Unpublished Disposition, 888 F.2d 130 (9th Cir. 1989)

No. 88-1862.

United States Court of Appeals, Ninth Circuit.

Before WIGGINS, KOZINSKI, Circuit Judges, and MALCOM F. MARSH^*  District Judge.

MEMORANDUM^** 

Hall appeals the dismissal of his racial discrimination claim under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e (1982). The district court dismissed Hall's suit as untimely under 5 U.S.C. § 7703(b) (2) (1982). We review the district court's dismissal de novo. Lofton v. Heckler, 781 F.2d 1390, 1392 (9th Cir. 1986). We affirm.

The district court correctly held that Hall elected to pursue the negotiated grievance procedure when he filed a grievance before filing his complaint with the Equal Employment Opportunity Commission (EEOC). See 5 U.S.C. § 7121(d). The court's conclusion that Hall's suit is time barred is also correct. 5 U.S.C. § 7703(b) (2) requires, in part, that an action under 42 U.S.C. § 2000e-16 must be "filed within thirty days after the date the individual filing the case received notice of the judicially reviewable action under such section 7702." Although an arbitrator's decision is not included on the list of judicially reviewable actions in section 7702, section 7121(f) provides that in mixed cases such as this one "section 7703 of this title pertaining to judicial review shall apply to the award of the arbitrator in the same manner and under the same conditions as if the matter had been decided by the [Merit Systems Protection Board (MSPB) ]." 5 U.S.C. § 7121(f). Thus, after Hall received the arbitrator's final decision, he had thirty days in which to bring this action in district court (or to appeal to the MSPB, see 5 U.S.C. 7121(d)). However, he did not file within that time period.

Hall argues that his failure to file within thirty days of the arbitrator's final decision should be excused because the Navy failed to notify him of his proper appeal rights. EEOC regulations require that the agency notify an employee of his right to file either a mixed case complaint or a mixed case appeal only if he has raised the issue of discrimination during the processing of the action. 29 C.F.R. Sec. 1613.403. There is no evidence in the record that an allegation of discrimination was ever presented to the agency before it decided to terminate Hall. The earliest indication of Hall's assertion that his termination was racially motivated occurred when he contacted the agency EEO officer. By then the grievance had already been filed and the election to pursue under the negotiated procedure was complete.¹ 

Neither the MSPB nor the EEOC's regulations require that the agency, MSPB, or EEOC notify the employee either of his option to challenge the agency's action under the negotiated procedure, or that by electing the negotiated procedure the employee is foreclosed from filing a mixed case complaint or mixed case appeal. We find no authority, however, which holds that an agency's failure to provide notification of available administrative remedies constitutes grounds for excusing Hall's failure to appeal the arbitrator's decision within the relevant time period.

AFFIRMED.