McCoin v. Veterans Affairs

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 19, 1997
• Docket: 97-3136
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 19 1997 TENTH CIRCUIT PATRICK FISHER Clerk

JOHN MACK McCOIN,

Plaintiff-Appellant,

v. No. 97-3136 (D.C. No. 96-4104-SAC) SECRETARY OF VETERANS (D. Kan) AFFAIRS, Jesse Brown; JUDY ARNOLD, Chief of Social Services,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Mr. McCoin is a pro se litigator who appeals the dismissal of his civil

complaint. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the

decision of the district court.

Mr. McCoin was a social worker employed by the Department of Veterans

Affairs until his retirement in March 1994. In April 1993, his supervisor

counseled him regarding his involvement with a publication known as the Adult

Residential Care Journal. Mr. McCoin was the editor and publisher. In the

counseling letter, Mr. McCoin was told he could not use government property to

conduct private business or conduct private business on the Department of

Veterans Affairs time. Mr. McCoin also received verbal counseling on May 26,

1993, and a second letter of counseling dated May 28, 1993, which concerned Mr.

McCoin's conduct at a meeting. Mr. McCoin felt these counselings were an

attempt to "get rid of [him] because of [his] age."

On May 28, 1993, Mr. McCoin contacted an Equal Employment

Opportunity Agency ("Agency") counselor raising this complaint. In July 1993,

Mr. McCoin filed a formal administrative complaint with the Agency alleging sex,

age, handicap, and reprisal discrimination. The Agency investigated this

complaint and on June 8, 1994, found the evidence did not substantiate Mr.

-2- McCoin's allegations of discriminations. Mr. McCoin's attorney received notice

of the final Agency decision on June 10, 1994.

Mr. McCoin did not appeal the decision until December 23, 1994, more

than six months after the Agency's final decision. Mr. McCoin filed the

complaint initiating this action on June 6, 1996, in the United States District

Court for the District of Kansas. In his complaint, Mr. McCoin alleged sex, age,

race, and handicap discrimination. The district court dismissed the lawsuit

determining it lacked subject matter jurisdiction because the action was not timely

filed. We review de novo the district court's dismissal for lack of subject matter

jurisdiction. Painter v. Shalala, 97 F.3d 1351, 1355 (10th Cir. 1996).

Mr. McCoin appeals asserting the district court "denied relevant evidence

that the appeal was timely and, therefore, ... [violated] ... my civil rights." Mr.

McCoin supports this allegation by asserting the "District Court did not consider

the fact that Defendant Arnold et al. violated my civil rights by incorrectly

claiming that Defendant Arnold was [my] supervisor," and "Defendant Arnold

verbally harassed [me] between late May 1993 and up until nearly the time of

[my] retirement in April 1994." He further argues, "[i]t is my impression that

there is no statute of limitations in age discrimination cases."

-3- Mr. McCoin's appeal lacks legal merit. The record on appeal is clear and

undisputed. The final agency decision on Mr. McCoin's administrative complaint

was issued June 8, 1994. Mr. McCoin's attorney received the final agency

decision June 10, 1994. Mr. McCoin had thirty days from June 10, 1994, to

appeal the Agency decision to the Equal Employment Opportunity Commission

or, alternatively, ninety days from June 10, 1994, to file an action in federal

district court. 1 See 29 C.F.R. §§ 1614.402, 1614.408(a). Due to Mr. McCoin's

failure to timely exhaust his administrative remedies or file suit, the district court

lacked jurisdiction to hear this matter and the district court properly dismissed

this matter.

Mr. McCoin asks this court to excuse his untimely filing as his attorney

failed to notify him promptly of the final agency decision. We are unable to grant

this relief. The Supreme Court has instructed that when notice is delivered to the

office of the claimant's formally designated attorney, the claimant has received

notice and is bound thereby. See Irwin v. Department of Veterans Affairs, 498

U.S. 89, 92-93 (1990); see also 29 C.F.R. § 1614.402(c).

1 In response to Mr. McCoin's claim a statute of limitations does not apply in age discrimination cases, this court has ruled the time limitations in Title VII cases apply to age discrimination actions. See Jones v. Runyon, 32 F.3d 1454, 1456, 1458 (10th Cir. 1994).

-4- Mr. McCoin asks us to ignore the jurisdiction requirements of Title VII and

the Age Discrimination in Employment Act for equitable reasons. Our law

prohibits this as well unless the circumstances of the case "'rise to the level of

active deception.'" See Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1267

(10th Cir. 1996) (quoting Cottrell v. Newspaper Agency Corp., 590 F.2d 836,

838-39 (10th Cir. 1979)). No such facts have been alleged in this case.

The district court did not have subject matter jurisdiction over Mr.

McCoin's lawsuit and had no alternative except to dismiss the lawsuit.

The decision of the district court is AFFIRMED for substantially the same

reasons set forth by the district court in its order, a copy being attached hereto.

The mandate shall issue forthwith.

Entered for the Court

WADE BRORBY United States Circuit Judge

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