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Greenlaw v. Garrett

filed*fn1: July 12, 1995.

ROSEMARY B. GREENLAW, PLAINTIFF-APPELLANT,
v.
H. LAWRENCE GARRETT, III, SECRETARY, DEPARTMENT OF THE NAVY; B.J. MCMILLIN; RICHARD B. CHENEY, SECRETARY, DEPARTMENT OF DEFENSE, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of California. D.C. No. CV-92-1538 SBA. Saundra B. Armstrong, District Judge, Presiding.

Before: Herbert Y.c. Choy and John T. Noonan, Jr., Circuit Judges, and Alfredo C. Marquez,*fn2 District Judge. Opinion by Judge Marquez.

Author: Marquez

MARQUEZ, District Judge:

Plaintiff Greenlaw appeals from the district court's Order granting Defendant's Motion to Dismiss. The issue raised by this Appeal is whether an employment discrimination claimant rejects an offer of full relief during administrative proceedings may file a civil action in the district court to seek relief on the claim of discrimination.

Greenlaw alleges that her former employer, the United States Department of the Navy (Navy) and her former supervisor, B.J. McMillin (McMillin), discriminated against her on the basis of sex. She charges that she and other female co-workers received job performance evaluations of "fully successful" as compared to male co-workers who received evaluation ratings of "highly successful." Only the male employees, rated "highly successful," received pay bonuses.

Originally, Greenlaw and the other women filed a class action complaint with the EEOC. When the EEOC dismissed the class suit, Greenlaw individually filed an action on July 19, 1990. She realleged the claim of discrimination related to her 1989 performance evaluation and added a claim of retaliation. Greenlaw alleged that in response to the class action suit, McMillin retaliated against her by including similarly unfavorable comments in a 1990 close-out personnel evaluation which was conducted when Greenlaw voluntarily transferred her employment from the Navy to the Department of Justice (DOJ). She transferred because the Department of Defense underwent reorganization in which certain employees, including McMillin, were reassigned. McMillin transferred to the Defense Logistics Agency (DLA).

Greenlaw's transfer to DOJ took effect on June 24, 1990, approximately one month before she filed the EEO action seeking recovery of the $1,150 pay bonus paid male employees, to have her employment record expunged, and $50,000 in damages for injuries related to McMillin's alleged retaliatory conduct. Upon her transfer DOJ began a security clearance investigation of Greenlaw. She alleges her employment and promotional opportunities at DOJ depended upon this clearance and alleges that during the security investigation, McMillin orally repeated to DOJ derogatory comments similar to those he previously included in Greenlaw's Navy performance evaluations. Specifically, Greenlaw alleges that McMillin informed DOJ that he would not recommend Greenlaw for a position involving trust or sensitivity. Prior to Conclusion of the security investigation, on February 22, 1991, Greenlaw resigned from DOJ.

Greenlaw first made her allegations that McMillin continued his retaliatory reprisals against her after she transferred to DOJ in a letter submitted to the Navy on June 3, 1991. Greenlaw claimed she was unaware of the post-DOJ reprisals until April 24, 1991, when she received a copy of her security report which contained the oral comments made by McMillin to the DOJ regarding her security clearance. In this same letter, Greenlaw proposed to settle the matter for $32,585 in damages as compensation for lost wages*fn3 and for pain and suffering. She also asked for reinstatement of her employment with the Navy.

In her June 3, 1991 letter to the Navy, Greenlaw charged that McMillin's comments, both those written in her close-out evaluation and those orally made after her transfer to DOJ, jeopardized her security clearance, created a hostile work environment at DOJ and stymied her promotional opportunities at DOJ. Specifically, she informed the Navy that she lost her first 90-day promotion at DOJ because of McMillin's comments.

The Navy responded that the allegations raised in Greenlaw's letter were beyond the scope of her EEO Complaint and instructed her to file a separate and new action.*fn4 On June 14, 1991, the Navy made Greenlaw an "Offer of Full Relief." The Navy offered to: 1) modify the 1989 performance appraisal review to the "highly successful" rating received by Greenlaw's male co-workers; 2) to pay her the corresponding cash award of $1,150; and 3) to expunge from the close-out review all derogatory comments.

Greenlaw rejected the offer and the Navy canceled her Complaint pursuant to 29 C.F.R. § 1613.215(a)(7).*fn5 Greenlaw filed this action in federal district court on April 22, 1992.*fn6 On December 10, 1992, the district court dismissed Greenlaw's claim after finding that Greenlaw's rejection of the Navy's "offer of full relief" was a failure by Greenlaw to exhaust her administrative remedies, a jurisdictional requisite for her action in federal court. Greenlaw appealed.

Jurisdiction exists pursuant to 28 U.S.C. § 1291 and this court reviews de novo the district court's dismissal for lack of jurisdiction. Oscar v. University Students Co-op. Ass'n, 965 F.2d 783, 785 (9th Cir.) (en banc), cert. denied, 121 L. Ed. 2d 581, 113 S. Ct. 655, and cert. denied, Spinosa v. University Students Co-op. Ass'n., 113 S. Ct 656 (1992); Atkinson v. United States, 825 F.2d 202, 204 (9th Cir. 1987), cert. denied, 485 U.S. 987, 108 S. Ct. 1288, 99 L. Ed. 2d 499 (1988).

In order to litigate a Title VII claim in federal district court, Greenlaw must have exhausted her administrative remedies, Brown v. General Services Administration, 425 U.S. 820, 832, 96 S. Ct. 1961, 1967, 48 L. Ed. 2d 402 (1976), including regulatory*fn7 and judicially*fn8 imposed exhaustion requirements. She must have pursued her administrative claim with diligence and in good faith. Vinieratos v. United States Air Force, 939 F.2d 762, 771 (9th Cir. 1991). A plaintiff may not cut short the administrative process prior to its final Disposition, for upon abandonment a claimant fails to exhaust administrative relief and may not thereafter seek redress from the courts. Purtill v. Harris, 658 F.2d 134, 138 (3rd Cir. 1981), cert. denied, 462 U.S. 1131, 103 S. Ct. 3110, 77 L. Ed. 2d 1365 (1983); See Rivera v. United States Postal Service, 830 F.2d 1037, 1039 (9th Cir.) (claimant who withdrew his administrative claim prior to final Disposition failed to exhaust administrative relief and claim was properly dismissed by the district court), cert. denied, 486 U.S. 1009, 108 S. Ct. 1737, 100 L. Ed. 2d 200 (1987).

The issue before this court, one of first impression here, is whether the district court erred in finding that because Greenlaw rejected the Navy's certified "offer of full relief," she failed to exhaust her administrative remedies and could not thereafter press her claim before the judiciary. Wrenn v. Dept. of Veterans Affairs, 918 F.2d 1073, 1077 (2d Cir. 1990), cert. denied, 499 U.S. 977, 111 S. Ct. 1625 (1991) Frye v. Aspin, 997 F.2d 426 (8th Cir. 1993). Wrenn provides a bright line jurisdictional litmus test. After reviewing the agency's offer, if the court concludes a claimant was offered and rejected, "full relief," the court dismisses the action for lack of jurisdiction. A claimant failing the Wrenn test is absolutely barred from recovery. Under Wrenn, Greenlaw ...


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