UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 97-30954
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COLBURN P. RANDEL,
Plaintiff-Appellant,
versus
UNITED STATES DEPARTMENT OF THE NAVY, JOHN H.
DALTON, Secretary
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
October 15, 1998
Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA,
Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Plaintiff, Colburn Randel, appeals the district court’s
dismissal of his Title VII action pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure. Randel contends that the
district court erred in determining that (1) he failed to exhaust
his administrative remedies with respect to his claim of racial
discrimination, and (2) he did not timely appeal his claim for
reprisal. Concluding that the district court is correct with
respect to the racial discrimination claim, but incorrect with
respect to the reprisal claim, we affirm in part, reverse in part,
and remand for further proceedings consistent with this opinion.
I
Colburn Randel worked as a computer specialist for the Naval
Research Personnel Center. Beginning in 1994, Randel initiated the
first of two proceedings against his employer, John H. Dalton,
Secretary of the Department of the United States Navy (“the Navy”)
alleging discrimination in violation of Title VII.
The first proceeding (“Randel I”) began in March 1994, when
Randel filed an Equal Employment Opportunity (“EEO”) complaint of
racial discrimination against his supervisor. In June 1994, this
complaint was referred to the Equal Employment Opportunity
Commission (“EEOC”) for review. The EEOC did not render a decision
within 180 days, and therefore, on April 19, 1995, Randel filed his
complaint in federal district court. See 5 U.S.C. § 7702(e)(1).
The second proceeding (“Randel II”) began on October 14, 1994,
one month after the Navy fired Randel allegedly for excessive
unexcused absences. Believing that he suffered from major
depression due to his work environment, and that he was entitled to
sick leave for this disability, Randel appealed his removal to the
Merit Systems Protection Board (“MSPB”). Before the MSPB, Randel
claimed that the Navy unlawfully fired him, and alleged
specifically that his termination constituted both reprisal for his
prior EEO complaint and disability discrimination. This appeal to
the MSPB did not contain a claim of racial discrimination. The
MSPB upheld the Navy’s decision to fire Randel, and on June 13,
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1995, Randel appealed the MSPB’s decision to the EEOC. See 5
U.S.C. § 7702(b)(1).
On August 25, 1995, before the EEOC reached a decision in
Randel II, Randel filed an amended complaint in Randel I asserting
a claim of disability discrimination. Thus, Randel asked the
district court to decide his disability discrimination claim as
part of Randel I, even though the same claim remained pending
before the EEOC in Randel II. The district court concluded that
Randel had failed to exhaust his administrative remedies, and
dismissed Randel I for lack of subject matter jurisdiction.
On August 8, 1996, the EEOC issued its decision in Randel II.
The EEOC reached two conclusions. First, it concurred with the
MSPB that the Navy did not fire Randel in reprisal for filing the
EEO complaint for racial discrimination. Second, it found that
contrary to the MSPB’s prior determination, the Navy had
discriminated against Randel because of his disability.
Additionally, the EEOC explained that its decision was final and
that upon receipt of its decision Randel had “the right to file a
civil action in an appropriate United States District Court, based
on the decision of the Merit Systems Protection Board, WITHIN
THIRTY (30) CALENDAR DAYS....” The EEOC then referred the case to
the MSPB pursuant to 5 U.S.C. § 7702(b)(5)(B).1 In an opinion and
1
Once the EEOC decides to consider a petition, the EEOC may take one
of two actions: the EEOC may either (1) concur with the decision of the MSPB,
or (2) issue a decision in writing that differs from the decision of the MSPB.
If the EEOC concurs with the MSPB’s decision, then the claimant has thirty days
from receiving notice to appeal to the district court. If the EEOC differs from
the MSPB’s decision, then the case is returned to the MSPB. The MSPB may then
either concur with the EEOC or reaffirm its original decision. If it concurs
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order dated November 12, 1996, the MSPB adopted the EEOC’s decision
finding disability discrimination, and notified Randel that he had
a right to file a civil action in United States District Court
within thirty days after receiving its order.
On December 13, 1996))thirty days after receiving the MSPB
order))Randel appealed the decision of the EEOC, as confirmed by
the MSPB, to the United States District Court for the Eastern
District of Louisiana. Randel’s petition sought relief on both his
reprisal and racial discrimination claims. The Navy moved for
dismissal, factually attacking the district court’s subject matter
jurisdiction. The district court granted the motion for two
reasons. First, the district court held that because Randel did
not appeal until ninety-seven days after the August 8th EEOC
decision he failed to timely appeal his reprisal claim. Second, it
found that Randel never raised a claim of racial discrimination in
any of the proceedings in Randel II, and therefore failed to
exhaust his administrative remedies. For these reasons, the
district court concluded that it lacked jurisdiction over both
Randel’s reprisal claim and his claim of racial discrimination.
Randel appealed timely.
II
This appeal involves the district court’s denial of subject
matter jurisdiction over Randel’s claims pursuant to Rule 12(b)(1)
with the EEOC, then the administrative proceeding is exhausted and the claimant
has thirty days from receiving notice to appeal to the district court. If it
reaffirms its original decision, however, then the case is sent to a Special
Panel for further consideration. See 5 U.S.C. § 7702; see also 29 C.F.R. §
1614.310 (1998).
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of the Federal Rules of Civil Procedure. We review the district
court’s determinations of disputed fact under the “clearly
erroneous” standard. See MDPhysicians & Assoc., Inc. v. State Bd.
of Ins., 957 F.2d 178, 180-81 (5th Cir. 1992)(citing Williamson v.
Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). Questions of law we
review de novo. See Stults v. Conoco, Inc., 76 F.3d 651, 654 (5th
Cir. 1996).
As a precondition to filing suit in federal court, Title VII
specifically requires a federal employee claiming discrimination to
exhaust his administrative remedies. See Brown v. General Servs.
Admin., 425 U.S. 820, 832, 96 S.Ct 1961, 1965, 48 L.Ed. 2d 402
(1976)(“Initially, the complainant must seek relief in the agency
that has allegedly discriminated against him.”). The complainant
also must file his complaint in a timely manner. See Tolbert v.
United States, 916 F.2d 245, 247 (5th Cir. 1990). If the claimant
fails to comply with either of these requirements then the court is
deprived of jurisdiction over the case. See id.
A
The Navy contends that Randel failed to exhaust his
administrative remedies as to his claim of racial discrimination.
The EEO charge filed in Randel II makes no reference to race
discrimination. It is confined to reprisal and disability
discrimination. Randel maintains nonetheless that the EEOC’s and
the MSPB’s findings of no reprisal necessarily include a finding of
no racial discrimination. We disagree. To recover on his reprisal
claim Randel had to prove that the Navy fired him because he
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complained to the EEOC; he did not “‘need [to] . . . prove the
underlying claim of discrimination which led to [his] protest.’”
Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997); see also
Aman v. Carol Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir.
1996)(noting that “a plaintiff need not prove the merits of the
underlying discrimination complaint, but only that ‘he was acting
under a good faith, reasonable belief that a violation
existed’”)(citations omitted); Balazs v. Liebenthal, 32 F.3d 151,
158 (4th Cir. 1994)(stating that “[i]t is further generally held
that to sustain a suit for retaliation it is not necessary that the
plaintiff prove that the underlying claim of discrimination was
true”). Randel’s racial discrimination claim is separate and
distinct from his reprisal claim, and accordingly, he must exhaust
his administrative remedies on that claim before seeking review in
federal court. See Williams v. Little Rock Mun. Water Works, 21
F.3d 218, 223 (8th Cir. 1994)(noting that plaintiff’s race
discrimination claim was “separate and distinct from her claims of
retaliation” before the EEOC); see also Shannon v. Ford Motor Co.,
72 F.3d 678, 685 (8th Cir. 1995)(citing Williams, and noting that
even though the plaintiff in Williams mentioned her unexhausted
discrimination claim in her retaliation complaint, “this reference
to her previous complaint was not enough to exhaust, for Title VII
purposes, the discrimination claim”). Thus, we agree with the
district court that, in relation to the racial discrimination
claim, Randel failed to exhaust his administrative remedies and
therefore, the court lacked jurisdiction.
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B
The district court’s conclusion that Randel did not appeal
timely his reprisal claim is, however, a different matter.
According to the district court, Randel “should have filed the
appeal within thirty days of the August 8, 1996 ruling by the
EEOC.” The district court reasoned that because the EEOC and the
MSPB agreed as to the reprisal claim on August 8, 1996, the EEOC’s
decision on that claim became a final appealable decision. Randel
argues that a final agency decision did not exist until November
12, 1996, when the MSPB and the EEOC agreed on both his reprisal
and disability claims. We must decide, therefore, whether the
EEOC’s finding of no reprisal became final on August 8, 1996, for
purposes of appeal, even though Randel’s disability discrimination
claim remained unresolved until November 12, 1996. In other words,
we must decide whether the EEOC’s August 8th decision operated to
sever Randel’s reprisal claim from the rest of his complaint. We
find that our reasoning in Gomez v. Department of the Air Force,
869 F.2d 852 (5th Cir. 1989) controls the resolution of this issue.
In Gomez, the plaintiff filed a complaint with the EEOC
against the Secretary of the Department of the Air Force (“the Air
Force”), alleging discrimination based on national origin and
handicap. The EEOC rejected the plaintiff’s national origin claim,
but referred the handicap claim to the MSPB for additional
evidence. The EEOC did not take further action on his handicap
claim, and therefore, after waiting 180 days from when he first
filed his petition with the EEOC, the plaintiff submitted his
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complaint to the district court. See 5 U.S.C. § 7702(e)(1). The
district court dismissed for lack of subject matter jurisdiction
because the plaintiff did not file his action within thirty days of
the EEOC’s decision on his national origin claim.
On appeal, we reversed. We held that because the EEOC’s order
never stated that it was severing the plaintiff’s national origin
claim, and because the regulatory framework did not support
piecemeal resolution of the plaintiff’s original complaint, the
plaintiff’s appeal was filed timely with the district court. We
carefully noted that the EEOC must provide prior notice to the
claimant before severing claims:
We do not mean to suggest that the EEOC could not (or
could) adopt a severance procedure in “mixed cases” where
only discrimination claims are alleged. Rather, we
merely find that in the absence of any prior notice or
indication on the part of the EEOC that it may utilize a
severance procedure, we hesitate to recognize such a
power on its part. . . . Finding severance, when there is
nothing in the record to support the idea that the EEOC
utilizes severance in mixed case (or in cases generally)
or that they actually purported to sever in this case,
would require a level of after-the-fact judicial
improvisation that we are not willing to reach. It would
also result in injustice to the claimant who could have
had no prior knowledge of such practice.
Id. at 860-61.
We now reiterate that if the EEOC wishes to use its power of
severance it must provide the claimant with clear and unambiguous
notice that it has chosen to sever his claims.2 In the absence of
2
We note that the EEOC has the power to sever in mixed cases where
only discrimination claims are alleged. In mixed cases that contain both
discrimination and nondiscrimination claims, “the courts have refused to
countenance severance of the claims.” Gomez, 869 F.2d at 860; see also Williams
v. Department of the Army, 715 F.2d 1485, 1487 (Fed. Cir. 1983)(finding that the
Court of Appeals for the Federal Circuit did not have the power to bifurcate
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clear direction from the EEOC, the claimant must wait until a final
decision has been rendered on the entirety of his original
petition for review before appealing either claim to federal
district court.
In this case, the EEOC did not provide adequate notice to
Randel that it was severing his claims. As Randel notes correctly,
the statement setting forth the plaintiff’s rights to file a civil
action “was unclear at best.” Thus, Randel waited appropriately
until the MSPB rendered its final decision adopting the EEOC’s
finding of disability discrimination before appealing timely to
federal district court.
C
In addition to arguing that Randel did not file timely his
appeal, the Navy suggests another reason why the district court
lacked jurisdiction over Randel’s reprisal claim. According to the
Navy, by amending his district court complaint in Randel I to
include the same claim of disability discrimination then pending in
Randel II, Randel circumvented the administrative process and
therefore abandoned both his disability and reprisal claims before
the EEOC in Randel II. In other words, according to the Navy, once
Randel appealed to the EEOC and then prematurely filed the
disability discrimination claim in Randel I, the EEOC lost
jurisdiction to consider Randel’s entire appeal.
As we read the record, the district court did not fully
mixed case appeals into nondiscrimination cases [for review by the federal
appeals court] and discrimination cases [for review by the federal district
court]).
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comprehend the Navy’s argument. It concluded that Randel did not
abandon his reprisal claim because Randel never amended his
complaint in Randel I to include a claim for reprisal. The Navy
makes a more nuanced argument. It argues that by amending his
complaint in Randel I to include even just the disability
discrimination claim, Randel terminated the entire proceeding
before the EEOC. Randel never exhausted, therefore, his
administrative remedies.
We note that under some circumstances, “abandonment of the
administrative process may suffice to terminate an administrative
proceeding before a final disposition is reached, thus preventing
exhaustion and precluding judicial review.” Vinieratos v. United
States Dep’t of Air Force, 939 F.2d 762, 770 (9th Cir.
1991)(emphasis added). Neither the Ninth Circuit nor any other
circuit has specified when abandonment of one administrative claim
by a claimant will taint all of his claims and result in the
termination of the entire administrative proceeding. Some cases
suggest, however, that we should look to whether the claimant made
a good faith effort to cooperate with the administrative agency.
See, e.g., Munoz v. Aldridge, 894 F.2d 1489, 1492 (5th Cir.
1990)(noting that “exhaustion does require good faith participation
in the administrative process”). Besides filing his amended
complaint in Randel I to include a claim for disability
discrimination, the record discloses no evidence that Randel failed
to cooperate or otherwise attempted to frustrate the administrative
process. Thus, we hold that the circumstances of this case do not
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justify the severe result advocated by the Navy. We are unwilling
to find that by amending his civil suit to include a claim of
disability discrimination in Randel I, Randel thereby abandoned his
reprisal claim in Randel II.3
III
For the foregoing reasons, we AFFIRM the district court’s
dismissal of Randel’s racial discrimination claim, we REVERSE its
dismissal of Randel’s reprisal claims, and we REMAND for further
proceedings consistent with this opinion.
3
We do not pass judgment on whether Randel abandoned his disability
claim by filing the same claim in Randel I. Although both parties briefed this
issue, neither party appealed the MSPB’s determination on Randel’s disability
discrimination claim to the district court. That claim, therefore, was not
properly presented to the district court, and is not considered on appeal. See
In the Matter of HECI Exploration Co., 862 F.2d 513, 517 n.5 (5th Cir.
1988)(noting that the district court “was not empowered to reach the merits” of
an issue on appeal from bankruptcy court because the appellee did not file a
notice of appeal).
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Randel v. US Dept of the Navy
Combined Opinion