United States Court of Appeals
For the First Circuit
No. 05-2483
JOSEPHINE STOLL,
Plaintiff, Appellant,
v.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Selya, Lipez and Howard,
Circuit Judges.
Nicolas Nogueras-Cartagena and Carmen Eva Garcia-Cardenas on
brief for appellant.
Peter D. Keisler, Assistant Attorney General, H. S. Garcia,
United States Attorney, Marleigh D. Dover and Teal Luthy Miller,
Attorneys, Appellate Staff, Civil Division, United States
Department of Justice, on brief for appellees.
June 7, 2006
SELYA, Circuit Judge. This case arises out of what is
alleged to have been discriminatory action by a government
employer. After testing the waters in two different administrative
fora, the claimant abruptly repaired to the federal district court.
That court rejected her importunings on procedural grounds.
Concluding, as we do, that the claimant's original election of
remedies barred her subsequent attempt to sue, we affirm the
dismissal of her action.
Because the district court acted dispositively on a
motion to dismiss, we glean the few facts that are necessary to an
undertaking of this appeal from the amended complaint
(supplemented, for the sake of completeness, by certain undisputed
facts). See Redondo-Borges v. U.S. Dep't of Hous. & Urban Dev.,
421 F.3d 1, 4 (1st Cir. 2005).
Plaintiff-appellant Josephine Stoll worked in the human
resources office of the Veterans Affairs Medical Center in San
Juan, Puerto Rico from 1987 until the termination of her employment
on September 28, 2001. The appellant alleges that the controlling
agency, the Department of Veterans Affairs (V.A.), created a
hostile work environment and unlawfully discharged her based on her
age (fifty-nine) and her deteriorating health. She also alleges
that the V.A.'s stated justification for her ouster — an
accumulation of warnings and admonishments related to workplace
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attendance and leave policies — resulted directly from arbitrary
harassment by her supervisors.
Initially, the appellant chose to challenge her discharge
before the Merit Systems Protection Board (the Board). See 5
C.F.R. § 1201.22. In this administrative appeal, filed on October
10, 2001, she charged that discriminatory motives had prompted her
firing.1 After she had asked to postpone an upcoming hearing due
to her failing health, the Board dismissed her administrative
appeal without prejudice.
On February 10, 2002, the appellant refiled her
administrative appeal. This time it went forward and, four months
later, the Board affirmed the V.A.'s decision to terminate her
employment. See Stoll-Roche v. Dep't of Veterans Affairs, No. NY-
0752-02-0028-I-2 (M.S.P.B. June 12, 2002). The Board thereafter
denied the appellant's subsequent petition for further review. See
Stoll-Roche v. Dep't of Veterans Affairs, 94 M.S.P.R. 486 (2003)
(table).
While these proceedings were ongoing, the appellant
contacted a V.A. equal employment opportunity (EEO) counselor. She
filed a formal EEO complaint with the agency on May 2, 2002. The
agency dismissed the complaint. Undaunted, the appellant sought
1
In such circumstances, an appeal filed with the Board is
termed a "mixed case," that is, an appeal alleging that "an
appealable agency action was effected, in whole or in part, because
of discrimination on the basis of race, color, religion, sex,
national origin, handicap, or age." 29 C.F.R. § 1614.302(a)(2).
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review of that decision before the Equal Employment Opportunity
Commission (the Commission). The Commission affirmed the dismissal
on the ground that the appellant had a proceeding pending before
the Board. See Stoll-Roche v. Principi, E.E.O.C. Appeal No.
01A23304 (Oct. 11, 2002) (citing 29 C.F.R. § 1614.107(a)(4)).
The appellant next commenced an action in the United
States District Court for the District of Puerto Rico. She named
a gaggle of defendants, including the Secretary of Veterans Affairs
(the Secretary).2 Her amended complaint raised a gallimaufry of
claims under Title VII of the Civil Rights Act of 1964 (Title VII),
42 U.S.C. §§ 2000e to 2000e-17, the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. §§ 621-634, section 501 of the
Rehabilitation Act of 1973, 29 U.S.C. § 791, and local law, see
P.R. Laws Ann. tit. 29, §§ 146, 185a. The Secretary moved to
dismiss the action on divers grounds. See Fed. R. Civ. P. 12(b).
The court referred the matter to a magistrate judge, see Fed. R.
Civ. P. 72(b), who concluded, inter alia, that federal law
preempted the local law claims; that Title VII did not cover the
charges of age and disability discrimination; and that the ADEA and
Rehabilitation Act claims ought to be dismissed for failure to
exhaust administrative remedies. See Stoll v. Principi, No. 02-
2
Because it is crystal clear that the Secretary is the only
proper defendant, see 42 U.S.C. § 2000e-16(c), we do not rehearse
the roster of other defendants. Rather, we henceforth refer to the
Secretary as if he were the sole defendant.
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2761, slip op. at 8-14 (D.P.R. Feb. 1, 2005) (unpublished). On
that basis, the magistrate judge recommended dismissal of the
entire action. Id. at 16.
The appellant objected to the magistrate judge's report
and recommendation. The district court reviewed the matter de
novo, see Fed. R. Civ. P. 72(b), adopted the report and
recommendation, and dismissed the suit. This timely appeal
followed.
Our standard of review is familiar. We assess the
district court's order of dismissal de novo, taking as true the
well-pleaded facts contained in the amended complaint and drawing
all reasonable inferences therefrom in the appellant's favor.
Garrett v. Tandy Corp., 295 F.3d 94, 97 (1st Cir. 2002); Rogan v.
Menino, 175 F.3d 75, 77 (1st Cir. 1999). We are not wedded to the
lower court's rationale but may affirm the order of dismissal on
any ground made manifest by the record. See Gabriel v. Preble, 396
F.3d 10, 12 (1st Cir. 2005).
We begin with the basics. A federal employee who claims
to have been cashiered for discriminatory reasons typically may
challenge that adverse employment action along either of two
routes. For one thing, she may appeal to the Board. See 5 C.F.R.
§ 1201.151. Alternatively, she may lodge an EEO complaint with her
agency. See 29 C.F.R. § 1614.103(a). An aggrieved employee (or,
as in this case, an aggrieved former employee) has a choice between
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these two options — but she may not avail herself of both. See 29
C.F.R. § 1614.302(b) (recognizing that once a formal appeal or
complaint is filed in either forum, it "shall be considered an
election to proceed in that forum"); see also Castro v. United
States, 775 F.2d 399, 404 & n.5 (1st Cir. 1985) (per curiam). The
lodging of either a formal appeal with the Board or a formal
complaint with the agency demarcates the point of no return. See
29 C.F.R. § 1614.302(b). From that point forward, the complainant
must exhaust her claim in the chosen forum. See Economou v.
Caldera, 286 F.3d 144, 149 (2d Cir. 2002) (holding that a federal
employee who had first filed a formal appeal with the Board was
required to exhaust his administrative remedies in that forum and
could not move at will to the other track).
The Commission's regulations highlight the mutually
exclusive nature of the two fora. They provide explicitly that
"the agency shall dismiss an entire complaint . . . [w]here the
complainant has raised the matter . . . in an appeal to the
[Board]." 29 C.F.R. § 1614.107(a). The Commission dismissed the
appellant's complaint on precisely that ground.3
3
To be sure, the two remedial paths do reach a crossroads.
Upon the Board's issuance of a final decision, the appellant could
have petitioned the Commission to review that decision. See 5
U.S.C. § 7702(b)(1) (providing for Commission review of certain
Board decisions); see also 5 C.F.R. § 1201.161; 29 C.F.R. §
1614.303(a). Here, however, the appellant never pursued this
possibility.
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This election of remedies doctrine is dispositive here.
The appellant initially filed an appeal with the Board on October
10, 2001, and refiled it on February 10, 2002. By pressing that
appeal, she made an election of remedies. Thus, when she
subsequently attempted to switch horses in mid-stream and filed a
formal EEO complaint with the agency on May 2, 2002 — during the
pendency of her appeal before the Board — that filing was a
nullity.
To say more would be to paint the lily. With two
remedial paths open to her, the appellant chose to test the
legitimacy of her termination by filing a formal appeal with the
Board. The proceedings before the Board were in full flower when
she reversed direction and submitted a formal EEO complaint.
Having elected to travel one path (before the Board), she forfeited
her right simultaneously to explore the alternative path (before
the Commission).
Of course, the Board process that the appellant elected
to pursue did not exclude her from all access to the courts. See,
e.g., 5 C.F.R. § 1201.120 (providing for review of final Board
decisions in the Court of Appeals for the Federal Circuit).
Moreover, this is a mixed case, see supra note 1, so the appellant,
qua complainant, could have filed a civil action in an appropriate
federal district court within thirty days after receiving the
Board's final decision. See 5 C.F.R. § 1201.175. In either event,
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however, the complainant must wait until the Board takes final
action before seeking judicial review. See 5 U.S.C. § 7702(a)(3);
5 C.F.R. §§ 1201.157, 1201.161(b). The appellant jumped the gun
and, thus, cannot fit her action into this integument.
The reason for the appellant's premature commencement of
an action in the district court seems readily evident. She
apparently envisioned her suit as an attempted extension of the EEO
process (the record strongly suggests that conclusion and her brief
on appeal confirms it). But as we have pointed out, the EEO forum
was not open to her by the time that she belatedly tried to switch
to that track. Her action was, therefore, untenable.
The short of it is that, once a government employee
elects to pursue a mixed case before the Board, she is obliged to
follow that route through to completion, to the exclusion of any
other remedy that originally might have been available. See
Economou, 286 F.3d at 150.
There are at least two reasons why this action cannot be
salvaged under the judicial review provisions applicable to
proceedings before the Board. First, the appellant has proffered
no argument along those lines and, therefore, any such claim has
been abandoned. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) (explaining that "a litigant has an obligation to spell
out [her] arguments squarely and distinctly, or else forever hold
[her] peace" (citation and internal quotation marks omitted)).
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Second, judicial review of that nature must await a final decision
of the Board. See 5 C.F.R. §§ 1201.157, 1201.161(b). In this
instance, the appellant commenced her district court action on
December 3, 2002 — some nine months before the Board issued its
final decision.4
We need go no further. For the reasons elucidated above,
we hold that this action was improvidently brought in the district
court and was, therefore, appropriately dismissed. Given that
holding, we need address neither the other grounds for dismissal
limned by the magistrate judge nor the merits of the appellant's
claims.
Affirmed.
4
The so-called ADEA "bypass" provision does not aid the
appellant's cause. As we explained in Rossiter v. Potter, 357 F.3d
26 (1st Cir. 2004), there are certain conditions precedent attached
to the use of that mechanism. See id. at 29. There is nothing in
the record that indicates the appellant satisfied these conditions,
and she does not profess to have done so.
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