Wright v. Henderson

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 9, 1999
• Docket: 99-1234
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 9 1999 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk

RONNIE WRIGHT,

Plaintiff-Appellant,

v. No. 99-1234 (D. Colo.) WILLIAM HENDERSON; UNITED (D.Ct. No. 98-M-2458) STATES POSTAL SERVICE,

Defendants-Appellees. ____________________________

ORDER AND JUDGMENT *

Before BRORBY, EBEL, and LUCERO, 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)(2); 10th Cir. R. 34.1(G). 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* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. Appellant Ronnie Wright appeals pro se the district court’s decision

dismissing his Title VII discrimination action for lack of jurisdiction for failure to

exhaust his administrative remedies. 1 We exercise our jurisdiction under 28

U.S.C. § 1291 and affirm.

Mr. Wright is an employee of the United States Postal Service. In

September 1995, the Postal Service did not select Mr. Wright for the supervisor

position for which he applied. After contacting an Equal Employment

Opportunity Commission counselor, Mr. Wright filed a discrimination complaint,

which was referred to an Equal Employment Opportunity Commission

administrative judge, who issued a decision recommending a finding of no

discrimination. On July 1, 1998, the Postal Service issued a Final Agency

Decision adopting the administrative judge’s findings and conclusions. On

August 10, 1998, Mr. Wright appealed the Final Agency Decision to the Equal

Employment Opportunity Commission.

Before the Equal Employment Opportunity Commission acted on his

1 The district court also denied Mr. Wright’s motion for leave to proceed on appeal pursuant to 28 U.S.C. § 1914 and Fed. R. App. P. 24. Mr. Wright, on appeal, moves to proceed without prepayment of costs or fees.

-2- administrative appeal, Mr. Wright filed a complaint with the federal district court

on November 10, 1998, alleging jurisdiction pursuant to 42 U.S.C. § 2000e and

28 U.S.C. §§ 1331 and 1343(A)(1) & (4). The government filed a motion to

dismiss for lack of jurisdiction, to which the district court ordered Mr. Wright

respond by February 16, 1999. Mr. Wright did not respond, and on April 13,

1999, the district court granted the government’s motion to dismiss, concluding

“there is no jurisdiction for this civil action.”

On appeal, Mr. Wright sets forth numerous arguments on the merits of his

case. As to the jurisdictional issue, he claims the district court retained

jurisdiction because the administrative judge “Relest [sic] All Document[s] From

EEOC So I Could File In Civil Court.” He also contends he filed a response to

the government’s motion to dismiss, as evidenced by cameras in the federal court

building which would show his presence in the building on February 16, 1999.

“We review de novo the district court’s dismissal of an action for lack of

subject matter jurisdiction.” Jones v. Runyon, 91 F.3d 1398, 1399-1400 (10th Cir.

1996), cert. denied, 520 U.S. 1115 (1997) (citation omitted). Prior to filing a

Title VII action in district court, a federal employee is required to exhaust his

administrative remedies as a jurisdictional prerequisite to suit under Title VII. Id.

-3- at 1399. A person may file suit in district court 180 days after filing with the

Equal Employment Opportunity Commission or within ninety days of the agency’s

final action. See Knopp v. Magaw, 9 F.3d 1478, 1479 (10th Cir. 1993) (citing 42

U.S.C. § 2000e-16(c)).

In this case, Mr. Wright elected to file an appeal with the Equal

Employment Opportunity Commission. Because Mr. Wright waited only ninety-

two days, not the required 180 days, to file his complaint in federal district court,

his complaint was premature. Accordingly, he failed to exhaust his administrative

remedies, and therefore deprived the district court of subject matter jurisdiction to

hear his claims. While Mr. Wright contends the district court possessed

jurisdiction, he provides no competent argument nor evidence on appeal to

support this claim. Nor does he offer any evidence – such as a copy of his

response to the government’s motion – to support his claim to dismiss.

For these reasons, Mr. Wright’s motion for leave to proceed on appeal

without prepayment of costs or fees is denied and the district court’s dismissal of

the complaint is AFFIRMED.

Entered by the Court:

WADE BRORBY United States Circuit Judge

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