Unpublished Disposition, 895 F.2d 1417 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1417 (9th Cir. 1990)

Lang LEWIS, Plaintiff-Appellant,v.James WEBB, Secretary of the Navy Defendant-Appellee.

No. 88-2960.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 16, 1989.Decided Feb. 12, 1990.

Before SCHROEDER, NELSON and WIGGINS,*  Circuit Judges.

MEMORANDUM** 

Appellant Lang Lewis appeals pro se the dismissal of his Title VII complaint on jurisdictional grounds for failure to exhaust administrative remedies. The district court held that jurisdiction was improper since the claims raised in the district court complaint were not alleged in either of two complaints filed with the Department of the Navy. We disagree and reverse.

administrative remedies before seeking judicial relief from discriminatory agency action." Ong v. Cleland, 642 F.2d 316, 318 (9th Cir. 1981).

Nevertheless, a federal court may assume jurisdiction over claims not clearly alleged in an EEOC complaint if two conditions are met. First, the claims must be "like or reasonably related to the allegations of the EEOC charge." Brown v. Puget Sound Electrical Apprenticeship & Training Trust, 732 F.2d 726, 729 (9th Cir. 1984), cert. denied, 469 U.S. 1108 (1985), citing Oubichon v. Northern Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973). Second, the EEOC charge must be sufficiently clear to notify the agency of the legal theory being posited and the operative facts at issue. See, e.g., Serpe v. Four-Phase Systems, Inc., 718 F.2d 935, 937 (9th Cir. 1983) (administrative allegations concerning disparities in pay based on gender are specific enough to notify agency of plaintiff's district court claim that she was denied a favorable job transfer based on gender). Attenuated claims fail to provide notice. See, e.g., Ong v. Cleland, 642 F.2d 316, 320 (9th Cir. 1981) (plaintiff's administrative allegation that she was denied promotions due to racial discrimination is not specific enough to notify the agency of district court claim that the agency's promotional decision caused her disability).

The administrative complaints sought relief, in general terms, from all suspensions and clearly alleged harassment, the denial of a promotion, and a negative performance evaluation in 1985 based on race and in retaliation for a previous EEOC complaint. The subsequent district court pleading alleges similar discriminatory conduct based on race, e.g. harassment and a fourteen-day work suspension, and includes the very claim of unlawful denial of a promotion cited in Lewis' second administrative complaint. In view of this overall similarity between administrative and district court pleadings, the claims raised in the latter are "like or reasonably related to the allegations of the EEOC charge," 732 F.2d at 729, and are sufficiently clear to notify the agency of the operative facts at issue.

In addition, given the proximity in time between the events cited in the district court complaint and those brought to the Navy's attention, appellee cannot argue persuasively that the claims raised in federal court could not "reasonably be expected to grow out of" the Department's investigation of the administrative charges. Serpe, 718 F.2d at 937 (citing Kaplan v. Int'l Alliance of Theatrical & Stage Employees, 525 F.2d 1354, 1359 (9th Cir. 1975)). Since it is reasonable to expect that the Navy would have investigated the charges raised below, the exercise of federal jurisdiction over appellant's claims is proper. Serpe, 718 F.2d at 937.

For the above reasons, the district court erred in dismissing appellant's complaint. Accordingly, the decision below is reversed and the case is remanded for further proceedings.

REVERSED and REMANDED.


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While Judge Wiggins was unable to be present for oral argument, he has reviewed a tape recording of the argument on audio cassette

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3