Sharon Boyd v. Loretta E. Lynch

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 4 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

SHARON DENISE BOYD, No. 14-56800

Plaintiff-Appellant, D.C. No. 2:14-cv-05451-VAP-
DTB
v.

LORETTA E. LYNCH, Attorney General; MEMORANDUM*
THOMAS R. KANE, Director, Federal
Bureau of Prisons,

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding

Submitted September 27, 2016**

Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.

Sharon Denise Boyd appeals pro se from the district court’s judgment

dismissing her employment action alleging violations of Title VII, the Age

Discrimination in Employment Act (“ADEA”), and the Fair Labor Standards Act

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“FLSA”). We have jurisdiction under 28 U.S.C. § 1291. We review de

novo, Vinieratos v. U.S. Dep’t of Air Force Through Aldridge, 939 F.2d 762, 768

(9th Cir. 1991), and we affirm in part, reverse in part, and remand.

The district court properly dismissed Boyd’s Title VII claims because Boyd

failed to exhaust her administrative remedies after electing to pursue her claims

through the Merit Systems Protection Board. See Sommatino v. United States, 255

F.3d 704, 707 (9th Cir. 2001) (“In order to bring a Title VII claim in district court,

a plaintiff must first exhaust her administrative remedies.”); see also

Vinieratos, 939 F.2d at 772 (abandonment of the administrative process prevents

exhaustion and forecloses judicial review).

However, the district court erred in dismissing Boyd’s ADEA and FLSA

claims for failure to exhaust because exhaustion is not required. See Bankston v.

White, 345 F.3d 768, 770 (9th Cir. 2003) (ADEA has no express exhaustion

requirement); Local 246 Util. Workers Union of Am. v. S. Cal. Edison Co., 83 F.3d

292, 297 (9th Cir. 1996) (claim based on substantive rights under FLSA not subject

to exhaustion). Accordingly, we reverse the judgment in part and remand for

further proceedings on these claims only.

We reject as without merit Boyd’s contentions involving participation in

2 14-56800
Alternative Dispute Resolution, oral argument on the motion to dismiss, and a

conflict of interest. We do not consider Boyd’s arguments regarding another case

not before this court.

The parties shall bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

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