Opinion
3-01-CV-232-AH
August 5, 2002
MEMORANDUM OPINION AND ORDER
Pursuant to the written consents of the parties and the District Court's order of reassignment filed on October 29, 2001, the above styled and numbered action is before the magistrate judge pursuant to the provisions of 28 U.S.C. § 636(c).
Before the court is Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint filed on December 3, 2001. In his motion Defendant contends inter alia that the court lacks jurisdiction over Plaintiff's claims due to Plaintiff's alleged failure to exhaust his administrative remedies.
After Plaintiff filed his response to Defendant's motion it was brought to the court's attention that a judge of this court had granted a similar motion filed by the defendant in the case of Donnell Linthecome v. O'Neill, 3-00-CV-1172-P — See Memorandum Opinion and Order (Defendant's Exhibit L). The court was further advised that the plaintiff in that action had filed a direct appeal alleging that the District Court had erred in granting Defendant's motion to dismiss for failure to exhaust administrative remedies. Pursuant to an agreed order, discovery in this action was stayed pending the Fifth Circuit's disposition of the direct appeal in the Linthecome case.
On June 27, 2002, the Fifth Circuit affirmed the District Court's order of dismissal in Linthecome in an unpublished opinion. See Linthecome v. O'Neill, No. 01-11592 (5th Cir. 2002).
The jurisdictional facts in the present case are remarkably similar to those in the Linthecome case and are essentially undisputed.
Plaintiff brought this action pursuant to the provisions of Title VII, the Age Discrimination in Employment Act, the Equal Pay Act and the Viet Nam Era Veterans Readjustment Assistance Act. Based upon claims of employment discrimination and as a member of a national collective bargaining agreement unit between the Internal Revenue Service and the National Treasury Employees Union (NTEU) Plaintiff exercised his option to file a grievance under a three-step process. See NORD IV Agreement, Article 41, Section 6. Any adverse decision rendered in Step 3 of the grievance provisions can be appealed to binding arbitration. Plaintiff pursued his grievance remedies through Step 3. However, he did not appeal the adverse decision of binding arbitration. Instead, he filed complaints with the Equal Employment Opportunity Commission (EEOC) on June 17, 1998, and January 27, 1999, respectively. Each complaint was dismissed by the EEOC (See Defendant's Exhibits H and I). Plaintiff in turn appealed these determinations which were affirmed on appeal. (Id. Exhibit J). Plaintiff did not further appeal the adverse Step 3 grievance decision. On February 2, 2001, Plaintiff filed his complaint in this action pro se. Findings and Conclusions: As set out in the District Court's opinion filed on November 13, 2001, in Linthecome v. O'Neill, supra, failure of a federal employee to exhaust his administrative remedies prevents a District Court from adjudicating the employee's discrimination claims.Fitzgerald v. Secetary of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997). The agreement between the union which represented Plaintiff and the Internal Revenue Service provided an employee with two avenues for raising discrimination complaints, i.e. the grievance procedures or the statutory provisions for filing complaints with the EEOC. An employee such as Plaintiff cannot pursue administrative remedies under one alternative after having elected to pursue his remedies under the other alternative. See 5 U.S.C. § 7121(d). In accordance with this statute the EEOC dismissed his employment discrimination complaints both initially and on appeal. Under the record before this court it is clear that Plaintiff has not exhausted his administrative remedies, thus depriving this court of jurisdiction to consider his claims on the merits.
When Plaintiff was first denied a promotion, he was covered by the agreement known as "NORD IV". At the present time he is covered by the agreement known as "NORD V". However, the grievance provisions in each are the same.
IT IS, THEREFORE, ORDERED that Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint filed on December 3, 2001, is granted and Plaintiff's complaint is dismissed.
A copy of this order shall be transmitted to counsel for the parties.