McGinty v. United States Department of the Army

900 F.2d 1114, 1990 U.S. App. LEXIS 6525, 53 Empl. Prac. Dec. (CCH) 39,885, 54 Fair Empl. Prac. Cas. (BNA) 867, 1990 WL 50827
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 25, 1990
DocketNo. 88-2534
StatusPublished
Cited by10 cases

This text of 900 F.2d 1114 (McGinty v. United States Department of the Army) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGinty v. United States Department of the Army, 900 F.2d 1114, 1990 U.S. App. LEXIS 6525, 53 Empl. Prac. Dec. (CCH) 39,885, 54 Fair Empl. Prac. Cas. (BNA) 867, 1990 WL 50827 (7th Cir. 1990).

Opinions

KANNE, Circuit Judge.

Yvonne M. McGinty was employed by the United States Department of the Army at the Savannah Army Depot in Savannah, Illinois, as a temporary clerk-typist from January 24, 1983, through January 23, 1984. During her term of employment, McGinty was denied a promotion to a position of permanent employment with the Army. On May 11, 1984, McGinty filed a pro se formal administrative complaint against the Army alleging age discrimination. She was 66-years old when the alleged discrimination occurred. On April 21, 1986, the Army notified McGinty by letter that the information in her complaint had been evaluated and it had been concluded that she was not discriminated against because of her age. The letter stated, “An appeal may be filed with the Equal Employment Opportunity Commission within 20 calendar days of receipt of this decision. The appeal must be postmarked or, in the absence of a postmark, received by the Commission within 20 calendar days of the date or receipt of this decision.” McGinty did not file an appeal with the EEOC within the 20-day period.

On January 2, 1987, McGinty filed a complaint in federal district court (“McGinty /”) alleging that she was discriminated against by the Army on the basis of her age in violation of the Age Discrimination and Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. The Army filed a motion to dismiss this complaint for failure to exhaust administrative remedies. On August 27, 1987, the district court dismissed McGinty I for lack of subject matter jurisdiction. The district court held that once a party has chosen the administrative remedy for an age discrimination claim, that remedy must be exhausted prior to filing a complaint in the district court. The case was dismissed because McGinty did not appeal the agency’s final decision to the [1116]*1116EEOC and did not state an excuse for this failure to appeal.

While the motion to dismiss was pending in federal court, McGinty filed an appeal of the agency’s final decision with the EEOC. On September 10, 1987, the EEOC dismissed McGinty’s appeal because it was not filed within 20 days of the final agency decision and because no justification was given for extending the filing period beyond the 20-day time limit. The EEOC issued her a notice of right to file a civil action.

On September 21, 1987, McGinty filed a motion with the district court requesting reconsideration of the order dismissing McGinty I. Before the district court could rule on this motion, McGinty filed a notice of appeal of the initial dismissal on September 24, 1987. On November 23, 1987, the district court attempted to grant the plaintiffs motion to reconsider its decision to dismiss McGinty I in light of the EEOC’s dismissal of her appeal of the agency decision. However, the district court did not have jurisdiction over the matter because a notice of appeal had been filed. See Asher v. Harrington, 461 F.2d 890, 895 (7th Cir.1972); 7 Moore’s Federal Practice H 60.30[2] (2d ed.1985). Therefore, McGinty filed a motion to remand on December 3, 1987, and this court entered an order on December 9, 1987 granting the motion to remand.

In the meantime, on October 13, 1987, McGinty had filed a second suit in federal district court ()‘McGinty II”) against the Army, again alleging age discrimination. The Army filed a motion to dismiss McGinty II for failure to exhaust administrative remedies. The district court dismissed McGinty II on June 29, 1988, for lack of subject matter jurisdiction because of failure to comply with the administrative time limits. On the same day, the district court denied the motion to reconsider the dismissal of McGinty I. McGinty appeals the dismissal of both cases.

I.

The ADEA was enacted in 1967 and generally prohibits certain employers from discriminating, on the basis of age, against employees over the age of 40. 29 U.S.C. § 621 et seq. In 1974, § 633a, relating to age discrimination in federal government employment, was added to the ADEA. It provides:

All personnel actions affecting employees or applicants for employment who are at least 40 years of age ... in military departments as defined in [5 U.S.C. § 102, which includes the Department of the Army] ... shall be made free from any discrimination based on age.

29 U.S.C. § 633a(a).

The applicable regulations are set forth in 29 C.F.R. § 1613.501 et seq. Section 1613.513, as applicable to this case, provides:

The filing of a civil action by an employee or applicant does not terminate agency processing of a complaint or Commission processing of an appeal under this subpart.

29 C.F.R. § 1613.513 (1987).1 Section 1613.514 explicitly makes the sections of the regulations that do not require full exhaustion [§§ 1613.281 and 1613.282] inapplicable to the ADEA.

A. McGinty I

McGinty I was filed after the agency denied her complaint and the 20-day time limit had expired, but before she appealed to the EEOC. Thus, we must decide whether the statute and regulations require exhaustion of administrative remedies. We find that they do, and affirm the dismissal of McGinty I.

Certainly, a federal employee claiming discrimination under the ADEA has two alternatives when commencing her claim. A suit may be filed in federal dis-[1117]*1117triet court after giving the EEOC 30 days’ notice of intent to sue. 29 U.S.C. § 633a(d). In the alternative, an agency complaint may be filed and, after final disposition on the merits by the EEOC, a claimant may file suit in federal district court. 29 U.S.C. § 633a(c). The question here is whether the claimant may begin in the administrative procedure and before it is completed, abandon it for a suit in federal court. While the statute and regulations do not explicitly answer this question, we agree with the circuits that have found administrative remedies, once initiated, must be exhausted before a suit may be filed. Purtill v. Harris, 658 F.2d 134, 138 (3rd Cir.1981), cert. denied, 462 U.S. 1131, 103 S.Ct. 3110, 77 L.Ed.2d 1365 (1983); Castro v. United States, 775 F.2d 399, 404 (1st Cir.1985); Rivera v. United States Postal Serv., 830 F.2d 1037 (9th Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct.

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900 F.2d 1114, 1990 U.S. App. LEXIS 6525, 53 Empl. Prac. Dec. (CCH) 39,885, 54 Fair Empl. Prac. Cas. (BNA) 867, 1990 WL 50827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcginty-v-united-states-department-of-the-army-ca7-1990.