a motion for a temporary restraining order. The district court denied both motions.
On January 23, 1984, appellees filed a motion to dismiss appellants' amended complaint, and to enjoin appellants from relitigating any matters set forth in their complaint in this case, or in any previous case, concerning the nonrenewal of their appointments with the FDIC. On April 6, 1984, the district court issued an opinion and order concluding that it lacked subject matter jurisdiction as to some of appellants' claims, and that the remaining claims failed to state a claim for which relief could be granted. The court found appellants' action to be frivolous and malicious, and it dismissed the action with prejudice. The court also permanently enjoined appellants "... from filing additional pleadings in this case and from relitigating, or attempting to relitigate, by commencing any lawsuit or other legal proceeding against the United States or the Federal Deposit Insurance Corporation with respect to the nonrenewal of their temporary appointments with the FDIC or to events arising out of matters set forth in this case or their prior litigation over that nonrenewal." Castro v. United States, 584 F.Supp. 252, 266 (D.P.R.1984). Finally, the court assessed costs against appellants pursuant to 28 U.S.C. Sec. 1927. The court entered judgment dismissing appellants' action and awarding costs to appellees.
Appellants contend that the FDIC's failure to renew their appointments constitutes discrimination against them on the basis of national origin, contrary to section 717 of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e et seq. Although appellants rely on Title VII, they also assert that it is unclear whether Title VII applies to federal excepted service employees. However, it has been held that Title VII's coverage of executive agency employees includes both competitive service employees and excepted service employees. Kizas v. Webster, 707 F.2d 524, 542, n. 95 (D.C.Cir.1983). Thus, appellants' status as former federal excepted service employees does not preclude them from invoking the provisions of Title VII.
Section 717(c) permits an aggrieved federal employee to file a civil action to review a claim of employment discrimination. However, the Supreme Court has held that this right is subject to certain preconditions. Brown v. GSA, 425 U.S. 820, 832, 96 S.Ct. 1961, 1967, 48 L.Ed.2d 402 (1976). Thus, before one alleging federal employment discrimination under Section 717 may file a civil action, he or she must first seek relief in the agency charged with discrimination. Id. Relevant Equal Employment Opportunity (EEO) regulations require a federal employee to contact an EEO counselor concerning his or her complaint, ordinarily within 30 days of the alleged violation. If the matter is not resolved, a complaint is formally filed with the agency. If the agency renders a decision adverse to the employee, he or she may appeal to the Equal Employment Opportunity Commission (EEOC) or, in certain situations, to the Merit Systems Protection Board (MSPB). Alternatively, he or she may initiate a civil action within 30 days of receipt of notice of the agency's decision. If the employee seeks review by the EEOC of the agency's decision, he or she then may file a civil action within 30 days of EEOC's final decision. In any event, the employee may file a court action if, after 180 days from the filing of the charge or appeal, the agency or the EEOC has not taken final action. See sec. 717(c).
The record in the instant case reveals that on October 14, 1982, the EEOC sent a letter to Castro informing him of the administrative requirements for bringing a claim under Title VII. In spite of this letter, however, Castro never contacted an EEO counselor concerning his employment discrimination claim, nor did he file a formal complaint with the agency. Castro's failure to adhere to the requirements governing federal employees who initiate Title VII charges precludes his Title VII civil action. See, e.g., Brown, 425 U.S. at 832-35, 96 S.Ct. at 1967-69; Kizas, 707 F.2d at 543-46.
We also conclude that Diaz Diaz's Title VII civil action is precluded because he did not exhaust his administrative remedies. The record indicates that after the expiration of his appointment with the FDIC, Diaz Diaz filed an appeal with the MSPB, and a subsequent complaint with the EEO Office of the FDIC. In both actions, Diaz Diaz alleged discrimination on the basis of age; however, none of the allegations contained in either action referred to discrimination on the basis of national origin. 2 Because Diaz Diaz failed to raise his claim of discrimination on the basis of national origin in the appropriate administrative proceedings, he is foreclosed from raising that claim in a civil action brought pursuant to Title VII. See Siegel v. Kreps, 654 F.2d 773, 778 (D.C.Cir.1981). 3
Appellants assert that the nonrenewal of their appointments with the FDIC constituted age discrimination, contrary to Sec. 633(a) of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621 et seq.
Under the ADEA, a federal employee who believes that he or she has been the victim of age discrimination has available two alternative avenues of relief. First, he or she may file a formal complaint with the EEOC and pursue an administrative remedy. If denied relief, he or she may then commence a civil action. See 29 U.S.C. Secs. 633a(c), (d); Ray v. Nimmo, 704 F.2d 1480, 1483 (11th Cir.1983). Second, in lieu of pursuing administrative relief, the employee may proceed directly to federal district court providing he or she initiates the civil suit no later than 180 days from the alleged discriminatory act, and providing that he or she first has filed a notice of intent to sue with the EEOC at least 30 days prior to commencing suit. See 29 U.S.C. Sec. 633a(d); Ray, 704 F.2d at 1483.
In this case, Castro commenced a civil action under the ADEA without initially filing either a formal complaint of age discrimination or a notice of intent to sue with the EEOC. Because Castro did not comply with the requirements of Sec. 633a(d) for initiating a civil action under the ADEA, the district court properly dismissed his ADEA claim. 4 See Siegel, 654 F.2d at 778, n. 16.
Like Castro, Diaz Diaz never filed a notice of intent to sue with the EEOC prior to initiating his civil action under the ADEA. However, unlike Castro, it appears that Diaz Diaz did attempt to pursue the alternative avenue for relief under the ADEA; namely, the filing of a complaint with the agency and the pursuit of an administrative remedy. As previously noted, Diaz Diaz initially pursued an appeal with the MSPB, in which he challenged the FDIC's decision not to renew his appointment, and alleged that he was the victim of age discrimination. The record indicates that Diaz Diaz also contacted an EEO counselor concerning his age discrimination claim. Diaz Diaz subsequently filed what appears to have been a timely complaint with the EEO Office of the FDIC in which he alleged employment discrimination on the basis of age. In a letter dated June 6, 1983, the director of the EEO Office of the FDIC informed Diaz Diaz that because he had taken an appeal to the MSPB prior to filing a complaint with the EEO Office, the EEO Office was required to cancel his complaint pursuant to an administrative regulation. 5 The letter also...
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