McAlister v. Secretary of Dept. of Health and Human Services

Decision Date09 April 1990
Docket NumberNo. 89-1284,89-1284
Citation900 F.2d 157
Parties53 Fair Empl.Prac.Cas. 29, 53 Empl. Prac. Dec. P 39,799 Billie Jo McALISTER, Appellant, v. SECRETARY OF the DEPARTMENT OF HEALTH AND HUMAN SERVICES and The United States Department of Health and Human Services, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

H. Kent Desselle, Independence, Mo., for appellant.

E. Eugene Harrison, Kansas City, Mo., for appellees.

Before McMILLIAN, Circuit Judge, MAGILL, Circuit Judge, and HANSON *, Senior District Judge.

HANSON, Senior District Judge.

McAlister appeals the dismissal of his claims brought against the Secretary of the Department of Health and Human Services and the United States Department of Health and Human Services (HHS). McAlister, a deaf person, asserts that he was discriminatorily discharged by HHS because of his deafness. The District Court, the Honorable Howard F. Sachs, dismissed the petition finding McAlister barred from bringing this suit because he had failed to exhaust administrative remedies. We affirm the district court.

Administrative remedies must be exhausted before a federal employee may bring an employment discrimination claim against a federal employer. Morgan v. United States Postal Service, 798 F.2d 1162 (8th Cir.1986). Failure to exhaust such remedies is fatal where, as here, the claim against an agency is asserted under 29 U.S.C. Sec. 794 ("Sec. 504"). Id. at 1165. Judge Sachs dismissed appellant's claims finding that appellant failed to satisfy this exhaustion requirement by not asserting a timely claim with the Equal Employment Opportunity Commission (EEOC).

Reversal of Judge Sach's ruling is warranted, appellant contends, on four different theories. First, appellant asserts that Morgan does not apply to him because as a temporary probationary employee he had no rights to appeal his termination with the EEOC. The district court properly found that appellant, in making this argument, is confusing general employee grievance procedures for temporary federal employees with their right to challenge a discriminatory termination with the EEOC. The length of employment of a federal employee does not limit his or her right to be free from prohibited discrimination, nor does it limit his or her right to bring a complaint before the EEOC. This conclusion is based on the lack of any statutory or judicial authority indicating that such an exception should or does exist. Thus, appellant had the right and the responsibility to seek a remedy administratively prior to instituting this lawsuit.

Appellant's second argument for reversal is that the district court erred in finding he had not exhausted his administrative remedies. The Court disagrees. Appellant did not file a complaint with the EEOC concerning his termination within 30 days of the termination as required by 29 C.F.R. Sec. 1613.214(a)(1)(i)--a regulation which appellant does not challenge. Further, the employment grievance appellant had previously filed over work conditions did not satisfy this requirement because appellant had abandoned the grievance. See McAlister v. Heckler, No. 83-1057, slip op. at 10 (W.D.Mo. July...

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23 cases
  • Gesinger v. Burwell, CIV 15–1019
    • United States
    • U.S. District Court — District of South Dakota
    • September 28, 2016
    ...a federal employee may bring an employment discrimination claim against a federal employer." McAlister v. Secretary of Dept. Health and Human Services , 900 F.2d 157, 158 (8th Cir. 1990) (citing Morgan v. United States Postal Service , 798 F.2d 1162 (8th Cir. 1986) ). Plaintiff, in her seco......
  • Sierra Club v. Robertson
    • United States
    • U.S. District Court — Western District of Arkansas
    • November 27, 1991
    ...relief where plaintiffs fail to perfect or even seek an administrative appeal. See, e.g., McAlister v. Secretary of the Department of Health and Human Services, 900 F.2d 157, 158 (8th Cir.1990); Watson v. Arkansas National Guard, 886 F.2d 1004, 1008 (8th Cir.1989); Madsen v. Department of A......
  • Sierra Club v. Robertson
    • United States
    • U.S. District Court — Western District of Arkansas
    • April 22, 1991
    ...been exhausted in cases where the plaintiff utterly bypassed the available administrative process. See, e.g., McAlister v. Secretary of HHS, 900 F.2d 157, 158 (8th Cir.1990) (dismissal of employee discrimination suit where employee failed to assert timely claim with the EEOC); Watson v. Ark......
  • Watt v. Brennan
    • United States
    • U.S. District Court — Eastern District of Missouri
    • September 29, 2015
    ...a federal employee may bring an employment discrimination claim against a federal employer." McAlister v. Secretary of Dep't of Health and Human Services, 900 F.2d 157, 158 (8th Cir. 1990) (citing Morgan v. United States Postal Service, 798 F.2d 1162 (8th Cir. 1986)). Exhaustion of administ......
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