Ross v. U.S. Postal Service, 81-5511
| Decision Date | 31 August 1982 |
| Docket Number | No. 81-5511,81-5511 |
| Citation | 696 F.2d 720 |
| Parties | 30 Fair Empl.Prac.Cas. 1712, 30 Empl. Prac. Dec. P 33,282 Willis ROSS, Jr., Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, William Bolger, Postmaster General of the United States, Warren Phillips, Postmaster, Van Nuys Branch, United States Postal Service and Chuck Peters, Supervisor, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Arturo Morales, Van Nuys, Cal., for plaintiff-appellant.
Howard Gest, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before BROWNING, Chief Judge, and SNEED and SCHROEDER, Circuit Judges.
Willis Ross, Jr. appeals the summary judgment dismissing his employment discrimination case for failure to exhaust administrative remedies. We vacate the judgment and remand the case to the district court with instructions to dismiss the complaint without prejudice to Ross filing an administrative claim with the United States Postal Service.
Ross, a black male with a psychological disorder, was hired by the United States Postal Service. Shortly after his employment began, he believed that his supervisor was harassing him because of his race and disorder. After speaking to his union steward, he filed an informal complaint with the Equal Employment Opportunity (EEO) counselor. The informal procedure did not satisfy him. He received a Notice of Final Interview, advising him of his right to file a formal complaint, but did not pursue his remedies further.
After the alleged harassment began, Ross was increasingly absent from work. He was given notice of suspension because of excessive absences. He again consulted his union steward and filed a second informal complaint (and a grievance with the union). The EEO counselor was able to transfer Ross but apparently not in time to aid him. Ross received another Notice of Final Interview, but again chose not to file a formal complaint.
Ross was discharged on September 18, 1979. He again consulted his union steward. This time he filed a grievance with the union but did not file an EEO complaint. The union grievance was denied as untimely. On June 24, 1980, nine months after his discharge, he filed this action in district court. The district court granted summary judgment to the Postal Service on the ground that Ross had failed to exhaust his administrative remedies. It held that Ross had received adequate notice of the requirement to exhaust administrative remedies. Ross appeals.
A federal employee may file an action for employment discrimination under 42 U.S.C. Sec. 2000e-16. The statute requires, however, that a complainant first seek relief in the agency. Brown v. General Services Administration, 425 U.S. 820, 832-33, 96 S.Ct. 1961, 1967-1968, 48 L.Ed.2d 402 (1976). The requirement that a complainant file a timely administrative charge is not a jurisdictional prerequisite to suit. Zipes v. Trans World Airlines, 455 U.S. 385, 397, 102 S.Ct. 1127, 1134, 71 L.Ed.2d 234 (1982). Although Zipes involved 42 U.S.C. Sec. 2000e-5, this court has held that there are no more jurisdictional prerequisites for federal employees than for private sector employees. Clark v. Chasen, 619 F.2d 1330, 1334 (9th Cir.1980).
We reject as premature Ross's contention that he should be excused from exhausting administrative remedies because the Postal Service did not notify him that he must proceed through administrative channels. When there...
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