UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1745
LUZ J. AUSTIN,
Plaintiff - Appellant,
versus
DONALD C. WINTER, Secretary of the Navy,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:05-cv-01367-TSE)
Argued: March 18, 2008 Decided: July 11, 2008
Before WILKINSON and MOTZ, Circuit Judges, and William L. OSTEEN,
Jr., United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Thomas R. Gill, GILL GROUP, APC, San Diego, California,
for Appellant. Ralph Andrew Price, Jr., OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Chuck Rosenberg, United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Luz Austin seeks review of the district court ruling
which granted summary judgment to the Secretary of the Navy
(“Secretary”) based on Appellant’s failure to exhaust all
administrative remedies before filing a complaint in the district
court. This court has jurisdiction over the appeal of a final
judgment of a district court. 28 U.S.C. § 1291.1 For the reasons
set forth below, we affirm.
I. Facts
In February 2003, Appellant, a Filipino female, was hired by
the Navy as an accounting technician for the Navy’s Camp Butler
facility in Okinawa, Japan. This position required Appellant to
work jointly with Japanese government employees under the Master
Labor Contract, an international agreement between the governments
of the United States and Japan. Though Appellant’s job was
officially titled “lead account technician,” her job description
contained no reference to supervisory or leadership
responsibilities. In fact, Appellant’s supervisor specifically
instructed her on numerous occasions not to supervise or counsel
her coworkers. Despite these repeated directives, Appellant
continually attempted to supervise her coworkers.
1
Appellant claims that this court has jurisdiction over this
matter under 42 U.S.C. § 2000. There is no such specific
provision. This court does have jurisdiction under 28 U.S.C. §
1291.
2
On September 25, 2003, the Navy terminated Appellant’s
employment.2 The termination letter stated that Appellant was
being terminated because of her failure to heed her superior’s
instructions regarding the supervision of other workers, constant
complaints about her salary grade level, and insubordinate
behavior. The letter informed Appellant of her rights to challenge
her termination, stating that she could appeal the termination
action to the Merit Systems Protection Board (“MSPB”) if her appeal
was based upon discrimination for partisan political reasons or
marital status, or the termination was not “effected in accordance
with the procedural requirements.” (J.A. 126.) The letter also
informed Appellant that a termination resulting from discrimination
“based on race, color, religion, sex, or national origin,
handicapping condition or age” was not appealable to the MSPB, but
could be appealed through the Equal Employment Opportunity
Commission (“EEOC”). (Id.)
On or about October 25, 2003, Appellant challenged her
termination by filing an appeal petition to the MSPB.3 Appellant’s
petition made two claims: (1) the Navy discriminated against her
based on her race, gender, and age, and (2) the Navy failed to
follow the proper administrative procedures in effecting her
2
Appellant’s employment was terminated by the same person who
significantly participated in the decision to hire Appellant.
3
Appellant’s petition of appeal to the MSPB is undated, but
was acknowledged as timely received within the 30-day deadline by
the MSPB on October 30, 2003.
3
termination. On November 4, 2003, while the MSPB appeal was
pending, the Appellant also contacted an EEO counselor and alleged
that her termination was unlawful for the same reasons stated in
the MSPB petition. After her attempts to resolve the matter on an
informal level were unsuccessful, Appellant filed a formal
complaint with the Navy’s EEO office on December 23, 2003, again
alleging that she was terminated because of her race, age, and
gender. The Navy EEO office informed Appellant that it would hold
her complaint in abeyance until the MSPB ruled on whether it had
jurisdiction to hear her appeal as required by 29 C.F.R. §
1614.302(c)(2)(ii).
On February 9, 2004, an MSPB Administrative Law Judge (“ALJ”)
found that the MSPB lacked jurisdiction to hear Appellant’s claims
because she was a probationary employee at the time of her
termination and the MSPB has no authority to preside over decisions
affecting probationary employees. Appellant appealed this decision
to the MSPB Appeals Board, claiming that she was not a probationary
employee. The MSPB Appeals Board disagreed and affirmed the ALJ’s
decision on February 4, 2005, nearly a year later.
On February 24, 2005, after receipt of the MSPB’s final
judgment, the Navy informed Appellant that it would begin
investigating her formal EEO complaint. The Department of
Defense’s Office of Complaint Investigation (“OCI”) was assigned
Appellant’s case, and after reviewing the initial materials,
4
decided to dismiss one of Appellant’s ancillary claims.4 To
further aid in the investigation of Appellant’s remaining claims,
the OCI set up a fact-finding conference pursuant to 29 C.F.R. §
1614.108(b), to be held via telephone on July 29, 2005. According
to the OCI, the fact-finding conference would be used as both an
opportunity to gather evidence as well as an opportunity to discuss
settlement. (J.A. 175).
On July 10, 2005, Appellant contacted and informed the OCI
that although she was not dropping the complaint she would not
participate in the fact-finding conference on advice of counsel.
Appellant’s correspondence read: “I would like to cancel this call
[the fact-finding conference] due to the advised [sic] of my lawyer
so that he may analyze the whole case. Please be reminded that I
am determined to see this case through whatever it takes so I am
not dropping the complaints.” (J.A. 64.) Appellant’s attorney
sent similar correspondence verifying that Appellant would not
participate in the fact-finding conference because she intended to
seek a remedy in court. The attorney’s letter stated: “This letter
is sent as a matter of courtesy to notify suit will occur prior to
July 29, 2005, the date now set for interviews. To be sure we’re
clear, Ms. Austin will not participate in the latter [the fact-
finding conference].” (J.A. 181 (emphasis original).)
4
Appellant initially made claims in addition to those for
discrimination, which included, inter alia, alleged rights to
overtime pay.
5
In accordance with Appellant’s request, the OCI suspended its
investigation of Appellant’s complaint. The OCI then sent
Appellant notice of her obligation to inform the OCI within 15
calendar days of her intentions with respect to the EEO case,
otherwise her case would be dismissed in accordance with 29 C.F.R.
§ 1614.107(7). Neither Appellant nor her counsel contacted the OCI
within 15 calendar days as required. Instead, Appellant filed a
complaint in the Southern District of California on August 5,
2005.5 The OCI dismissed Appellant’s EEO case after the 15-day
notice period expired.
In the district court, Appellee moved for summary judgment
claiming, inter alia, that Appellant failed to exhaust her
administrative remedies before filing in the district court. The
district court held that Appellant’s withdrawal from the fact-
finding conference and failure to follow through on her EEO
complaint constituted a failure to pursue administrative remedies.
Accordingly, the district court granted summary judgment in favor
of the Secretary. The case is now before this court on appeal from
the district court’s judgment.
5
Appellant filed a complaint in the District Court for the
Southern District of California. That court transferred the case
to the Eastern District of Virginia, as that is the appropriate
district to bring suit against the Navy. See 42 U.S.C. § 2000e-
5(f)(3); also J.A. 2-3, 209.
6
II. Analysis
We review a district court’s order granting summary judgment
de novo. See Livingston v. Wyeth, Inc., 520 F.3d 344 (4th Cir.
2008) (citing Holland v. Washington Homes, Inc., 487 F.3d 208, 213
(4th Cir. 2007)). Summary judgment is appropriate where an
examination of the pleadings, affidavits, and other proper
discovery materials before the court demonstrate that no genuine
issues of material fact exist, thus entitling the moving party to
judgment as a matter of law. Fed. R. Civ. P. 560; see Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S. Ct. 2548, 2552
(1986). We construe the facts in the light most favorable to
Appellant, as she was the nonmoving party. See Laber v. Harvey,
438 F.3d 404, 415 (4th Cir. 2006) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505 (1986)).
The district court found that Appellant refused to cooperate
in the fact-finding conference and held that this refusal
constituted a failure to exhaust her administrative remedies.
Appellant argues that the district court erred in reaching this
conclusion on two grounds: (1) Appellant’s substantial compliance
with the administrative process constituted an exhaustion of
remedies, and (2) the Secretary should be equitably estopped from
raising an exhaustion argument because the Navy failed to properly
advise Appellant of her rights.
7
A. Substantial Compliance
Appellant’s principal argument to support a finding of
exhaustion is that she substantially complied with the
administrative process and therefore should be excused from
participating in the fact-finding conference. The district court
found this argument to be unpersuasive, holding that a “claimant
cannot abandon the [administrative] process simply because she is
dissatisfied with the pace of the proceedings or because [she]
subjectively views the resolution of the dispute unlikely or
futile.” (J.A. 213.) We agree with the district court.
Federal employees who seek to enforce their rights under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
must exhaust their available administrative remedies prior to
pursuing an action in federal court. Brown v. General Serv.
Admin., 425 U.S. 820, 832, 96 S. Ct. 1961, 1968 (1976) (“Initially,
the complainant must seek relief in the agency that has allegedly
discriminated against him.”). This requirement exists to minimize
“judicial interference with the operation of the federal
government.” Doe v. Oberweis Dairy, 456 F.3d 704, 712 (7th Cir.
2006) (citation omitted). It also affords an “agency the
opportunity to right any wrong it may have committed.” McRae v.
Librarian of Congress, 843 F.2d 1494, 1496 (D.C. Cir. 1988).6
6
The Code of Federal Regulations and United States Code govern
the requirements for filing a Title VII complaint. These
regulations require an aggrieved person who believes he or she has
been discriminated against the basis of race, color, religion, sex,
8
Appellant initially availed herself of the administrative
process but never followed the process through to completion.
Appellant argues, however, that continued attempts to resolve the
matter at the administrative level would have been futile. The
facts of the case show otherwise.
Appellant contends that her lack of participation in the fact-
finding conference should be excused because the fact-finding
conference was a duplicitous procedure that would not have
contributed any additional information to her administrative case.
These fact-finding conferences are specifically authorized by the
Code of Federal Regulations as a means of developing “an impartial
and appropriate factual record upon which to make findings on the
claims raised by the written complaint.” 29 C.F.R. § 1614.108(b).
The factual record developed through the use of these conferences
“allows a reasonable fact finder to draw conclusions as to whether
discrimination occurred.” Id. Contrary to Appellant’s contention,
the fact-finding conference was an important part of the
investigative process and integral to reaching a final decision on
Appellant’s claim.
national origin, age or handicap to consult a counselor prior to
filing a complaint and attempt to resolve the matter informally.
29 C.F.R. § 1614.105(a). This contact must occur within 45 days of
either the occurrence of the matter alleged, or the effective date
of a personnel action. Id. § 1614.105(a)(1). After filing a
formal complaint, an aggrieved person may bring suit in federal
court either within 90 days of a final agency action, or if no
final action was taken, after 180 days from the filing of the
initial charge. 42 U.S.C. § 2000e-16(c).
9
In this case, the OCI intended to use the fact-finding
conference as an opportunity to transcribe witness and party
testimony under oath and as a forum to discuss potential settlement
solutions. Additionally, the OCI placed great emphasis on the
importance of the fact-finding conference, stating in its notice to
Appellant that “[t]hose failing to appear without good cause will
be considered to have failed to cooperate in an official
investigation.” (J.A. 176.)7
While private sector Title VII cases do not require a claimant
to cooperate in the administrative process, the same is not true in
cases involving federal employees. See Jasch v. Potter, 302 F.3d
1092, 1094 (9th Cir. 2002) (“Exhaustion [in an action against a
federal agency] requires that a plaintiff comply with regulatory
and judicially-imposed exhaustion requirements, including the
requirement to pursue the administrative claim with diligence and
in good faith.”) (citation and internal quotations omitted);
Oberweis Dairy, 456 F.3d at 709-12 (Title VII “does not impose a
duty of cooperation” in private sector cases, “[b]ut the statutory
framework is different” for federal employees.); but see Shikles v.
Sprint/United Mgmt. Co., 426 F.3d 1304 (10th Cir. 2005) (The court
held that a private sector employee was required to cooperate with
7
Complaint investigators are given a considerable amount of
authority during their investigations and may take a number of
actions against those who “fail without good cause shown to respond
fully and in timely fashion to [the investigator’s] requests.” 29
C.F.R. § 1614.108(c)(3).
10
the EEOC in order to exhaust his administrative remedies.). In
fact, a “complainant’s failure to cooperate in the administrative
process precludes exhaustion when it prevents the agency from
making a determination on the merits.” Jasch, 302 F.3d at 1094
(citations omitted); see also Woodard v. Lehman, 717 F.2d 909, 915
(4th Cir. 1983) (“When the plaintiffs refused to provide such
information and thereby frustrated administrative review of the
merits of their claims, the District Court should not have reached
the merits of their claims but should have granted the defendant’s
motion to dismiss for failure to exhaust administrative remedies.”)
(citation and internal quotations omitted).
Though Appellant began the administrative process, this
process was not complete until Appellant fully participated in all
required aspects of the investigation and the Navy reached a final
decision on her claim. Otherwise, the administrative process
“would be blunted if the employee could bypass the employer by not
cooperating.” Oberweis Dairy, 456 F.3d at 712. Appellant cannot
show that she cooperated in any way with the fact-finding
conference. Instead, Appellant offers conflicting excuses for
canceling the fact-finding conference. For example, Appellant
stated that the fact-finding conference was redundant because she
previously provided numerous statements to the investigating
agency; however, she admitted that she “had not spoken with an
investigator.” (J.A. 82.) Appellant also claimed that she desired
11
to cancel the conference because she was in need of a translator.
If this was the case, Appellant would have greatly benefitted from
submitting additional and accurate testimony with the aid of a
translator at the fact-finding conference.
Appellant’s behavior in this case is no different from that in
other cases where courts have found a failure to cooperate and thus
affirmed a finding that the complainant failed to exhaust
administrative remedies. In Johnson v. Bergland, 614 F.2d 415 (5th
Cir. 1980), for example, the Fifth Circuit reviewed a federal
agency’s decision to dismiss a complaint based upon the plaintiff’s
failure to provide the agency with more detailed information
concerning the specific dates and instances to support the
plaintiff’s claim. In affirming the agency’s decision, the court
concluded the plaintiff’s failure “to supply the agency with
information sufficiently specific to enable it to conduct a
meaningful investigation. . .” was sufficient cause to find the
plaintiff failed to exhaust his administrative remedies. Id. at
418 (citation omitted).
Likewise in Woodard v. Lehman, 717 F.2d 909 (4th Cir. 1983),
the Fourth Circuit reviewed a case involving two plaintiffs who
filed disparate treatment claims against the Secretary of the Navy.
Just as in Johnson, the agency requested that plaintiffs provide
more detailed information regarding their complaints, including
12
specific dates and instances, but the plaintiffs failed to comply.8
Woodard, 717 F.2d at 912. In response, the agency dismissed the
plaintiffs’ charges. Id. The plaintiffs then filed a complaint in
federal district court, to which the Secretary moved for summary
judgment based on the plaintiffs’ failure to exhaust their
administrative remedies. Id. Though the district court denied the
motion, the Fourth Circuit revisited the issue in its decision and
criticized the district court’s ruling as “manifestly incorrect.”
Id. at 914. The Fourth Circuit stated that the agency’s motion
should have been granted because the plaintiffs in “refusing to
give such details and dates . . . prevented the defendant from
investigating the charges and consequently failed to exhaust
[their] administrative remedies.” Id. at 914.
In this case, Appellant’s actions prevented the agency from
fully investigating the complaint and reaching a final decision.
Accordingly, this court finds that Appellant’s failure to cooperate
constitutes a failure to exhaust her administrative remedies.
B. Estoppel
Appellant contends that the Secretary should be estopped from
raising an exhaustion of administrative remedies defense because
the Navy acted in bad faith in failing to apprise Appellant of her
8
Instead, the plaintiffs responded to the Navy’s request for
additional details through their attorneys who stated that they
“were willing to meet with the Navy officials to provide additional
details.” Id. at 914.
13
rights to challenge her termination. The Secretary argues that
there is no estoppel against the government absent a showing of
affirmative misrepresentation by a government agent, and that the
behavior alleged by Appellant is not of the type that would support
estoppel. We agree.
In order for equitable estoppel to apply to preclude a
defense, the party claiming equitable estoppel must satisfy the
following requirements:
(1) the party to be estopped knew the true facts; (2) the
party to be estopped intended for his conduct to be acted
upon or acted in such a way that the party asserting
estoppel had a right to believe that it was intended; (3)
the party claiming estoppel was ignorant of the true
facts; and (4) the misconduct was relied upon to the
detriment of the parties seeking estoppel.
Dawkins v. Witt, 318 F.3d 606, 612 n.6 (4th Cir. 2003) (citation
and internal quotations omitted). These requirements differ,
however, when the party to be estopped is the federal government.
See Office of Pers. Management v. Richmond, 496 U.S. 414, 419, 110
S. Ct. 2465, 2469 (1990) (“equitable estoppel will not lie against
the Government as against private litigants”) (citation omitted).
To estop the federal government, a party must show “affirmative
misconduct by government agents.” Dawkins, 318 F.3d at 611
(citations omitted); see also Richmond, 496 U.S. at 420, 110 S. Ct.
at 2470. The standard for showing affirmative misconduct is
rigorous. See Richmond, 496 U.S. at 422, 110 S. Ct. at 2470 (“we
have reversed every finding of estoppel [against the federal
14
government] that we have reviewed”). The Court, however, has not
foreclosed the possibility of estopping the federal government.
See Heckler v. Community Health Servs., 467 U.S. 51, 60, 104 S. Ct.
2218, 2224 (1984) (declining to hold that the federal government
may never be estopped).
Appellant maintains that the Navy failed to advise her
regarding the proper process of filing a discrimination claim
because it did not specifically direct her to file with the EEO
office, and instead allowed her to pursue a claim with the MSPB
despite knowing the MSPB had no jurisdiction. Appellant’s argument
is without merit. Upon being terminated, Appellant received a
letter informing her of the ways in which a terminated employee
could challenge his or her discharge. (J.A. 125-27.) After
receiving this letter Appellant decided to file a complaint with
both the MSPB and EEO office. Appellant chose this course of
action, not as a result of being misdirected by a government
employee, but rather because she “believed it was necessary to file
with both to protect [her] rights.” (J.A. 81.) During this
process, Appellant’s EEO claim was held in abeyance while the MSPB
reviewed her discrimination claim. The EEOC informed Appellant
that “[i]f the MSPB administrative judge determines that MSPB does
not have jurisdiction of your appeal, the agency [EEO office] will
recommence processing of your complaint.” (J.A. 145.)
15
On February 9, 2004, the ALJ determined the MSPB lacked
jurisdiction to hear Appellant’s appeal because she was a
probationary employee. Despite receiving information that
specifically informed her that the EEO office would begin
investigation of her complaint at this point in time, Appellant
felt compelled to appeal the ALJ’s decision because she believed
she was not a probationary employee. Her decision to appeal the
ALJ’s ruling was not influenced by any advice proffered by a
government agent, but instead over her own misunderstanding of the
process and her erroneous belief that the only way to protect her
rights was to file another appeal. This is certainly not the type
of circumstance that would qualify as affirmative misconduct.
Even assuming that a government agent misinformed Appellant of
the proper method of filing a complaint, Appellant would still not
have a proper basis for estoppel. See Dawkins, 318 F.3d at 611
(“The Supreme Court has consistently denied efforts by litigants to
estop the government from raising defenses based on claimants’
failures to comply with governmental procedures due to
misinformation from government agents.”) (citing Office of
Personnel Management v. Richmond, 496 U.S. 414, 110 S. Ct. 2465
(1990); Schweiker v. Hansen, 450 U.S. 785, 101 S. Ct. 1468 (1981);
Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 68 S. Ct. 1
(1947)).
16
Appellant failed to identify, nor can we find, any set of
facts that would constitute affirmative misconduct by the United
States Government. Moreover, there was no action on behalf of the
Secretary that denied Appellant the opportunity of administrative
review. Appellant decided not to participate in the fact-finding
conference. There are no grounds to allow Appellant to equitably
estop the Secretary from raising the defense of failing to exhaust
administrative remedies. Accordingly, we affirm the district
court’s ruling.
III. Conclusion
For the reason set forth herein, we affirm the judgment of the
district court granting summary judgment in favor of the Secretary
of the Navy.
AFFIRMED
17